                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0813
                                Filed April 22, 2015


DANIEL R. BOTHELL,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill,

Judge.



       A postconviction relief applicant challenges his 2010 guilty plea to assault

with intent to commit sexual abuse, contending plea counsel was ineffective

incorrectly advising him as to the length of time he would be required to register

as a sex offender. AFFIRMED.



       Mark C. Smith, Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Janet Lyness, County Attorney, and Susan Nehring, Assistant County

Attorney, for appellee State.




       Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, C.J.

      Daniel Bothell challenges his 2010 guilty plea to assault with intent to

commit sexual abuse, contending his plea was unknowing and involuntary

because his plea counsel incorrectly advised him as to the length of time he

would be required to register as a sex offender.        The district court denied

Bothell’s application for postconviction relief, concluding Bothell could not prove

his plea counsel was ineffective because the court found Bothell would not have

refused to enter the plea and gone to trial even had he been accurately informed.

On appeal, we accept the postconviction court’s findings and affirm.

I. Background Facts and Proceedings.

      The minutes of testimony in the underlying criminal case indicate that on

November 9, 2009, Daniel Bothell was at a woman’s house “chilling.”            The

woman’s boyfriend was also there. The three drank and played video games.

Despite the fact that the woman knew Bothell to be homosexual and lived with

his boyfriend, Bothell made numerous sexual advances to both the woman and

her boyfriend throughout the night. The woman assumed Bothell was joking, but

she told him to stop several times. Her boyfriend was also uncomfortable with

Bothell’s behavior.

      At some point, the woman’s boyfriend left to get pain medication. Once he

left, Bothell attacked the woman, grabbing her and dragging her toward the back

bedroom of her house and ripping her clothes. She told him he was hurting her

and struggled to get away, but he began to hit her. After he dragged her to the

bedroom, he bit her neck, and threw her onto the bed where he pinned her and

punched her in the face. At this point he threatened to break her neck, stated he
                                          3


was going to “get some pussy,” and told her, “Bitch, you’re going to get it just like

[Bothell’s boyfriend] did.” The woman recognized the threat, as she was aware

that the Bothell had previously assaulted his boyfriend by tearing his clothes off

and beating him.

       The woman kept knives throughout her house as a source of protection

and was eventually able to grab one she had in the bedroom. She stabbed

Bothell and ran naked to her neighbor’s house.           In the meantime, Bothell

returned to his own home and his boyfriend called police to report the stabbing.

Police located the woman at her neighbor’s house, and pictures were taken of

her injuries, which included bruises, scratches, and bite marks. Upon arrest,

Bothell kicked and tried to trip one of the responding officers.

       Bothell was charged with assault with intent to commit sex abuse causing

bodily injury, a class “D” felony, in violation of Iowa Code section 709.11 (2009);

first-degree harassment, an aggravated misdemeanor in violation of section

708.7(1)(b) and .7(2); false imprisonment, a serious misdemeanor in violation of

section 710.7; and assault on a peace officer, a serious misdemeanor in violation

of section 708.1(1) and 708.3A(4).

       The parties reached a plea agreement in which Bothell would plead guilty

to the lesser included offense of assault with intent to commit sexual abuse

(without bodily injury), an aggravated misdemeanor in violation of Iowa Code

section 709.11, and the other charges would be dismissed. The minimum fine

and sentence would be suspended, and Bothell would be placed on probation for

two years and required to attend required sex offender treatment. The guilty plea
                                            4


also indicated that Bothell would be placed on the sex offender registry for ten

years.

         In Bothell’s written plea of guilty, he provided a factual basis for his plea:

                 I admit that on November 9, 2009, I punched and hit the
         victim in this case multiple times. I tore or ripped her clothes off. I
         admit that it was my intent to have sex with her against her will. By
         sex I mean that I wanted to have intercourse with her.

         On April 30, 2010, the district court accepted Bothell’s written guilty plea

and he was sentenced in accordance with the plea agreement except as to the

sex offender registry. The court did not expressly impose a ten-year registration

requirement but instead ordered that Bothell shall register pursuant to Iowa Code

section 692A.104. The Court also entered a separate order requiring Bothell to

register in accordance with Iowa Code section 692A.101 and 692A.102, but did

not specify the time limit for registration. Bothell did not file a direct appeal of his

conviction and sentence.

         In July 2010, Bothell received a letter from the Department of Criminal

Investigation informing him that he was subject to lifetime sex offender

registration.    Bothell violated probation several times, including in July and

August of 2010. His plea attorney, Quint Meyerdirk, represented Bothell during

these proceedings.

         On October 16, 2012, Bothell wrote a letter to the district court alleging

that at the time he pled guilty he understood that he would be required to register

for five years and requesting postconviction relief (PCR).            On November 8,

Bothell filed a PCR application. Counsel was appointed and Bothell filed an

amended PCR application, alleging Bothell’s plea attorney incorrectly informed
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him that he would be placed on the sex offender registry for ten years and that

the written plea reflected this representation. However, Bothell was required to

register for life, rendering Bothell’s plea in violation of the Sixth and Fourteenth

Amendments to the United States Constitution, as well was Article I, section 10

of the Iowa Constitution.

        On January 16, 2014, a hearing was held on Bothell’s PCR application.

Bothell testified his plea counsel informed him he was facing up to twenty-five

years in prison and “that was definitely a factor in my decision for accepting the

plea.” He stated the plea agreement was that he would be required to be on the

sex offender registry for ten years and he “thought that was acceptable.” Bothell

testified further that the registry issue—the ten years on the registry as stated in

the written plea—“was my grand motivation for accepting the plea.”           Bothell

testified:

               Q. So the issue of being on the registry was of concern to
        you in making your decision to accept the plea offer? A. I was not
        interested in a lifetime on the registry.
               Q. Is that a conversation that you had with Mr. Meyerdirk?
        A. I believe it was. Yeah.
               Q. Okay. A. Yeah.
               Q. But in your mind at least, a lifetime registry was not going
        to be an acceptable outcome? A. No. It wasn’t.
               Q. And why is that? A. I would take it to trial rather than—
        rather than just accept a lifetime sentence on a plea.
               ....
               Q. Okay. So was it still your understanding—specifically
        focusing on the registry issue—that you were going to receive ten
        years on the registry as part of your guilty plea? A. Yeah.
               Q. Now, at some point after being sentenced, did you
        discover that the Department of Corrections did not view you as
        being someone that would be on the sexual abuse registry for ten
        years? A. Yes. I received a document in July of 2010 that stated
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       that this charge that I had pled guilty to had changed[1] and now
       carried a term of lifetime on the registry.

Bothell testified that upon receiving the letter, “I felt that a gross injustice had

been done on my behalf, and I started to resist probation and I started to resist

the terms of my probation and telling my probation officer this is not a lifetime,

this is—it’s a ten-year registry.”      Bothell repeated, he would have taken the

matter to trial had he known of the lifetime registry requirement “[b]ecause I didn’t

believe I was guilty in the first place” and “a lifetime on the registry was a lot more

than I was willing to take.”

       Bothell testified on cross examination that he had asked his plea counsel if

the assault with intent charge could be “removed because I did not have the

intent to sexually abuse this woman. And he kind of chuckled and said, no, that’s

the deal that they’re offering, you can take it or take it to trial.” The State’s

attorney asked Bothell why his original letter to the court mentioned a five-year

registry requirement rather than the ten-year registry requirement Bothell was

testifying he had agreed to. Bothell responded:

       That was stated after the—the signing of the document. He
       [Meyerdirk] stated this would be all resolved within five years and
       he said, Mr. Bothell, you could have won this in a trial without my
       assistance, followed by another chuckle. And there’s a witness to
       that statement. [Bothell’s then boyfriend]. That conversation took

1
  As of July 1, 2009, Iowa Code sections 692A.101(1)(a)(5) and 692A.106(5) required all
persons convicted of assault with intent to commit sexual abuse (without Injury), in
violation of Iowa Code Section 709.11, an aggravated misdemeanor, to register as a sex
offender for life. Prior to July 1, 2009, a conviction for this same offense triggered a ten-
year registration requirement. See Iowa Code § 692A.2(1) (2007). When the legislature
increased the applicable registration period from ten-years to life, it made that increase
effective retroactive for anyone who was otherwise required to register as a sex offender
as of June 30, 2009. See Iowa Code § 692A.125(2)(a). In State v. Pickens, 558 N.W.2d
396, 400 (Iowa 1997), our supreme court concluded that “Iowa’s sex offender
registration statute, Iowa Code chapter 692A, is not punitive and therefore is not ex post
facto.”
                                          7


       place on the stairs of this courthouse. So in this—in this document
       that I wrote, I wrote something to the effect of only five years. That
       was after being further misled by Mr. Meyerdirk.

Bothell acknowledged that had he gone to trial and lost, he was facing a

mandatory prison sentence. He was asked about prior convictions and whether

plea counsel addressed possible “credibility problems” if he wanted to testify due

to the type of felony convictions he had in his background. Bothell stated, “He

just told me that he did not want to put me on the stand.” He also acknowledged

he was in jail before signing the plea agreement, he was “very eager” to get out

of jail, and he was released within twenty-four hours of signing the agreement.

       Bothell’s plea counsel, Meyerdirk, testified he has been a public defender

since 1993. Meyerdirk testified he would not have advised Bothell he was facing

twenty-five years on the charged offenses because that was not accurate—a

class “D” felony had a maximum term of five years. He also testified Bothell, had

he gone to trial, ran a substantial risk of being found guilty of assault with intent

to commit sexual abuse causing injury, as well as the other charges. Bothell’s

postconviction counsel and Meyerdirk had the following exchange:

               Q. All right. When you were typically talking to defendants in
       that period of time, 2009-2010, about sex offender registry
       requirements, is there anything that you were routinely advising
       people about in regard to the unique retroactive features of sex
       offender registry requirements? A. I did not recall specifically sitting
       down with Mr. Bothell or saying to him over the phone this is bad,
       this is what’s going to happen, but I do it with every client. Any
       client that’s got a sex offense pending or one that they’re pleading
       to or so forth, I try to warn every one of them, don’t believe—don’t
       believe—don’t believe anyone. There’s no one that’s going to run
       to your aid on this registry information. You’re going to be on this
       thing for life. No Congressman, Congresswoman. No one is going
       to stick their necks out to help people that have been convicted of a
       sex crime. They’re just not. . . .
               ....
                                         8


              Q. And do you believe—Do you believe that you would have
      advised Mr. Bothell that he would have been subject to a lifetime
      sex offender registry? A. Yes.
              Q. Based on the nature of this offense? A. Yes. . . . And my
      answer was yes, but I don’t think it’s based on the nature of this
      offense. I think any sex crime, I think they’re going to be on the
      registry for life. I just think that’s the direction it’s been going.
              ....
              Q. Do you feel that—that Mr.—or that you ever made any
      assertions to Mr. Bothell telling him that this sex offender registry
      thing is going to go away in five years because it’s going to be too
      overloaded? A. With the registry?
              Q. Yes. A. No.
              Q . Do you think you would have ever told Mr. Bothell or any
      client charged with a sex offense that he could expect that the sex
      offender registry requirements would just go away in five years? A.
      No.
              Q. Does that—That doesn’t sound like anything that you
      would have said? A. No. I wish they would, but no.

Meyerdirk testified, “I told him plan on being on it for life.” He also testified he

had represented Bothell since 1998 and was aware of his criminal history, which

included impeachable felony offenses. He explained there were “problems” had

they gone to trial, the “major problems was that most of what [the victim] said

was corroborated with something physical.” Meyerkirk testified further that the

written guilty plea in this case was not the usual form, but rather, he had typed

some of the paragraphs himself in “an attempt to protect [him]self”:

      Mr. Bothell wanted out of jail. Mr. Bothell did not want me to take
      any more time, he did not want me to do anything. I probably
      overuse things like depositions. Mr. Bothell wanted out of jail. I
      was concerned, I guess, at the courthouse here when I was—the
      offer was—I knew what the State wanted. Instead of filling out the
      form, I wanted to make sure that we were—that he truly did not
      want to do depos, he truly wanted the case over.

When asked why the written plea agreement referred to a ten-year registry

requirement, Meyerkirk testified:
                                        9


              It was my belief that [the prosecutor] was incorrect on the
      length of time. . . .
              Q. So you testified that you were hoping the judge would
      order ten years’ registry, correct? A. Follow the plea agreement.
      Yes.
              ....
              Q. So your testimony is you thought Mr. Bothell would get
      lifetime registry, but you signed a document, you allowed him to
      sign a document that said he would get ten years’ registry? That is
      your testimony, isn’t it? A. I expressed to him that I thought it was
      lifetime. I told him that no matter what the judge does, that’s—no
      matter what the judge does in this case, this—this can come back
      and haunt you and new law changes can come back and haunt
      you.

      On May 2, 2014, the district court issued its ruling, denying Bothell’s PCR

application. The court concluded that Bothell’s attorney misinformed him of the

length of the registration requirement and breached an essential duty. However,

the court concluded that Bothell was not prejudiced by the breach because the

court believed Bothell would still have taken the plea even if he had been

correctly informed. Bothell appeals.

II. Scope and Standard of Review.

      Postconviction relief proceedings are civil actions reviewable for correction

of errors at law. Goosman v. State, 764 N.W.2d 539, 541 (Iowa 2009). To the

extent Garcia raises constitutional questions, our review is de novo.         See

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). We review constitutional

issues de novo.

III. Discussion.

      “[A]ll postconviction relief applicants who seek relief as a consequence of

ineffective assistance of counsel must establish counsel breached a duty and

prejudice resulted.” Castro v. State, 795 N.W.2d 789, 794 (Iowa 2011); see also
                                         10

Strickland v. Washington, 466 U.S. 668, 687 (1984). “‘We may affirm the district

court’s rejection of an ineffective-assistance-of-counsel claim if either element is

lacking.’” Lamasters, 821 N.W.2d at 866 (citation omitted).

      Here, the postconviction court found Bothell had failed to prove prejudice.

The court made specific findings that Attorney Meyerdirk’s testimony was

credible, but Bothell’s was not. The court wrote:

              The basis of his application and the focus of Applicant’s
      testimony at trial in the instant matter is that the 10-year registration
      requirement was a major, if not the primary, factor in his decision to
      accept the State’s plea offer and plead guilty to the aggravated
      misdemeanor of Assault with Intent to Commit Sexual Abuse
      without injury. Applicant testified he did not know a lifetime
      registration requirement was possible, even if applied retroactively,
      and that he would not have pled guilty but would have gone to trial
      if he had known he would be required to register as a sex offender
      for life by pleading guilty. The Court does not find Applicant’s
      testimony to be credible. Although Applicant was incorrectly
      informed in the written guilty plea of the 10-year registration
      requirement, the Court finds, at a minimum, Applicant was advised
      by Attorney Meyerdirk of the possibility the registration laws would
      change and he could end up being required to register for life. This
      would have actually been the case had Applicant’s guilty plea been
      entered and accepted prior to July 1, 2009. See Iowa Code section
      692A.125. Therefore, Applicant was aware that a change in the
      law could change his registration requirements after his plea was
      accepted and he was sentenced. What Applicant was not made
      aware of is that such a change in the law had already taken place.
              Furthermore, the record and evidence supports the
      conclusion that the primary, if not singular, motivator for Applicant
      in taking the State’s plea deal was the fact that he would avoid a
      mandatory prison term if convicted of the charged Class D forcible
      felony, be given probation on the aggravated misdemeanor
      conviction, and be immediately released from custody. This
      conclusion is supported by at least two significant facts. First,
      Applicant was released from jail without bond within a day of
      signing the written guilty plea after having served over two months
      in custody. Attorney Meyerdirk testified this condition was part of
      the arrangement with the State and was Applicant’s primary
      concern at the time. Second, shortly after Applicant received the
      July 26, 2010, letter from the Iowa Department of Criminal
      Investigation advising him of the requirement he register as a sex
                                       11


       offender for life, Applicant was back in court on an alleged
       probation violation in this very same matter, represented by the
       very same attorney.        However, Applicant did not raise the
       registration issue with his attorney or the Court at that time or at
       any other time prior to being discharged from probation on July 2,
       2012.

       We agree with the postconviction court’s conclusion that Bothell has failed

to prove he would have insisted on going to trial. We therefore affirm the denial

of postconviction relief.

       AFFIRMED.
