Opinion
No. 3-776 / 02-1499.
Filed December 24, 2003.
Appeal from the Iowa District Court for Davis County, Richard E. Meadows, Jr., (trial) and Annette J. Scieszinski (postconviction relief), Judges.
John Stiltner appeals his conviction and sentence for second-degree sexual abuse. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, and Rick Lynch, County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
A jury found John Stiltner guilty of second-degree sexual abuse for acts committed between 1992 and 1997 with his pre-teen daughter. Our court affirmed the judgment and sentence and Stiltner applied for postconviction relief. Stiltner now appeals the district court's denial of his postconviction relief application. He raises ineffective assistance of counsel claims predicated on the district court's sentence under Iowa Code section 902.12 (1997) and the court's admission of a letter from the victim, essentially reaffirming her trial testimony. We affirm in part, vacate in part, and remand for resentencing.
I. Sentencing Issue
Under Iowa Code section 902.12, defendants convicted of forcible felonies including second-degree sexual abuse are to serve one-hundred percent of the maximum sentence. They may, however, receive up to a fifteen percent sentence reduction for good conduct pursuant to Iowa Code section 903A.2. See State v. Iowa District Court, 616 N.W.2d 575, 575 (Iowa 2000). Iowa Code section 902.12 became effective on July 1, 1996. 1996 Iowa Acts ch. 1151 § 3.
Stiltner claims some of the conduct forming the basis of the charge occurred before the effective date of section 902.12. He asserts his prior attorneys were ineffective in 1) failing to "request an instruction or interrogatory regarding whether or not the criminal action in question (that for which he was convicted) occurred prior to, or after, July 1, 1996" and 2) failing to argue that application of the statute to him violated the ex post facto clauses of the federal and state constitutions. The State agrees with Stiltner that these issues should be examined under an ineffective-assistance-of-counsel rubric. The test for ineffectiveness is whether 1) counsel breached an essential duty and 2) prejudice resulted. State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984).
A. Failure to Request Instruction or Interrogatory on Dates of Commission
Stiltner argues that defense counsel should have asked the court to specify the dates on which the sex acts took place. Stiltner has not shown that this omission worked to his actual and substantial disadvantage. State v. Kraus, 397 N.W.2d 671, 673 (Iowa 1986). To the contrary, had counsel done what Stiltner says they should have done, a record would have been created for application of Iowa Code section 902.12. As Stiltner suffered no prejudice, his attorneys were not ineffective in failing to create this record.
B. Ex Post Facto Challenge
Our Federal and State Constitutions prohibit the passage of ex post facto laws. U.S. Const. art. I, § 10; Iowa Const. art. I, § 21. See Schreiber v. State, 666 N.W.2d 127, 128-29 (Iowa 2003). The clauses are violated when a statute makes more burdensome the punishment for a crime after its commission. Id.
The district court instructed the jury that (1) "on or about January 1992 through the 31st day of December, 1997, the defendant performed a sex act with [D.S.]" and (2) "the defendant performed the sex act while [D.S.] was under the age of 12 years." The jury verdict does not specify whether pre or post-1996 acts were relied on in finding guilt. Under these circumstances, we presume that the jury may have based its verdict on pre-1996 acts. See State v. Pilcher, 242 N.W.2d 348, 355-56 (Iowa 1976). As Iowa Code section 902.12 did not take effect until 1996, application of the statute to Stiltner was unconstitutional. We conclude the elements of ineffectiveness have been satisfied with respect to this issue.
II. Admission of Letter
After the postconviction relief application was filed, D.S. recanted her testimony by deposition. She later wrote to the prosecutor and advised him the deposition testimony was false. The State sought to admit the letter. Defense counsel responded, "I would have no objection on behalf of Mr. Stiltner, then, to the admission of this letter, just you know, acknowledging its hearsay value and would ask the Court for whatever probative value it might have."
Stiltner contends postconviction relief counsel was ineffective in failing to object to the admission of this letter. On our de novo review, we disagree. D.S.'s deposition testimony was suspect even before her letter disavowing it was introduced. See Adcock v. State, 528 N.W.2d 645, 647 (Iowa Ct. App. 1994) (stating "[a] witness's recantation testimony is looked upon with the utmost suspicion"). As the district court stated:
Even without [D.S.'s] June 28, 2002 letter withdrawing the allegedly suborned recantation, her June 5th deposition testimony is not credible. Her statements are perfunctory, and she evinces a cavalier attitude about dismissing the facts she so carefully described at trial. Hostility for her mother infects the performance. The deposition falls short of dispelling the trial accounts that were well supported by experiential detail.
We conclude Stiltner was unable to establish a reasonable probability that an objection to the letter would have changed the outcome of the proceeding. State v. Bowers, 661 N.W.2d 536, 540 (Iowa 2003).
III. Disposition
We affirm the district court's denial of postconviction relief with respect to Stiltner's conviction. Stiltner's sentence is vacated and the case is remanded for resentencing without application of Iowa Code section 902.12.