Barker v. Capotosto, 14–1550.

CourtUnited States State Supreme Court of Iowa
Citation875 N.W.2d 157
Docket NumberNo. 14–1550.,14–1550.
Parties Robert Allen BARKER, Appellant, v. Donald H. CAPOTOSTO and Thomas M. Magee, Appellees.
Decision Date05 February 2016

Ashleigh E. O'Connell Hackel (until withdrawal) and J. Campbell Helton of Whitfield & Eddy, P.L.C., Des Moines, for appellant.

Alexander E. Wonio and David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellee Thomas M. Magee.

Donald H. Capotosto, West Bend, pro se.


This case asks us to determine whether a criminal defendant who sues his or her attorney for legal malpractice must prove actual innocence as a precondition to recovery. In Trobaugh v. Sondag, 668 N.W.2d 577, 583 n. 4 (Iowa 2003), we reserved judgment on this question.

In the present case, the plaintiff faults his former criminal defense attorneys for allowing him to plead guilty to a specific crime that lacked a factual basis. He sued the attorneys for malpractice, but the district court granted them summary judgment because the plaintiff could not show he was actually innocent of any offense that formed the basis for the underlying criminal case.

On our review, we decline to adopt proof of actual innocence as a separate prerequisite to recovery for legal malpractice against criminal defense attorneys. Instead, we believe judges and juries should take innocence or guilt into account in determining whether the traditional elements of a legal malpractice claim have been established. We therefore reverse and remand for further proceedings.

I. Background Facts and Proceedings.

In 2006, Robert Barker placed crudely worded graffiti on the wall of a public restroom in a park in Emmetsburg inviting young males interested in oral sex to contact a certain email address. In response to public complaints about the graffiti, law enforcement began an investigation. An agent of the Iowa Division of Criminal Investigation posed as a fifteen-year-old male named "Jayson" and established online contact with Barker using the email address.

Eventually, Barker made plans to meet "Jayson" for a sex act. When Barker appeared at the arranged location, he was arrested. The State charged Barker with attempted enticement of a minor, an aggravated misdemeanor, and lascivious acts with a child, a class "D" felony. See Iowa Code § 710.10(3) (2005); id. § 709.8(3). Later, the court granted the State's request to amend the second count to solicitation of a minor to commit a sex act, a purported class "D" felony. See id. § 702.17; id. § 705.1; id. § 709.4(2)(c )(4).1

On October 3, Barker entered into a written plea agreement. Under the plea agreement, Barker was to plead guilty to the amended charge of solicitation of a minor. The first count—attempted enticement—would be dismissed and the State would recommend a suspended sentence and probation with the condition that Barker complete sex-offender treatment through a residential treatment facility (RTF) in Sioux City.

During this stage of the proceedings, Barker was represented by Thomas Magee, whom Barker consulted concerning his decision to plead guilty. Thereafter, Magee closed his law office and the court allowed him to withdraw from further representation. The district court subsequently appointed Donald Capotosto to represent Barker.

On December 11, Barker's plea and sentencing hearing took place in the Palo Alto County District Court. The terms of the plea agreement were put on the record. Barker gave the following statement regarding the offense:

On August 16th I was in communication on line with what I presumed to be a 15–year–old male. That 15–year–old male had contacted me the day before after, ostensibly after coming across an e-mail address that I had written in a restroom.... The conversation was such that we came to an understanding that we would meet and possibly sexual activity could happen. That was the nature of the conversation. Obviously it was not a minor. It was a sting operation, and I was arrested.

The district court sentenced Barker to five-years imprisonment, suspended the sentence, and placed Barker on probation for the duration of his sentence. Additionally, in Clay County, Barker had pled guilty to second-degree theft, a class "D" felony, see Iowa Code § 714.2(2), with the understanding that the sentence on that charge would run concurrently with the sentence on the solicitation of a minor charge.

Barker's sentencing order for the solicitation offense prohibited him from engaging in unsupervised contact with minors and provided that all internet access, including chat room use, needed to be preapproved by his probation officer. The order permitted Barker to complete outpatient sex-offender treatment through Catholic Charities instead of mandating commitment to the RTF but required him to seek an evaluation from Catholic Charities within sixty days. The order further provided that Barker had to register as a sex offender.

On December 29, 2006, the State filed an application for probation revocation based on Barker's use of a public library computer. Barker was arrested and jailed. However, on January 23, 2007, the district court denied the application and ordered Barker released, reasoning that there was no specific prohibition on his use of a computer, so long as it did not involve use of the internet or chat rooms.

On February 5, 2007, Barker received a five-year suspended sentence on the Clay County theft charge, to run concurrently with his sentence for solicitation of a minor. Barker was placed on probation for that charge as well.

On occasions in April, May, July, and September, Barker was noncompliant with the treatment services at Catholic Charities. He was discharged from that program. After a home visit revealed that Barker was engaged in internet use and had images of young males on his computer, his computer was seized and in December the district court ordered Barker into the RTF once space became available.

In March 2008, Barker was admitted to the RTF. Barker lost several jobs during this time period because of unauthorized internet use, including the access of pornography. On July 31, Barker was unsuccessfully terminated from the RTF, and the State filed another application for revocation of his probation. Barker was jailed again at this time.

On October 30, the district court revoked Barker's probation on the solicitation of a minor charge and sentenced him to imprisonment for a term not to exceed five years with credit for time served. Barker was transferred to the Mount Pleasant Correctional Facility.

On November 14, 2008, a probation revocation proceeding was commenced in Clay County on Barker's theft conviction. This proceeding was dismissed on March 2, 2009, due to the fact that Barker was already in prison based on the conviction for solicitation of a minor.

On October 1, Barker filed an application for postconviction relief from his conviction for solicitation of a minor. His application alleged that his prior counsel had committed ineffective assistance of counsel because there was no factual basis for his guilty plea to solicitation of a minor to engage in a sex act. In a written ruling, the district court granted the application on February 28, 2011. The court reasoned that to commit the offense, Barker had to have solicited someone else to commit an actual crime, and he had not done so. The court explained, "If such [sex] act occurred, the adult would be committing the crime and the child would be a victim. Thus, the adult cannot be considered to have asked the fourteen or fifteen year old to commit a felony crime." The court then concluded,

By advising and permitting Barker to plead guilty to a crime for which he could not give a factual basis, defendant's counsel failed to perform an essential duty and the prejudice to defendant was inherent in the conviction entered upon his defective plea.

The court vacated Barker's conviction and sentence.

Barker never appealed or sought postconviction relief from his second-degree theft conviction in Clay County. Also, Barker does not dispute that his conduct in Palo Alto County amounted to attempted enticement of a child in violation of Iowa Code section 710.10(3), the first count charged in the original trial information.

On March 1, 2013, Barker filed a petition alleging that Magee and Capotosto committed legal malpractice by advising him to plead guilty to an offense for which there was no factual basis. Thereafter, Capotosto filed a motion for summary judgment, which Magee joined. They argued Barker could not establish that he was factually innocent in the underlying criminal case. They urged that the Iowa courts should require a plaintiff to prove actual innocence in order to maintain a suit for legal malpractice occurring in the course of criminal representation. They also argued that, as a matter of law, their alleged malpractice did not cause Barker's damages.

The district court granted the motion on the first ground, stating,

[T]he Court finds actual innocence must be established in a criminal malpractice action. Additionally, the Court finds actual innocence requires innocence of all transactionally related offenses. Plaintiff does not dispute that he attempted to entice a person whom he believed to be under the age of 16 with the intent to commit an illegal act. Plaintiff admits that what he did do was engage in a telephone conversation with a person he believed to be fifteen years old for the purpose of arranging a meeting leading to a sexual encounter and that this meets the definition of attempted enticement of a minor for an illegal act, an aggravated misdemeanor, under Iowa Code Section 710.10(3) (2005), which was charged in the under[ly]ing criminal case FECR04088. Plaintiff is unable to establish actual innocence of all transactionally related offenses. Therefore, the Court finds summary judgment in favor of Defendants is appropriate.

Barker appealed, and we retained the appeal.

II. Standard of Review.

We review grants of summary judgment for correction of errors at...

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