Dempsey v. State

• Court: Iowa Supreme Court
• Writing for the Court: ZAGER, Justice.
• Citation: Dempsey v. State, 860 N.W.2d 860 (Iowa 2015)
• Decision Date: 13 March 2015
• Docket Number: No. 13–0543.,13–0543.
• Parties: Eric Wayne DEMPSEY, Appellant, v. STATE of Iowa, Appellee.

860 N.W.2d 860

Eric Wayne DEMPSEY, Appellant

v.STATE of Iowa, Appellee.

No. 13–0543.

Supreme Court of Iowa.

March 13, 2015.

Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.

Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, Michael J. Walton, County Attorney, and Julie A. Walton, Assistant County Attorney, for appellee.

Opinion

ZAGER, Justice.

Eric Dempsey appeals the denial of his petition for postconviction relief. He maintains he received ineffective assistance of counsel as a result of counsel's failure to accurately inform him of the terms and potential sentencing outcomes of a first plea offer proposed by the State. He asserts that because counsel misinformed him of the terms of the first plea offer, he did not accept it. Thereafter, the State withdrew its first plea offer and made a second, less favorable plea offer, which Dempsey accepted. Upon our de novo review, we conclude that while counsel may have failed to perform an essential duty when he did not accurately inform Dempsey of the exact terms and sentencing outcomes of the first plea offer, Dempsey has not established the necessary prejudice to succeed on his ineffective-assistance-of-counsel claim. Specifically, he has failed to show he would have accepted the first, more favorable plea offer had counsel accurately informed him of its exact terms and potential sentencing outcomes. We vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Proceedings.

On April 24, 2008, at approximately 4:55 a.m., officers were dispatched to L.F.'s residence in Davenport, Iowa. This was in response to a report that Dempsey had broken into L.F.'s residence, assaulted her, and then exited through the back door. At the same time, several other officers were dispatched to the home of Dempsey's mother, where Dempsey was then residing.

Upon arrival at L.F.'s residence, officers made contact with L.F., who was scared and upset. She told officers she had been awakened to find Dempsey on top of her. L.F. began kicking and screaming in an effort to get Dempsey off her. Dempsey allegedly covered her mouth with his hand and asked, “Do you want your kids to live?” L.F.'s four-year-old son was in the bed next to her at the time. L.F. reported Dempsey was wearing a gray hooded sweatshirt. L.F. also reported she had a scratch on her right upper thigh, which was not there before she went to bed.

K.R., who had been sleeping on the couch in another room, heard L.F. scream and ran to her aid. K.R. yelled, “What the f* * * are you doing?” Dempsey responded, “You b* * * * * * are crazy,” and ran downstairs and exited the residence. K.R. told officers she knew it was Dempsey because he is her son's uncle. Dempsey did not have permission to enter the residence. A screwdriver was located in L.F.'s bed.

At the Dempsey residence, officers positioned themselves around the residence and were about to make contact at the front glass storm door when Dempsey appeared there. The officers ordered Dempsey out of the residence, handcuffed him, and took him into custody. Thereafter, officers made contact with Dempsey's mother, who consented to a search of the residence. Officers then searched Dempsey's bedroom, where they found a gray hooded sweatshirt.

Based on the above events, law enforcement filed an initial complaint charging Dempsey with the following offenses: (1) burglary in the second degree in violation of Iowa Code section 713.5 (2007), a class “C” felony; (2) assault with intent to commit sexual abuse causing bodily injury in violation of Iowa Code section 709.11, a class “D” felony; and (3) possession of burglar's tools in violation of Iowa Code section 713.7, an aggravated misdemeanor. Counsel was appointed to represent Dempsey on the charges. On April 28, Dempsey entered pleas of not guilty to each of the charges.

Also on April 28, counsel sent Dempsey a detailed letter informing him of the charges and advising him of the elements the State would need to prove to obtain a conviction. The letter also advised Dempsey of the potential consequences of each of the charges. As to the charge of second-degree burglary, the letter explained the offense was a class “C” felony with a maximum sentence of ten years in prison. The letter further explained that if Dempsey “intentionally or recklessly inflicted a bodily injury, however slight, the charge could be upgraded to first-degree burglary, for which the ... maximum penalty [was] [twenty-five] years in state prison.”

As to the charge of assault with intent to commit sexual abuse causing bodily injury, the letter included a portion of Iowa Code section 709.11, which in relevant part provides:

Any person who commits an assault ... with the intent to commit sexual abuse is ... guilty of a class “D” felony if the person thereby causes any person a bodily injury other than a serious injury[,] ... [and] is guilty of an aggravated misdemeanor if no injury results.

The letter further explained that the maximum sentence for this offense was five years in prison.

As to the charge of possession of burglar's tools, the letter explained that the offense was an aggravated misdemeanor with a maximum sentence of two years in prison. Finally, the letter noted that if Dempsey was convicted on all three charges in the initial complaint, and if the district court ordered the sentences to run consecutively, Dempsey would face “maximum sentences totaling [seventeen] years in prison.” The letter further warned that if the State increased the charge from second-degree burglary to first-degree burglary, Dempsey would face maximum sentences totaling thirty-two years in prison.

On May 28, the State filed its trial information. The trial information charged Dempsey with the following offenses: Count I, burglary in the second degree in violation of Iowa Code section 713.5, a class “C” felony; Count II, possession of burglar's tools in violation of Iowa Code section 713.7, an aggravated misdemeanor; and Count III, assault with intent to commit sexual abuse not resulting in injury in violation of Iowa Code section 709.11, an aggravated misdemeanor. Thus, the State charged Dempsey with the same offenses as in the complaint, except the count of assault with intent to commit sexual abuse causing bodily injury, the original class “D” felony, was charged as assault with intent to commit sexual abuse not resulting in injury, an aggravated misdemeanor. Also attached to the trial information was a printout of Dempsey's criminal history, which showed a 2003 conviction for sexual abuse in the third degree, a class “C” felony. See Iowa Code § 709.4. Dempsey had been sentenced to ten years in prison for that conviction.

On June 26, counsel sent Dempsey a second letter. A copy of the trial information was attached to this letter. The letter informed Dempsey that a pretrial conference had been scheduled for June 27. The letter further stated, “The State has charged you with the same offenses as in the complaint.” This was inaccurate. The letter further reiterated that if Dempsey lost at trial, he could face maximum sentences totaling seventeen years in prison.

On June 27, the State filed a memorandum of plea agreement, the first plea offer. Pursuant to the terms of the first plea offer, Dempsey would plead guilty to Count II, possession of burglar's tools, an aggravated misdemeanor, and Count III, assault with intent to commit sexual abuse not resulting in injury, also an aggravated misdemeanor, as charged in the trial information. The State would dismiss Count I, second-degree burglary, a class “C” felony. The State would recommend incarceration.

On June 29, counsel sent Dempsey a third letter informing him of the first plea offer. A copy of the first plea offer was attached to the letter. The letter explained the terms of the plea offer and stated that if Dempsey accepted the plea offer, and if the district court ordered the sentences to run concurrently, he would face maximum sentences of five years in prison. The letter further stated, “Although there are no guarantees, the Court often gives concurrent sentences when people plead guilty instead of going to trial.” In addition to explaining the terms of the offer, the letter stated,

Although you have expressed confidence in my ability to defend you, I must be blunt that you are almost certain to lose at trial. If [L.F.] and [K.R.] maintain roughly the same story they told the police, any jury is going to convict you.

The letter reiterated that if Dempsey lost at trial he could face sentences totaling seventeen years in prison.

The letter also stated, “I don't think [the State] realizes yet that [it] could upgrade the burglary charge [to first-degree burglary].... If [the State] realizes this before trial, you would face sentences totaling [thirty-two] years in prison.” The letter then warned,

[The State] is not going to make a better offer. In fact, if [it] starts preparing for trial and realizes [it] could upgrade the burglary charge, [it] could very well withdraw this offer. If you decide you want to take the deal, you should let me know right away.

Finally, the letter noted that because Dempsey would be pleading guilty to assault with intent to commit sexual abuse, he would “have to register on the sex offender registry.” However, the letter additionally noted that Dempsey was already required to register due to his prior conviction for third-degree sexual abuse.

On July 10, counsel conferred with Dempsey at the Scott County jail to discuss the first plea offer, possible depositions, and the evidence in the case. When Dempsey did not accept the first plea offer, counsel filed a motion to authorize depositions, which the district court granted. Thereafter, counsel scheduled depositions for July 24 and subpoenaed several witnesses to appear for depositions, including L.F. and K.R. The record does not indicate any further discussions occurred between cou...