Doss v. State
Decision Date | 25 June 2021 |
Docket Number | No. 19-1285,19-1285 |
Citation | 961 N.W.2d 701 |
Court | Iowa Supreme Court |
Parties | Kenneth DOSS, Appellant, v. STATE of Iowa, Appellee. |
Raya D. Dimitrova (argued) of Carr Law Firm, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke (argued), Assistant Attorney General, for appellee.
Matthew T. Lindholm, West Des Moines, and Mary K. Spellman, West Des Moines, for amicus curie Iowa Association for Justice.
Rita Bettis Austin of ACLU of Iowa, Des Moines, for amicus curie American Civil Liberties Union of Iowa.
Thomas J. Miller, Attorney General, and John R. Lundquist, Assistant Attorney General, for amicus curie Iowa Board of Parole.
Mansfield, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman and McDermott, JJ., joined in full and McDonald and Oxley, JJ., joined in part. Appel, J., filed a special concurrence. McDonald, J. filed a special concurrence, in which Oxley, J., joined.
This case involves a convicted sex offender's challenge to two aspects of his lifetime special parole sentence. First, the offender maintains that the terms and conditions of that parole should have been disclosed to him back in 2007, when he pled guilty. Second, the offender maintains that certain sex-offender-treatment-program (SOTP) parole restrictions as to internet use, dating, contact with minors, church attendance, and independent counseling violate his constitutional rights to free speech and freedom of association. The district court rejected both challenges, and so did the court of appeals.
On further review, we also reject these challenges. We conclude that the terms of a parole agreement are collateral consequences that need not—and, as a practical matter, probably could not—be disclosed at the time of the initial guilty plea. Additionally, we conclude that the offender has not shown the SOTP restrictions were unconstitutional as applied to him, i.e., that they resulted in an unlawful parole revocation. See Iowa Code § 822.2(1)(e) (2017). Accordingly, we affirm the judgment of the district court and the decision of the court of appeals.
In 2007, Doss was charged by amended trial information with one count each of sexual abuse in the third degree, a class "C" felony; lascivious acts with a child, a class "C" felony; and indecent contact with a child, an aggravated misdemeanor. Pursuant to a plea agreement, on February 15, 2007, Doss pled guilty to one of the class "C" felonies—lascivious acts with a child. See Iowa Code § 709.8 (2005). As part of the agreement, the State dismissed a misdemeanor assault charge in another case and allowed Doss to argue for a suspended sentence. The State reserved the right to argue for the sentence recommended in the presentence investigation report.
In pleading guilty, Doss admitted to the district court that he did the following to a child on or about September 6, 2005:
I spent the night at my cousin's house. I got up in the middle of the night and went into my second cousin's bedroom, got underneath the covers, and I touched her pubes and I realized—I was in there about five minutes, realized what I was doing was wrong, and went downstairs.
As part of the district court's plea colloquy, the district court asked Doss if he understood he would be "on probation for life" due to the nature of his offense. Doss confirmed he understood this.
On April 11, 2007, Doss's sentencing took place. The district court sentenced Doss to an indeterminate term of incarceration not to exceed ten years but suspended the sentence and placed Doss on probation, imposed a fine, and imposed the special sentence of lifetime parole under Iowa Code section 903B.1 to begin at the completion of Doss's probation. Doss was also ordered to undergo SOTP, and a no-contact order was put in place between Doss and the victim.
Approximately three months later, on July 23, Doss was found in contempt for having violated the terms of his probation and was sentenced to seven days in jail and ordered to undergo a psychological evaluation. Some five months after that, based on a further violation, the district court revoked Doss's probation and sent him to prison.
Doss was paroled in 2015 after having served about seven years and nine months in prison. He had been required to but did not complete SOTP while in prison. On August 14, 2015, Doss signed a parole agreement. Therein, Doss agreed to obey all laws, not to use drugs or alcohol, to obey any curfew restrictions, not to leave the county without permission, to complete SOTP, not to associate with persons with a criminal record, not to have to contact with minors, and not to "use the internet or other forms of electronic social media for anything other than job searches" unless he received approval.
In March 2016, Doss went through a parole revocation hearing, but his parole was continued. In June, he again had a revocation hearing. This time he was "revoked to work release" with a two-year sentence imposed. See Iowa Code § 903B.1 ( ).
On October 28, Doss was discharged on parole from the work-release facility where he had been staying. He signed another parole agreement. Once again, the agreement provided that Doss would obey all laws, not use drugs or alcohol, obey any curfew restrictions, complete SOTP, and not associate with persons with a criminal record. The restriction on contact with minors was reworded; it merely prohibited contact with minors "unless approved." And there was no restriction on internet use in the 2016 parole agreement itself.
Three days later, on October 31, Doss was presented with and signed an SOTP rules and conditions contract. Doss agreed he would "attend SOTP group sessions as scheduled"; "not participate in any form of outside counseling"; "not attend church or religious gatherings"; "not establish, pursue or maintain any dating, romantic and/or sexual relationship(s)"; "not purchase, possess or view sexually explicit materials"; "not view, access or use the Internet"; "not view or possess images/photos/videos of my victim(s) or minors"; and "not have direct or indirect contact with any minors." Doss agreed to abide by these conditions "unless [he] obtain[ed] documented approval for any changes, additions, or amendments by [his parole officer], Board of Parole (when required) and SOTP team."
Within a month, Doss was facing another parole revocation for violations that had occurred in November. Doss's parole violations included missing SOTP group therapy, viewing pornographic and dating/hookup websites, being around individuals with criminal records without approval, dating, allowing a female to stay in his home, and possessing a photograph of himself holding a minor that was taken while he was not approved to have contact with minors. Doss admitted to being in a sexual relationship with a woman with a criminal record; the two of them were staying at a hotel. Doss also appeared to be trying to start a relationship with a younger individual through a "risqué dating site."
Following the revocation of his parole, Doss returned to prison. See Iowa Code § 903B.1 ( ). From the Newton Correction Facility, Doss filed the present postconviction relief application on March 21, 2017. In the application, Doss claimed his plea counsel was ineffective in failing to "adequately inform [him] of the extent of the rules and requirements of the special sentence at the time of his plea." Doss also challenged certain requirements of his special sentence as violating the First Amendment and article I, section 7 of the Iowa Constitution.
On May 24, 2019, the district court held a bench trial on Doss's application. Joseph Swaim, Doss's parole officer during 2016, testified about Doss's special sentence, his parole agreement, and his SOTP agreement. He explained the SOTP rules go in place for everyone, such as Doss, who is required to undergo SOTP treatment on leaving prison. He characterized the rules as "negotiable," as they are "[t]ypically ... intact for a time period until evaluations and assessments and decisions have been made by the psychologist for further programming or not further programming and some type of staffing can be done regarding the individual." Swaim agreed that for any violation of an SOTP rule, a parolee potentially could—but not necessarily would—be sent back to prison. He confirmed that the SOTP agreement allows for the written rules to be amended:
Q. Fair to say that having a girlfriend is not against the law unless you're on this treatment plan? A. It's still not against the law in the treatment plan. It still can be amended if you read the statement of understanding on the back page of Exhibit 2. It says, So it's not a hard and fast [rule]. These are the rules for the duration. They have the ability to get those amended and changed.
Swaim noted Doss's treatment plan could be amended. However, Doss never obtained permission to amend his plan, nor was there evidence that he ever sought to amend it.
Swaim further explained that the purpose of SOTP is first to evaluate and then to rehabilitate the sex offender:
Q. So there was no individualized determination as to each particular rule as it applies to any particular individual. It's just everybody? A. There is because that's what the evaluation period is for. When we spend time evaluating them and having them meet with psychologists, that is to determine what rules are appropriate for this individual. That cannot be done initially because we don't have an understanding of who the person is even if they've been in our program...
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