State v. Robinson

• Decision Date: 11 October 2000
• Docket Number: No. 98-1040.,98-1040.
• Citation: 618 N.W.2d 306
• Parties: STATE of Iowa, Appellee, v. Kelvin ROBINSON, Appellant.
• Court: Iowa Supreme Court

618 N.W.2d 306

STATE of Iowa, Appellee, v. Kelvin ROBINSON, Appellant.

No. 98-1040.

Supreme Court of Iowa.

October 11, 2000.

Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, and Stephen Holmes, County Attorney, for appellee.

Considered en banc.

TERNUS, Justice.

The defendant, Kelvin Robinson, challenges his conviction for sexual exploitation of a minor under Iowa Code section 728.12(3) (1997), which prohibits the possession of child pornography. He claims that an exemption to this statute for educational institutions is unconstitutionally vague as applied to him. See Iowa Code § 728.7. We hold that the exemption clearly does not encompass the defendant's conduct because the exemption does not, under any circumstances, authorize the possession of child pornography. Therefore, section 728.7 is not vague as applied to the defendant. Accordingly, we affirm.

I. Background Facts and Proceedings.

This case began with the execution of a search warrant for the defendant's dormitory room. The authorities seized computer hardware and software belonging to the defendant that contained numerous images of minors engaged in prohibited sex acts with other minors and adults. The defendant admitted that he had transferred these images from the Internet, but asserted that he had done so in connection with the preparation of a paper for a class he was taking at Iowa State University. The police also discovered on his computer and in hard copy form a report on child prostitution.

The State charged the defendant with sexual exploitation of a minor, a serious misdemeanor. See id. § 728.12(3). This charge was based on the allegation that the defendant "did knowingly possess visual depictions of minors engaged in the live performance of prohibited sexual acts," i.e., what is commonly known as child pornography. See id. The defendant entered a plea of not guilty.

Subsequently, the defendant filed a motion to dismiss, contending (1) that the statutory exemption for the use of materials for educational purposes applied, see id. § 728.7, and (2) that, alternatively, the statutory exemption was vague and overbroad as applied. The district court overruled the defendant's motion, holding that the exemption did not apply to the possession of child pornography.

On the morning the trial was scheduled to start, the defendant entered an Alford plea to the charge of sexual exploitation of a minor. This plea was made pursuant to an agreement with the State whereby the State recommended a suspended sentence, the mandatory minimum fine, a two-year maximum probationary period, and a psychological and sexual evaluation. The court accepted the defendant's plea and he was subsequently sentenced to jail for one year, and ordered to pay the minimum statutory fine, plus costs and attorney fees. The court suspended the defendant's jail term and placed him on probation for eighteen months. The defendant was ordered to undergo any psychological or psychiatric tests recommended by his probationary supervisor, and to complete any treatment or counseling recommended as a result of such tests.

The defendant did not file a motion in arrest of judgment to challenge the adequacy of his guilty plea. See Iowa R.Crim. P. 23(3). Instead, he filed this appeal. On appeal, the defendant claims that his conviction should be reversed because the statutory exemption, section 728.7, is unconstitutionally vague. He also makes a claim of ineffective assistance of trial counsel based on counsel's failure to argue in the district court that the defendant's possession of the materials in question was protected under the First Amendment to the United States Constitution. We review these claims de novo. See State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999)

(ineffective-assistance-of-counsel claim); State v. Hunter, 550 N.W.2d 460, 462 (Iowa 1996) (vagueness claim).

II. Vagueness Claim.

A. Nature of the defendant's vagueness claim—facial or as applied. The defendant does not make clear in his brief the precise nature of his vagueness challenge, i.e., whether he claims the statutory exemption is vague as applied or is facially vague. We note that he made no facial vagueness claim in the trial court. Therefore, he has not preserved any error with respect to whether the statutory exemption is vague on its face. See State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997)

("Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal."); State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997) (holding that an issue must be presented to and ruled upon by the district court before it can be asserted on appeal). Consequently, we proceed to consider his vague-as-applied claim.¹

B. Waiver of claim by pleading guilty. In our Hunter case, this court held that a guilty plea did not waive the defendant's right to claim on appeal that the statute under which he was charged was unconstitutionally vague. 550 N.W.2d at 462 n. 1. Accordingly, we proceeded in Hunter to consider on its merits a vague-as-applied challenge. Id. at 465-66.

In concluding that the alleged constitutional error had not been waived in Hunter, this court relied on two cases applying the rule that a guilty plea does not waive a defense that the indictment or information charges no offense. Id. at 462 n. 1 (citing State v. White, 545 N.W.2d 552, 554 (Iowa 1996); State v. Jaeger, 249 N.W.2d 688, 690 (Iowa 1977)). We first adopted this exception to the general rule that a guilty plea waives all defenses in Jaeger. 249 N.W.2d at 690 (noting that "this court is faced with an issue of first impression"). Our formulation of the exception took the following form:

We hold that if an indictment or county attorney's information facially shows a charge on which the State may not constitutionally prosecute, then a plea of guilty subsequent to an adverse ruling on a demurrer does not waive the claimed unconstitutionality as "no offense is stated." Id. (emphasis added). Thus, in Jaeger, we considered a claim that the statute under which the defendant was convicted was "unconstitutionally vague and overbroad on its face so as to charge no offense" despite the fact that the defendant had pleaded guilty to the charge. Id. at 689-90 (emphasis added).

In Hunter, however, this court extended the exception, without discussion or analysis, to encompass a claim that the statute was vague as applied. 550 N.W.2d at 465. In retrospect, we think we went too far. To employ the exception when the challenge to the conviction is based on an as applied vagueness claim would ignore the underlying rationale of the exception. That rationale is that the court will not uphold a conviction when the charge— judged on its face—is one that the state may not constitutionally prosecute. Jaeger, 249 N.W.2d at 690 (citing Menna v. New York, 423 U.S. 61, 63, 96 S.Ct. 241, 242, 46 L.Ed.2d 195, 198 (1975); Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2103-04, 40 L.Ed.2d 628, 636 (1974)). To allow a challenge that does not rest on the premise that the indictment or information charges no offense would result in an exception that swallows the rule. In other words, if an as applied vagueness challenge is not waived by a guilty plea, what would be the rationale for holding that an equal protection challenge is waived? There would be no logical basis to distinguish a vague-as-applied claim from any other constitutional challenge to the statute. We think it ill-advised to adopt a rule that would create such inroads on our general rule that a guilty plea waives all defenses.

Therefore, we disavow Hunter to the extent that it stands for the proposition that a guilty plea does not waive an as applied vagueness challenge. We reaffirm our holding in Jaeger that the only defenses that are not waived by a guilty plea are those based on the ground that the indictment or information shows on its face that the charge is one that the State may not constitutionally prosecute.

We now consider the effect of our overruling of Hunter on the case before us. This court has the power in overruling a prior decision to give the new rule only prospective application. See Beeck v. S.R. Smith Co., 359 N.W.2d 482, 484 (Iowa 1984)

("Courts may hold, however, that a particular overruling decision should in fairness have only prospective application."). This power should be exercised here. The defendant and his counsel understandably could have relied upon our decision in Hunter in deciding to enter a guilty plea, assuming that such a plea would not waive a claim that the statutes defining the defendant's crime were unconstitutionally vague as applied. It would be unfair in the face of such reliance to announce a new rule and apply it to this case and pending cases involving the same chronology of events. If we were to apply the new rule retroactively, a defendant such as Robinson would be left between the proverbial rock and a hard place. On one hand, he would be unable to assert his constitutional vagueness challenge on appeal because his guilty plea would have waived it. On the other hand, the defendant would probably not have a viable ineffective-assistance-of-counsel claim because his attorney's reasonable reliance on Hunter would preclude a finding that "counsel's performance fell below the normal range of competency." Horness, 600 N.W.2d at 298 (requiring proof that defense counsel breached an essential duty by performing below the normal range of competency in order to establish an ineffective-assistance-of-counsel claim). This court should avoid such an inequitable result when possible. See Beeck, 359 N.W.2d at 484 (noting that one factor to consider in giving a decision prospective application only is "the inequity imposed by retroactive application").

We hold, therefore,...