IN THE COURT OF APPEALS OF IOWA
No. 15

- 1231 Filed February 8, 2017

PETER KELLY LONG , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Webster County, Gary L.
McMinimee , Judge.

Applicant appeals the district court ’s denial of his application for postconviction relief. AFFIRMED.

John J. Bishop , Cedar Rapids , for appellant. Thomas J. Miller, Attorney General, and Kyle Hanson , Assistant Attorney General, for appellee State.

Considered by Danilson, C.J., Vaitheswaran, J., and Blane, S.J.*

* Senior judge assigned by order pursuan t to Iowa Code section 602.9206 (201 7 ).2

BLANE, Senior Judge. App licant Peter Kelly Long appeals the district court’s denial of his postconviction

- relief (PCR) application , which claim ed his trial attorney was ineffective. Long asserted that his counsel was ineffective for waiving a jury for the enhancement phase of his criminal trial and fail ing to timely raise the lack of statutory specificity of the predicate conviction . Long also claims his enhanced sentence constitutes cruel and unusual punishment

. 1 For the reasons discussed below, we now affirm the district court.
I. Procedural Background. In 1996, Long was charged with sexual abuse in the third degree in both Webster and Hamilton Counties. Based upon plea negotiations, he pled guilty in each count y to one count of lascivious acts with a child, in violation of Iowa Code
section 709.8 (199 3 ) , and was sentenced to consecutive five

- year terms of imprisonment. The record did not specify which of the subsections in 709.8 applied to each of Long’s pleas. In 2010, a trial information was filed in Webster County charging Long with

s exual a buse in the t hird d egree , in violation of sections 709.1(3) and 709.4(2)(b), with a s econd or s ubsequent o ffense enhancement under section
902.14 based upon the 1996 convictions for lascivious acts with a child

. A jury convicted Long of the charge of s exual abuse in the t hird d egree and the trial

1 In his PCR application, Long raised a number of issues. Long’s PCR counsel only argued the first issue in appellant’s brief. Long argues other issues in his pro se briefs. Those not addressed here either were previously decided on direct appeal, not ar gued in briefs before this court (and thus waived), or were not properly preserved for our review. See Iowa R. App. P. 6.903(2)(g)(3); Meier v. Senecaut , 641 N.W.2d 532, 537 (Iowa 2002).3

proceeded directly to the enhancement phase

. Long and his trial counsel waived

a jury and this phase was tried to the cour t

. The State presented its evidence , which identified Long as the same defendant who was convicted of the lascivious

- acts crimes in 1996 . The evidence included a 2010 video interview between Long and law enforcement during which he discussed his prior co nduct that led to his 1996 convictions and judgment entries for lascivious acts with a child

. The State then rested. Long’s counsel then moved for a judgment of acquittal. Long’s motion focused on a technical argument. To be subject to the section 902.14 enhancement

— a life sentence

— Long had to have been previously convicted of an offense identified in th at code section. To qualify, the prior conviction under section 709.8 had to fall under either subsection (1) (“F ondl e or touch the pubes or genitals of a child “) or ( 2 ) (“P ermit or cause a child to fondle or touch the person ’ s genitals or pubes ”) ; the remaining subsections are not listed in section 902.14 and do not qualify for enhancement

. The evidence, particularly the 1996 judgment entries, did not specify the subsection of section
709.8 of which Long was convicted in 1996. Long’s counsel thus argued that the State had not established that Long had previously been convicted of a

necessa ry predicate felony to trigger the 902.14 enhancement. The trial judge took the motion under advisement. In response to this argument, the State moved to reopen the record of the enhancement phase. Long’s counsel resisted, citing State v. Teeters , 487
N .W.2d 346 (Iowa 1992). Teeters identifies seven factors that a district court is
to consider before exercising its discretion to reopen the record. 487 N.W.2d at4

348. Those seven factors are: (1) the reason for the failure to introduce the evidence; (2) the surprise or unfair prejudice inuring to the opponent that might be caused by introducing the evidence; (3) the diligence used by the proponent to secure the evidence in a timely fashion; (4) the admissibility and materiality of the evidence; (5) the s tage of the trial when the motion is made; (6) the time and effort expended upon the trial; and (7) the inconvenience reopening the case would cause to the proceeding. Id. After a hearing, the trial judge entered a lengthy ruling which analyzed Teeters ’ s seven factors, granted the State’s
motion , and reopen ed the recor d. The State then filed a suppl emental witness list and minutes of testimony. The State presented evidence from the court reporter who reported the 1996 guilty pleas and the transcripts of those pleas. In
t he transc r ipts , Long admitted to having direct physical contact with the genitals of a minor under the age of twelve years. The trial judge found the State
established that Long previous ly violated section 709.8(1) and met the statutory predicate to be subject to the section 902.14 enhancement as a second or subsequent offender . Long was then sentenced to life in prison. Long filed a direct appeal of his conviction and sentence, arguing the trial judge erred in granting the State’s m otion to reopen the record under the Teeter s analysis. Long’s appeal was transferred to the Iowa Court of Appeals. Our court
reversed the district court , holding that it abused its discretion in allowing the State to reopen the record, which unfairly undermined Long’s trial counsel’s strategy

. See State v. Long , No. 11

- 0197 , 2011 WL 6740164 , at *7 (Iowa Ct. App. Dec. 21, 2011 ). The State sought further review, which the Iowa Supreme Court granted. On further review, the supreme court determ ined the trial court5

did not abuse its discretion in reopen ing the record, affirmed the district court ’s judgment , and vacated the court of appeals opinion. See State v. Long , 814 N.W.2d 572 , 584 (Iowa 2012). Long then filed this PCR a pplication on Octo ber 25, 2012. On March 22, 2013, Long filed an amended PCR applicati on, and on Fe bruary 23, 2015, he filed a supplemental PCR application. Following a hearing, the district court denied Long’s PCR application. This appeal followed.
II. Standard of R eview

. Ineffective

- assistance

- of

- counsel claims in PCR actions are reviewed de

novo as they involve both federal and state constitutional issue s

. Nguyen v. State , 878 N.W.2d 744 , 750 (Iowa 2016).
III. Discussion

. A. Ineffective assistance of counsel i n waiver of jury. Because the Iowa Supreme Court found the trial court properly exercised its discretion in granting the State’s motion to reopen the record, Long now argue s that his trial counsel was ineffective by convincing him to waive the jury for the enhancement phase. Long contends that this waiver was a critical error that allowed the State to reopen its case

. Long’s argument is that it made no sense to waive a jury because his trial attorney was going to raise the lack of specificity as to the particular code subsection in the 1996 judgments in a motion for judgment of acquittal to the judge. It would be the trial judge who would address the motion , whether it was a jury trial or bench trial. Long focuses on the last criterion set out in Teeters

— the inconveni ence reopening the case would cause to the proceeding

. He contend s6

his attorney was ineffective in convinc ing him to waive the jury because if a jury

was decid ing the enhancement phase , the trial judge would have found
reopen ing the evidence would inconve nience the jury where it did not inconvenience the judge. Long concludes if there had been a jury, the record would not have been reopen ed and the State w ould not have proved the enhancement. For several reasons, we cannot agree with Long’s contention. To succeed on a claim of ineffective assistance of counsel, a claimant must establish by a preponderance of the evidence his trial counsel (1) failed to perform an essential duty, and (2) this failure resulted in prejudice

. State v. Tompkins , 859 N.W.2d 6 31, 637 (Iowa 2015) ; accord Strickland v. Washington, 466 U.S. 668, 687 (1984). The other legal standards applicable to PCR are thoroughly summarized in Tompkins and will be applied, though not repeated, here. See Tompkins , 859 N.W.2d at 637

- 38. The reco rd supports a finding that Long and his trial attorney discussed the strategy of waiving the jury before the enhancement phase. As his attorney explained, and Long understood, the motion for judgment of acquittal was a technical legal argument best unders tood by the judge. In addition, the State presented ample evidence that Long was the same person previously convicted of lascivious acts with a child in 1996. Long’s argument rests on Iowa Rule of Crimin al Procedure 2.19(9) , which

s ets forth the procedure to be followed before imposing sentencing enhancements based on prior convictions. The relevant portion provides, If the offender denies being the person previously convicted, sentence shall be postponed for such time as to permit a trial before a jury on the issue of the offender’s identity with the person7
previously convicted

. Other objections shall be heard and determined by the court, and these other objections shall be asserted prior to trial of the substantive offense in the manner presented in rule 2.11. Iowa R. Crim. P. 2.19(9) ( e mphasis added). Long insists that his t rial counsel should have known this rule require d

— even if there w as a jury

— that the trial judge would address the motion for judgment of acquittal. As this rule makes clear, the only issue for a jury in the enhancement phase is whether the defendant is the same person previously convicted. Other objections are to be
heard and determined by the court.
T he issue raised here is whether the waiver of the jury c aused Long to lose his objection to th e State reopen ing the record. As noted, the trial court applied Teeters

. The supreme court reviewed the trial court’s Teeters analysis in Long , 814 N.W.2d at 574

- 75 , affirming the trial court

. T he court is to balance all seven factors; no one factor is controlling or tips the scale. See id. (noting the district court balanced all seven factors); State v. Jefferson , 545 N.W.2d 248, 250 (Iowa 1996) (cautioning against overemphasizing one factor). First, we fin d that under the Teeters analysis, even if Long had not waived a jury, the trial court would have still granted the State’s motion to reopen the record. Weighing all seven factors, as the trial court did and as found by the supreme court on appeal, it wou ld have been appropriate under Teeters to grant the motion and reopen the evidence even with a jury. Further, w ith regard to the inconvenience factor, we find the above

- cited rule answers the inquiry. Even if Long and his trial attorney did not waive a jury, the motion for judgment of acquittal would still have been decided by the judge.8

The jury could have decided its sole issue

— whether Long was the person previously convic ted of lascivious acts

— and been discharged while the judge retained the legal issue raised by the motion for judgment of acquittal

— whether the prior convictions triggered Iowa Code section 902.14. The trial judge, even with a jury, could have left the rec ord open for presentation of evidence on the legal motion that was solely for the court’s determination as provided by rule 2.19(9) ( i.e., “other objections”)

. Further, under the rule, the court may use the same jury or impanel a new jury at a later time to determine the identity issue. Either way, Long was not prejudiced by his trial counsel’s strategy of waiving a jury for the enhancement phase. Our supreme court also looked at this issue on Long’s direct appeal

. It discussed the evidence presented at the enhancement stage before the judge
reopen ed the record :

In addition to the certified copies of the convictions, the State played a videotape where Long discussed his previous convictions with Detective Bahr. The videotape was introduced prior to the State resting

. Long stated that he was convicted in 1996 for an incident that occurred involving a young girl who “was riding on a motorcycle and I reached back and was touching her and things like that.” The conduct Long admits to in the videotape would only fall under subsection 709.8(1), fondling the pubes or genitals of a child. It does not describe any of the other conduct listed in subsections 709.8(2) through (4). In response to Long ’ s motion for a judgment of acquittal, the district court noted t hat based on Long ’ s comments on the videotape, and the certified copies of the convictions that had been submitted to the court, the State had probably met its burden of proof. Long , 814 N.W.2d at 579 (emphasis added) (citations omitted)

. The district cou rt had sufficient evidence to overrule Long’s motion for judgment of acquittal even before granting the State’s motion to reopen the record. There is no reasonable9

probability that Long would have obtained a different result but for his counsel’s alleged ineffective assistance. Again, Long suffered no prejudice from his counsel’s recommendation to waive the jury at the enhancement stage.
B. Timeliness

. Long argues pro se that because his trial counsel did not comply with rule 2.19(9) by fil ing an appropriate motion before the enhancement phase to challeng e the fact that the 1996 convictions did not specify whether they were violations of subsections (1) or (2) of section 709.8 so as to trigger 902.14, he lost his opportunity to raise this issu e. Despite the fact that his attorney did not raise the lack of subsection specificity pre

- enhancement stage and waited until after the State had presented its evidence in the enhancement phase, the trial court did not deny or overrule Long’s motion for j udgment of acquittal as untimely under the rule. Rather, as the record shows , the trial judge considered the evidence presented both before and after the motion to reopen the record, and found the predicate convictions were established to impose enhanceme nt under section 902.14, thus implicitly overruling Long’s acquittal motion. In addition, based upon the State’s evidence, even if Long’s trial counsel had timely filed a motion challeng ing the lack of subsection specificity, it would have been denied. To establish prejudice, a claimant must demonstrate “‘there is a reasonable probability that, but for the counsel ’ s unprofessional errors, the result of the proceeding would have been different.’” State v. Reynolds , 746 N.W.2d 837, 845 (Iowa 2008) (citati on omitted) . Here, there is no question the result of filing a timely motion would not have been different. Thus, Long suffered no prejudice by trial counsel’s actions.10

C. Cruel and unusual punishment. Long claims his life sentence required by Iowa Code section 902.14 constitutes cruel and unusual punishment prohibited by the Eighth Amendment of the United States Constitution and article I , sec tion 17 of the Iowa Constitution

. This c ourt conducts a de n ovo review of sentencing challenges based on constitutional protections. State v. Oliver , 812 N.W.2d 636, 639 (Iowa 2012) (citing State v. Bruegger , 773 N.W.2d 862, 869 (Iowa 2009) ) ; see also Iowa R. Crim. P. 2.24(5)( a ) )

. Long raised this argument in his pro se supplemental PCR application, specifically claiming gross dis proportionality. The trial court found Long’ s claim lacked merit, noting that a categorical challenge to section 902.14 had been rejected by the supreme c ourt in Oliver . Further, as to a gross

proportionality challenge, the PCR court found Long “offered no evidence to support such a claim.” On appeal a reviewing court must also make an independent judgment of whether the sentence violates the constitution. Graham v. Florida , 560 U.S. 48,
67 (2010) . Gross proportionality requires application of a three

- part analysis. Bruegger

, 773 N.W.2d at 8 73

. The court is to first determine if the penalty lead s to an inference of gross disproportionality, and if it does, then it must proceed to steps two and three of the analysis

— the intrajurisdictional and interjurisdictional comparisons. Id. Part of this a nalysis must determine “whether the challenged sentencing practice serves legitimate penological goals.” Graham , 560 U.S. at
67. “A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” Id. at 71

. The United States Supreme Court11

has recognized four legitimate penological justifications: retribution, deterrence, incapacitation, and rehabilitation. Id. In conjunction with Long’s constitutional challenge, he raises two preliminary complaints. First, he complains that because the sentencing court did not order a presentence investigation report, this deprived that court with information necessary to determine whether the life sentence under section 902.14 was grossly disproportionat e. However, as the PCR court properly found , once the determination was made that section 902.14 2 applied, Iowa Code
section 901.2 prohibited its preparation: “The court shall not order a presentence investigation when the offense is a class ‘A’ felony.” Second, Long contends that his 1996 convictions for lascivious acts with a child were c lass “ D ” felonies, carrying only five

- year sentences . Therefore, he
argues u nder Oliver these convictions do not qualify as predicate felonies
because the supreme cour t referenced only class “ B ” (twenty

- five years) and class “ C ” (ten years) felonies as qualifying for enhancement to life sentences under section 902.14. Long concludes that because his predicate felonies were only class “ D, ” enhancement to life without pa role is grossly disproportionate and unconstitutional. Long’s argument fails for two reasons. First, even though Long’s earlier convictions for lascivious acts with a c hild were class “ D ” felon ies in 1996, Iowa Code section 709.8 was amended in 2005 and increased the punishment for

2 “A person commits a class ‘A’ felony if the person commits a secon d or subsequent offense involving any combination of ” enumerated offenses, including a combination applicable to Long. Iowa Code § 902.14.12

violation of subsections 709.8(1) or (2) to that of a class “ C ” felony. Thus, for purposes of a gross - proportionality analysis, Long’s 1996 c onvictions may be viewed as class “ C ” felonies. Second, Long’s argument that Oliver requires the predicate to be a class “ B ” or class “ C ” felony is misplaced. The supreme court stated: “ Only a second violation of section

. . . 709.8(1) and (2) (fondling a child or causing a child to fondle the perpetrator) will trigger section 902.14. U nenhanced, each of these offenses is a class ‘ B ’ or ‘ C ’ felony. ” Oliver , 812 N.W.2d at 647. The court specifically identifies the conduct

— fondling a child or causing a child to fondle the perpetrator

— that can serve as a predicate for sentencing enhancement. The court did not require the earlier conviction to be a class “ B ” or “ C ” felony ; the conduct, not the designation, is the relevant consideration

. We proceed with the gross

- proportionality evaluation. The first step is the threshold test, which requires a reviewing court to determine whether a defendant ’ s sentence leads to an inference of gross disproportionality. This involves a balancing of the gravity of the crime against the severity of the
sente nce

. Id. at 640. There are four guiding principles in a gross

- proportionality analysis. See id. at 650

- 51. The first is that we owe substantial deference to the penalties the legislature has established for various crimes. Id. at 650. The second is that it is rare that a sentence will be so grossly disproportionate to the crime as to satisfy the threshold inquiry and warrant further review. Id. The third is that a recidivist offender is more culpable and thus more deserving of a longer sentence tha n a first

- time offender. Id. Finally, features of a case can “converge to generate a high risk of potential gross disproportionality.” Id. at 65 1

.13 As to Long’s criminal conduct, his current crime is especially heinous. He preyed upon a twelve

- year - old girl who was at his house to babysit his children. Long attempted to force his penis into the twelve

- year - old victim’s vagina as she told him to “get away,” tried to push him off, and cried from the pain. Long then gave the victim a glass of Pepsi to dr ink with “white stuff” floating in it that caused her to feel dizzy as he continued abusing her, and he later tried to suffocate her by placing a rag soaked in alcohol over her nose and mouth as she screamed. At the hospital, the victim’s urine screened p ositive for opiates from the white powder Long put in her drink. A colposcopic exam revealed the victim had a complete transection of her hymen, which was consistent with a penetrative injury and would have been painful for a girl her age. These facts de monstrate Long committed a blameworthy offense involving a minor. Long’s predicate convictions were for lascivious acts with two females
under the a ge of twelve, which involved him fondling their genitals . This led to Long’s earlier incarceration. As part of his sentence , Long was required to participate in the sex offender treatment program (SOTP)

. Long acknowledges he participated from 1996 to 1999 and asserts he “successfully” completed SOTP. However, his conduct leading to his recent conviction s how s that Long’s treatment was hardly successful. Long has committed multiple crimes as an adult against children of tender ages, and he has shown an inability to be rehabilitated when he repeated his sexual attacks on children after three years in SOTP. The recent crime was physically violent and emotionally, psychologically and physically damaging to the young victim. Offenses relating to a defendant ’ s status as a sex offender are14

not merely technicalities; the legislature has imposed these requirement s because of the “realistic concerns related to offender recidivism” and the need to limit a recidivist ’ s opportunities to reoffend. See id. at 652. A sentence of life without parole for a conviction of sexual abuse in the third degree of a child twelve years of age, when the perpetrator has two prior convict i on s of lascivious acts with a child that involved fondling of the child ren ’s genitals , is not cruel and unusual punishment in viola tion of the Eighth Amendment or our state constitution. After reviewing Long ’ s case and comparing the gravity of his crime to the penalty mandated by the statute, we do not feel that section 902.14 imposes an unconstit utional punishment. Long ’ s sentence does not lead to an inference of gross disproportionality. Since the penalty does not lead to an inference of gross disproportionality, we need not proceed to steps two and three of the analysis, the intrajurisdictiona l and interjurisdictional comparisons

. See Bruegger, 773 N.W.2d at 873. Having considered Long’s arguments, we find the district court’s denial of
his amended postconviction

- relief application was proper. He suffered no prejudice from either of the act s he alleges constituted ineffective assistance. Further, his enhanced sentence of life without parole is not unconstitutional. We therefore affirm.
AFFIRMED.