IN THE COURT OF APPEALS OF IOWA

No. 13-1711

Filed February 11, 2015

JOHNNY LOUIS ARTHUR ANDERSON,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister 

(2013 postconviction trial), Thomas N. Bower (2006 motion to transfer to juvenile 

court), and Todd A. Geer (criminal trial), Judges.

Johnny Anderson appeals the district court’s denial of his application for 

postconviction relief. AFFIRMED; SENTENCE VACATED AND REMANDED 

FOR RESENTENCING.

Thomas M. McIntee, Waterloo, for appellant.

Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney 

General, Thomas Ferguson, County Attorney, and Kimberly Griffith, Assistant 

County Attorney, for appellee State.

Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ. Bower, 

J., takes no part.
2

POTTERFIELD, J.

Johnny Louis Arthur Anderson appeals from the dismissal of his 

application for postconviction relief (PCR). He argues he was provided with 

ineffective assistance of trial, appellate, and postconviction counsel in several 

ways. He also contends he is entitled to resentencing pursuant to State v. Lyle, 

854 N.W.2d 378, 400 (Iowa 2014). Anderson’s claims of ineffective assistance of 

counsel fail. However, we vacate his sentence and remand for resentencing as 

required by Lyle. 

I. Background Facts and Proceedings.

Anderson was born on May 23, 1987. When he was eighteen, Anderson

was charged by trial information with sexual abuse in the second degree for 

committing sex acts with S.V. “when she was six years old” “on or about 1/1/00-

12/31/02.”

1

 Anderson was also charged with sexual abuse in the third degree for 

committing sex acts with L.V. “when she was twelve years old” “on or about 

1/1/02 -12/31/04.”

2

 Anderson’s motion to transfer jurisdiction to the juvenile court 

was denied on May 17, 2006. 

At Anderson’s August 16, 2011 criminal bench trial,3the district court 

found the following facts:

[S.V.] was born August 11, 1994. At the time these acts occurred, 

she resided [in] Waterloo, Black Hawk County, Iowa. She is 

currently a high school student in Black Hawk County. Defendant 

is S.V.’s cousin. During the relevant time period, S.V.’s family and 

defendant’s family frequently spent time together, often on Sunday 

 

1 Anderson would have been twelve to fifteen years old during this time period.

2 Anderson would have been fourteen to seventeen years old during this time period. 

3 The five-year delay was unsuccessfully challenged on appeal as being a violation of 

Anderson’s speedy-trial rights and due process. See State v. Anderson, No. 11-1991, 

2012 WL 5356105 (Iowa Ct. App. Oct. 31, 2012).
3

afternoons for family gatherings. The cousins also occasionally 

spent the night together at their grandparents’ house, defendant’s 

house and S.V.’s home. However, most contact between S.V. and 

defendant occurred at their grandparents’ house . . . in Waterloo, 

Black Hawk County, Iowa. 

Until defendant’s actions were reported [in 2005], the

families got along very well. When S.V. was approximately four 

years of age, defendant began touching her inappropriately. He

placed his hands down her pants. He touched her legs, thighs and 

vaginal area. He touched her on the outside and a “little bit” on the

inside of her vagina. Defendant rubbed her on the outside of her 

vagina, and also “poked and prodded” her inside her vagina with 

his fingers. S.V. clearly remembers such an incident occurring at 

her grandparents’ house when she was approximately seven years 

old [at which point Anderson would have been fourteen years of 

age]. She clamped her thighs together, but defendant continued to 

rub her vaginal area. S.V. describes an incident occurring in the

evening hours at her grandparents’ home. Defendant was touching 

her, and S.V. clamped her legs. Defendant told her to stop

clamping her legs and then rubbed, prodded and poked his fingers 

inside her vagina. S.V. testified that she knew she should not be

participating in such activities with defendant, but she did not tell 

him to stop. At the time, she was in regular clothing, but her pants 

were unzipped.

S.V. also describes an incident occurring at her 

grandparents’ house when she was younger than seven years of 

age. On that occasion, defendant was sitting on the bed. S.V. 

pulled down her pants and sat on his lap. Defendant touched her 

with his penis. He unzipped his pants, and she faced away from

him as she sat on his lap. She felt his penis touch against her 

vagina. On another occasion, also occurring at S.V.’s

grandparents’ house when she was approximately six years of age, 

she observed her sister, L.V., with her hand on defendant’s penis.

S.V. began doing the same thing. Defendant was laughing, and his 

pants were pulled down. His penis was erect.

On another occasion, during the same general time frame, 

defendant was with S.V. at his home. He pulled down his pants 

and sat on his bottom bunk. S.V. put her mouth on defendant’s 

penis. S.V. moved her head up and down. Defendant’s penis was 

erect, and he stated to S.V., “Does that taste good?”.

S.V. also recalls an incident occurring at defendant’s house 

between defendant and L.S. She saw defendant’s penis exposed 

out of the hole in his boxer shorts. 

Defendant is seven years older than S.V. He was 13 to 14 

years of age when the events occurred.

L.V., S.V.’s sister, born July 1, 1990, was also abused by 

defendant. . . . When L.V. was approximately 12 years of age, 
4

defendant placed his hands in her pants and inserted his fingers 

into her vagina. Her grandfather came in and separated her from 

the defendant. She distinctly recalls that this occurred while they

were watching Fresh Prince of Bel-Air on TV. When L.V. was 13

years of age, she was with defendant as he was masturbating 

behind the bed in the guest bedroom of her grandparents’ house. 

Defendant was lying down on the floor, and she was sitting next to 

him. Defendant pulled her head to his penis, and ejaculated in her 

mouth. She ran to the sink and vomited. L.V.’s older sister came 

into the room and inquired about what happened. L.V. disclosed 

the incident to her at that time. L.V.’s sister credibly testified that 

she actually observed the event occurring. She saw L.V. and 

defendant behind the bed, with defendant’s penis in L.V.’s mouth. 

L.V. then ran to the sink spitting something out. The incident was 

never disclosed to relatives. L.V.’s sister also observed S.V. and 

the defendant on a bed at L.V.’s grandparents’ home. She walked 

in on them and observed that L.V.’s pants were halfway down, and 

that defendant’s hands were in her pants.

L.V. also credibly describes an incident occurring when she 

was approximately 14 years of age, which incident occurred at her

home. Defendant was spending the night in her brother’s room. 

Defendant came to L.V.’s room and they started playing “a game.” 

Defendant and L.V. ended up having mutual oral sex, with 

defendant’s penis in her mouth while his tongue was in her vagina.

(Emphasis added.)

The trial court concluded Anderson committed sexual abuse against S.V. 

when she was under the age of twelve, finding him guilty of sexual abuse in the 

second degree, see Iowa Code § 709.3(2),4and against L.V. when she was 

under the age of fourteen, finding him guilty of sexual abuse in the third degree 

as charged in the trial information. See id. § 709.4(2)(b). The convictions were 

affirmed on appeal. See Anderson, 2012 WL 5356105, at *6-7. 

On April 1, 2013, Anderson filed a pro se PCR application. He was 

appointed counsel, who filed an amended application asserting ineffective 

 

4 The relevant code sections have not been amended since 1999. 
5

assistance of trial and appellate counsel.5 A trial was held on October 16, 2013. 

The district court rejected Anderson’s ineffectiveness claims,6and he now 

appeals. 

II. Scope and Standard of Review.

We normally review PCR proceedings for errors at law. Everett v.

State, 789 N.W.2d 151, 155 (Iowa 2010). However, when we review claims 

related to the constitutional right of effective representation, our review is de 

novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). 

III. Discussion.

A. Ineffective assistance of counsel. To establish a claim of ineffective 

assistance of counsel, Anderson must establish both that his counsel breached 

an essential duty and prejudice resulted. Id. at 866. We may affirm if either 

element is lacking. Id. The essential-duty prong requires the claimant to prove 

counsel performed below the standard of a reasonably competent attorney; we 

start from the presumption that counsel performed competently. Id. To show 

prejudice resulted, the claimant must show that counsel’s errors were so serious 

as to deprive him of a fair trial. Id. The same standards of representation apply 

to postconviction counsel as to trial counsel. Dunbar v. State, 515 N.W.2d 12, 15 

(Iowa 1994).

 

5 Five of eleven claims were dismissed prior to the PCR trial because they had been 

addressed on direct appeal. 

6 Anderson asserted (1) his criminal defense counsel should have deposed defense 

witnesses, (2) trial and appellate counsel should have challenged Iowa Code section 

802.2 as being unconstitutional, (3) appellate counsel was ineffective in failing to file an 

application for further review, (4) counsel did not adequately explain his waiver of a jury 

trial, (5) counsel did not seek to gain access to the child victims’ medical and mental 

health records, and (6) counsel did not attempt to present reputation or opinion evidence 

as to the victims’ credibility. 
6

“When complaining about the adequacy of an attorney’s representation, it 

is not enough to simply claim that counsel should have done a better job. The 

applicant must state the specific ways in which counsel’s performance was 

inadequate and identify how competent representation probably would have 

changed the outcome.” Dunbar, 515 N.W.2d at 15. 

Anderson asserts here that the criminal court erred in failing to transfer the 

case to juvenile court, contending the district court was without jurisdiction to try 

him because he was younger than fourteen years of age during time periods 

alleged in the trial information. He also contends his waiver of jury trial was 

defective because it did not come ten days before trial started. He summarily 

asserts his counsel was ineffective in failing to raise these issues. Both claims 

fail because Anderson has not established he was prejudiced by either asserted 

inadequacy. 

In State v. Bruegger, 773 N.W.2d 862, 885 (Iowa 2009), our supreme 

court stated: “In Iowa, a person who is under fourteen years of age cannot be 

tried as an adult in criminal court. Iowa Code § 232.45(6)(a).” However, the 

criminal court, as fact finder, determined Anderson committed at least one sexual 

act with a child (S.V.) when she was under the age of twelve and Anderson was 

fourteen years old. See Iowa Code § 709.3(2). The court also found Anderson 

committed at least one sexual act with L.V. when she was thirteen years old—

Anderson was then fifteen years old. See id. § 709.4(2)(b). Section 232.45(6)(a) 

did not preclude the juvenile court from waiving its jurisdiction. 

With respect to Anderson’s claim that his jury-trial waiver was invalid 

because it did not come ten days before trial, the State points out that it 
7

consented to the waiver.7 Counsel was not ineffective in failing to raise a 

meritless issue. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[W]e 

have held that counsel has no duty to raise an issue that has no merit.”). 

Anderson next asserts the PCR court erred in ruling section 802.2 is 

constitutional. The PCR court observed that Anderson cited no authority for his 

claim that section 802.2 is unconstitutional.8 In State v. Mitchell, 757 N.W.2d 

431, 435 (Iowa 2008), our supreme court reinforced the principle that “[i]ssues 

not raised before the district court, including constitutional issues, cannot be 

raised for the first time on appeal.” The court continued: “‘[A] mere assertion that 

a statute is ‘unconstitutional’ does not encompass every conceivable 

constitutional violation. . . . [A] party challenging the constitutionality of a statute 

must alert the court to what specific constitutional provisions are allegedly 

compromised by the statute.’” Mitchell, 757 N.W.2d at 435 (quoting State v.

Hernandez–Lopez, 639 N.W.2d 226, 234 (Iowa 2002)). Anderson did not alert 

the district court to a specific constitutional provision allegedly compromised. His 

 

7

Iowa Rule of Criminal Procedure 2.17(1) provides:

Cases required to be tried by jury shall be so tried unless the 

defendant voluntarily and intelligently waives a jury trial in writing and on 

the record within 30 days after arraignment, or if no waiver is made within 

30 days after arraignment the defendant may waive within ten days after 

the completion of discovery, but not later than ten days prior to the date 

set for trial, as provided in these rules for good cause shown, and after 

such times only with the consent of the prosecuting attorney.

(Emphasis added.)

8 At the hearing, Anderson’s counsel stated, “I just want to respectfully remind the court 

of issue number five, and I believe that trial counsel and appellate counsel were 

ineffective for not raising the issue of constitutionality of that ten-year statute of 

limitations.” Paragraph five reads: “Section 802.2 the code of Iowa is unconstitutional 

under the Iowa and United State Constitutions. Counsel failed to challenge the 

constitutionality of the statute.” When asked by the PCR court, “[D]o you have any legal 

authority to support your claim that it’s unconsitututional?” counsel stated, “I have no 

authority, but I’m citing that it’s unconstitutional in this case.” 
8

general claim that section 802.2 is unconstitutional did not preserve a claim for 

this court’s review. Id. 

Anderson argues postconviction counsel was ineffective in not calling prior 

counsel as witnesses to explain why they had not moved to dismiss the criminal 

proceedings for violations of the speedy-trial rule or “re-demand speedy trial.” He 

asserts that calling criminal trial counsel was an essential duty, which PCR trial 

counsel failed to perform and “the consequence was clearly prejudicial.” 

However, on direct appeal from his criminal convictions, this court ruled, 

Here, Anderson waived his speedy trial rights, and he does 

not contend his waiver was involuntary. He was represented by a 

series of counsel, each of whom required time to prepare for his 

defense. The continuances granted at his behest are chargeable to 

him. Only about four months of the five years of delay can be 

attributable to the State. 

. . . .

While we do not condone the length of time this case was 

pending, viewing the totality of circumstances, including that 

defense witnesses were asserted to be out of state and difficult to 

locate, we do not find a due process violation such that counsel 

were ineffective in failing to move to dismiss.

Anderson, 2012 WL 5356105, at *6-7. And contrary to his claim in his PCR 

application, his appellate counsel filed an application for further review, which 

was denied by order of the supreme court on December 24, 2012. Anderson 

cannot re-litigate this alleged speedy-trial violation and thus cannot establish 

PCR counsel was ineffective in failing to have prior counsel testify about such a

claim. See Iowa Code § 822.8; Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. 

App. 2009) (stating a PCR applicant “cannot now relitigate issues decided 

adversely to him on direct appeal”). 
9

B. Illegal sentence. Anderson contends the seventy-percent mandatory 

minimum sentence constitutes cruel and unusual punishment, citing State v.

Lyle, 854 N.W.2d 378, 400 (Iowa 2014). The State concedes Anderson’s 

sentence, which requires that he serve a mandatory minimum of seventy percent 

of his sentence before being eligible for parole, must be vacated and this matter 

remanded to the district court for resentencing. 

In Lyle, our supreme court held “all mandatory minimum sentences of 

imprisonment for youthful offenders are unconstitutional under the cruel and 

unusual punishment clause in article I, section 17 of [the Iowa] constitution.” 854 

N.W.2d at 400. The court determined all juveniles currently serving a mandatory 

sentence of imprisonment should be resentenced, recognizing the court has “the 

discretion to consider youth and its attendant circumstances as a mitigating 

factor and to impose a lighter punishment, including one that suspends all or part 

of the sentence, including any mandatory minimum.” Id. at 404.

Pursuant to Lyle, we vacate Anderson’s sentence and remand his case for 

resentencing for offenses he committed as a juvenile after an individualized 

sentencing hearing under the standards set forth by the Iowa Supreme Court. 

AFFIRMED; SENTENCE VACATED AND REMANDED FOR 

RESENTENCING.