author: STREIT, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. N. Michael D’ANGELO, Respondent.
    No. 05-1589.
    Supreme Court of Iowa.
    Feb. 24, 2006.

      Michael J. Carroll of Babich, Goldman, Cashatt and Renzo, P.C., Des Moines, and Roger J. Kuhle of Law Office pf Roger J. Kuhle, Indianola, for respondent.
    Charles L. Harrington, and Teresa A. Vens, Des Moines, for complainant.
   STREIT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (“Board”) filed a complaint against the respondent, N. Michael D’Angelo, alleging he had violated several provisions of the Iowa Code of Professional Responsibility by misappropriating client funds, neglecting client matters, mishandling his trust account, making misrepresentations, and failing to respond to inquiries from the Board. The Grievance Commission found the Board proved the alleged violations and recommended we revoke D’Angelo’s license to practice law.

We find the Board proved these ethical violations. Based on the seriousness and number of violations, we believe a revocation is warranted.

I. Background Facts

D’Angelo is a sole practitioner in Oakland, Iowa who was admitted to practice law in 1971. D’Angelo has received, numerous sanctions for preyious ethical violations.

On November 15, 1996, he was publicly reprimanded for conduct involving dishonesty, fraud, deceit or misrepresentation, conduct prejudicial to the administration of justice, and conduct reflecting adversely on his fitness to practice law for drafting a dissolution decree that varied from the parties’ stipulation and obtaining a judge’s signature thereon.

On November 16, 2000, we suspended his law license indefinitely, with no possibility of reinstatement for three years, for accepting fees- for probate work prior to obtaining a court order authorizing the fees, depositing client funds into his operating account, displaying general neglect and lack of communication with his clients, complying with a court order only upon threat of contempt, and disregarding rules pertaining to the disciplinary process. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D’Angelo, 619 N.W.2d 333, 337-39 (Iowa 2000) (hereinafter “D’Angelo, I”).

On October 22, 2002, D’Angelo was again before this court for' newly discovered violations which occurred- both before and after his 2000 suspension. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D’Angelo, 652 N.W.2d 213, 215-16 (Iowa 2002) (hereinafter “D’Angelo II”). The violations which occurred prior to his first suspension consisted of client neglect and collection of fees without court authorization.- ■ Id. at 215. The -violations which occurred after his first suspension consisted of failing to cooperate with the board concerning the new charges against him and failing to comply with the previous suspension order " by not refunding unearned fees to his clients. Id. We suspended D’Angelo for one year and prohibited him from handling probaté matters unless he associated himself with a competent probate lawyer. Id. at 215-16. Because most of these violations were part of the same pattern of conduct that led to his previous suspension in 2000, we--ran the suspensions concurrently. Id. D’Angelo’s suspensions ended in November of 2003, but he has not yét applied for reinstatement. ■ ’

Remarkably, D’Angelo is here before us again for violations which occurred both before and after his 2000 suspension.

II. Standard of Review

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 405 (Iowa 2005); Iowa Ct. R. 35.10(1). We give respectful consideration to the Commission’s findings and recommendations, but are not bound by them. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002) (revoking license even though Commission recommended five-year suspension). The Board must prove attorney misconduct by a convincing preponderance of the evidence. Kadenge, 706 N.W.2d at 406. This burden is “less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004).

III. Factual Findings

D’Angelo refutes many of the Board’s allegations and pits his own testimony, the testimony of his wife, and the testimony of his secretary against the evidence offered by the Board. It is not our custom to attempt to set out the evidence in detail and try to harmonize the testimony of opposing witnesses in our opinions. Benton County Sav. Bank v. First Nat’l Bank, 179 Iowa 993, 996, 162 N.W. 204, 205 (1917). The Commission considered the testimony and evidence from his former clients more credible, and after our de novo review of the record, we do not disturb the Commission’s credibility findings. Based upon D’Angelo’s admissions and the evidence presented to the Commission concerning the various ethical violations, we find the Board proved the following by a convincing preponderance of the evidence.

A. O’Rourke Matter

D’Angelo met with Beverly O’Rourke on December 15, 2000, a full month after his license to practice law had been suspended. O’Rourke retained D’Angelo to handle her bankruptcy proceeding and gave him a check for a $450 retainer. When O’Rourke asked how to spell “D’Angelo,” he told her to just leave the “payable to” line blank. D’Angelo’s wife, serving as the firm’s office manager, later wrote the name John Leed on the check and deposited the check in a regular (non-trust) account she had set up in Leed’s name. Shortly thereafter, she closed the Leed account and transferred the funds to the office account for her business' — D’Angelo Tax Service and Accounting. O’Rourke never met with Leed, never knew of Leed, and was never told any attorney besides D’Angelo would be working on her bankruptcy. Leed was a different attorney that D’Angelo- claims was helping with pending cases after his. license was suspended. D’Angelo was unable to locate Leed and therefore he did not testify before the Commission.

In February and March of 2001, O’Rourke sent checks to D’Angelo for $75 and $325 respectively. These two payments were deposited directly into D’Angelo’s office account. O’Rourke spoke with D’Angelo on more than seven different occasions about the status of the bankruptcy proceedings. At no time did D’Angelo tell her that his license had been suspended. O’Rourke eventually learned from another attorney that D’Angelo had been suspended, so she filed a complaint with the Attorney Disciplinary Board. She immediately received a refund of $850 from D’Angelo. D’Angelo responded to the Board’s complaint nearly two years later.

B. Kemp Matter

Sherene Kemp went to D’Angelo’s law office in June of 2000 to discuss a bankruptcy proceeding. She was told by a receptionist that D’Angelo was unavailable, but the receptionist asked her to'prepare a list of all bills and financial records. Kemp was told the total fees for the bankruptcy would be $850. Kemp paid $400 cash on June 23, 2000. This money was never deposited in a trust account. On November 16, 2000, D’Angelo was suspended from the practice of law. D’Angelo did not tell Kemp he was suspended. On February 20, 2001, three months after he was suspended, D’Angelo sent Kemp a bill for an additional $450. Kemp paid this bill, but the $450 was never placed in a trust account and the bankruptcy petition was never filed. In September of 2001, after Kemp learned of D’Angelo’s suspension and telephoned his office, D’Angelo refunded the entire $850. D’Angelo did not respond to the Board’s notice of complaint over this issue for two years.

C. Benson-Blaine Matter

In September of 1999, Susan Benson-Blaine paid D’Angelo a $300 retainer to seek sole custody of her child and to seek termination of the father’s visitation and parental rights. The petition was served in February 2000, but D’Angelo stopped returning Benson-Blaine’s phone calls. Benson-Blaine eventually sought the advice of another attorney. This attorney wrote D’Angelo a letter, but he never responded. D’Angelo remained Benson-Blaine’s counsel of record and did not formally withdraw from her case even after his license had been formally suspended. On January 17, 2002, Benson-Blaine’s case was dismissed for failure to prosecute. Benson-Blaine contacted the Client Security Commission and then received a $300 refund from D’Angelo’s office. D’Angelo did not respond to the Board’s complaints for two years.

D. Knapp Matter ,

In July of 1999, Julie Knapp was named the administrator of her father’s estate. D’Angelo was designated as the attorney for the estate. D’Angelo petitioned the court to sell a piece of estate property. The court set a hearing and issued an order indicating that all interested parties were to receive notice of the hearing and that proof of mailing notice was to be on file before the time of the hearing. D’Angelo then prepared a decree stating that notice had been given to all interested parties, even though D’Angelo had never filed a proof of notice to the interested parties. D’Angelo then secured a judge’s signature to a decree approving the sale of the property.

After D’Angelo’s license to practice law was suspended in November of 2000, the court appointed a trustee to review the case file. The trustee discovered that D’Angelo ■ took approximately $5426.74 in fees from the estate. The fees included $2500 for services in connection with the salé of the decedent’s residence, $2000 for “Estate Legal Fees,” and $926.74 for representing Julie Knapp in a dissolution nf marriage action. D’Angelo also deposited an additional $2796.65 from the proceeds of the auction of the estate’s personal property into his trust account. This money was subsequently withdrawn and D’Angelo is unable to explain where the money is now.

Under Iowa law, a lawyer taking a fee for any estate proceeding must first obtain a court order authorizing the fee. See Iowa Code §§ 633.197-.198 (1997) (authorizing payment of “reasonable fees as may be determined by the court”). D’Angelo received no such authorization. In addition, the maximum fee for ordinary services for a $45,000 estate would have been only about $1000.

The final report prepared by D’Angelo lacked pertinent documents. The report stated an accounting of receipts and disbursements was attached, but no such accounting was attached to the report. The final report also asserts that an income tax certificate of acquittance was on file and that all statutory requirements pertaining to taxes were on file. However, neither the Iowa inheritance tax clearance nor the income tax certificate were actually on file. The final report presented by Knapp and prepared by D’Angelo also did not include an accounting nor a waiver of accounting by the interested parties. See id. § 633.477(9).

D’Angelo did not respond to the Board’s complaint concerning these charges for nearly a year.

E. Eckert Matter

In September of 1998, D’Angelo was hired to represent Gary Eckert, administrator of the estate of James Arthur Ec-kert. In November of 2000, D’Angelo accepted a $4541 check from Eckert for his work on the estate. D’Angelo deposited this check in his trust account arid almost immediately withdrew $2846 of the proceeds from the trust account without court authorization. It is not clear when D’Angelo withdrew additional proceeds from the original $4541, but by April 2001, only $657.73 remained in his trust account for the Eckert estate. D’Angelo cannot verify why the funds were withdrawn, but speculates they may have been inadvertently withdrawn from the Eckert estate trust account for payments related to personal work done for Gary Eckert.

D’Angelo also received a $6057.73 check from Eckert in April 1999, the date the inheritance tax return was signed by Ec-kert. D’Angelo did not file the inheritance tax return and the funds were not provided to the Iowa Department of Revenue for payment of the inheritance tax. D’Angelo does not know what happened to these funds. After a claim was filed with the Client Security Commission, D’Angelo reimbursed the Eckert estate for the missing funds.

F. Roberson Matter

In 1997, Jina Roberson hired D’Angelo to handle her bankruptcy for a flat-fee of $800. Roberson initially paid D’Angelo $200. Because of concerns about the status of property she owned in California with her ex-husband, Roberson decided not to file the bankruptcy. Roberson then moved to Texas. In the fall of 1999, the California real estate was sold. In January of 2000, Roberson received documents regarding the sale proceeding and sent those documents to D’Angelo. D’Angelo wrote the attorney named in those documents requesting information regarding the sale of the property and the debts needed to be paid from Roberson’s share of the proceeds. In February of 2000, a California court awarded Roberson $10,879.43 for her share of the proceeds. On February 17, 2000, a check for this amount was sent to D’Angelo, payable to Roberson. D’Angelo did not tell Roberson he received the check. Instead, in March, he sent Roberson a letter informing her “it does not appear that after all the payments are made, there should be funds to be divided.”

On October 12, 2000, the check was deposited into D’Angelo’s trust account. Although Roberson had never seen the check, it was endorsed in her name. On October 19, 2000, D’Angelo sent Roberson a check for $5600 with an explanation on the check reading “J. Graves Property Settlement.” He did not mention that the original check had been for $10,879.43. On the same day, D’Angelo also withdrew $2779.79 from the trust account for “Legal fees in conjunction with property settlement & bankruptcy legal fee including filing fee.” No bankruptcy petition was ever filed. The remaining $2499.64 inexplicably vanished from the trust account.

Roberson eventually filed a claim with the Client Security Commission. At the direction of the Commission, D’Angelo restored $2499.64 to Roberson three years later.

IV. Ethical Violations

We first discuss those violations which occurred while D’Angelo was suspended from the practice of law, and then discuss those violations which occurred prior to his 2000 suspension.

A. Ethical Violations Occurring During His Suspension

1. Practice of Law During Suspension

By meeting with O’Rourke at his office in December of 2000 and holding himself out as a lawyer while his license was suspended, D’Angelo violated DR 3-101(B) (stating a lawyer shall not practice law where to do so would be in violation of rules of jurisdiction), DR 7-106(A) (stating a lawyer shall not disregard court order), and Iowa Court Rule 35.12 (providing a suspended lawyer shall refrain from all facets of practice of law). A lawyer who misinforms or fails to inform a client as to his ineligibility to practice is guilty of dishonesty, fraud, deceit or misrepresentation, in violation of DR 1-102(A)(4). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 599 N.W.2d 453, 455 (Iowa 1999). We find a similar violation in the Kemp matter because, three months after his license had been suspended, he sent a bill to Kemp for services which he had not yet performed.

Even if D’Angelo had properly informed O’Rourke that his license to practice law was suspended and that somehow Leed would be her new attorney, such a scheme would not be in compliance with our rules of suspension. According to Iowa Court Rule 35.12(3), a suspended lawyer shall refrain

from all facets of the ordinary law practice including, but not limited to, the examination of abstracts; consummation of real estate transactions; preparation of legal briefs, deeds, buy and sell agreements, contracts, wills, and tax returns; and acting as a fiduciary.

(Emphasis added.) At best, it would appear D’Angelo was using Leed or Leed’s name as a false front, hoping to maintain his client base. Some clients may be willing to wait out an attorney’s suspension, but any attempt to assign client cases, with a wink and a nod, to another attorney who will sign pertinent documents and keep the law office open during the period of suspension is a violation of the aforementioned rule.

2. Failure to Cooperate with the Board

D’Angelo was dilatory in responding to the Board’s notices of complaint in the O’Rourke, Kemp, Benson-Blaine, and Knapp matters. Delay in responding to the Board is inexcusable and a violation of DR-102(A)(5), (6) (conduct prejudicial to administration of justice and conduct reflecting adversely on fitness to practice law). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 167 (Iowa 2003). Responding to the Client Security Commission, but ignoring complaints from the Board, constitutes a failure to cooperate with the Board.

B. Violations Prior to His First Suspension

1. Misrepresentations to the Court

In the Knapp matter, D’Angelo intentionally disregarded a court order in violation of DR 7-106(A) when he failed to provide other parties with proper notice of the sale of the property. He also violated DR 1-102(A)(4) (stating a lawyer shall not engage in dishonesty, fraud, deceit, or misrepresentation) and DR 7-102(A)(3), (5) (stating a lawyer shall not knowingly conceal or fail to disclose that which a lawyer is required to reveal or knowingly make a false statement) when he made misrepresentations to the court to obtain an order allowing the sale of the property. D’Angelo also made misrepresentations in the final report in violation of DR 7-102(A)(3), (5).

These misrepresentations are particularly egregious when viewed in light of D’Angelo’s previous public reprimand for conduct involving dishonesty towards the court. On November 15, 1996, D’Angelo received a public reprimand by drafting and obtaining a judge’s signature on a dissolution decree that varied from the parties’ stipulation. Similar conduct in this cáse — obtaining a court’s signature on a document which contained misrepresentations — demonstrates D’Angelo did not alter his behavior after the public reprimand.

2. Neglect

By abandoning Benson-Blaine’s case and failing to seek her lawful objectives, D’Angelo neglected client matters and violated DR 6-101(A)(3) (“A lawyer shall not ... [n]eglect a client’s legal matter.”).

3. Trust Fund Violations/Taking Client Funds Without Prior Authorization

Client funds paid to an attorney must be deposited into an interest-bearing trust account, rather than the firm’s operating account, until they are earned. Kadenge, 706 N.W.2d at 408; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Herrera, 560 N.W.2d 592, 594 (Iowa 1997). D’Angelo’s failure to deposit Kemp’s payments in a trust account was a violation of DR 9-102(A) (requiring client funds to be deposited to trust account until earned). At least part of the $850 flat fee paid by Kemp had not been earned because the bankruptcy petition was neither filed nor completed. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 648 N.W.2d 127, 134 (Iowa 2002) (“[P]resuming the flat fee is fair, the attorney is entitled to the entire amount when he or she completes the necessary services.”); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Winkel, 599 N.W.2d 456, 459 (Iowa 1999) (“A lawyer who takes a fee before it is earned effectively misappropriates the client’s funds.”).

D’Angelo also violated DR 9-102(A) in the Knapp and Roberson matters when he inexplicably “lost” funds that were supposed to be kept in client trust accounts.

D’Angelo also violated DR 9-102(B)(3), (4) (requiring a lawyer to account for and properly return funds to which a client is entitled) in the Kemp matter when he violated Court Rule 35.21(c) by not refunding unearned fees within 30 days of his suspension.

In the Eckert matter, D’Angelo violated Iowa Code section 633.198 when he took fees for his work in a probate matter before he received court authorization. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Reese, 657 N.W.2d 457, 461 (Iowa 2003) (stating a lawyer may not take fees for a probate matter until authorized to do so by the court).

Because restitution is a lawyer’s duty, the fact that D’Angelo paid the money back to these clients after they filed complaints is not a valid defense or excuse for these ethical violations. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stowers, 626 N.W.2d 130, 133 (Iowa 2001). To allow such payments to serve as mitigating factors “might imply to the public that an officer of the court can buy his way out of professional difficulties if financially able to do so.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 72 (Iowa 1989).

4. Misappropriation of Client Funds

In the Roberson matter, we make no finding as to whether D’Angelo personally forged Roberson’s signature in order to endorse her check. D’Angelo and the Board provided conflicting expert testimony regarding the exact identity of the forger. We make two findings: Roberson never signed the check, and the check was at all times under the control of D’Angelo’s law firm. Based upon these findings and D’Angelo’s attempt to pay Roberson only $5600 of the more than $10,000 which he wrongfully held, we conclude D’Angelo misappropriated funds entrusted to him in a professional capacity.

The amount misappropriated was at least $2499.64, and likely more because D’Angelo’s limited legal work did not warrant a fee of $2779.79. We conclude this fee was excessive in violation of DR 2-106(A) (prohibiting a lawyer from collecting a clearly excessive fee) because D’Angelo did not participate in the California real estate proceeding to obtain a settlement for Roberson and he did not file a bankruptcy petition on Roberson’s behalf. He also violated DR 1-102(A)(4) (stating a lawyer shall not engage in dishonesty, fraud, deceit, or misrepresentation) when he billed Roberson for a filing fee for a bankruptcy that was never filed. D’Angelo also violated DR 9-102(B)(4) (failing to promptly pay a client funds they are entitled to receive) when he did not send her the remaining $2449.64 until over three years later when he was directed to do so by the Client Security Commission.

It becomes more difficult to attribute misappropriations to sloppiness when client funds repeatedly disappear without explanation. Therefore, based upon his actions in the Roberson matter and the missing $6057.73 in the Eckert matter, we conclude D’Angelo intentionally misappropriated client funds in violation of DR 1-102(A)(3) for illegal conduct involving moral turpitude and DR 1-102(A)(4) for conduct involving dishonesty, fraud, deceit or misrepresentation.

V. Disposition

There is no standard discipline for a particular type of attorney misconduct because “[e]ach case rests on its own facts, viewed in light of the relevant governing considerations.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 376 (Iowa 2002). “[T]he nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole and the respondent’s fitness to continue in the practice of law” are all factors that guide our determination. Comm. on Prof'l Ethics & Conduct v. Blomker, 379 N.W.2d 19, 21 (Iowa 1985).

When we analyzed the allegations presented against D’Angelo in 2000, we concluded D’Angelo’s activities were not fundamentally dishonest because the misappropriation's were, with one exception, limited to the taking of unauthorized and premature probate fees. D’Angelo I, 619 N.W.2d at 339. We characterized D’Angelo as “inattentive” and “sloppy,” but not intentionally dishonest. Id. When D’Angelo was before us again in 2002 for similar violations predating his 2002 suspension, we gave him a one year concurrent sentence because “[h]ad these additional matters been brought to our attention at [the time of the first suspension], we seriously doubt that [his] prior suspension ... would have been enlarged.” D’Angelo II, 652 N.W.2d at 215.

D’Angelo again asks this court for- leniency because most of the violations before us today predate his 2000 suspension. He also asks for leniency because, in his opinion, the violations are of the same type for which he has already been punished. We do not agree that the violations are the same, and we do not find leniency is appropriate.

“A deliberate conversion of client funds ordinarily demands revocation of the lawyer’s license.” D’Angelo I, 619 N.W.2d at 339; see Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Anderson, 687 N.W.2d 587 (Iowa 2004) (revoking license for conversion of entrusted funds); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Allen, 586 N.W.2d 383, 389-90 (Iowa 1998) (cataloguing cases where we have revoked an attorney’s license for theft of entrusted funds). However, we have recognized other factors which call for leniency. As we stated in our opinion concerning D’Angelo’s 2000 suspension, a penalty less than revocation is appropriate when the commingling of funds appears to be negligent, rather than intentional, or when the funds were not knowingly converted' to the lawyer’s own use, or when no client suffered a financial loss. DAngelo I, 619 N.W.2d at 339. In light of the sheer number of times D’Angelo improperly moved client money from his client trust account to his operating account, we simply cannot conclude the commingling of client funds was negligent, rather than intentional. Similarly, the fact that the funds have vanished, without explanation, to the detriment of numerous clients, leads us to believe these minimizing factors are no longer applicable.

This will be the last time we consider D’Angelo’s ethical violations. He has misappropriated client funds, practiced law after his license was suspended, neglected his clients, made misrepresentations to the court, and repeatedly failed to cooperate with the Attorney Disciplinary Board. These numerous violations are unacceptable, and we conclude the public will -not be protected if D’Angelo is allowed to practice law again. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Leon, 602 N.W.2d 336, 339 (Iowa 1999) (stating revocation is necessary to protect the public when there is “a pattern of misconduct [that] leads us to conclude that future misconduct is likely”). We therefore revoke D’Angelo’s license to practice law. Costs are assessed to D’Angelo pursuant to Iowa Court Rule 35.25.

License Revoked.

All justices concur except LARSON, J., who takes no part.

      . D’Angelo's supposed reliance on Leed did not go well. Leed did not attend to D’Angelo's cases and, apparently unbeknownst to D’Angelo, Leed’s license to practice law was also suspended as of November, 2000.

      . The statutory fee on an $85,000 estate should only have been approximately $1900. See Iowa Code § 633.197.

      . Because of his suspension, D’Angelo was ineligible to counsel and represent clients in bankruptcy, even though bankruptcy cases are heard in federal court. See Iowa Supreme Ct. Commission on Unauthorized Practice of Law v. Sturgeon, 635 N.W.2d 679, 686 (Iowa 2001) (affirming injunction barring disbarred lawyer from drafting bankruptcy pleadings for clients); Matter of Perrello, 270 Ind. 390, 386 N.E.2d 174, 179 (1979) (holding a lawyer violated suspension order of Indiana Supreme Court by continuing to practice law in the state, even though practice was in federal court).

      . The one exception was in the estate of Earl Smith, where in a case eerily similar to the Eckert matter now before us, D’Angelo took funds intended for the Iowa inheritance tax, placed them in his firm operating account, and then withdrew the funds without explanation. D'Angelo I, 619 N.W.2d at 335.


source: Caselaw Access Project

author: STREIT, Justice. LAVORATO, Chief Justice WIGGINS, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Randolph Louis TATE, Appellant.
    No. 04-1690.
    Supreme Court of Iowa.
    Feb. 24, 2006.

      Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Stephen Holmes, County Attorney, and Timothy J. Meals and Shawn Smith, Assistant County Attorneys, for appellee.
   STREIT, Justice.

The defendant, Randolph Tate, appeals from his conviction and sentence upon his guilty plea to voluntary absence. He contends his counsel was ineffective in permitting him to enter a guilty plea and failing to file a motion in arrest of judgment because the district court misinformed him of the maximum penalty for his crime. Because we conclude Tate has not established his ineffective-assistance-of-counsel claim, we affirm the decision of the court of appeals and preserve the issue for post-conviction relief proceedings.

I. Facts and Prior Proceedings

Randolph Tate walked out of the Curt Forbes Residential Facility in Ames and did not return. Tate was serving a sentence at the. facility as part of a work release program. Tate was authorized to leave the facility on a food furlough, but instead of returning at the specified time, he went to Fort Dodge to visit his terminally-ill girlfriend. He was arrested later that week in Fort Dodge and charged with voluntary absence in violation of Iowa Code section 719.4(3) (2003).

Tate entered into a plea agreement with the State whereby the State and the defendant recommended the court impose a sentence of credit for time served and a minimum fíne. The plea agreement was not conditioned on the district court’s willingness to be bound by it. Through a discussion with Tate, the court established there was a factual basis for the plea and the plea was both informed and voluntary. When describing the penal consequences to Tate’s guilty plea, the court did not inform Tate that Iowa Code section 901.8 mandated the sentence for voluntary absence “begin at the expiration of any existing sentence.” However, the court described the penalty to Tate in the following manner:

THE COURT: You are charged on the trial information with voluntary absence. This is, as I noted, a serious misdemeanor. It, therefore, carries with it a maximum penalty upon.conviction of one year imprisonment in the county jail and a fine of up to $1500.00. Do you understand the maximum penalty? A. Yes, sir.
THE COURT: There is a minimum penalty associated with this charge, if the Court does not suspend or defer judgment, and that minimum penalty is a fine of $250.00. Do you understand that? A. Yes, sir.

The court went on to inform Tate the sentencing judge would not be bound by the plea agreement and the sentencing judge could “conceivably” impose any penalty up to the maximum period provided by law.

On September 9, 2004, Tate was sentenced to six months imprisonment consecutive to his underlying sentence for operating a motor vehicle without the owner’s consent. The sentencing judge stated the “defendant shall be given credit for time previously served as shown by the records of this county to the extent that credit was not being received in [the underlying operating a motor vehicle without the owner’s consent conviction].” Tate immediately told the sentencing judge “I would like to appeal it. Yes. I would like to retract [my guilty plea]. This is not what I was told was going to happen. I’m sorry.” The court responded “[y]ou can discuss this with your attorney. Any notice of appeal, Mr. Tate, must be filed in writing with the Clerk.” To which Tate responded “I just wanted it to be part of the record. I’ll file it then.”

Tate did in fact appeal his conviction, contending his counsel was ineffective for failing to file a motion in arrest of judgment prior to sentencing. Specifically, Tate contends his trial counsel erred by not filing a motion in arrest of judgment when the district court did not inform him that the sentence for voluntary absence must be consecutive to the sentence for the underlying crime. See Iowa Code § 901.8 (“If a person is sentenced for escape under section 719.4 ... the sentencing judge shall order the sentence to begin at the expiration of any existing sentence.”). Therefore, he claims, when his trial counsel did not file a motion in arrest of judgment to correct this alleged error, his trial counsel was ineffective.

II. Scope of Review

Generally our review of a challenge to the entry of a guilty plea is for correction of errors at law. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). However, when the challenge arises in the context of an ineffective-assistance claim, our standard of review is de novo. State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004).

An ineffective-assistance-of-counsel claim in a criminal case “need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes.” Iowa Code § 814.7(1) (2005). The defendant may raise the ineffective assistance claim on direct appeal if he or she “has reasonable grounds to believe that the record is adequate to address the claim on direct appeal.” Id. § 814.7(2). Ordinarily, we do not decide ineffective-assistance-of-counsel claims on direct appeal. See State v. Taylor, 310 N.W.2d 174, 179 (Iowa 1981). We prefer to reserve such questions for post-conviction proceeding's so the defendant’s trial counsel can defend against the charge. Id. However, we depart from this preference in cases where the record is adequate to evaluate the appellant’s claim. State v. Schoelerman, 315 N.W.2d 67, 71 (Iowa 1982); State v. Ogilvie, 310 N.W.2d 192, 197 (Iowa 1981); Iowa Code § 814.7(3) (“If an ineffective assistance of counsel claim is raised on direct appeal from the criminal proceedings, the court may decide the record is adequate to decide the claim or may choose to preserve the claim under chapter 822 [postconviction proceedings].”). Only in rare cases will the trial record alone be sufficient to resolve the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (stating claims of ineffective assistance of counsel raised on direct appeal are ordinarily reserved for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct); State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). For the reasons that follow, we deem the record insufficient.

III. Merits

For his ineffective-assistance-of-counsel claim to succeed, Tate “must prove by a preponderance of the evidence that (1) his counsel failed to perform an essential duty, and (2) prejudice resulted.” Tejeda, 677 N.W.2d at 754.

In analyzing this claim, we need not determine whether his trial counsel’s performance was deficient before examining the prejudice component of his ineffective-assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). As stated by the United States Supreme Court,

The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674, 699 (1984). We therefore focus our analysis solely on the prong which is not sufficiently supported by the record — resulting prejudice.

A. Resulting Prejudice

Because “ ‘[attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial,’ ” Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 209 (1985) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697), the defendant claiming ineffective assistance of counsel with respect to a guilty plea must prove that, but for counsel’s breach, there is a reasonable probability he or she would have insisted on going to trial. Straw, 709 N.W.2d at 133. Therefore, “ ‘[e]ven if a defendant shows that particular errors of counsel were unreasonable ... the defendant must show that they actually had an adverse impact on the defense.’ ” Hill, 474 U.S. at 58, 106 S.Ct. at 370, 88 L.Ed.2d at 209 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697).

Tate’s prejudice argument is limited because the record in this case consists only of the transcript of the guilty plea proceeding and the transcript of the sentencing proceeding. The thrust of Tate’s argument is that he complained of prejudice immediately after the court announced its sentence when he said “I would like to appeal it. Yes. I would like to retract. This is not what I was told was going to happen. I’m sorry.” This argument has some merit because there is a subtle difference between a defendant who first claims in his or her appellate brief or post-conviction application that he or she would have chosen a trial, and one like Tate who indicates a desire to withdraw his plea prior to the close of the sentencing proceeding. In the latter instance, the defendant’s actions more likely indicate the defendant’s bona fide desire to choose trial because his counsel’s error was at the forefront of his mind. However, standing alone, this statement is barely more than a conclusory claim of prejudice, and as we stated in State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002), “conclusory claims of prejudice” are not sufficient to satisfy the prejudice element.

The record also does not contain other items important to our analysis. For example, the record does not indicate whether Tate’s trial counsel told him about the possibility of consecutive sentences. See Straw, 709 N.W.2d at 138. The record also does not indicate there was a specific defense or trial strategy forgone by the guilty plea. In addition, the lone statement “this is not what I was told was going to happen” is unclear itself. The statement begs the question: what was Tate told? Without knowing what Tate was told, we cannot determine whether Tate was prejudiced.

When presented with this sole assertion of prejudice, we are simply unable to find Tate has proven, by a preponderance of the evidence, that but for his trial counsel’s failure to file a motion in arrest of judgment after the judge did not mention the consecutive sentence requirement, there is a reasonable probability he would have insisted on going to trial. This case exemplifies why, as noted above, an ineffective-assistance-of counsel claim is normally best reserved for postconviction proceedings. See Straw, 709 N.W.2d at 138. Because Tate is unable to prove the prejudice element, his ineffective-assistance claim must fail. However, we do preserve the issue for postconviction proceedings so both Tate and his trial counsel will have the opportunity to establish a record.

IV. Conclusion

Because we find Tate has not established his ineffective-assistance-of-counsel claim regarding his guilty plea, we affirm Tate’s conviction and sentence and preserve this issue for postconviction proceedings.

AFFIRMED.

All justices concur except LAVORATO, C.J., and WIGGINS, J., who dissent separately.

LAVORATO, Chief Justice

(dissenting).

I join Justice Wiggins’ dissent. I would also point out that this case underscores another reason, in addition to the reasons I stated in my dissent in State v. Straw, 709 N.W.2d 128, 138-45 (Iowa 2006) (Lavo-rato, C.J., dissenting), why we should presume prejudice, vacate the judgment of sentence and conviction, and remand to allow the defendant to plead anew. Under the majority’s approach, a postconviction relief proceeding in cases like this one will now likely degenerate into a credibility contest between the lawyer and his or her former client, a contest the former client will' in all likelihood lose. We should not put lawyers and defendants in this unenviable 'position. Such unseemly conflict would be unnecessary, and district court performance would be improved, if we simply enforced Iowa Rule of Criminal Proce-duie 2.8(2)(b)’s requirements.

WIGGINS, J., joins this dissent.

WIGGINS, Justice

(dissenting).

The record is unequivocal that at. the time the district court accepted the defendant’s guilty plea, the court failed to advise the defendant that the sentence for voluntary absence .began “at the expiration of any. existing sentence.” Iowa Code § ,901.8 (2003). I believe this failure violated our rule requiring the court to inform the defendant of “[t]he mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.” Iowa R.Crim. P. 2.8(2)(b)(2). For the reasons stated in the dissenting opinion in State v. Straw, 709 N.W.2d 128, 145 (Iowa 2006) (Lavorato, C.J;, dissenting), I would presume prejudice, vacate the judgment of sentence and conviction, and remand the case to the district court. .

LAVORATO, C.J., joins this dissent.

      . Tate was convicted in 2003 for operating a motor vehicle without the owner's consent. He was committed to the custody of the Director of the Department of Corrections of the State of Iowa for a period of two years for this crime.

      . It may have been preferable for the trial judge, under the circumstances, to respond to the defendant with a question of “What were you told?” However, in this setting, the court may have concluded such a question could violate the attorney-client privilege. This concern disappears during postconviction relief proceedings.


author: TERNUS, Justice.

text:
    Randall LANGE and Sherri Lange, Appellees, v. IOWA DEPARTMENT OF REVENUE, Appellant.
    No. 04-1298.
    Supreme Court of Iowa.
    Feb. 24, 2006.

      Thomas J. Miller, Attorney General, and James D. Miller, Assistant Attorney General, for appellant.
    Kenneth L. Butters of Brick, Gentry, Bowers, Swartz, Stoltze, Sehuling & Levis, P.C., Des Moines, for appellees.

      . The parties dispute whether leaving the mail in a postal box for pickup by the United States Postal Service constitutes depositing the return in the United States mail. We do not answer this question because we resolve this appeal on a ground that is unaffected by the resolution of this issue.

   TERNUS, Justice.

The appellant, Iowa Department of Revenue, refused to credit an overpayment of 1996 income taxes to the 1997 tax obligation of the appellee taxpayers, Randall and Sherri Lange, due to the late filing of their 1996 tax return. The Langes claimed they mailed their 1996 return by the due date in 1997, and therefore, pursuant to Iowa Code section 622.105 (2001), their return should be deemed filed as of the date of mailing, even though it was not received by the department at that time. The department director held the taxpayers had not met their burden to prove they had actually mailed their 1996 return in 1997. Therefore, the director concluded the filing date of their return was the actual filing date of June 17, 2001 when the department was provided a duplicate of the 1996 tax return. Because this date was beyond the three-year period for claiming a credit, see Iowa Code § 422.73(2), the director denied the taxpayers’ claim.

On judicial review, the district court held the agency had failed to take into account “the presumption of mailing created by evidence of office custom,” as well as whether this presumption had been adequately rebutted. The court reversed the agency’s decision and remanded the case for reconsideration by the director in light of these principles of law.

The department has appealed. We conclude (1) the agency did not err in failing to apply the common law presumption discussed by the district court, and (2) there is substantial evidence to support the agency’s factual finding that the Langes’ 1996 return was not filed until 2001. Therefore, the department correctly ruled the Langes’ claim for a credit was untimely. Accordingly, we reverse the district court judgment and affirm the agency’s ruling.

I. Background Facts and Proceedings.

The Langes’ 1996 federal and state income tax returns were prepared by CPA Robert McGowen in September 1997. The state return showed the Langes were entitled to a refund of $7685, which they indicated should be applied to their 1997 tax obligation.

Because the Langes had paid more than ninety percent of their 1996 taxes, the due date for their state return had been automatically extended to October 31, 1997. See Iowa Admin. Code r. 701-39.2(4). It is undisputed, however, that their return was not actually filed until June 17, 2001. On that date, the Langes, having learned the State did not have their 1996 return, sent a duplicate to the department. After the Langes’ 1996 return was filed in 2001, the department denied the Langes’ request to apply their overpayment of 1996 taxes to their 1997 tax obligation. The department relied on Iowa Code section 422.73, which states in pertinent part: “A claim for refund or credit that has not been filed with the department within three years after the return upon which a refund or credit claimed became due ... shall not be allowed by the director.” Iowa Code § 422.73(2). Since the Langes’ return was due on October 31, 1997, the filing date of June 17, 2001 was well beyond the three-year limitations period.

The Langes protested the denial, claiming there was competent evidence they had mailed their tax return on or before the due date, and therefore, it should be deemed filed on the date of mailing pursuant to Iowa Code section 622.105. This statute provides:

Any report, claim, tax return, statement, or any payment required or authorized to be filed or made to the state ... which is transmitted through the United States mail or mailed but not received by the state ..., shall be deemed filed or made and received on the date it was mailed if the sender establishes by competent evidence that the ... tax return ... was deposited in the United States mail on or before the date for filing or paying....
For the purposes of this section “competent evidence” means evidence, in addition to the testimony of the sender, sufficient or adequate to prove that the document was mailed on a specified date which evidence is credible and of such a nature to reasonably support the determination that the letter was mailed on a specified date.

Iowa Code § 622.105 (emphasis added).

At a subsequent hearing on their protest, the Langes attempted to establish through McGowen’s testimony that their 1996 return had been deposited in the United States mail on September 18 or 19, 1997. Because McGowen had no personal recollection of the firm’s work on the Langes’ 1996 return, he testified to his firm’s general office procedure for processing tax returns. Basically, a return is prepared, reviewed, assembled, signed, and mailed. This process is tracked on an office form that shows what was done, by whom, and when. The processing checklist for the Langes’ 1996 federal and state returns showed the returns were completed on September 11, 1997 by an accountant in McGowen’s office. The returns were subsequently reviewed by McGowen on September 17, 1997. This form also showed that on the following day, McGowen personally delivered the forms to the Langes for signing. He testified his typical practice would have been to take the returns back to his office for mailing. Billing records for September 1997 showed the Langes were charged $1.70 for postage. Although the bill does not state the purpose of the postage, McGowen said the tax returns would have been the only items his firm would have mailed for the Langes that month.

McGowen testified he did not personally deposit the Langes’ 1996 returns in the mail. The normal office procedure is for one of the administrative assistants to carry a box of outgoing mail to the lobby area of their office building. There, the mail would have been placed into a designated postal slot, or depending upon the size and amount of mail, the box would have been left in the lobby where postal employees would have picked it up between 5:30 p.m. and 5:45 p.m.

IRS records showed the Langes’ 1996 federal tax return, prepared at the same time as the state return, was not filed until April 11, 1998, almost seven months after its alleged mailing. McGowen recalled that sometime during the period from 1996 to 2002 he was notified that the federal government had not received one of the Langes’ federal returns, and he then sent a copy to the IRS. He could not remember, though, whether this incident involved the Langes’ 1996 federal return.

Finally, evidence was admitted that the Langes’ 1998 Iowa tax return, which was processed under the same procedure as the 1996 return, was also not received by the department upon its initial mailing. After the Langes learned the department did not have their 1998 return, a copy was sent on June 17, 2001.

Based on this record, the administrative law judge (ALJ) found the taxpayers’ 1996 return had been prepared, signed, and readied for mailing in September 1997. The ALJ also found, however, that the Langes had failed to meet their burden under section 622.105 to establish that the return had been deposited in the United States mail on or before its due date. Upon the Langes’ appeal of the proposed decision, the department director adopted the ALJ’s decision, concluding “the evidence that was submitted by the [taxpayers] to indicate that the return was actually mailed does not meet the burden of proof as required [under section 622.105].”

The Langes sought judicial review. The district court focused on “whether under the circumstances presented, the taxpayers are afforded the benefit of Iowa Code § 622.105, [pertaining] to the effective date of filing a tax return.” The court examined the record and noted “[t]here was no proof that anyone connected to either the taxpayers or McGowen actually deposited or placed the envelope containing the return in the mail.” The court concluded, however, proof of compliance with office procedures would create a presumption of mailing, and this presumption would constitute “competent evidence” under section 622.105. Because the department had failed to consider this presumption, the court held the agency decision was in error and should be reversed. Nonetheless, the court did not order the agency to enter a decision allowing the requested credit. Noting the presumption of mailing could be defeated by proof to the contrary, the court remanded the case to permit the department to determine whether the presumption of mailing created by proof of office procedure had been dispelled by other evidence. The department filed this appeal.

II. Scope of Review.

Our review is governed by the standards set forth in Iowa’s Administrative Procedure Act, chapter 17A. See Dubuque Casino Belle, Inc. v. Bair, 562 N.W.2d 605, 606 (Iowa 1997). We may grant relief if the taxpayers’ “substantial rights have been prejudiced because the agency’s action meets any one of several statutory criteria.” Midwest Auto. Ill, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 421 (Iowa 2002). The criteria implicated here include agency action

c. Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency.
f. Based upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole.

Iowa Code § 17A.19(10)(c), (f). For purposes of our review,

“/sjubstantial evidence ” means the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.

Iowa Code § 17A.19(10)(f)(l). In assessing evidentiary support for the agency’s factual determinations, we consider evidence that detracts from the agency’s findings, as well as evidence that supports them, giving deference to the credibility determinations of the presiding officer. See Iowa Code § 17A.19(10)00(3).

III. Interpretation of Section 622.105.

Iowa Code section 622.105 is a statutory rule of evidence having general applicability to documents filed with the State. See Iowa Code ch. 622 (setting forth rules governing evidence and related matters). Because there is no provision of law giving the department of revenue and finance the discretion to interpret this statute, we do not give any deference to the agency’s interpretation of this provision. See Iowa Code § 17A.19(ll)(i>).

Our rules for interpreting statutes are well established. The primary goal is to give effect to the legislature’s intent, as expressed by the language used in the statute. See Gen. Elec. Co. v. Iowa State Bd. of Tax Review, 702 N.W.2d 485, 489 (Iowa 2005). We give words their usual and ordinary meaning, and we try to avoid impractical or absurd results. Id.

The taxpayers, in an argument adopted by the district court, contend the requirement of “competent evidence” under section 622.105 is satisfied by evidence sufficient to give rise to the common law presumption of delivery upon proof that a document was properly mailed. See Montgomery Ward, Inc. v. Davis, 398 N.W.2d 869, 870 (Iowa 1987) (“Proof that a document was properly mailed raises a presumption that it was received.”). The Langes further assert that proof of proper mailing can be established by evidence complying with the requirements set forth in our cases applying the common law presumption. See id. at 870-71; Cent. Trust Co. v. City of Des Moines, 205 Iowa 742, 746, 218 N.W. 580, 582-83 (1928). Under our case law, “testimony of office custom may provide sufficient foundation to raise a presumption that mailed notices were in fact received.” Montgomery Ward, 398 N.W.2d at 871.

We think application of the common law presumption and its ancillary rules of proof would be directly contrary to the rule of evidence adopted by the legislature for filings with the State. Section 622.105 sets forth the manner in which proof of mailing may establish the required filing. The sender must prove by “competent evidence that the ... tax return ... was deposited in the United States mail” on or before the due date. Iowa Code § 622.105. Significantly, the term “competent evidence” is defined as “evidence, in addition to the testimony of the sender, sufficient or adequate to prove that the document was mailed on a specified date.” Id. (emphasis added). This statutory evidentiary requirement is clearly more stringent than the common law proof requirement, which can be satisfied by “testimony of office custom.” See Montgomery Ward, 398 N.W.2d at 871. Therefore, the department did not base its decision on an erroneous interpretation of section 622.105 when it failed to employ the common law presumption and its related rules in determining whether the proof requirements of that statute had been met. See Dattilo v. Urbach, 222 A.D.2d 28, 645 N.Y.S.2d 352, 353 (1996) (refusing to apply “traditional ‘mailbox’ rule, which creates a rebuttable presumption of delivery upon proof of mailing” when legislature had adopted statutory mailing rules governing taxpayer filings). The district court erred in ruling to the contrary.

IV. Substantial Evidence to Support Agency’s Finding.

Having determined the agency used the correct legal standard in deciding the taxpayers’ protest, we now consider whether there is substantial evidence to support the department’s factual finding that the taxpayers failed to prove their claim for credit was “filed with the department within three years after the return upon which [the] credit claimed became due.” Iowa Code § 422.73(2) (emphasis added). Having reviewed and considered the entire record, we conclude the department’s finding is clearly supported by substantial evidence.

We begin with the statutory rule that deems a document filed upon proof of mailing — section 622.105. The only evidence that the Langes’ 1996 state income tax return was deposited in the United States mail on or before its due date was the testimony of McGowen, the sender, that under normal office practice, the return, having been signed on September 18, 1997, would have been deposited in the United States mail on that date or the following day. Although there is credible evidence in addition to McGowen’s testimony that a document was readied for mailing in September 1997 on the Langes’ behalf (the office record showing the Langes were billed $1.70 for postage in September 1997), there is no record indicating the document was deposited in the United States mail. That final and necessary step is shown only through the sender’s testimony. Therefore, we think the director properly concluded the taxpayers were not entitled to rely on section 622.105 to establish they had filed their 1996 income tax return on time.

It is undisputed the department did not receive the Langes’ 1996 tax return until a duplicate return was provided in 2001. This fact constitutes substantial evidence to support the agency’s finding that the taxpayers did not file their claim for a credit until more than three years after the due date of the tax return upon which the claim was based, as required by section 422.73(2). Accordingly, the department properly denied their claim as untimely.

V. Conclusion and Disposition.

We have found no basis to reverse the agency’s decision to deny the taxpayers’ request for a credit based on their overpayment of 1996 income taxes. The district court erred in reversing the agency ruling. Therefore, we reverse the decision of the district court and remand this ease for entry of an order affirming the department’s decision.

REVERSED AND REMANDED.

        . A sender is entitled to the presumption of delivery upon proof (1) of the contents and execution of the document at issue, (2) that it was prepared for mailing, (3) that the sender had the recipient's correct address, (4) that the mailing wrapper was correctly addressed, (5) that the wrapper had the proper postage affixed, and (6) that the article was deposited in the mail. Montgomery Ward, 398 N.W.2d at 870-71; Cent. Trust Co. v. City of Des Moines, 205 Iowa 742, 746, 218 N.W. 580, 582-83 (1928).

      . In contrast, the processing checklist for the Langes' 1998 returns contains a notation that the returns were mailed by McGowen on October 14, 1998.


author: MAHAN, P.J.

text:
    In re the DETENTION OF Johnny C. SELBY. Johnny C. Selby, Respondent-Appellant.
    No. 04-0806.
    Court of Appeals of Iowa.
    Dec. 7, 2005.
    Mark Smith, First Assistant State Public Defender, and Matthew S. Sheeley, Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Linda J. Hines and Denise A. Timmins, Assistant Attorneys General, for appellee.
    Heard by MAHAN, P.J., HECHT, J., and SCHECHTMAN, Senior Judge.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

   MAHAN, P.J.

Johnny C. Selby appeals the jury verdict finding him to be a sexually violent predator under Iowa Code chapter 229A (2003). He argues that (1) chapter 229A is facially unconstitutional because it violates both due process and equal protection and (2) the jury instruction given in his trial was improper. We affirm.

I. Background Facts and Proceedings

Selby has a history of sexually abusing children. In 1985, he admitted committing lascivious acts with a child. In 1989, he was convicted of one count of second degree sexual abuse. In 2002, he pled guilty to indecent contact with a child.

On October 14, 2003, the State petitioned to have Selby committed as a sexually violent predator pursuant to Iowa Code chapter 229A. The district court found probable cause that Selby was a sexually violent predator. Selby filed a motion to dismiss the State’s petition. His motion was denied. The jury trial began on April 27, 2004.

Two psychologists testified at Selby’s commitment trial. Dr. Anna Salter testified that she measured Selby’s risk of re-offense through three different tests: the Minnesota Sex Offender Screening Tool— Revised (MnSOST — R), the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR), and the Static-99. Under the RRASOR, Selby has a 48.6 percent chance of re-offending in ten years. His risk according to the MnSOST — R was less than 50 percent within six years. According to the Static-99, he has a 52 percent chance of re-offending within fifteen years. Dr. Salter testified that Selby’s risk of re-offending was higher than the estimates indicated by the tests. She further testified that because the tests only measure the risk of re-offending for a particular limited time period, the risk that Selby would re-offend sometime within his lifetime would likely be higher.

Dr. Lynn Maskell testified that Selby’s risk assessments were worthless given his age of fifty-nine years. Dr. Maskell argued that the tests used by Dr. Salter were developed using populations younger than sixty years of age. Thus, such tests could distort the risk presented by a person of Selby’s age. Based on a different study, Dr. Maskell concluded that the risk of re-offense for older offenders like Selby was less than four percent.

At the conclusion of the evidence, the court gave the jury the following instruction:

It is your duty as jurors to determine if the Respondent, Johnny Selby, is or is not a sexually violent predator. In the event of a verdict that the Respondent is a sexually violent predator, you have nothing to do with confinement or treatment.

The jury found Selby to be a sexually violent predator. Selby appeals.

II. Standard of Review

We review constitutional challenges de novo. In re Detention of Williams, 628 N.W.2d 447, 451 (Iowa 2001). Because the challenge here is to a statute, we begin with a presumption of constitutionality. State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005). Selby must prove chapter 229A is unconstitutional beyond a reasonable doubt. Id. If it is possible to construe the statute in more than one manner, we must adopt the construction that does not violate the Constitution. Id.

III. Merits

Selby argues that chapter 229A is unconstitutional on its face. First, he claims the statute violates due process because it fails to contain a temporal limitation for calculating a predator’s risk of re-offense. Second, he argues that the statute violates equal protection on its face because it requires a standard of proof for commitment different from the standard required to commit similarly situated individuals under Iowa Code chapter' 229 (2003). Finally, Selby argues the court’s instruction stating that jufors had nothing to do with confinement or treatment was in error. We review each of his claims in turn.

A. Due Process

Under the Due Process Clause of the Fourteenth Amendment, no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. The Iowa Constitution provides, in similar language, that “no person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const, art. 1, § 9. We consider both the federal and the state due process provisions “to be equal in scope, merit, and purpose.” In re Detention of Garren, 620 N.W.2d 275, 284 (Iowa 2000).

We engage in a two-step analysis when evaluating substantive due process ■ challenges. State v. Hernandez-Lopez, 639 N.W.2d 226, 238 (Iowa 2002). First, we determine whether the asserted right is fundamental. Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16 (1993); Hernandez-Lopez, 639 N.W.2d at 238. Second, if the right is fundamental, then we must determine whether the government action violating the right is narrowly tailored to achieve a compelling government interest. Flores, 507 U.S. at 305, 113 S.Ct. at 1448, 123 L.Ed.2d at 18; Hernandez-Lopez, 639 N.W.2d at 238. If the right is not fundamental, then there need only be a reasonable fit between the government purpose and the means used to advance that purpose. Flores, 507 U.S. at 305, 113 S.Ct. at 1448, 123 L.Ed.2d at 18; Hernandez-Lopez, 639 N.W.2d at 238.

The right Selby asserts, liberty, is widely recognized as fundamental. E.g., Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437, 448 (1992). An individual’s liberty interest, however, is hot absoluté. Garren, 620 N.W.2d at 284. In fact, the government’s interest in detaining mentally unstable individuals who present a public danger has been found to be compelling. See Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, 331 (1979) (noting that “the state has legitimate interest under its parens patriae power” to care for the mentally unstable and “authority under, its police power to protect the community from the dangerous tendencies -of some who are mentally ill”). See generally United States v. Salerno, 481 U.S. 739, 748-49, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697, 709-10 (1987) (noting “we have repeatedly held that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest” and listing dangerous' mentally unstable individuals as an example of the foregoing).

Selby essentially claims that chapter 229A is not narrowly tailored. He argues that the statute violates due process because it permits commitment through showing that the offender is more likely than not to re-offend at some point within his lifetime. He argues that, in order to pass constitutional muster, the likelihood of re-offense must be within a shorter time period, such as within the immediate future.

In order to justify involuntary commitment, a person must not only be mentally ill, but also dangerous. O’Connor v. Donaldson, 422 U.S. 563, 575-76, 95 S.Ct-2486, 2493, 45 L.Ed.2d 396, 406-07 (1975); Stamus v. Leonhardt, 414 F.Supp. 439, 450-51 (S.D.Iowa 1976) (“Due process and equal protection require that the standards for commitment must be (a) that the person is mentally ill and poses a serious threat of substantial harm to himself and others; and (b) that this threat of harm has been evidenced by a recent overt act or threat.” (quoting Doremus v. Farrell, 407 F.Supp. 509, 514-15 (D.Neb.1975))). The United States Supreme Court upheld a Kansas statute substantially similar to Iowa’s chapter 229A against a due process challenge. Kansas v. Hendricks, 521 U.S. 346, 358-60, 117 S.Ct. 2072, 2079-2081, 138 L.Ed.2d 501, 511-14 (1997). The Court noted “we have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as ‘mental illness’ or ‘mental abnormality.’ ” Id. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d at 512-13. It concluded the Kansas statute comported with due process because it “requires a finding of future dangerousness and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior.” Id. Chapter 229A requires the same findings.

Selby’s claim, however, has more to do with what type of proof should be allowed to show future dangerousness. He argues that evidence of an offender’s lifetime risk allows the State to extrapolate a higher possibility of re-offense. Selby claims that allowing evidence as to an individual’s lifetime risk allows the individual to be confined for acts that may be committed at some time in the indefinite future. As a result, the offender may not be sufficiently dangerous to satisfy due process requirements at the time of commitment. We find Selby’s arguments unconvincing for two reasons: (1) the present tense language of chapter 229A requires that a person be found to be both dangerous and to have a mental abnormality at the time of the proposed commitment and (2) chapter 229A provides for a yearly review of the individual's condition.

Under chapter 229A, a sexually violent predator is

a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Iowa Code § 229A.2(11). A person is “likely to engage in predatory acts of sexual violence” if that person

more likely than not will engage in acts of a sexually violent nature. If a person is not confined at the time that a petition is filed, a person is “likely to engage in predatory acts of sexual violence” only if the person commits a recent overt act.

Id. § 229A.2(4). A mental abnormality is a condition that “predispose[s] that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others.” Id. § 229A.2C5).

Once an individuar is found to be a sexually violent predator, the individual is entitled to an annual review. There is a re-buttable presumption that commitment will continue. Id. § 229A.8(1). If sufficient facts exist, a hearing will be held to determine whether the person “no longér suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses if discharged.” Id.

The language of chapter 229A clearly indicates by its use of the present tense that an individual must be both dangerous and possess a mental abnormality that makes the individual likely to engage in sexually violent predatory acts at the time of commitment. For example, a sexually violent person is defined as one who “suffers from a mental abnormality which makes the person likely to engage” in sexually predatory acts. Iowa Code § 229A.2(11) (emphasis added). A mental abnormality is defined as a “condition affecting the emotional or volitional capacity of a person....” Id. § 229A.2(5) (emphasis added). Based on this language, a person must currently be suffering from a mental abnormality that makes the person likely to engage in sexually violent predatory acts. If the person is not confined at the time of the hearing, there must be some “recent overt act.” Id. § 229A.2(4). A recent overt act has been found sufficient for a finding of dangerousness. . State v. Huss, 666 N.W.2d 152, 161 (Iowa 2003). The mental abnormality along with the recent overt act therefore makes the individual a present and immediate threat to the community. Thus, due process is satisfied because# under the statute, a person must be found both dangerous- and mentally ill at the time of commitment.

In addition, chapter 229A requires an annual examination of the committed individual’s ■ condition. Iowa Code § 229A.8. Commitment is not necessarily indefinite. Rather, it is to last no longer than the person is dangerous or suffers from a mental abnormality which makes the person likely to engage in sexually violent predatory acts. See Hendricks, 521 U.S. at 364, 117 S.Ct. at-2083, 138 L.Ed.2d at 516.

' Because we can construe chapter 229A in a constitutional mariner, there is no reason to declare it facially unconstitutional simply because it does not provide ah explicit time frame for the adjudication of dangerousness. The presence of present tense language and the annual review provision allow 229A to comport with due process requirements.

Selby’s chief complaint is "that testimony as to his lifetime risk of re-offense was allowed at trial. This is an evidentiary problem we cannot decide based upon the record presented to us. Because Selby raised none of the necessary evidentiary objections, we cannot review them.

B. Equal Protection

Selby argues that chapter 229A violates his right to equal protection under the law. Equal protection is guaranteed to all persons pursuant to both the Fourteenth Amendment to the United States Constitution and article I, section 6 of the Iowa Constitution. Both provisions require that similarly situated individuals be treated the same for equal protection purposes. Williams, 628 N.W.2d at 452. We apply the same analysis to both state and federal equal protection claims. Morrow, 616 N.W.2d at 547.

Selby claims that individuals to be committed pursuant to chapter 229A and individuals to be committed pursuant to Iowa Code chapter 229 (2003) are similarly situated but are not given similar treatment under Iowa law. These individuals are similarly situated, he argues, because both chapter 229 and chapter 229A were enacted to confine and treat individuals who are both mentally ill and a danger to the community. The statutes, however, differ in the standard of proof required to show dangerousness. Chapter 229 requires that it be “probable or reasonably to be expected” that a person will be a danger to the community”. In re Oseing, 296 N.W.2d 797, 801 (Iowa 1980). Chapter 229A, in contrast, requires that a person be “more likely than not” to re-offend. Iowa Code § 229A.2(4). As a result, Selby claims, similarly situated individuals facing commitment under either chapter 229 or chapter 229A are treated differently.

Selby takes the argument one step further, contending that chapter 229A permits commitment without any proof that a person presents an imminent threat to the community. This lenient standard, he claims, violates his fundamental right to a fair trial under the Fourteenth Amendment to the United States Constitution and article 1, sections 6, 9, and 10 of the Iowa Constitution. Due to the violation of his fundamental right, Selby urges us to use strict scrutiny to examine the State’s standard of proof for dangerousness under chapter 229A as compared to chapter 229.

Selby’s argument is similar to the claims the supreme court addressed in Morrow, Garren, and Williams. In Morrow, the appellant argued he was being treated differently than other “violent offenders ... with antisocial personality disorder[s] who have served their prison sentences and are due for release.” Morrow, 616 N.W.2d at 548. The court concluded that “sexually violent predators are not similarly situated to other violent offenders.” Id. That court also concluded that the classification of sexually violent predators is reasonable given the legislative findings in 229A.1. Id. (noting that Morrow had not preserved his strict scrutiny argument for appeal).

In Garren, the appellant argued that his right to equal protection was violated by chapter 229A because the statute caused him to be treated differently than other recidivists. Garren, 620 N.W.2d at 286. He also urged the court to adopt a strict scrutiny analysis because his fundamental right to liberty was at stake. Id. The court noted that several other courts have come to different conclusions about whether statutes such as chapter 229A should receive rational basis, heightened scrutiny, or strict scrutiny review. Id. Without deciding the question, the court found that chapter 229A passed constitutional muster under strict scrutiny. Id.

The appellant in Williams argued that chapter 229A violated his right to equal protection because “it treats mentally ill sexual offender commitments differently than other mentally ill civil commitments.” Williams, 628 N.W.2d at 451. His argument, like Selby’s, rested on the assumption that sexual predators are similarly situated to mentally ill persons committed pursuant to chapter 229. Id. at 451-52. Since no court has applied strict scrutiny to classifications by type of mental illness or abnormality, the court found that rational basis review was proper. Id. at 453. According to Williams, “ ‘[t]he particularly devastating effects of sexual crimes on victims, and the offenders’ need for specialized treatment provide a rational basis for the classification.’ ” Id. at 454 (quoting Morrow, 616 N.W.2d at 549).

Applying the above precedent, we conclude that even before adjudication as sexually violent predators, individuals subject to commitment under chapter 229A are not similarly situated to individuals subject to commitment under chapter 229. In order to be committed under chapter 229A, a person must (1) be convicted or charged with a sexually violent offense; and (2) suffer from a mental abnormality which makes the individual more likely to commit sexually violent predatory acts. Iowa Code § 229A.2(11). Individuals subject to commitment under chapter 229 may be both mentally ill and dangerous, but it is not necessary that they commit a sexually violent offense. Additionally, “their mental illness does not predispose them to commit sexually violent acts.” Williams, 628 N.W.2d at 454; see also People v. Calderon, 124 Cal.App.4th 80, 21 Cal.Rptr.3d 92, 102 (2004) (concluding sexually violent predators and mentally disordered offenders are not similarly situated).

Furthermore, “classifications of the mentally ill have historically been analyzed under the rational basis test even when individual liberty was at stake.” Williams, 628 N.W.2d at 453 (citing Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 795 -796 (Ct.App.1999)). Selby claims the “mobe likely than not” standard implicates his fundamental right to a fair trial in addition to his liberty interest. We find no reason to apply strict scrutiny to the alleged violations of the fair trial right if we would'-not apply such a standard to alleged violations of the right to liberty. Therefore, we conclude it is proper to review Selby’s equal protection claim under a rational basis analysis. ■

We must' also conclude that the legislature’s classification of sexually predatory offenders is rationally related to a legitimate government purpose. “ ‘The particularly devastating effects of sexual crimés on victims, and the offender’s need for specialized treatment provide a rational basis for the classification.’ ” Id. at 454 (quoting Morrow, 616 N.W.2d at 549).

Even if we were to conclude that the statute was subject to strict scrutiny because it implicates both the right to a fair trial and the right to liberty, we would have to conclude it passes constitutional muster. First, the “more likely than not” standard (the standard that Selby claims permits commitment without any proof that a person presents an imminent threat to the community) is actually a higher standard of proof than the “expected or reasonable probability” standard used in chapter 229. See Strickland v. Washington, 466 U.S. 668, 693-694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 697-98 (1984) (discussing the differences between the higher standard of “more likely than not” and the lower standard of “reasonable probability”); see also Heller v. Doe, 509 U.S. 312, 321-31, 113 S.Ct. 2637, 2643-2648, 125 L.Ed.2d 257, 271-78 (upholding Kentucky statute that assigned a lower standard of proof to commitment proceedings for mental Retardation and a higher standard of proof to commitment proceedings for mental illness.) Second, the supreme court held in Garren that chapter 229A passed strict scrutiny. Garren, 620 N.W.2d at 286.

C. Jury Instruction

The precise issue Selby raises was recently decided in In re Detention of Crane, 704 N.W.2d 437 (Iowa 2005). In Crane, the trial court gave jurors the same instruction as was given at Selby’s trial. Selby’s argument is the same as Crane’s argument: the instruction that the jurors had nothing to do with confinement or treatment was a material misstatement of the law and is misleading and confusing. We repeat the supreme court’s conclusion here:

We find nothing erroneous or confusing about the instruction. It is true commitment was a mandatory consequence of the jury’s verdict that [respondent] was a sexually violent predator. The instruction, however, simply told the jurors that they had to determine whether the respondent was a sexually violent predator and instructed them not to concern themselves with the consequences of their decision, which might include treatment and confinement. The instruction accurately stated the law.
Jurors are not naive; these jurors knew that if they found [respondent] a sexually violent predator, he would be committed — and probably for a long time. The court’s instruction simply told jurors they should not concern themselves with [respondent’s] subsequent treatment or confinement, but rather, focus upon whether he was a sexually violent predator. The court’s instruction was not erroneous or misleading.

Crane, 704 N.W.2d at 439^0. We find that chapter 229A does not on its face violate due process or equal protection, and that the instruction in question was not improper.

AFFIRMED.

      . Though the Iowa courts have not addressed this precise question, we have had numerous occasions to rule on &e constitutionality of other aspects of chapter 229A. See, e.g., In re Detention of Willis, 691 N.W.2d 726, 729-30 (Iowa 2005) (holding the act for which a person is confined may be the recent overt act required by due process); In re Detention of Barnes (Barnes II), 689 N.W.2d 455, 460 (Iowa 2004) (concluding that to satisfy the “mental abnormality” requirement of chapter 229A, "due process does not require the person subject to commitment to have an underlying condition or diagnosis that causes people in general to commit sexually violent offenses” as long as “the condition or disorder predisposes the particular person ... to commit sexually violent offenses”); In re Detention of Cubbage, 671 N.W.2d 442, 445-48 (Iowa 2003) (holding no constitutional right to competence during chapter 229A proceedings); In re Detention of Ewoldt, 634 N.W.2d 622, 622-23 (Iowa 2001) (holding chapter 229A does not violate due process, double jeopardy, or ex post facto protections); Williams, 628 N.W.2d at 451-454 (holding chapter 229A does not violate equal protection); Garren, 620 N.W.2d at 278-83 (holding chapter 229A does not violate equal protection and due process does not require the least restrictive placement); In re Detention of Morrow, 616 N.W.2d 544, 547-50 (Iowa 2000) (holding chapter 229A violates neither equal protection nor the right to a jury trial).

      . The California Supreme Court used a similar analysis to find the California sexual predator act constitutional. See Hubbart v. Superior Ct., 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584, 597-601 (1999); see also Beasley v. Molett, 95 S.W.3d 590, 599-601 (Tex. App.2002) (concluding Texas sexual predator act satisfies the due process proof requirement by requiring the individual be a “menace,” and defining "menace” as "a threat or imminent danger”).


author: /s/ Helen M. Meyer Associate Justice

text:
    Louis WHEELOCK, Relator, v. TRILITE STONE, and USF & G, Respondents, and Trilite Stone, and MIGA/Fremont Comp. Group, Respondents, and Home Depot, and Am. Intn’l Group/AIG Claims Services, Respondents, and St. Francis Hospital, Blue Cross Blue Shield, and MN Dept. of Human Services, Intervenors.
    No. A05-1697.
    Supreme Court of Minnesota.
    Feb. 23, 2006.
   ORDER

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 1, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ Helen M. Meyer Associate Justice

PAGE, J., took no part in the consideration or decision of this case.