Iowa HIV-Transmission Sentence Thrown Out
(CN) - In a case that has put the spotlight on HIV-transmission laws, the Iowa Supreme Court on Friday ruled for a man who received a 25-year sentence after ineffective assistance led him to plead guilty.
Though Nick Rhoades had not disclosed his HIV-positive status to the man he first met online, described in the court record only by his initials, they had used protection when engaging in anal sex.
"Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual's viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person," the 19-page lead opinion begins.
Rhoades knew he had HIV since 1998 but he described himself as HIV-negative on the social network website where he met A.P. in 2008. By this point, Rhoades had been consistently receiving treatment for the virus for three years. A doctor had informed Rhoades that spring that his HIV viral load was nondetectable.
The consensual unprotected oral and protect anal sex between Rhoades and A.P. occurred at A.P.'s home in Cedar Falls on June 26, 2008. A.P., who has reportedly tested HIV-negative, called the police when he learned Rhoades had HIV, and the state charged Rhoades with criminal transmission of HIV.
It had been his attorney's first case dealing with the law in question, Section 709C.1.
Rhoades pleaded guilty to the count in May 2009 and was sentenced to a 25-year maximum, plus required to register as a sex offender. After he served four months, the District Court for Black Hawk County suspended that sentence and placed Rhoades on five years' probation.
The court later rejected Rhoades' claim that he received ineffective assistance from counsel, however, and an appellate panel affirmed.
But in a nearly unanimous reversal on Friday, the Iowa Supreme Court said "the guilty plea record did not contain a factual basis to support the plea."
Though Rhoades had answered in the affirmative at his colloquy when the district court asked if he had intimate contact, as the crime requires, the ruling notes that "intimate contact under the statute has a specific meaning. '"Intimate contact" means the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.'"
"We find the district court's reference to intimate contact and Rhoades's acknowledgement he had intimate contact does not establish the necessary factual basis an exchange of bodily fluid took place or that Rhoades intentionally exposed A.P. to his bodily fluid in a manner that could result in the transmission of HIV," Justice David Wiggins wrote for the majority.
Police reports show that Rhoades used a condom when performing anal sex, but whether any bodily fluids between Rhoades and A.P. were exposed is not established, the court found.
'Thus, the minutes of testimony do not establish a factual basis that an exchange of bodily fluid took place or that Rhoades intentionally exposed A.P. to his bodily fluid," Wiggins wrote. "Nor do the minutes of testimony show the likelihood the sexual activity in this case could result in the transmission of HIV."
A presentence investigation report is just as helpful to the state, according to the ruling.
"Today we are unable to take judicial notice that an infected individual can transmit HIV when an infected person engages in protected anal sex with another person or unprotected oral sex, regardless of the infected person's viral load," Wiggins wrote. "The evidence at the postconviction relief hearing shows there have been great strides in the treatment and the prevention of the spread of HIV from 2003 to 2008. It was not apparent in 2009, at the time of the plea, that this fact was 'capable of accurate and ready determination by resort to sources whose accuracy' could not reasonably be questioned. Further, while this fact may have been a commonly held belief within the territorial jurisdiction of the trial court, we note the purpose of judicial notice is to show the fact is not subject to reasonable dispute."
The ruling emphasizes that Rhoades' viral count was nondetectable at the time of his plea, "and there is a question of whether it was medically true a person with a nondetectable viral load could transmit HIV through contact with the person's blood, semen or vaginal fluid or whether transmission was merely theoretical."
Because Iowa still may be able, however, to establish a factual basis, the state should have that opportunity, according to the ruling.
In the meantime, the sentence against Rhoades is vacated.
His plea should be withdrawn if the state fails to establish a factual basis, the justices added.
Justice Bruce Zager wrote the lone dissent from the seven-justice court, which find that there was a factual basis to support the plea.
"I believe the acknowledgement by Rhoades that he had unprotected oral sex with the victim and his admission of intimate contact with the victim, combined with reasonable inferences based on common sense, provides a sufficient factual basis to support the guilty plea," Zager wrote.
Any jury in the case would have heard evidence that "A.P. performed unprotected oral sex on Rhoades, that there was a possibility of failed protection during anal sex, and that Rhoades later apologized to the victim," he added.
Zager also chided the majority for relying "on the cold record developed at the guilty plea hearing, without regard to other considerations an attorney might have when evaluating a criminal case."
"In doing so, the majority implicitly perpetuates the view that considering an attorney's 'strategic reasons for permitting his [or her] client to plead guilty' would undermine 'the public's confidence in our criminal justice system,'" Zager continued. "I disagree with that assertion in this case because it undervalues attorneys' knowledge, skill, and experience. It also undervalues the client's knowledge and judgment in evaluating the case and making an informed decision about whether to plead guilty."
The 12-page dissent also closes with Zager's concern for lawyers.
"We once assured attorneys that they need not 'know what the law will become in the future to provide effective assistance of counsel,'" the justice wrote. "They could, we reassured them, provide effective assistance of counsel by standing on 'established rules of law.' Today's decision must leave counsel with the distinct feeling of having a rug yanked out from under him."
Concurring specially, and joined by Justice Thomas Waterman, Justice Edward Mansfield said Zager made "some excellent points."