Convicted sex offender contends attorney failed him

CEDAR RAPIDS - A Springville man convicted in 2004 of two counts of second-degree sexual abuse against two girls ages 10 and 12 is seeking a new trial, contending that his attorney didn't do his job.

Richard O'Toole, 39, who is serving a 50-year prison sentence, said that Mark Brown failed to call witnesses who could have cast doubt on the victims' testimony.

Brown said during a hearing on Tuesday in Linn County District Court that didn't call some of the witnesses because they would have negatively affected the case. Brown said he discussed with O'Toole whether to use those witnesses at the time, and not using the witnesses is what they both decided.

“It was a strategic decision, but I would have never made it without the client's input,” Brown testified.

O'Toole also contends that Brown didn't address the prosecution's failure to prove the age of the girls when the alleged abuse happened.

The abuse of the girls started when they were 8 and 10 and continued for a few years, according to the victims' testimony at trial.

O'Toole says the age element of the crime wasn't proved and it could have made a difference, possibly 15 years, in his sentence if one of the girls had not been younger than 12. He said Brown failed to include that in the directed verdict argument.

Brown said there wasn't any age dispute.

O'Toole also contends that the prosecutor said improper things during his closing argument.

Sixth Judicial District Judge Ian Thornhill said he would rule after attorneys submit briefs.

The Iowa Court of Appeals affirmed O'Toole's conviction in 2005.

Applications of post-conviction relief such as O'Toole's can be filed up to three years after a conviction or an appellate decision.