Convicted sex offender claims attorney failed him

A Springville man convicted in 2004 of two counts of second-degree sexual abuse against two girls ages 10 and 12 claims his attorney didn't do his job and asks for new trial.

Richard O'Toole, 39, who is serving a 50-year prison sentence, claimed in his application for post conviction relief that his former attorney, Mark Brown, failed to call witnesses on the list who could have put doubt on the victims' testimony.

Brown during a hearing on Tuesday in Linn County District Court said he didn't call some of the witnesses because they would have negatively impacted the case. Brown said he discussed with O'Toole whether to use those witnesses at the time and it's 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 claimed Brown didn't address the prosecution's failure to prove the age of the girls when the alleged abused 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 claimed the age element of the crime wasn't proven and it could have made a difference, possibly 15 years, in his sentence if one of the girls wasn't under age 12 at the time of the abuse. He said Brown failed to include that in the directed verdict argument.

Brown said there wasn't any age dispute during the trial.

O'Toole also claimed Assistant Jerry Vander Sanden said improper things during his closing argument at trial but it wasn't recorded and Vander Sanden testified he didn't remember making those remarks.

Sixth Judicial District Judge Ian Thornhill took the case under advisement and will submit a ruling. He gave the attorneys a month to file any additional briefs.

The Iowa Court of Appeals affirmed O'Toole's conviction in 2005. The court ruled there was substantial evidence for a conviction.

Applications of post conviction relief are commonly filed and can be filed up to three years after a conviction or an appellant decision.