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A Clear Lake man has been sentenced to up to 25 years in prison on a child sexual abuse conviction. 

Amando Martinez Montealvo, 61, was found guilty by a Cerro Gordo County jury in July on one count of second-degree sexual abuse involving a 12-year-old girl. 

Under Iowa law he is required to serve 70 percent of his sentence before being eligible for parole. 

Montealvo has 30 days to file an appeal, but if he does he will remain in custody rather than being released on bond because he was convicted of a forcible felony, according to court documents. 

Before Montealvo was sentenced this week, District Court Judge Christopher Foy denied a defense motion for a new trial. 

Montealvo's attorney, Benjamin Bergmann of Des Moines, filed that motion in August, arguing there wasn't sufficient evidence for the guilty verdict. 

He claimed testimony given by the woman who said his client sexually abused her when she was 9 was inconsistent. 

On Oct. 16-17, Bergmann filed two more briefs alleging juror misconduct. 

He stated the defense became aware in September that one of the jurors had been sexually abused as a child, but she did not relay that information to the court during jury selection. 

Assistant Cerro Gordo County Attorney Andrew Olson stated in court documents on Oct. 21 that no juror misconduct occurred because there's no evidence the juror withheld information in a calculated attempt to influence the verdict. 

Olson also said there's no evidence that the juror's not reporting the alleged abuse during jury selection "had a reasonable probability to influence the verdict."

"There are many types of sexual abuse," Olson said. "A juror, especially a non-lawyer, may also think of sexual abuse to mean something different than the legal definition and not volunteer to answer." 

Montealvo was tried on two counts of second-degree sexual abuse as he was accused of abusing two children he knew who were under age 12 at the time. However, the jury only found him guilty on one of the counts. 

Montealvo, who was arrested in February 2016, allegedly abused one of the girls from 2002 through 2005 and the other during 2006, court documents state.

One of the two second-degree sexual abuse charges against him was reduced to lascivious acts with a child, and he agreed to enter an Alford plea to that charge. The remaining charge was dismissed as part of the plea bargain.

In an Alford plea a defendant doesn’t admit to the crime but acknowledges prosecutors could likely prove the charge.

In August 2016, Montealvo was sentenced to up to 10 years in prison on the lascivious acts conviction. 

He filed a petition in district court for post-conviction relief in January 2018, claiming his attorney, Barbara Westphal, failed to advise him of the consequences accepting the plea offer from the state would have on his immigration status.

Montealvo previously lived in Mexico but has been a resident of the United States for almost 40 years.

He is in the country legally but is not a U.S. citizen, according to court documents.

Judge Rustin Davenport ruled in February of this year that Westphal did inform Montealvo that he would be immediately removed from the country and there would be a bar on his legal re-entry if he accepted the plea deal.

However, she did not specifically advise him he would be subject to mandatory detention during removal procedures, or that he would be subject to a fine and 20 years in prison if he tried to re-enter the United States, according to Davenport.

Although Montealvo's conviction was set aside, Davenport ruled the original charges should be re-instated.

Montealvo chose to take the case to trial rather than re-enter plea negotiations. 

 

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