Opinion
No. 4-075 / 03-0458
April 14, 2004.
Appeal from the Iowa District Court for Audubon County, Timothy O'Grady and Charles Smith, III, Judges.
Jeffrey Larry Anderson appeals following his guilty plea to manufacture or delivery of methamphetamine, five grams or less. AFFIRMED.
Heather Turner-Graves of Dunahoo Law Firm, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Francine Anderson, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan, J. and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Although the defendant-appellant, Jeffery Larry Anderson, pleaded guilty in open court, with the assistance of counsel, to a plea-bargained felony, he now challenges that guilty plea in this direct appeal, claiming it was not voluntary. He also claims he was provided ineffective assistance of counsel. We have carefully reviewed Anderson's contentions and disagree with his conclusions. We therefore affirm the judgment and sentence of the district court.
I. Background.
On April 2, 2002, a search of Anderson's home, pursuant to a warrant, resulted in criminal charges of possession of marijuana in violation of Iowa Code section 124.401(5) (2001), possession of methamphetamine in violation of section 124.401(5), manufacture of marijuana in violation of section 124.401(1)(d), possessing or tampering with anhydrous ammonia in violation of section 124.401F(1), and child endangerment in violation of section 726.6. The most serious charge, manufacturing marijuana, was a class "D" felony. His wife, Jennifer, was charged with manufacture of marijuana, possession of methamphetamine, and child endangerment.
On May 13, 2002, the State moved to amend the trial information against Anderson to include Count VI, manufacture or delivery of methamphetamine, five grams or less, a class "C" felony. Following an unresisted hearing on June 17, 2002, the court approved the amendment. A calendar entry on June 24, 2002 indicated a written arraignment to the new charge would be filed, but it was not. No formal arraignment on the amended count was held. On July 29, 2002, Anderson's motion to continue the trial date was granted.
On December 10, 2002, the day of trial, following jury selection, Anderson pleaded guilty to the added Count VI, the "C" felony. In return, the plea bargain provided all other counts were dismissed as were all the charges against his wife, except that she would plead guilty to the simple misdemeanor charge of possession of paraphernalia and pay a fine. There was no agreement as to Anderson's sentence. The court accepted Anderson's Alford plea to the "C" felony. In February 2003, Anderson was sentenced to an indeterminate term of ten years in prison and fined $1,000.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (accused may plead guilty without express admission of guilt if the record available to the court establishes a factual basis for the plea).
II. Issues.
Anderson has now appealed claiming his guilty plea was not voluntary. His direct appeal asserts (1) he was never arraigned and given an opportunity to assess the charges against him, (2) the factual basis supporting his plea to the felony drug delivery charge was inadequate, (3) the court did not advise him of the mandatory minimum sentence involved in the crime to which he pleaded guilty, (4) the court misadvised him in the plea colloquy, (5) the benefit he received by his plea bargain was inadequate, and (6) he was coerced by his attorney to plead guilty. He asserts these shortcomings in the proceedings should suffice to invalidate his guilty plea and allow him a trial.
Anderson also has asserted his counsel was ineffective in (1) failing to assure he was properly arraigned on the amended charge, (2) failing to object to the inadequate factual basis for the guilty plea, (3) failing to correct the court in its recitation of prior probation violations at sentencing, and (4) failing to request substance abuse treatment for Anderson prior to sentencing.
III. Direct appeal.
We believe his plea of guilty and subsequent failure to file a motion in arrest of judgment preclude asserting the alleged errors on direct appeal. The rules which lead to this result are designed to further the quite commendable notion that an intelligent and voluntary guilty plea puts an end to criminal litigation.
"A guilty plea is normally understood as a lid on the box, whatever is in it, not a platform from which to explore further possibilities." United States v. Bluso, 519 F.2d 473, 474 (4th Cir 1975); Zacek v. Brewer, 241 N.W.2d [41], 49 [(Iowa 1976)].
Kyle v. State, 322 N.W.2d 299, 304 (Iowa 1982).
The fact Anderson was not arraigned on the amended charge was clearly waived by his plea of guilty. E.g., Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000) (holding guilty plea waives all defenses not intrinsic to the plea itself); State v. Hochmuth, 585 N.W.2d 234, 236 (Iowa 1998) (holding absence of formal charge waived by plea of guilty to uncharged offense); State v. Davis, 581 N.W.2d 614, 616 (Iowa, 1998) (holding any challenge to amended trial information waived by guilty plea); State v. Meyers, 256 Iowa 801, 805-806, 129 N.W.2d 88, 91 (1964) (holding failure to file new information and arraign defendant waived by guilty plea); State v. Fortunski, 200 Iowa 406, 407-08, 204 N.W. 401, 401 (1925) (holding objections to defects in trial information waived by defendant's failure, prior to plea, to move to set aside information).
The alleged defects in the guilty plea process itself do not survive Anderson's failure to move in arrest of judgment as required by Iowa Rule of Criminal Procedure 2.24(3). E.g., State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998) (holding without motion in arrest of judgment, defendant cannot attack validity of guilty plea on direct appeal unless he can establish ineffective counsel); State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996) (holding failure to move in arrest of judgment bars direct appeal of conviction following guilty plea); State v. Lucas, 323 N.W.2d 228, 231 (Iowa 1982) (holding failure to move in arrest of judgment precludes challenge to plea-taking process). Anderson has not alleged he was not properly advised of the necessity and effect of filing a motion in arrest of judgment, and indeed the record would not support such a claim.
Therefore we will not consider Anderson's direct appeal, except as those allegations are reasserted in his ineffective-assistance-of-counsel claims. Kyle, 322 N.W.2d at 303-04) (stating only challenge permitted to voluntary and intelligent character of guilty plea, absent motion in arrest of judgment, is that the advice he received from counsel did not meet applicable standards). Although Anderson does not reassert his direct appeal claim of coercion by counsel under the ineffective-assistance umbrella, because it is a direct attack on counsel's competence and performance we will address it now despite the error preservation problem. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003).
IV. Ineffective assistance of counsel.
The principles of ineffective-assistance-of-counsel claims may be summarized as follows:
To establish a claim of ineffective assistance of counsel, [Anderson] carries the burden of showing by a preponderance of the evidence that: (1) counsel failed to perform an essential duty; and (2) [he] experienced prejudice as a result of the counsel's performance. To establish the first element of the test, [Anderson] must overcome the presumption that the counsel was competent and demonstrate that, when considering the totality of the circumstances, the counsel's performance was not within the normal range of competency. In order to demonstrate prejudice, [Anderson] must show counsel's failure worked to [his] actual and substantial disadvantage so that a reasonable probability exists that but for the counsel's error, the result of the proceeding would have been different. `A reasonable probability is a probability sufficient to undermine confidence in the outcome.' In the context of guilty pleas, [Anderson] may establish the occurrence of prejudice by showing "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
Irving v. State, 533 N.W.2d 538, 540-41 (Iowa 1995) (all internal citations omitted). Although we often defer ineffective-assistance-of-counsel claims to postconviction relief actions, where, as here, the record is adequate to resolve the issues on direct appeal we will do so. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).
Anderson urges his plea of guilty was defective because it was not voluntary which in turn was based in part on his attorney's failure to assure certain things were done or not done in district court which reasonably competent counsel should have done or prevented. We will consider each of these contentions.
A. Absence of arraignment on added felony charge.
The record does not show Anderson was ever formally arraigned following the amendment to the trial information adding the class "C" felony. However, the amendment was properly served on him, along with extensive amended minutes of testimony. Anderson then successfully moved to continue the trial date, alleging he needed additional time to respond to the amended charge. He later pleaded guilty to the amended charge, therefore at least tacitly agreeing to the amendment. As noted before, this waived any procedural error.
In the context of his ineffective-assistance claim we do not recognize counsel's failure to insist on a formal arraignment in these circumstances as a dereliction of an essential duty. Anderson and his attorney, at their request, had several months in which to address the amended charge. See Davis, 581 N.W.2d at 616 (stating purpose of trial information is to apprise the defendant of the crime charged so that he may have the opportunity to prepare a defense). At all times everyone concerned acted as if he had pleaded not guilty to the amendment. Neither do we perceive any prejudice to Anderson in these circumstances. He does not allege he would have proceeded otherwise if an arraignment had been held. Even if such an allegation is implicit in Anderson's argument, we believe it stretches credulity beyond limits to accept he would not have pleaded guilty but for the omission of this procedural step.
B. Factual basis.
Anderson urges his attorney should have objected to the lack of a factual basis for his plea to the methamphetamine manufacture or delivery charge. The specific omission claimed is that there was no evidence of the quantity of methamphetamine allegedly delivered or manufactured.
A court may not accept a guilty plea without determining there is a factual basis for the plea, and this applies to Alford pleas as well. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). If counsel permits his client to plead guilty to a charge for which there is no factual basis, he has failed to perform an essential duty. State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). Prejudice inheres in this event. Id.
Our examination of the minutes of testimony belies Anderson's claim that there was no factual basis demonstrated. The proposed testimony of a toxicologist with the Iowa Criminalistic Laboratory was that items seized from Anderson's home contained methamphetamine. To the extent Anderson's complaint is based on the belief the State had to establish a precise quantity of methamphetamine, it is misplaced. When the charge is manufacturing or delivering five grams or less of methamphetamine, as it was here, the State is only required to establish a detectable amount of methamphetamine, not the exact or approximate amount. State v. Adney, 639 N.W.2d 246, 252 (Iowa Ct.App. 2001).
Minutes of testimony, presentence investigation report, if available, and any statements of defendant or prosecutor may serve to establish a factual basis. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
There was no violation of counsel's duty here. Scalise, 660 N.W.2d at 62 (holding counsel is not incompetent for failing to pursue a meritless issue).
C. Objections to probation violations.
Anderson claims his attorney was ineffective for failing to object to or correct the court's recitation at sentencing that he had previously violated probation on three different occasions. However, the presentence investigation report discloses Anderson's probation for a 1983 conviction for driving under suspension was revoked, his probation for a 1984 second offense driving under suspension conviction was revoked, and his probation for a 1988 operating while intoxicated conviction was revoked. Since the court's observation concerning Anderson's probation record is supported by the record, counsel had no duty to refer to it. Scalise, 660 N.W.2d at 62.
D. Failure to request presentence substance abuse treatment.
Anderson's final ineffective-assistance claim is that his counsel advised him not to seek substance abuse counseling or rehabilitation prior to sentencing. The record reflects the following remarks by his counsel at sentencing:
We talked a lot about whether he should go into a treatment program before sentencing, Judge. I did not feel that it was a good move on his part, because he could probably teach the class. He has been there before. He knows what he needs to do. He's not done it in the past. He knows there is a tremendous hammer over his head right now. He's been out looking for jobs. This is not a good area for him, because his associations are pretty bad. We can go through the list of what he would call friends, and they are all drug users. He needs to move from this area, and he has been looking for the possibility of going up to Okoboji, if the Court would consider probation.
We do not view this as the "grossly inadequate representation, advise, and guidance" claimed by Anderson's brief, but rather as a practical analysis and realistic evaluation of the situation.
We seriously question whether failure to recommend or request presentence substance abuse treatment constitutes a violation of an essential duty of counsel. Anderson has cited us to no authority for this proposition. It strikes us that the record we have quoted reflects counsel gave serious consideration to the issue and made an informed, tactical decision not to make the request. See Kyle v. State, 364 N.W.2d 558, 565 (Iowa 1985) (observing trial attorney's decision regarding strategy or tactics not ordinarily basis for relief). In any event, we do not believe Anderson has demonstrated prejudice. There is no requirement that the district court grant such a request and no showing the court would have granted it had it been made.
"Upon a plea of guilty . . ., the court may order the defendant to submit to and complete a substance abuse evaluation, if the court determines that there is reason to believe that the defendant regularly abuses alcohol or other controlled substances and may be in need of treatment." Iowa Code § 901.4A (emphasis added).
E. Coercion claims.
Anderson claims he was coerced into pleading guilty by his attorney. The sole support for this claim is the unsupported statement in Anderson's brief that shortly after jury selection was complete his attorney said "he would not be able to win his trial with the jury that was selected." This type of claim is often better reserved for postconviction proceedings so that a more complete record including counsel's version of the events might be available. Anderson does not, however, provide us any further argument or citation to authority in support of his contention. Even assuming this statement was made and constitutes impermissible pressure by counsel, rather than an objective evaluation of the circumstances, in view of the record made during the plea proceedings, we believe it did not influence Anderson's decision to plead guilty.
We think the following portion of the colloquy between the court and Anderson bears significantly on his claim of a coerced, involuntary plea.
Q [by the court]: The only agreement that you know of is what has been stated in court, that the other charges against you will be dismissed and the charge against your wife would be dismissed except for the drug paraphernalia charge? A [by defendant]: Yes, sir.
Q: Has anyone threatened you or tried to force you to plead guilty? A: No, sir.
Q: Are you doing so knowingly and voluntarily? A: Yes, sir.
Q: You've discussed this with Mr. Reedy [defendant's counsel]?
A: Yes, sir.
Q: You're satisfied that Mr. Reedy has fully and completely represented and answered all of your questions and done all that he can do for you in this case? A: Yes, sir. He's done a good job.
Q: All right. And do you still want to plead guilty? A: Yes, sir.
We are not persuaded that Anderson has established his plea was coerced and not a voluntary one. See State v. Boge, 252 N.W.2d 411, 413-14 (Iowa 1977) (finding bare allegations do not overcome record showing adequate colloquy by trial court).
We have also considered Anderson's claim his plea was involuntary because he pleaded guilty only for the benefit his wife would receive. Anderson urges us to accord heightened scrutiny to plea bargains in which the only consideration to the accused is a benefit to a third party. See State ex rel. White v. Gray, 57 Wis.2d 17, 29, 203 N.W.2d 638, 644 (1973) ("[t]he voluntariness of a plea bargain which contemplates special concessions to another — especially a sibling or a loved one — bears particular scrutiny by a trial or reviewing court conscious of the psychological pressures upon an accused such a situation creates.").
Although dismissal of most of the charges against his wife may well have been an important consideration influencing his decision, it was not the only consideration he received. All of the other charges against him were dismissed. See Harmon v. Mohn, 683 F.2d 834, 837 (4th cir. 1982) (stating benefit to wife was not sole benefit, but even if it were, since there was probable cause for charges against wife and no indication of bad faith by prosecutor, plea would be upheld). There is no hint in this record of any overreaching by the prosecutor and the court's approval of the trial information charging the wife, supported by the minutes of testimony, show probable cause for the charges against her.
We understand that "buyer's remorse" is a naturally occurring phenomenon when a defendant's sentence is not what he had hoped for. See State v. Whitehead, 163 N.W.2d 899, 902 (Iowa 1969) (observing disappointment with a sentencing outcome is not adequate reason to vitiate a guilty plea). But in this case the district court faithfully followed the mandates of Iowa Rule of Criminal Procedure 2.8(3)( b). We should accord a certain finality to this guilty plea which took place with the solemnity of such a proceeding in open court.
V. Summary and disposition.
We conclude Anderson waived the errors he asserts on direct appeal. We have considered each of his ineffective-assistance-of-counsel claims, as well as his claim of coercion by his trial counsel, and find them without merit. Consequently we affirm the judgment and sentence imposed by the district court.