Opinion
No. 3-181 / 02-1084.
Filed May 29, 2003.
Appeal from the Iowa District Court for Black Hawk County, L.D. LYBBERT, Judge.
Matthew P. Kelly appeals his conviction for assault with intent to commit sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Considered by Harris, Snell, and Brown, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
There are two assignments of error in Matthew P. Kelly's appeal following his conviction, by way of an Alford plea, of assault with intent to commit sexual abuse in violation of Iowa Code section 709.11 (2001). We find no merit in either and affirm.
I. Kelly's first assignment rests on a point noted in one of our unpublished opinions. State v. Olson, No. 2-873/02-0893 (Iowa Ct.App. Oct. 30, 2002). An unpublished opinion cannot be cited as authority and thus holds no precedential authority. Iowa R.App.P. 6.14(5). Kelly would have us hold that a sentencing court is without authority to extend a no-contact order as a part of a criminal sentencing.
If we were to speculate Kelly is correct in his legal point, it would not benefit him. The trial court did not continue a no-contact order as a part of the sentence. Rather, as a separate matter, not a part of a sentencing, the trial court ordered a one-year extension of a no-contact order so as to prohibit Kelly from contacting the victim prior to beginning his sentence, pending appeal. In short, if there is the rule Kelly suggests, the trial court did not violate it. There was no error.
II. Kelly also challenges a ruling which rejected his motion in arrest of judgment. He contends that "he did not think he was actually admitting guilt as his plea was an Alford plea." The record shows careful compliance with Iowa Rule of Criminal Procedure 2.8(2). The court detailed the implications to Kelly who agreed he was admitting the listed witnesses would testify in accordance with the minutes of testimony and that his conviction was substantially likely. Kelly conceded it was in his best interest to enter his plea in accordance with the plea offer.
Kelly also contends his plea was faulty because he was unaware he would have to undergo "invasive and embarrassing tests" during his probation. This challenge was correctly rejected for two reasons. Kelly was not obliged to submit to the test as a part of probation. He did not receive probation. The tests were a part of a presentence investigation and were therefore collateral to his guilty plea. See State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998) (court not obliged to inform of collateral consequences of guilty plea). The court also noted Kelly participated in the test voluntarily. Again, there was no error.