Opinion
No. 5-167 / 04-0952
Filed April 13, 2005
Appeal from the Iowa District Court for Fayette County, J.G. Johnson, District Associate Judge.
Cary Lee Straw appeals from the judgments and sentences entered by the district court following his guilty pleas to possession of a controlled substance, third offense, and driving while barred. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston and Greta Truman, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, and W. Wayne Saur, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Cary Lee Straw appeals from the judgments and sentences entered by the district court following his guilty pleas to possession of a controlled substance, third offense, and driving while barred. He claims the district court erred by failing to substantially comply with the requirements of Iowa Rule of Criminal Procedure 2.8(2)( b). He alternatively claims counsel was ineffective for failing to ensure the court complied with this rule or for failing to file a motion in arrest of judgment when the court failed to comply. We affirm.
I. Background Facts Proceedings.
On November 25, 2003, a police officer stopped Straw's vehicle for a motor vehicle violation. The officer cited Straw for improper use of a registration and open container, and placed him under arrest for driving while barred. A search of Straw's person revealed a plastic bag of marijuana and rolling papers. The State charged Straw by trial information with possession of a controlled substance, third offense; driving while barred; and possession of drug paraphernalia. Straw entered a plea of guilty on March 9, 2004. Pursuant to the plea agreement, Straw pled guilty to possession of a controlled substance, third offense, and driving while barred. In exchange for his plea, the State dismissed the possession of drug paraphernalia charge, as well as the improper use of a registration and open container citations.
On June 1, 2004, the district court sentenced Straw to serve an indeterminate term of five years for the possession of marijuana charge and an indeterminate term of two years for the driving while barred charge. The court ordered the sentences to be served consecutively to each other and consecutively to another conviction for which Straw had already been sentenced. Straw appeals.
II. Error Preservation.
Initially, we must determine whether Straw's challenge of the acceptance of his plea is properly before this court. Generally, under Iowa Rule of Criminal Procedure 2.24(3)( a), a defendant must file a motion in arrest of judgment to preserve a challenge to a guilty plea on appeal. However, this requirement is not applicable to cases in which a defendant was never advised during the plea proceedings, as required by rule 2.8(2)( d), that challenges to the plea must be made in a motion in arrest of judgment and that the failure to do so precludes the right to assert the challenge on appeal. See State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004). Straw did not file a motion in arrest of judgment. Nevertheless, he argues appellate review is not barred because the district court failed to inform him of the necessity for filing the motion.
During the plea proceeding, the district court advised Straw in the following manner:
THE COURT: Now, if you have — wish to appeal or challenge any of the proceedings that have taken place in the courtroom today, you have to file a paper that we call a Motion in Arrest of Judgment. That is simply a paper that basically says I didn't follow all of the correct procedures in taking your guilty plea and it gives me a chance to go back and correct that. Mr. Harden can explain that to you. But the important thing is that that paper must be filed not less than five days before sentencing. So, when we come back for sentencing, if no such motion has been filed, then we will proceed to sentencing, and we will assume that all the procedures we followed up to this point are correct. Do you understand that, sir?
THE DEFENDANT: Yes, Your Honor.
In determining whether the district court has met the requirements of rule 2.8(2)( d) in guilty plea proceedings, we apply the standard of substantial compliance. State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001); State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990). Under the substantial compliance standard, a trial court is not required to advise a defendant of his rights using the precise language of the rule; it is sufficient that the defendant be informed of his rights in such a way that he is made aware of them. See State v. Smothers, 309 N.W.2d 506, 508 (Iowa 1981).
The determinative issue here is whether the court adequately informed Straw of the consequences of failing to timely file a motion in arrest of judgment. Although we acknowledge that the district court's statements could have been more specific, we conclude the court's statements substantially complied with the requirements of rule 2.8(2)( d). Consequently, Straw's failure to file a motion in arrest of judgment bars a direct appeal of his conviction. Iowa R. Crim. P. 2.24(3)( a). Nevertheless, this failure will not bar a challenge to a guilty plea if the failure to file a motion in arrest of judgment resulted from the ineffective assistance of counsel. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Accordingly, we will proceed to address the merits of Straw's ineffective assistance of counsel claims.
III. Standard of Review.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) because of counsel's error, the defendant was prejudiced. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second-guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994). Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record in this case is adequate to decide this issue.
IV. Ineffective Assistance of Counsel.
Straw asserts counsel rendered ineffective assistance by failing to ensure he was informed of the potential penalties he faced for pleading guilty to third-offense possession of marijuana. The State concedes Straw was never informed of the mandatory maximum or minimum punishments he could face by pleading guilty during the plea proceeding. Because the court failed to inform Straw of the potential punishments he faced, his guilty plea did not substantially conform to the requirements of the rule. The failure of Straw's attorney to raise this deficiency establishes the first prong of the test for ineffective assistance of counsel, breach of a duty. See State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002) (finding counsel breached an essential duty by failing to raise court's failure to inform defendant of right to compulsory process).
Iowa Rule of Criminal Procedure 2.8(2)( b)(2) requires a court, prior to accepting a plea of guilty, to inform the defendant of "[t]he mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered."
However, in order to succeed on his claim of ineffective assistance of counsel, Straw must also demonstrate the requisite prejudice. In order to establish prejudice in the context of a guilty plea, Straw must show "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." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995). A relevant factor is whether it can be determined to a reasonable probability that a defendant would have been acquitted. Hill, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.
Our review of the record leads us to the conclusion that the evidence against Straw was overwhelming. The minutes of testimony reveal that a police officer stopped Straw's vehicle for a motor vehicle violation. A routine check on Straw's driver's license revealed it was barred, and he was placed under arrest. The officer's subsequent search of Straw's person incident to his arrest revealed a bag of marijuana and rolling papers. Straw admitted the substance in the bag was marijuana. In light of the overwhelming evidence against him, we conclude Straw has failed to prove there is a reasonable probability that but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial. Additionally, Straw received a favorable plea agreement, which dismissed one additional charge and two citations against him in exchange for his plea of guilty. For these reasons, we conclude it is unlikely that Straw would have changed his decision to enter a plea of guilty had he been informed of the potential punishments he faced. Accordingly, we affirm.