Opinion
No. 2-959 / 02-0596
Filed February 12, 2003
Appeal from the Iowa District Court for Polk County, Joel D. Novak and Scott D. Rosenberg, Judges.
Phillip Toth appeals from the judgment and sentence entered for two counts of burglary in the third degree following revocation of his deferred judgment. JUDGMENT AFFIRMED; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John Sarcone, County Attorney, and John Heinicke and Steve Foritano, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Phillip Toth appeals from the judgment and sentence entered for two counts of burglary in the third degree in violation of Iowa Code section 713.6A (2001) following the revocation of his deferred judgment. Toth raises three issues on appeal. He challenges the validity of his guilty plea through an ineffective assistance of counsel claim. He claims the district court erred in failing to inquire about his attorney's alleged conflict of interest. Finally, he claims the court lacked authority to impose two concurrent five year terms of imprisonment after his deferred judgment was revoked. For the reasons set forth below, we affirm his burglary convictions, vacate the sentences imposed by the district court, and remand for resentencing.
I. Background Facts and Proceedings.
In the early morning hours of March 29, 2001, Toth aided and abetted several friends in burglarizing a number of automobiles in West Des Moines. On April 6, 2001, the State filed a trial information charging Toth with six criminal offenses relating to the burglaries. Counts I through IV charged Toth with burglary in the third degree in violation of section 713.6A. Count V charged Toth with possession of burglary tools in violation of section 713.7 and Count VI charged him with criminal mischief in the fourth degree in violation of section 716.6. Defendant pled not guilty to all six counts.
On June 8, 2001, Toth appeared before a district court judge and entered pleas of guilty to the class "D" felony offenses charged in Counts I and II. Counts III through VI were dismissed. The court accepted Toth's pleas and granted him a deferred judgment. The court placed Toth on probation and ordered him to perform community service.
On February 25, 2002, the defendant's probation officer filed a probation violation complaint alleging Toth had violated the terms of his deferred judgment by using drugs and failing to complete his court ordered community service obligation. On March 19, 2002, the matter came before the district court for hearing. Toth stipulated to violating the terms of his probation. As a result, the district court revoked his deferred judgment and entered judgments of guilt on counts I and II. The court imposed concurrent sentences of incarceration not to exceed five years on each count, suspended the sentences, and placed Toth on probation for two years. As a condition of his probation, the defendant was ordered to reside at the Fort Des Moines Residential Facility. Toth appeals.
II. Ineffective Assistance of Counsel Claim.
Toth asserts the district court failed to apprise him of his right to compulsory process pursuant to Iowa Rule of Criminal Procedure 2.8(2)( b)(4) before accepting his guilty pleas in 2001. Because defense counsel did not file a motion in arrest of judgment challenging his pleas of guilty, Toth claims he received ineffective assistance of counsel. 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). However, we will 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). Our review of this issue is de novo. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).
To succeed on his claims of ineffectiveness of counsel, Toth must prove his attorney's performance fell below an objective standard of reasonableness and was prejudicial to his defense. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Prejudice is shown by demonstrating a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). After Toth was advised of his right to a jury trial, this colloquy followed:
THE COURT: Do you understand if you could not afford to bring witnesses into court to testify on your behalf, public funds would be provided so that you could do so?
THE DEFENDANT: Yes.
Defendant claims this was insufficient to satisfy the requirements of Iowa Rule of Criminal Procedure 2.8(2)( b). He maintains that if his offense was a felony, the court was required to literally comply with the requirements of rule 2.8(2)( b). See State v. Moore, 638 N.W.2d 735, 738-39 (Iowa 2002) (stating "a court . . . must literally, not just substantially, comply with rule 8(2)( b)" in a felony case).
In State v. Myers, 653 N.W.2d 574 (Iowa 2002), our supreme court distinguished Moore. The court stated that Moore simply requires an in-person colloquy in felony cases to satisfy rule 2.8(2)( b). Id. at 577-78. However, the inquiry as to whether a defendant has been adequately informed of his rights under 2.8(2)( b) requires only substantial, not literal, compliance. Id.
We find it unnecessary to decide whether the district court complied with rule 2.8(2)( b) in accepting Toth's guilty pleas. "[I]n order to satisfy the `prejudice' requirement, the defendant must show that 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." State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002) (quoting Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985)). Toth has failed to prove, or even allege, that but for counsel's purported error, he would have insisted on going to trial. See id. We reject this assignment of error.
III. Conflict of Interest.
Defendant contends the district court erred and denied him the right to counsel in failing to inquire about the existence of a potential conflict of interest. His allegation is one of constitutional dimension under the Sixth Amendment. We therefore review his claim de novo. State v. Thompson, 597 N.W.2d 779, 781-82 (Iowa 1999).
Four days prior to the probation revocation hearing, a handwritten letter was filed with the clerk of court. Toth's name, not signature, appeared at the bottom of the letter. The letter states, "We are here today to request a different court appointed attorney." The letter suggests that Toth's court appointed attorney had failed to return Toth's phone calls. Attached to the letter was a post-it note apparently written by someone in the clerk's office stating that Phillip Toth's mother was in the clerk's office indicating her son wanted a different court appointed attorney. Based on the foregoing, Toth claims the district court was required to inquire about his counsel's potential conflict of interest. Toth asserts counsel was conflicted between the interests of defending his professional reputation and legal abilities versus his zealous representation of the defendant.
We find Toth's claim lacks merit. When a defendant asserts a conflict of interest or when the district court knows or has reason to know of a particular conflict, the court has a duty to inquire about the conflict. State v. Lopez, 633 N.W.2d 774, 780 (Iowa 2001). At his probation revocation hearing, the court gave the defendant time to speak with his attorney confidentially off the record. Toth spoke on the record on numerous occasions during the hearing, but never requested substitute counsel or expressed dissatisfaction of any kind with his counsel. Toth had ample opportunity to raise the issue with the court throughout the hearing. We conclude the court had no reason to know of a potential conflict of interest and therefore had no reason to inquire into any potential conflict. See State v. Watson, 620 N.W.2d 233, 238 (Iowa 2000). The purported conflict between the attorney's self-interest and the duty of loyalty to the client lacks any foundation in the record. The record reveals counsel zealously represented Toth at the probation revocation hearing and sought to further his best interests. We reject this assignment of error.
IV. Sentencing.
Toth maintains the sentence imposed by the district court after his deferred judgment was revoked was erroneous. He claims his crimes should be classified as aggravated misdemeanors rather than "D" felonies by virtue of an amendment to the Code. We review his claim for errors of law. State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987).
After Toth's deferred judgment was revoked, the courtimposed two concurrent sentences of incarceration not to exceed five years for his convictions of burglary in the third degree. At the time Toth committed his crimes in March of 2001, burglary in the third degree was classified as a class "D" felony. Iowa Code § 713.6A (2001). However, at the time Toth's deferred judgment was revoked in March of 2002, Toth's crimes would have been classified as either class "D" felonies or aggravated misdemeanors under recently amended section 713.6A(2). Iowa Code § 713.6A(2) (Supp. 2001). That amendment made burglary in the third degree involving burglary of an unoccupied vehicle an aggravated misdemeanor for a first offense and a class "D" felony for any second or subsequent offense. The amendment became effective July 1, 2001 pursuant to Iowa Code section 3.7.
Pursuant to Iowa Code section 4.13(4), a defendant receives the benefit of a reduced penalty or punishment if it has not already been imposed. Because Toth's offense was his first and he had not been sentenced prior to the effective date of the amendment, the State concedes he should have received the benefit of the reduced penalty under section 713.6A(2). See State v. Chrisman, 514 N.W.2d 57, 62 (Iowa 1994). His offenses at the time of sentencing in March 2002 were classified as aggravated misdemeanors. As aggravated misdemeanors, his crimes were punishable by imprisonment not to exceed two years on each count. Iowa Code § 903.1(2). Notwithstanding his entitlement to the reduced penalty for his offenses, his convictions of burglary in the third degree still stand as class "D" felonies. Section 4.13 "gives a defendant the benefit of a more lenient sentence; it does not require that the characterization of the crime of which he is convicted be changed." Chrisman, 514 N.W.2d at 63.
V. Conclusion.
Toth has not established ineffective assistance of counsel nor that he was denied his right to counsel. However, we conclude the district court erred in imposing his sentence following the revocation of Toth's deferred judgment. Accordingly, we affirm his convictions but remand for resentencing.