Opinion
No. 2-312 / 01-1024
Filed November 15, 2002
Appeal from the Iowa District Court for Polk County, George Bergeson, Judge.
Applicant appeals from the district court's grant of the State's motion to dismiss his application for postconviction relief. AFFIRMED.
Christopher Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Frank Thomas appeals from the district court's grant of the State's motion to dismiss his application for postconviction relief. Thomas contends the court erred in dismissing his application because his trial counsel in the underlying criminal prosecutions (hereafter "trial counsel") was ineffective for failing to take steps necessary to preserve his claims for postconviction relief. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Frank Thomas was originally charged, by trial information, with conspiracy to deliver crack cocaine as a class "B" felony, possession with intent to deliver crack cocaine, failure to possess a drug tax stamp, and two counts of possession of a controlled substance, third offense. He pled guilty to a class "C" felony lesser-included offense of the conspiracy to deliver charge and to both of the two possession of controlled substance counts. The other charges were dismissed. Accordingly, Thomas was convicted for conspiracy to deliver a controlled substance in violation of Iowa Code section 124.401(1)(c)(3) (1999) and the two counts of possession of a controlled substance, third offense, in violation of Iowa Code section 124.401(5). He was sentenced to ten years on the conspiracy charge and five years on each of the possession charges, with all three sentences to run consecutively to each other but concurrently with a sentence imposed on a separate probation revocation.
The first three offenses were charged in Case No. FE141857 and the last two were charged in Case No. SR141520. However, Thomas pled and was sentenced in both cases together.
A comprehensive plea colloquy was conducted in district court. During the plea proceedings the court advised Thomas of his right to file a motion in arrest of judgment to challenge the plea proceedings but that he could waive such right and the court could proceed to immediate sentencing. The court went on to inform Thomas that waiving his right to file a motion in arrest of judgment would mean he was "forever barred from appealing these convictions that are entered here today." After being informed of these consequences Thomas nevertheless waived his right to file a motion in arrest of judgment and consented to immediate sentencing. He also waived time before sentencing and use of a presentence investigation report at sentencing. The court then imposed the sentences set forth above, all of which had been agreed to as part of a plea bargain.
After imposing sentence, the court advised Thomas of his right to appeal the sentences by filing a notice of appeal within thirty days of the imposition of sentence and that if he did not do so he could not "challenge what's happened here today." The court also informed Thomas that if he needed someone to assist him in filing a notice of appeal he needed to let the court know within twenty days and someone would be appointed.
No motion in arrest of judgment was ever filed. Thomas did not ask the district court to appoint an attorney to represent him on direct appeal and no direct appeal was ever taken. Instead, some ten months later Thomas filed an application for postconviction relief. In his application Thomas made numerous challenges to his conviction and sentence, including a brief claim of ineffective assistance of trial counsel. Thomas asserted his trial counsel stated to him "that she cannot defend a conspiracy charge, so Petitioner should plead guilty because he will get 75-years if he doesn't." He asserts he was "coerced into pleading guilty and forced to accept these convictions and sentences by these threats and the misrepresentations and ineffective assistance of his attorney. . . ."
The trial court appointed counsel (hereafter "postconviction counsel") to represent Thomas in the postconviction proceeding. The State filed a combined answer and motion to dismiss, contending Thomas's claims were waived by his failure to raise them in a direct appeal. Thomas's postconviction counsel filed an application to amend the prior pro se application for postconviction relief, seeking to assert claims that Thomas's trial counsel was ineffective for allowing Thomas to enter guilty pleas without factual bases, failing to inform Thomas that in order to preserve his right to attack his guilty plea he must file a motion in arrest of judgment, failing to file a motion in arrest of judgment, and failing to preserve any issues by failing to file a notice of direct appeal.
The court set the State's motion to dismiss and Thomas's application to amend for hearing. Thomas's counsel was present at two hearings on those motions. The trial court heard arguments of counsel. After considering the arguments of counsel and reviewing the plea and sentencing proceedings the district court granted the State's motion to dismiss.
Thomas appeals, claiming the court erred in dismissing his application for postconviction relief where his trial counsel was ineffective for failing to inform him of his options with regard to preservation of error, direct appeal, and postconviction relief, the claims he sought to amend his application to raise. In addition, he claims the ineffective assistance of his trial counsel is sufficient reason or cause for failing to raise these claims on direct appeal. His claim of ineffective assistance of trial counsel is the only postconviction claim Thomas asserts the trial court erred in dismissing.
Thomas had asserted several grounds for postconviction relief in his pro se application, such as that the conviction and sentence were in violation of the constitution, the court was without jurisdiction to impose the sentence, the sentences exceed the maximum authorized by law, and the evidence was insufficient and contrary to the weight of the evidence. However, Thomas does not pursue any of these other grounds on appeal and we therefore deem then abandoned.
The State asserts Thomas's claims are not properly before this court because he did not allege in his pro se postconviction application any complaint regarding his trial attorney's alleged failure to advise him of the postconviction consequences of not filing a motion in arrest of judgment and not appealing directly from his guilty plea, conviction, and sentence. Furthermore, the State argues Thomas has failed to show sufficient reason or cause for raising these issues for the first time in a postconviction relief action instead of on direct appeal.
II. STANDARD OF REVIEW
We typically review postconviction relief proceedings on claimed error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts constitutional claims, our review is de novo. Id. Thus, we review claims of ineffective of assistance of counsel de novo. Id.
III. MERITS
Thomas did not file a motion in arrest of judgment. This precludes him from directly attacking his guilty plea. Iowa R.Crim.P. 2.24(3)( a); State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999). He may still, however, challenge his guilty plea through an ineffective assistance of counsel claim. Miller, 590 N.W.2d at 725. In his application for postconviction relief Thomas did make the above quoted claim of ineffective assistance of trial counsel, seemingly claiming his guilty plea was not voluntary. However, that is the only claim of ineffective assistance he made in his application. He did not allege his trial counsel was ineffective for failing to advise him of the postconviction or preservation consequences of waiving his right to file a motion in arrest of judgment and not filing such a motion, and not appealing his conviction or sentence. Although Thomas's appointed counsel attempted to raise these claims in his application to amend the earlier application for postconviction relief, nothing in the record indicates the amendment was ever allowed by the district court. Although the court set the application to amend for hearing with the State's motion to dismiss, the court did not rule on the application to amend. Thomas does not challenge on appeal the court's apparent failure to rule on his application to amend. He thus has waived any such challenge. Because the only claims of ineffective assistance of trial counsel that Thomas claims the trial court erred in dismissing were never properly before the trial court it did not dismiss them and therefore cannot have erred by doing so.
Thomas also did not file a direct appeal and now on appeal from dismissal of his postconviction application claims that ineffective assistance of trial counsel constitutes sufficient reason or cause for failing to raise his claims on direct appeal. Postconviction relief proceedings are not an alternative means for litigating issues that were or should have been properly presented for review on direct appeal, and any claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim and actual prejudice resulted from the claimed error. Iowa Code § 822.8; Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Stated conversely, a claim of ineffective assistance of trial counsel may be made in a postconviction proceeding, even if not made on direct appeal, if an applicant establishes by a preponderance of the evidence that sufficient reason exists for not having raised the issue at trial and on direct appeal, and also establishes actual prejudice resulting from the alleged errors. Jones v. State, 479 N.W.2d 265, 271 (Iowa 1991); see also LeGrand v. State, 540 N.W.2d 667, 668 (Iowa Ct.App. 1995).
Ineffective assistance of appellate counsel may constitute the sufficient reason or cause to permit the issue of trial counsel's ineffective assistance to be raised for the first time in a postconviction proceeding. Jones, 479 N.W.2d at 271. There was no appellate counsel here, as Thomas did not pursue a direct appeal. We believe that just as ineffective assistance of appellate counsel can constitute sufficient reason or cause for not having raised an issue or claim on direct appeal, ineffective assistance of trial counsel could qualify as sufficient reason or cause for failing to file a direct appeal and thus preserve issues for a postconviction proceeding. However, Thomas did not assert in his postconviction application that his trial counsel was ineffective for failing to file a direct appeal. Accordingly, we conclude that under the facts and circumstances of this case Thomas's failure to file a direct appeal or allege sufficient reason or cause for this failure precludes him from now raising for the first time on appeal from dismissal of his postconviction application a claim that ineffective assistance of trial counsel excuses his failure to file a direct appeal.
As noted above, this claim was made only in an application to amend, an application never addressed or granted by the trial court.
We have concluded the trial court did not err in dismissing Thomas's postconviction application for failing to raise on direct appeal the issues raised in his postconviction application. However, were we to address the merits of Thomas's ineffective assistance claim as set forth in his pro se postconviction application we would for the following reasons conclude the claim does not state a basis for setting aside his guilty pleas and thus he suffered no prejudice from trial counsel's not challenging the pleas.
It is well established that the entry of a guilty plea pursuant to Iowa Rule of Criminal Procedure 2.8(2)( b) waives all defenses and objections which are not intrinsic to the plea itself. Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000) ( Speed II). Our courts have recognized five challenges which are not waived by a plea of guilty. State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000). Generally, one such challenge is ineffective assistance of counsel. Id. at 397-98. However, "if the undercurrent of the ineffective assistance claim is an issue designed to question the validity of the conviction, it, too, is waived." Id. at 398 (citing Speed II, 616 N.W.2d at 159). Ineffective assistance claims which do not bear on the "knowing and voluntary nature of a plea" will not survive the entry of a guilty plea. Speed II, 616 N.W.2d at 159.
In order to prevail on a claim of ineffective assistance of counsel Thomas would have to prove, by a preponderance of the evidence, his counsel failed to perform an essential duty and that he was prejudiced by such error. Ledezma, 626 N.W.2d at 142. Thomas asserts he received ineffective assistance through his counsel's "misrepresentations and threats" that she could not "defend a conspiracy charge" and that he "should plead guilty because he will get 75-years" if he did not. These allegations apparently are intended to challenge the voluntariness of Thomas's guilty plea in the guise of an ineffective assistance claim. However, we believe "[t]his argument fails to distinguish between a defendant's tactical rationale for pleading guilty and a defendant's understanding of what a plea means and his or her choice to voluntarily enter the plea." State v. Speed, 573 N.W.2d 594, 596 (Iowa 1998) ( Speed I).
What Thomas is in effect arguing here is that defense counsel informed him it would be difficult to defend a conspiracy charge, there was a possibility he would be sentenced to seventy-five years if he went to trial on all of the charges against him, and thus she advised him that it was advisable to plead guilty. These claims appear to have more relation to Thomas's "tactical rational for pleading guilty" than to Thomas's understanding of what a plea means, or its voluntariness. LaRue, 619 N.W.2d at 398 (citing Speed, 573 N.W.2d at 596). We conclude Thomas's claims of ineffective assistance would not have been sufficient to allow him to challenge his informed guilty plea under the rational of Speed II and LaRue. Accordingly, we find Thomas was not prejudiced by trial counsel's alleged failure to challenge the plea.
IV. CONCLUSION
By not filing a motion in arrest of judgment or a direct appeal and not alleging in his postconviction application that his trial counsel was ineffective for not advising him of the consequences of waiving his right to file a motion in arrest of judgment, not filing a motion in arrest of judgment, and not filing a direct appeal Thomas waived these issues and is precluded from raising them on postconviction relief. The district court did not err in granting the State's motion to dismiss on procedural grounds. Thomas may not, on appeal from dismissal of his postconviction application, for the first time claim that ineffective assistance of trial counsel excuses his failure to file a direct appeal. Furthermore, were we to reach the merits of Thomas's ineffective assistance claim, we would conclude the claim of ineffective assistance in his postconviction application does not state a basis for setting aside his guilty pleas and thus he was not prejudiced by counsel not challenging the guilty plea. The district court's grant of the State's motion to dismiss is affirmed.