Opinion
23-0474
03-27-2024
THOMAS MICHAEL YARGES, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
John C. Heinicke of Kragnes &Associates, P.C., Des Moines, for appellant. Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee State.
Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.
The applicant appeals the denial of his application for postconviction relief.
John C. Heinicke of Kragnes &Associates, P.C., Des Moines, for appellant.
Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee State.
Considered by Bower, C.J., and Greer and Chicchelly, JJ.
GREER, JUDGE.
Thomas Yarges appeals the denial of his application for postconviction relief (PCR), raising claims of ineffective assistance of counsel over trial counsel's alleged failure to do important pre-trial workup and to address confusion over the interplay between two separate plea agreements that he believes resulted in a plea bargain he did not make. He also raises an actual innocence claim. Upon our de novo review, we affirm the PCR court's denial.
I. Background Facts and Prior Proceedings.
First, it helps to understand the various proceedings involving Yarges that impact the issues in this appeal. We summarize those as follows:
FECR318507 (criminal mischief): Yarges was charged with second-degree criminal mischief, punishable as a class "D" felony, for intentionally causing damage to his then-wife's vehicle on July 5, 2018. As the case proceeded, on the morning of the trial in April 2019 on the criminal-mischief charge, the State disclosed it intended to bring an additional count of felony stalking (a class "D" felony) and an additional count of violating a no-contact order and have Yarges arrested and jailed that same day. It was at this point that Yarges and the State formulated a plea agreement, which we will discuss further below.
The parties divorced on October 26, 2018, so we use the term "ex-wife" in this opinion.
FECR297039 (assault with a dangerous weapon and domestic abuse assault, second offense) and SRCR296490 (theft in the fourth degree): These cases involved convictions for which Yarges was on probation. Before sentencing on the criminal-mischief conviction, Yarges stipulated that he violated his terms of probation involving these underlying charges.
AGCR319612 (driving while barred): Yarges was charged with driving while barred (aggravated misdemeanor) for an incident that occurred on August 15, 2018. He pleaded guilty on November 14, 2018, but sentencing was continued multiple times until it was combined with sentencing in the other cases in June 2019.
With that mix of charges and convictions before him as he waited for the April trial in the criminal-mischief case to begin that morning, Yarges entered into a plea agreement with the State after extensive negotiations that were conducted on the record for the most part. The plea agreement required the State to amend the trial information to add a count of driving while barred (aggravated misdemeanor) and a count of stalking (aggravated misdemeanor) but reduce the criminal-mischief charge to third degree, reducing it from a felony charge to an aggravated misdemeanor. Several days later, after the court had accepted the plea, Yarges filed a motion in arrest of judgment alleging he was coerced into his plea agreement.
After several attorney changes, Yarges appeared at the sentencing hearing on June 7, 2019, to first address his motion and then-if not successful on the motion-to proceed to sentencing. Set for sentencing on the same date was AGCR319612. At that June hearing Yarges withdrew his motion for arrest of judgment, and the court conducted the sentencing hearing. Yarges had newly appointed counsel and after the court denied counsel's request for a continuance so that he could more adequately prepare, the prosecutor set out what would be considered at the hearing:
Your Honor, back on April 8, 2019, we were actually set for trial in Case No. FECR318507 when the defendant pled guilty to an Amended Trial Information to Count I, criminal mischief in the third degree, a lesser-included offense; Count II, driving while barred; Count III, stalking; as well as the defendant had previously pled guilty in AG319612 to a separate driving while barred event.
Pursuant to the plea agreement, Your Honor, it's a joint recommendation to the Court that these be convictions, that they be consecutive sentences, and that the six years in the FE case number run consecutive to the two years in the AG for eight and that that eight years runs consecutive to the five years the defendant already has sentenced in his probation matters. So it's a joint recommendation that it's a 13-year sentence.
The court reviewed this list of charges and sentenced Yarges. All in all, Yarges received a thirteen-year prison sentence, following the stated plea agreement.
This is not the first time we have been asked to address Yarges's claims of ineffective assistance of counsel regarding this sentence. See State v. Yarges, No. 19-1129, 2020 WL 5944436, at *3 (Iowa Ct. App. Oct. 7, 2020) (preserving Yarges's ineffective-assistance-of-counsel claims over the confusing plea agreements for PCR because the record was insufficient to "determine whether Yarges received the benefit of the plea bargain"). In that appeal, the record was inadequate to determine whether a failure by trial counsel-as Yarges alleged- resulted in Yarges ultimately pleading guilty to crimes beyond what was contemplated by the plea agreement, not receiving the benefit of the bargain, or both. Id. at *2. We preserved Yarges's ineffective-assistance-of-counsel claim for PCR proceedings. Id. at *3-4 ("The district court was never alerted by any counsel that the sentencing order did not follow the plea agreements, if that was so. Thus, we are unable to rule on this ineffective-assistance claim at this stage of the proceeding.").
We had authority to address the ineffective-assistance claim in the direct appeal, as it was decided before the statutory changes that disallow review of claims of ineffective assistance on direct appeal of a conviction under Iowa Code sections 814.6 and 814.7 (Supp. 2019). See State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019).
With that invitation, Yarges applied for PCR and added to the concerns we are to consider from those initially raised before us. Yarges makes the same argument about the confusion over the plea record that we preserved for PCR. He alleges that his trial counsel was ineffective for failing to make the plea agreement part of the record and his sentencing counsel was ineffective for failing to object to and educate the district court over the interplay between the plea agreements. And he now supplements his ineffective-assistance-of-counsel claim to include trial counsel's failure to prepare for trial, request and take depositions, contact defense witnesses and subpoena them for trial, and investigate an alibi defense. Lastly, Yarges raises a freestanding claim of actual innocence.
Yarges was represented by trial counsel leading up to and through the guilty plea. He was represented by a different attorney, we refer to as sentencing counsel, at the sentencing hearing. Sentencing counsel was appointed two weeks before the sentencing hearing.
The PCR court held a hearing on Yarges's application. His trial counsel testified at the PCR hearing and stated that Yarges specifically did not want to face trial on another felony (the stalking charge) as he wanted "at least the ability to argue for probation." Trial counsel had represented Yarges in both the probation violation matters as well as the AGCR and FECR cases. At the PCR hearing, trial counsel admitted that "because the evidence showed [Yarges] drove to the scene of the crime, there was the option to add . . . driving while barred[.]" Trial counsel added that "there was no discussion regarding that AGCR case on [the day of trial]." But as to the matters pending on the trial date, Yarges directed trial counsel to "see if you can do some misdemeanors instead." The negotiations resulted in a written guilty plea, which Yarges signed that same day. Furthermore, regarding the interaction between the FECR and AGCR cases, he stated, "There wasn't, generally, any interplay between what we had worked through on the day of trial and what was to happen with that other one." In response to the court asking for clarification if "Yarges's PCR pertain[ed] only to the FECR318507 case" trial counsel responded, "That is correct." Yarges's trial counsel also confirmed to the PCR court that deadlines were missed for submitting some exhibits and for scheduling and taking depositions. Yet, he maintained that on the day of the trial, he felt ready to proceed.
Yarges also testified at the PCR hearing. When asked whether he understood that he "would, in fact, be pleading guilty to two driving while barred offenses," Yarges responded, "No. There was never no reference of a second driving while barred." He clarified, "[T]he driving barred, I assumed was the driving barred that I had pled guilty to ...." Yarges insisted that he was pleading guilty to "eleven years, maximum." He told the PCR court he did not realize he was pleading to a new driving-while-barred offense. At the same time, Yarges agreed that on the day that he pleaded guilty, his trial counsel did what Yarges asked of him.
His calculation of years did not include the additional two-year sentence for the July 2018 driving while barred.
Yarges offered the transcripts of the trial, which included pre-trial plea offer discussions, and the sentencing hearing as exhibits at the PCR hearing. The trial transcript contains Yarges's response to the pre-trial offer: "I'm not pleading to no class 'D' felony." Then, in the transcript of the sentencing hearing, prior to the court imposing its sentence, the prosecutor informed the court that what Yarges "wanted was not to have a felony conviction, so we reached the agreement to reduce the felony criminal mischief down to an aggravated misdemeanor." The prosecutor also added that "we had a witness who'd seen him driving." Then, the prosecutor summarized the joint sentencing recommendation that was part of the plea agreement as a joint recommendation for a thirteen-year sentence.
The parties again clarified the plea agreement. The court asked, "As I understand it, we've got two-year indeterminate terms in four different matters for a total of eight?" Counsel for the State responded, "Correct" and added "[e]ight plus five." Sentencing counsel then asked, "[F]or clarity, the two, two, two, and two was a plea agreement . . . ?" The State answered, "Correct." Sentencing counsel then agreed, "The agreement was for thirteen years." Yarges insisted that "it was six years, three deuces. Then I found out it was four deuces and stack it." However, he ultimately conceded, "I didn't realize there was four deuces. I thought it was three. I just hadn't seen the sentencing order in a long time. But I guess it is what it is. And I'm really-I'm ready to accept the consequences." The court then sentenced Yarges according to the terms of the plea agreement. But at the PCR hearing, Yarges urged that he was sentenced to two extra years because "no one argued for me." He also contended that if the case had been properly presented by his trial attorney it "would have been thrown out."
As for the actual innocence challenge, Yarges mainly pointed back to evidence he claims to have had prior to the court accepting his guilty plea that showed he could not have been the person committing the criminal mischief and driving while barred offenses and there was no factual basis for the stalking charge. The PCR court denied Yarges's application for PCR. Yarges appeals. II. Standard of Review.
Generally, we review PCR proceedings for correction of errors at law. Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003). "[W]e will affirm if the [PCR] court's findings of fact are supported by substantial evidence and the law was correctly applied." Id. However, we review claims of ineffective assistance of trial counsel, which implicates a constitutional right, de novo. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011). We also review claims of actual innocence on a de novo standard. Dewberry v. State, 941 N.W.2d 1, 4 (Iowa 2019).
III. Analysis.
We address the three issues Yarges raises on appeal-two involving ineffective assistance of counsel and one an actual innocence challenge.
A. Ineffective Assistance of Counsel.
This claim has two bases. First, Yarges asserts that his trial counsel was ineffective for failing to prepare for trial-specifically, request and take depositions, contact defense witnesses and subpoena them for trial, and investigate his alibi defense. Second, Yarges argues his sentencing counsel was ineffective for failing to advise Yarges that he was being sentenced in two separate matters for a total term of incarceration not to exceed thirteen years, which prevented counsel from being able to clarify to the court this was not the result Yarges expected.
Alleged Pretrial Failures. "[T]o succeed on an ineffective-assistance claim, a PCR applicant must establish that counsel breached a duty and prejudice resulted, and the claim fails if either element is lacking." Lusk v. State, No. 181125, 2019 WL 1953461, at *1 (Iowa Ct. App. May 1, 2019) (citing Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012)). To succeed on claims of ineffective-assistance-of-counsel following a guilty plea, the applicant must show "that the pre-plea ineffective assistance of counsel rendered the plea involuntary or unintelligent." Castro v. State, 795 N.W.2d 789, 793 (Iowa 2011). But even so, with a claim for PCR involving ineffective assistance of counsel, the applicant must establish previous counsel's breach of a duty and show that prejudice resulted. Id. at 794. And to that end, "the defendant 'must show a reasonable probability that, but for counsel's error, he would not have entered a plea and would have insisted on going to trial.'" Boschert v. State, No. 13-0009, 2013 WL 6405468, at *3 (Iowa Ct. App. Dec. 5, 2013) (quoting State v. Hallock, 765 N.W.2d 598, 606 (Iowa Ct. App. 2009)). This "component of the claim involving the voluntariness of the plea is largely tied to the prejudice element" of ineffective-assistance-of-counsel claims. Castro, 795 N.W.2d at 793.
Addressing the breach-of-duty prong, the PCR court found:
In the case at hand, the Court agrees Mr. Yarges's trial counsel was deficient. Based on the record before it, Mr. Yarges asked his trial counsel to take depositions, contact defense witnesses, and investigate his alibi defense supported, in part, by the LifeSaver log associated with his girlfriend's vehicle. Trial counsel missed the deadline to take depositions by over four months, failed to contact defense witnesses, and failed to provide the LifeSaver log to the State in advance of trial. Further, as it relates to the LifeSaver log, trial counsel failed to direct a subpoena to the document's recordkeeper until five days before trial. Noting that trial was
confirmed to begin approximately two months prior, trial counsel's delayed efforts on behalf of Mr. Yarges are troublesome.
Still the district court determined that Yarges had not met the second prong of prejudice as Yarges failed to prove "a reasonable probability of a different result." The court noted that the allegation over the girlfriend's vehicle was "only one piece of the puzzle." Pointing to the anticipated testimony that Yarges's ex-wife's neighbor would testify to Yarges's presence near the ex-wife's home at the time the vehicle was damaged, that the ex-wife would confirm she saw Yarges damage the vehicle and take her property, and that both witnesses would testify to seeing a person who looked like Yarges leave in a black truck, the district court concluded Yarges engaged in a "cost-benefit analysis" and took the plea agreement to avoid felony charges. We judge "the applicant's assertions that he or she would not have accepted the plea agreement and would not have pled guilty . . . in the context of the strength of the State's case or the advantages to the applicant of the plea agreement." Boschert, 2013 WL 6405468, at *4. An advantage includes a decreased prison sentence. See Hallock, 765 N.W.2d at 606 (finding that because the applicant avoided a mandatory minimum sentence and lifetime parole by pleading guilty, there was no reasonable probability that he would have rejected the plea agreement and gone to trial). Like the district court, we cannot conclude that the outcome of Yarges's case would have been different but for trial counsel's deficient advocacy.
Guilty Plea Confusion. After reviewing the reported guilty plea and sentencing records and considering the PCR testimony of Yarges and his trial counsel, the district court rejected Yarges's various claims over the confusion of the plea agreements and the resulting sentence. The PCR court ruled:
The court file reflects that the trial court thoroughly checked to ensure Mr. Yarges understood the first plea agreement; Mr. Yarges did and rejected this agreement. Mr. Yarges then chose to continue negotiations to reach the second plea agreement that was structured specifically so he could avoid a felony conviction. As stated above, Mr. Yarges conducted a cost-benefit analysis. The trial transcript shows he had a full understanding of the first plea agreement when he conducted further plea negotiations. He understood the consequences of rejecting the first plea agreement and conducted further negotiations in the shadow of those consequences. Accordingly, under a totality-of-the-circumstances analysis, the Court concludes trial counsel's alleged failure to adequately make the plea agreements part of the record does not fall below normal competency.
As it relates to the Court's understanding of the plea agreement, the Court cannot conclude trial counsel failed to fulfill his duties on behalf of Mr. Yarges. Reviewing the record as a whole, the prosecution was clear about the stalking and no-contact violation being added to the charges if the first plea agreement was rejected during plea negotiations. When the first plea agreement was offered, the trial court engaged in discussion with Mr. Yarges to ensure he understood the terms of the plea agreement and that he was freely making his decision. Mr. Yarges chose to not accept the first plea agreement regarding Criminal Mischief in the Second Degree. Instead, he made a voluntary and knowing choice when he entered into the second plea agreement. This plea agreement was memorialized in writing and reflects an understanding on the part of Mr. Yarges. Further, the Court's understanding of the plea agreement is accurately reflected in its April 8, 2019 Order.
We adopt this same reasoning and conclude that Yarges failed to show any breach of duty or prejudice under this claim of ineffective assistance of counsel. The plea agreement was adequately explained and directed in large measure by Yarges. He also directed that trial counsel file a motion in arrest of judgment but withdrew the motion at the sentencing hearing. In our review of his sentencing hearing, we find Yarges failed to establish that his guilty plea was not knowing and voluntary and, given the significant advantage to him, there was not a reasonable probability that he would have rejected the plea agreement and gone to trial. This is particularly so given that Yarges admitted that his sentencing counsel did exactly what he asked of him and Yarges insisted that he not plead guilty to any felony convictions. Furthermore, the State had a strong case against Yarges: with the potential testimony of two eyewitnesses supporting the charged violations on July 5, 2018. For these reasons, we find that Yarges has failed to meet his burden of proof to sustain his claim of ineffective assistance.
B. Actual Innocence.
Finally, Yarges denies committing the crimes of third-degree criminal mischief, driving while barred in July 2018, and stalking. He offers two theories: (1) he could not have committed the offenses in July 2018 because the vehicle he usually drove-his girlfriend's-was not working at that time and (2) there was no factual basis for the stalking charge. As an add-on, he takes issue with discrepancies and omissions in the various plea filings. But as to the allegations over the omissions and discrepancies of the plea documents, we agree with the State that these issues were not preserved for our consideration as they were not raised to or decided by the district court. "It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." Lamasters, 821 N.W.2d at 862 (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)).
Yarges contends a "rushed plea petition" made no reference to the venue of the criminal acts and included a clear typographical error involving the date of the offense, which stated the offense was committed a year after the actual date of the incident and after the date of the plea agreement.
So, we turn to Yarges's actual innocence claim premised on his inability to commit the crimes by driving his girlfriend's vehicle and the failure of the State to provide a factual basis for the stalking charge. Specifically, Yarges contends the allegation that he was driving his girlfriend's vehicle at the time of these alleged crimes cannot be true because her car was disabled on the date of the incident. Yarges has a steep hill to climb as "after pleading guilty, applicants claiming actual innocence must meet the clear and convincing standard." Schmidt v. State, 909 N.W.2d 778, 797 (Iowa 2018). That standard means that
for an applicant to succeed on a freestanding actual-innocence claim, the applicant must show by clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no reasonable fact finder could convict the applicant of the crimes for which the sentencing court found the applicant guilty in light of all the evidence, including the newly discovered evidence.
Id.
To confront Yarges's assertions, the district court determined Yarges had not overcome the burden to show clear and convincing evidence for his position. Contrary to his claim that no reasonable factfinder could conclude he committed the crimes of criminal mischief, stalking, and driving while barred because he could not have driven his girlfriend's vehicle, evidence of his guilt could be shown through an eyewitness who saw him slash the victim's tires and cause damage to the body of the vehicle and another eyewitness who saw someone with Yarges's build near the area during the time of the damage. The State also had at least one eyewitness supporting the driving-while-barred charge. As for the stalking charge, Yarges made calls to his ex-wife while in custody-violating a no-contact order- and went to her home and slashed the tires on her vehicle. These actions constitute stalking under section 708.11 (2). As further support for the conviction, Yarges violated the no-contact order in place at the time. See State v. Helmers, 753 N.W.2d 565, 568 (Iowa 2008) (providing the defendant's violation of a nocontact order was "a key piece of evidence" to show the defendant knew or should have known how the protected party would be impacted by the defendant's conduct).
Section 708.11(2) provides that a person commits stalking when
a. The person purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened or to fear that the person intends to cause bodily injury to, or the death of, that specific person or a member of the specific person's immediate family.
b. The person has knowledge or should have knowledge that a reasonable person would feel terrorized, frightened, intimidated, or threatened or fear that the person intends to cause bodily injury to, or the death of, that specific person or a member of the specific person's immediate family by the course of conduct.
Yarges failed to meet the high standard of clear and convincing evidence for proving actual innocence. He did not establish that despite the evidence of guilt the State could present to support the conviction, no reasonable fact finder could convict him of the crimes for which he pleaded guilty. While he claims contradictory evidence existed to avoid a conviction on the charges (of which his self-serving testimony was the only evidence), we cannot find that no reasonable jury could have convicted him considering the strong eyewitness proof available to the State. For these reasons, Yarges's actual innocence claim also fails.
IV. Conclusion.
We affirm the denial of Yarges's application for PCR.
AFFIRMED.