Opinion
No. 4-824 / 03-1873
Filed February 9, 2005
Appeal from the Iowa District Court for Polk County, Dale E. Ruigh, Judge.
Randall Hartnell appeals from the denial of his request for postconviction relief. AFFIRMED.
Richard Hollis, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, and James P. Ward, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Randall Hartnell appeals from the denial of his request for postconviction relief. We now affirm.
I. Background Facts and Proceedings.
On February 15, 2001, Randall Hartnell was charged with multiple drug offenses stemming from the sale of methamphetamine to an undercover officer, including delivery of more than five grams of methamphetamine, and tax stamp violations. At that time, Hartnell was already on probation for a separate drug-related offense. Hartnell was found to be indigent and Philip Reser was appointed to serve as trial counsel for both the new charges and the related probation revocation proceeding. The record reveals that trial counsel met with Hartnell on numerous occasions prior to the trial on the new charges scheduled for May 9, 2001.
On March 16, 2001, the State offered Hartnell a plea bargain. Under the terms of the offer, Hartnell would plead guilty to the delivery charge, a class B felony carrying with it the possibility of twenty-five years imprisonment, and be permitted to argue at sentencing for the sentence to run concurrently with any jail term resulting from the probation revocation. In exchange, the State would reduce the jail term requested by one-third and would not seek to enhance the sentence based on Hartnell's habitual offender status. Of note, this plea offer was set to expire by March 23, 2001. No agreement along these lines was ever struck and the plea bargain offer expired.
On May 7, 2001, the State successfully amended the trial information to include a conspiracy charge against Hartnell. The amended trial information also alleged previous drug-related convictions should be used to enhance Hartnell's sentence. There is no evidence in the record suggesting that the State offered a new plea bargain after the March 16 offer expired.
On May 9, 2001, Hartnell appeared with his attorney at a guilty plea proceeding. Hartnell pled guilty to the conspiracy and delivery counts, as well as to the tax stamp violation. He also admitted at the hearing that he had allowed his co-conspirator to use his vehicle to deliver the methamphetamine, and that he knew of her plan prior to giving such permission. Prior to receiving Hartnell's guilty plea, the district court engaged in a plea colloquy which comported with Iowa Rule of Criminal Procedure 8(2)( b) and ( c) in every respect except that the court failed to inquire as to whether Hartnell's decision to plead guilty resulted "from prior discussions between the attorney for the state and the defendant or the defendant's attorney." Iowa R. Crim P. 8(2)( c).
The requirements of the plea colloquy referenced are now contained in Iowa Rule of Criminal Procedure 2.8(2)( b) and ( c).
Though clearly a mandatory part of the plea colloquy required by our rules of criminal procedure, the district court's failure to inquire whether discussions with the State's attorney resulted in Hartnell's guilty plea was never raised at the guilty plea hearing or by motion in arrest of judgment. At the July 3, 2001 sentencing hearing, Hartnell received the maximum sentence for both the delivery and conspiracy charges, each enhanced to fifty years pursuant to Iowa Code section 124.411 (2001). Hartnell also was sentenced to five years for the tax stamp violation. Each of these sentences was to run concurrently with the others, but consecutive to the revocation sentence of ten years. The sentencing court reduced the applicable one-third mandatory minimum by twenty-five percent.
After voluntary withdrawal of his motion in arrest of judgment, Hartnell appealed his sentence, contending (1) his guilty plea was involuntary, (2) the district court abused its sentencing discretion, and (3) his trial counsel was ineffective in advising him to withdraw his motion in arrest of judgment and misleading him as to the possible sentence likely to be imposed as a result of his plea. Hartnell's appellate defender filed an application to withdraw, however, noting the contemplated appeal was meritless. This application was not resisted by Hartnell, and appellate counsel was granted leave to withdraw. Hartnell's appeal was subsequently dismissed as frivolous by the Iowa Supreme Court.
Hartnell then initiated this postconviction relief [PCR] action in district court, alleging trial counsel was ineffective (1) for failing to adequately explain the March plea offer, the deadline for its acceptance, and the consequences of not accepting it; and (2) for failing to raise the plea colloquy defect alleged in the withdrawn motion to arrest judgment. Hartnell further alleged appellate counsel was ineffective in failing to raise trial counsel's ineffectiveness on direct appeal, and thus failing to preserve those issues for postconviction relief. Hartnell contended he would have accepted the March 16 plea offer if it had been adequately explained prior to its lapse. Additionally, Hartnell maintained he would have insisted on going to trial had trial counsel provided him with a full appraisal of his legal circumstances prior to the May 9 plea hearing.
The district court denied Hartnell's PCR application after finding trial counsel "adequately communicated with Mr. Hartnell concerning the charges against him, the possible dispositions, and the State's position regarding disposition." The court also found "[trial counsel] was a zealous advocate for his client . . . [and] performed within the normal range of professional competency." The district court acknowledged the failure of trial counsel to raise the plea colloquy defect, but concluded Hartnell proved no prejudice because he failed to show by objective evidence he would have insisted on going to trial but for counsel's errors.
Hartnell now appeals the district court's denial of his PCR application, reasserting his claims that both trial and appellate counsel were ineffective with regard to his guilty plea.
II. Scope and Standard of Review.
We typically review postconviction relief proceedings on claimed error. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, because of the constitutional implications inherent with claims of ineffective assistance of counsel, our review here is de novo. State v. Mapp, 585 N.W.2d 746, 747 (Iowa 1998). We will give weight to the district court's findings concerning witness credibility. Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984).
III. Discussion.
On appeal, Hartnell urges that we apply Iowa Code section 814.7(1) retroactively. "An ineffective assistance of counsel claim . . . need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes." Iowa Code § 814.7(1). However, we need not address whether the statute excuses Hartnell's failure to raise issues of ineffectiveness on direct appeal because we conclude Hartnell's claims are otherwise preserved for our review.
The State correctly notes Hartnell did not raise any claim of ineffective assistance of trial counsel on direct appeal and therefore such claims were raised for the first time in this postconviction proceeding. Generally, a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding unless the applicant can demonstrate a sufficient cause or reason for not properly raising the issue previously. Iowa Code § 822.8 (2003); Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). The ineffectiveness of appellate counsel has previously been held to constitute a sufficient justification for failure to raise a claim of ineffective assistance of trial counsel. Ledezma, 626 N.W.2d at 141. "To prove appellate counsel's deficient performance resulted in prejudice, the applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal." Id. We therefore must determine whether Hartnell has established the ineffectiveness of his trial counsel.
A. Failure of Trial Counsel to Explain the March Plea Bargain Offer.
Hartnell maintains his trial counsel failed to adequately explain the terms of the March 16 plea bargain offer, including the ramifications of accepting or rejecting the bargain. He also claims trial counsel failed to notify him that the deal was set to expire on March 23. It is Hartnell's contention that these failures prevented him from accepting the plea offer prior to its expiration, and that he would have pled guilty but for trial counsel's unprofessional errors.
A thorough review of the record reveals trial counsel spent considerable time meeting with Hartnell prior to the plea. The record shows that Hartnell was informed of the plea offer which was discussed at the March 21 pre-trial conference lasting about thirty minutes. Trial counsel met with Hartnell more than with any other client to which he was then assigned, and described Hartnell as fully engaged in the decision whether to plead guilty.
While it is impossible to divine Hartnell's understanding of the March 16 plea offer prior to the time it expired, nothing in the record supports his contention that the offer was not adequately explained. On this record, we find it equally as likely Hartnell knowingly and intelligently allowed the offer to expire because he preferred, at that time, to take his chances at trial. We accordingly find Hartnell has failed to prove trial counsel was ineffective with respect to the manner in which he explained the March plea offer to Hartnell, and affirm the district court on this issue.
B. Trial Counsel's Advice and Appraisal on Decision to Plead Guilty.
Hartnell contends his trial counsel generally failed to explain the trial and guilty plea options, and that this failure serves to eviscerate the guilty plea because his decision to plead was not knowing and intelligent. "To be truly voluntary, the plea must not only be free from compulsion, but must also be knowing and intelligent." State v. White, 587 N.W.2d 240, 242 (Iowa 1998). Hartnell specifically contends he mistakenly believed he was pleading guilty under the terms of the March 16 plea offer, and had this error been cleared up by trial counsel in advance of the May 9 plea hearing, he claims he would have chosen to go to trial. As discussed above, Hartnell was in possession of the March 16 plea offer and its terms, including the deadline for its acceptance, were adequately explained by trial counsel. The district court correctly concluded that any mistaken impression as to the terms under which Hartnell entered his May 9 plea of guilty cannot be attributed to his trial counsel.
Hartnell further asserts trial counsel was generally ineffective as to the advice given with respect to the decision to plead guilty or await trial. We acknowledge that trial counsel was unable to relate at the PCR proceeding the specific details of the numerous meetings he had with Hartnell prior to the entry of his guilty plea. Trial counsel did, however, relate his general practice when it comes to discussing with his clients plea bargains and decisions to plead guilty. He testified he would have discussed with Hartnell (1) possible defense strategies and their likelihood of success at trial, (2) consequences of proceeding to trial, (3) the benefits and disadvantages of a guilty plea, and (4) the possible sentences that could result from the options with which Hartnell was presented.
Hartnell contends, based on trial counsel's inability to supply the specific details of their pre-trial conversations, counsel failed to discuss any of these four topics at their numerous pre-trial conferences. Hartnell fails to point to any objective evidence to support this contention, and relies on his recollection of the subjects discussed during the pre-trial meetings. Claims of ineffective assistance of counsel are lodged against a strong presumption of counsel's competence. Kimmelman v. Morrison, 477 U.S. 365, 383, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); Howell v. State, 557 N.W.2d 908, 913 (Iowa Ct.App. 1996). It has been noted that a defendant in Hartnell's position has a strong inclination to fabricate claims of trial counsel's ineffectiveness in an effort to avoid a harsh sentence. Slevin v. United States, 71 F. Supp. 2d 348, 357 (S.D.N.Y. 1999).
We will not presume Hartnell did not make a knowing and intelligent plea simply because of the disparity between the sentence imposed in this case and a lesser sentence he might have received had he accepted the March 16 plea offer. Based on the amount of time trial counsel spent with Hartnell, trial counsel's persuasive account of the discussions he routinely conducts with clients under the circumstances of this case, and the lack of credible evidence of any breach of duty by trial counsel, we find trial counsel provided Hartnell adequate information on which a voluntary, knowing, and intelligent guilty plea was entered on May 9. In this regard, trial counsel's actions did not "fall outside the range of normal competency," and therefore Hartnell's claim of ineffective assistance of trial counsel must fail. State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003). Moreover, as there is no duty for appellate counsel to raise a non-meritorious issue on appeal, appellate counsel likewise performed competently in this regard. Osborn, 573 N.W.2d at 922-23.
C. Failure to Challenge Plea Colloquy Defect.
1) Was the plea affected by a structural defect?
As noted above, the district court accepting Hartnell's plea of guilty failed to inquire whether discussions with the State's attorney caused Hartnell to plead guilty. See Iowa R. of Crim. P. 8(2)( c). Trial counsel's failure to point out this omission at the plea hearing or thereafter in a motion to arrest the judgment did, in our opinion, fall beyond the range of competency normally expected. Normally, in order to prevail on an ineffective assistance of counsel claim, defendant must prove both (1) deficient performance of counsel, and (2) prejudice resulting thereby. Ledezma, 626 N.W.2d at 142. Hartnell claims the omission by the district court at the plea hearing was a structural defect for which prejudice can be presumed. State v. Stallings, 658 N.W.2d 106, 112 (Iowa 2003) (failure of counsel to ensure waiver of right to jury was voluntary and knowing constitutes a structural defect for which prejudice may be presumed). For the reasons that follow, we conclude Stallings is inapposite to the circumstances presented here, and Hartnell is not relieved from the burden of proving prejudice. We conclude Hartnell must prove, by a preponderance of the evidence, that but for counsel's error, there is a reasonable probability he would have insisted on going to trial. State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002).
We note the consequences of the district court's omission of a Rule 8(2)( c) inquiry have not yet been decided by our supreme court. However, it is well established that where the accurate dissemination of the content of Rule 8(2)( b) is at issue, substantial compliance with the rule will suffice. State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001). The district court has not substantially complied with the rule where it utterly omits from its formal colloquy with the defendant a topic or inquiry mandated by the rule. State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002). Trial counsel's failure to object to such an error by the district court constitutes deficient performance. Id. We find no substantial difference in the relative importance of the inquiries mandated in Rules 8(2)( b) and 8(2)( c) to the determination of whether the waiver of the right to trial was voluntary, knowing, and intelligent. We therefore adopt the approach taken in Myers in assessing trial counsel's performance, and find trial counsel's performance in failing to object to the omission of the Rule 8(2)( c) inquiry similarly deficient.
The Stallings court found the right to a jury trial is so fundamental that where the district court does not engage in a meaningful discussion as to the ramifications of waiving the right, defendant cannot be said to have knowingly and intelligently waived that right. Stallings, 658 N.W.2d at 112. There can be no claim that Hartnell's waiver of his right to trial is less fundamental to our criminal justice system than Stallings's right to have his trial before a jury of his peers. However, the nature and extent of the court's procedural error challenged in Stallings is easily distinguishable from the error raised by Hartnell. In Stallings, no written waiver of the right to a jury trial was filed; waiver of that fundamental right was simply presumed without an apparent effort by any officer of the court to determine whether the waiver was knowing or voluntary. Id. at 108.
In the case before this court, however, Hartnell's decision to plead guilty followed numerous meetings with his trial counsel who explained the possible consequences of the plea. We have already found that Hartnell went into the plea hearing equipped with the knowledge required to enter a knowing and voluntary plea. The transcript of the plea hearing shows the district court asked questions of Hartnell probing his understanding of his rights, the ramifications of his plea, and the quality of his representation. Hartnell's answers to these queries satisfied the district court, and satisfy us on review, that Hartnell's decision to plead guilty and thereby waive his right to trial was both informed and voluntary. The district court, while substantially complying with the plea colloquy requirements of Rule 8(2)( b), failed to specifically inquire whether Hartnell's willingness to plead guilty was induced by "prior discussions between the attorney for the state and [Hartnell] or [his] attorney." Iowa R. Crim. P. 8(2)( c). Unlike the court in Stallings, we are not asked to discern "a waiver of . . . important rights [including the right to trial] from a silent record." Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274, 279-80 (1969).
The record before this court is far from silent as to the circumstances surrounding Hartnell's decision to plead guilty, and we therefore decline to presume prejudice under the circumstances presented here. We hold Hartnell must prove a reasonable probability that had counsel pointed out the district court's omission, and had the proper inquiry been made pursuant to Rule 8(2)( c), Hartnell would have insisted on going to trial.
We note that in Myers, trial counsel's failure to challenge the district court's failure to inform defendant that she had a right of compulsory process was found to be deficient performance. Myers, 653 N.W.2d at 578; Iowa R. Crim. P. 8(2)( b)(4). Such ineffectiveness did not relieve Meyers of the burden to prove prejudice. Myers, 653 N.W.2d at 578-79.
2) Did Hartnell prove prejudice?
At the PCR trial, Hartnell testified on cross-examination that (1) he understood the ramifications of his choice to plead guilty; (2) he knew that in pleading guilty, he would receive some benefit in terms of sentencing; and (3) he believed he would receive a more lenient sentence than the one actually imposed. Having already found that Hartnell went into the May 9 plea hearing armed with adequate information to make a voluntary, knowing, and intelligent guilty plea, and given the lack of evidence of coercion, we find it unlikely a proper Rule 8(2)( c) inquiry would have dissuaded Hartnell from pleading guilty. We find Hartnell's claim that he would have insisted on going to trial is not based on any defect in the plea colloquy or trial counsel's failure to challenge it, but rather was provoked by "buyer's remorse" for the minimal leniency his waiver of trial produced. Because we find no prejudice resulted from the district court's plea colloquy omission or counsel's acts or omissions, we conclude Hartnell's claim must fail. See In re C.M., 652 N.W.2d 204, 207 (Iowa 2002) (failure to prove prejudice is fatal to a claim of ineffective assistance). As noted above, appellate counsel has no duty to raise meritless claims of trial counsel's ineffective assistance. Osborn, 573 N.W.2d at 922-23. We therefore also reject Hartnell's claim that appellate counsel provided ineffective assistance.
We find informative the federal approach to the issue of prejudice stemming from defects in guilty plea proceedings. That approach requires an applicant seeking post-conviction relief on the ground of ineffective assistance of trial counsel in connection with plea proceedings to support with "objective evidence" his contention that he would have insisted on going to trial but for counsel's ineffectiveness. United States v. Gordon, 156 F.3d 376, 380-81 (2nd Cir. 1998). In our view, "objective" evidence here would consist of some showing by Hartnell that he would have been better off to reject the plea offer and proceed to trial, based on either a defense waived or the vulnerability of the State's case against him. Hartnell failed to prove by objective evidence a reasonable probability he would have chosen to go to trial but for trial counsel's ineffectiveness, and thus failed to establish prejudice.
IV. Conclusion.
Because Hartnell failed to establish prejudice resulting from the failure of either his trial or appellate counsel to perform an essential duty, we affirm the district court's denial of his application for postconviction relief. Any other claims of ineffective assistance raised on appeal but not specifically discussed in this opinion are similarly without merit.