Opinion
No. 3-994 / 02-0846
Filed February 27, 2004
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
DeMarcus McLemore appeals from the district court's judgment denying his request for postconviction relief. AFFIRMED.
Mark Olberding of Olberding Law Office, Nevada, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
I. Background Facts and Proceedings
Demarcus Ray McLemore was charged with first-degree murder for shooting Billy Cheatom to death on December 18, 1998. McLemore eventually pled guilty to second-degree murder. The plea record includes the following statements by the judge who accepted McLemore's guilty plea:
Murder in the Second Degree carries with it a maximum punishment of 50 years incarceration in prison. . . . Actually, the institution is directed to hold you for 85 percent of that time. Now, whether they actually do nor not, is not something I know. They may hold you for 85 percent. They may decide it's too crowded, or they may change the law, or a lot of things could happen and maybe they will release you sooner. But it is mandatory incarceration that the Court order you to serve not more than 50 years; and the law, as it presently stands, says you're to serve 85 percent of that. Do you understand that?
McLemore waived his right to file a motion in arrest of judgment and requested immediate sentencing. The trial court sentenced McLemore to a term of incarceration not to exceed fifty years as required by statute. McLemore did not challenge his plea or the resulting judgment and sentence on direct appeal.
McLemore's petition for postconviction relief alleges the following grounds for relief:
The conviction violates inter alia the 5th, 6th, and 14th amendments to the U.S. Constitution and analogous portions of the Iowa Constitution:
(1) Petitioner has not received representation by competent counsel. The advice counsel gave petitioner was not within the range of competence demanded of attorneys in criminal cases. Had it not been for counsel's errors, petitioner would not have pleaded guilty and would have insisted on going to trial. Counsel's advice rendered petitioner's plea of guilty involuntary and unintelligent. . . .
The State moved to dismiss McLemore's petition, citing his failure to file a motion in arrest of judgment prior to pronouncement of judgment and sentence or otherwise challenge the validity of his guilty plea or effectiveness of his attorneys on direct appeal. The trial court overruled the State's motion to dismiss, stating:
The record reflects that the defendant did not file a Motion in Arrest of Judgment and waived that right, and further failed to file a notice of appeal. Mr. Sayer represents that his client was told by his attorneys that he could not appeal. While it is questionable that an appeal would have been successful, at the least the petitioner should be allowed to attempt to present evidence to support his claim of ineffective assistance of counsel so there is a complete record.
McLemore's testimony on direct examination at his postconviction trial included the following:
Q. So you ended up going to have a plea hearing; is that correct? A. Yes.
Q. And what happened during that hearing? A. Well, the judge talked to me. My attorneys and the County Attorney all talked to me stating what the deal was all about. I told them I didn't want to take it.
. . . .
Q. And what happened with that? A. Oh, we had a little time and sit and told me just take the deal. Because there was no chance. I could take the deal and get 50 years and still have a life left if whatever, where if I could go to trial and get life and that's it.
. . . .
Q. What as your understanding of what your sentence was going to be? A. Fifty years in the judge's discretion to how long I do that.
Q. You thought it was up to the judge to decide how much of that time you would have to serve? A. Yes.
Q. And how did you come to that understanding? A. That's what my lawyers told me. They say the 85 percent was up to the judge.
Q. Okay. What did you understand about the 85 percent requirement? A. Nothing.
Q. Do you have an understanding of what it means now? A. Yeah.
Q. And what is your understanding now of what it means? A. That I got to do forty-two and a half years of this 50-year sentence.
Q. You didn't understand that at the time you pled guilty? A. No, sir.
Q. Would you have accepted the plea agreement if you would have understood that? A. No, sir.
. . . .
Q. Sure. Now, you waived your right to file a Motion in Arrest of Judgment. Correct? A. Yeah.
Q. Do you even know what that is? A. Not really.
Q. Even now you don't know what that is? A. No.
Q. Did you know what it was at the time you had waived it? A. No.
Q. Why did you end up waiving that? A. They told me if I took the deal, that I could not appeal. I could not have anything to —
Q. Your attorneys told you you couldn't appeal? A. Yeah. Otherwise, I would be going back on the deal.
Q. Did you ever tell your attorneys you did want to appeal after you were sentenced? A. I thought it was my right. We were supposed to do that anyway regardless.
Q. Why did you want to appeal? A. Just so maybe I change my mind down the line. Decided I didn't really want it. I didn't really in the first place. Maybe I could have something done.
The attorneys who represented McLemore were not called to testify at his postconviction trial. The postconviction court's ruling on McLemore's application states, in part:
The court in this case has thoroughly reviewed the issues raised by the Petitioner in the Application for Post-Conviction Relief, and specifically those issues raised in Addendum A to the Application. After reviewing the issues presented, the court concludes that the Petitioner has failed to show by a preponderance of evidence that there was ineffective assistance of counsel, that any prejudice resulted by any action taken by counsel or not taken by counsel during the course of their representation of the Petitioner. As the Petitioner understood at the time of his plea, and as pointed out by the court during the plea proceedings, the Petitioner was facing possible life in prison without the possibility of parole if convicted of the charge of Murder in the First Degree. After skillful negotiations between his counsel and the State, a plea agreement was reached which allowed some opportunity for hope that the Petitioner would not spend the rest of his life in jail for what he acknowledged to be the firing of a gun into the head of the victim causing his death. Under this record, the court cannot conclude that the Petitioner was not represented by competent counsel throughout the proceedings, or that any prejudice resulted to him by any action or inaction of his counsel. Therefore, the Petitioner's claims must fail.
On appeal, McLemore raises the following issues:
I. Did the court properly inform the defendant of the mandatory minimum sentence-making the plea of guilty involuntary?
II. Was trial counsel ineffective in failing to raise the issue of good time credit in subsequent proceedings?
III. Was trial counsel ineffective in failing to raise the court's speculation that the defendant would have to serve less than eighty-five (85) percent of his sentence?
IV. Was post conviction counsel ineffective in failing to call trial counsel at the post-conviction relief hearing to testify?II. Standard of Review
Ordinarily postconviction proceedings are law actions. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). When a constitutional claim is implicated, appellate review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); State v. Button, 622 N.W.2d 480, 483 (Iowa 2001).
III. The Merits
McLemore argues that his guilty plea was involuntary based on the trial court's failure to correctly inform him of the mandatory minimum sentence for second-degree murder. As noted earlier, McLemore requested immediate sentencing. McLemore waived his right to file a motion in arrest of judgment. The failure to file a motion in arrest of judgment precludes a defendant from challenging the validity of his guilty plea. State v. Lucas, 323 N.W.2d 228, 229-31 (Iowa 1982). A defendant may, however, challenge the validity of a guilty plea if his earlier failure to do so resulted from ineffective assistance of counsel. See, e.g., State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001) (allowing the defendant to raise guilty-plea-procedural-claim based on ineffective assistance of counsel).
A successful ineffective assistance of counsel claim requires McLemore to establish that (1) his attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied him a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). McLemore must prove both elements by a preponderance of the evidence. Kress, 636 N.W.2d at 20. We may affirm based on McLemore's failure to prove prejudice without deciding whether his attorney failed to perform an essential duty. State v. Hoeck, 547 N.W.2d 852, 863 (Iowa Ct.App. 1996).
To establish prejudice, McLemore 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). The only evidence supporting McLemore's prejudice claim is his self-serving statement that had he known that he would have to serve at least eighty-five percent of his fifty-year sentence, he would not have pleaded guilty. Without more, this evidence is insufficient to establish prejudice. See, e.g., Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1997) (requiring objective corroborating evidence to establish prejudice from ineffective assistance that led to entering a plea). We also note that the State's evidence supporting the original first-degree murder charge includes McLemore's incriminating statements, eyewitness testimony, and McLemore's threats against an eye witness. See Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L. Ed.2d at 210 (holding a relevant factor is whether it can be determined to a reasonable probability that a defendant would have been acquitted).
Based on our de novo review of the record, we are convinced that McLemore pled guilty to second-degree murder to avoid the imminent prospect of a first-degree murder conviction and resulting life sentence without parole. McLemore's claim that he would not have pled guilty and insisted on going to trial had he understood the mandatory minimum sentence for second-degree murder is simply not credible and is irreconcilable with the record establishing the true motivation for his plea.
McLemore further argues postconviction counsel was ineffective for not calling trial counsel to testify at the postconviction hearing. However, he fails to provide any specificity as to what the testimony would have been, how it would have supported his claim, or how it would have changed the result. For these reasons, we believe McLemore has failed to properly raise this claim of ineffective assistance of counsel. See State v. Brown, 656 N.W.2d 355, 364 (Iowa 2003) (concluding the defendant's failure to explain the substance of the proposed testimony and how it could have changed the outcome prevented his ineffective assistance of counsel claim).
The supreme court has stated, "A guilty plea is normally understood as a lid on the box, whatever is in it, not a platform from which to explore further possibilities." Kyle v. State, 322 N.W.2d 299, 304 (Iowa 1982). We find this observation particularly applicable in this case. Because McLemore has failed to establish the requisite prejudice supporting his ineffective assistance of counsel claims, we affirm the district court's judgment denying his application for postconviction relief.