Opinion
No. 2-917 / 01-0461.
Filed February 28, 2003.
Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.
Terrell Gary Bloch appeals from his convictions and sentences, following guilty pleas, for burglary in the first degree and escape. AFFIRMED.
Thomas Preacher, Bettendorf, for appellant.
Terrell Gary Bloch, Anamosa, pro se.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Terrell Gary Bloch appeals from his convictions and sentences, following guilty pleas, for burglary in the first degree and escape. He contends the district court erred by failing to give adequate reasons for the imposition of consecutive sentences and alleges numerous grounds of ineffective assistance of counsel. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
On October 17, 2000 Bloch was charged, by trial information, with robbery in the second degree (Count I), burglary in the first degree (Count II), and using a juvenile to commit certain offenses (Counts III and IV), all arising out of an August 22, 2000 incident. A second trial information was also filed charging Bloch with escape occurring on September 18, 2000. On December 29, 2000 plea agreements were filed in which Bloch agreed to plead guilty to the first-degree burglary and escape charges and the State agreed to dismiss the remaining charges. On the same date Bloch appeared in district court, the court conducted a personal colloquy with him, and the court accepted the guilty pleas. The court withheld its approval of the plea agreements until receipt of a presentence investigation report.
Prior to sentencing Bloch's counsel requested permission to withdraw, advising the court that Bloch wished to withdraw his guilty pleas, contrary to the advice of counsel. The motion to withdraw was granted, sentencing was continued, and new counsel was appointed. After another continuance the sentencing hearing was held on February 22, 2001. Bloch stated he would not be withdrawing his guilty pleas. At the hearing defense counsel stated the plea agreement left the court essentially "no latitude in sentencing," that the sentence on the burglary charge was mandatory, and the only issue before the court was whether the sentences should be consecutive or concurrent. The defense asked for concurrent sentences while the State recommended consecutive sentences. The court sentenced Bloch to an indeterminate term of imprisonment not to exceed twenty-five years on the first-degree burglary charge and an indeterminate term not to exceed five years on the escape charge. The court ordered the sentences to run consecutively.
Bloch argues on appeal, through both appellate counsel and supplemental pro se brief, that the district court failed to give adequate reasons for the imposition of consecutive sentences and that he received ineffective assistance of counsel.
II. MERITS A. Consecutive Sentences
Our scope of review of sentencing decisions is for the correction of errors at law. Iowa R.App.P. 6.4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). We review the record to determine if the district court abused its discretion in failing to state reasons for the sentence imposed. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). An abuse of discretion will only be found when a court acts on grounds clearly untenable or to an extent clearly unreasonable. Id. Iowa Rule of Criminal Procedure 2.23(3)( d) requires a trial court to state on the record its reasons for selecting a particular sentence. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). The sentencing judge must also give reasons for imposing consecutive sentences. Id. "Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action." State v. Keopasaeuth, 645 N.W.2d 637, 641 (Iowa 2002).
Bloch argues the district court failed to give an adequate statement of reasons for imposing consecutive sentences. He argues that because the statement of reasons is inadequate the court on appeal "is unable to determine what factors led the Sentencing Court to sentence the Defendant to consecutive terms of imprisonment." The reasons stated by the court for the sentences included the fact the imposed prison term for the burglary conviction was mandatory, Bloch's criminal record, and the facts and circumstances surrounding the crimes. The reasons given by the court here were very terse and in most circumstances would be viewed as inadequate to meet the requirements of rule 2.23(3)( d). Under different facts the reasons stated by the court could easily be seen solely as reasons for imposing prison terms, with no indication of why the court was ordering the sentences to run consecutively. Identification by the sentencing court of express, explicit, case-specific reasons for imposing consecutive sentences would in most cases avoid claims on appeal such as the one before us, and in cases where such claims are raised would greatly facilitate appellate review. We nevertheless believe that based on the particular facts and circumstances of the case before us it becomes apparent the reasons stated by the trial court are reasons for imposing consecutive sentences and we are thus able to review its exercise of discretion.
At the sentencing hearing defense counsel acknowledged that the plea agreement was appropriate, burglary in the first degree was a forcible felony requiring a term of no more than twenty-five years, pursuant to the plea agreement Bloch was going to be sentenced to prison on each of the two charges, and therefore the only issue for the court was whether the two sentences were to be concurrent or consecutive. The defense requested the sentences run concurrently but acknowledged that under the terms of the plea agreement the State would be requesting consecutive sentences. At the hearing the State continued to recommend consecutive sentences consistent with the plea agreement. The sentencing judge then concluded that consecutive sentences were proper, imposed consecutive sentences, and stated as reasons for doing so Bloch's criminal record and the facts and circumstances surrounding the crimes.
As stated by defense counsel, the only issue before the district court was whether the sentences would be concurrent or consecutive. The defendant argued for concurrent sentences, the State requested consecutive, consecutive sentences were imposed, and thereafter reasons for the sentence pronounced by the court were articulated. See Keopasaeuth, 645 N.W.2d at 641. Thus, because the question of concurrent versus consecutive sentences was the only issue before the court, the reasons stated by the court must be seen as a statement of reasons for imposing consecutive sentences. We conclude the district court provided a minimally sufficient statement of reasons for ordering the sentences imposed to run consecutively and did not violate rule 2.23(3)( d).
B. Ineffective Assistance of Counsel
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 141-44 (Iowa 2001). When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we review the totality of the circumstances in the record de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
Through appellate counsel Bloch contends his trial counsel rendered ineffective assistance by failing to follow up on the names of potential alibi witnesses provided by Bloch and failing to file notice of an alibi defense, and also by pressuring him into entering guilty pleas by advising that if he did not do so he would be subject to enhanced penalties as an habitual criminal. In his supplemental pro se brief Bloch again makes the claim of ineffective assistance based on his counsel's failure to pursue an alibi defense and contact an alibi witness that counsel knew of. Additionally, Bloch alleges his counsel was ineffective for failing to investigate and present a defense to the escape charge because he was merely released from custody and did not escape, and the escape charge improperly enhanced his sentence. He further contends his counsel was ineffective for failing to notify him of the pleas of his codefendants and that counsel "aligned" himself with the prosecution. Finally, Bloch also claims in his pro se brief that he was unable to confront his accusers. We will address appellate counsel's and Bloch's pro se arguments separately.
1. Appellate counsel's claims.
In complaining of the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job, for example should have called certain witnesses. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1984) (citing State v. White, 337 N.W.2d 517, 519 (Iowa 1983)). The defendant must state specific ways in which counsel's performance was inadequate and how competent representation probably would have changed the outcome. Id. In the context of guilty pleas, in order to show prejudice "the defendant must show that 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); State v. Myers, 653 N.W.2d 574, 578-79 (Iowa 2002); Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995).
Appellate counsel's brief does not identify any potential "alibi witnesses." It does not state even in the most general of terms what their testimony would have been, how it would have changed the outcome of the proceedings, or how it would have supported the defense. We therefore conclude this claim is too general in nature to allow us to either address it or preserve it for a possible postconviction proceeding. Dunbar, 515 N.W.2d at 15; see also State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987) (holding that we will not preserve an issue for a postconviction proceeding unless defendant makes "some minimal showing from which this court can assess the potential viability of his or her claim.").
Appellate counsel next argues that Bloch was pressured into entering a guilty plea by inaccurate statements of his trial counsel to the effect that if he did not enter a plea he would be subject to enhanced penalties arising from the fact he was an habitual offender. Bloch argues his record is not such that he would have been subject to a penalty enhancement as an habitual offender in the present case. He asserts that but for counsel's erroneous advice with regard to the effect of his prior criminal record, he would not have entered the pleas of guilty. The parties' briefs and appendix contain no information regarding Bloch's prior convictions, if any. The record contains nothing indicating what defense counsel may have told Bloch concerning habitual offender status. The record is not adequate to address this claim on direct appeal. Therefore, we preserve this claim for a possible postconviction proceeding in order to allow a record on the performance of counsel to be developed. See Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999).
2. Pro se claims.
In his supplemental pro se brief Bloch first alleges counsel failed to contact a witness, Brandon Sykes, who was present in the same cell block as the defendants, in order to file an alibi defense. He asserts that Sykes would have testified he overheard Bloch's codefendants putting together a plan to place the blame on Bloch. In asserting an alibi defense, a defendant is claiming that he or she cannot be guilty because they were not present at the time and place the alleged offense was committed, Iowa Crim. Jury Instruction 200.15 (1991), and further that it was impossible for the defendant to have been there because he was elsewhere. State v. Kittelson, 164 N.W.2d 157, 166 (Iowa 1969).
Bloch is of necessity referring to an alibi defense to one or more of the charges against him which arose out of the August 22, 2000 incident, as the escape charge involved no codefendants.
For two reasons Bloch could not have been prejudiced by counsel not calling Sykes as an alibi defense witness. First, the information Bloch alleges Sykes would have provided has nothing to do with proving Bloch was not present at the August 22 incident. Second, and more importantly, Bloch stated at the plea proceeding that he in fact entered the apartment in question, did so with the intent to rob the people there, and witnessed one of the victims being hit by his codefendant. Bloch's own admissions thus rule out the availability of an alibi defense, his allegations of a possible alibi defense directly contradict the record, and if raised in a postconviction relief proceeding his claim would not entitle him to an evidentiary hearing. See Kyle v. State, 322 N.W.2d 299, 302 (Iowa 1986) (noting there is no requirement that an applicant for postconviction relief be allowed a hearing on an allegation of ineffective assistance which directly contradicts the record unless a minimum threshold of credibility is met, as bare allegations do not overcome the presumption the record truly reflects the facts). Counsel did not breach an essential duty by not filing an alibi defense and calling Sykes as an alibi defense witness, nor could Bloch have been prejudiced in any way by such failure. Bloch's first pro se claim of ineffective assistance must fail.
Bloch also claims his attorney was ineffective for failing to investigate and present a defense on the escape charge. He contends he was merely released from custody by mistake and did not escape, and that the escape charge caused the court to improperly enhance his sentences. However, Bloch admitted at the plea proceeding that he had been committed to the Scott County Jail and while in his cell he heard one of the officers holler the name of a different inmate, he stepped out of his cell, signed the name of the other inmate at processing, and left the jail. Although Bloch contends on appeal he was just saying what his counsel told him to in order for the judge to accept the pleas, he does not claim his statements were not true. Furthermore, the presentence investigation report shows he gave a nearly identical version of the facts surrounding the escape to the investigator and stated, "Any criminal would have done the same thing. I wanted out of jail." Bloch's argument with regard to the escape and a possible defense are completely contradictory to his own admissions and the minutes of evidence in the record. Accordingly, counsel cannot be said to have breached an essential duty nor could Bloch have been prejudiced by counsel not making the arguments relating to defense of the escape charge urged by Bloch in his pro se brief.
It is doubtful this claim survives Bloch's guilty plea. See State v. Sharp, 572 N.W.2d 917, 918-19 (Iowa 1998) (concluding any prejudice from failing to investigate, and failing to seek suppression, did not survive guilty plea).
The record shows Bloch signed both a property receipt and a cash bond form using the other inmate's name and information.
Bloch also alleges his counsel was ineffective for failing to notify him of the pleas of his codefendants, "aligning" himself with the prosecutor, and not allowing him sufficient time to "think about" the plea offer. However, Bloch does not allege with any specificity how these alleged actions by counsel prejudiced him or how the outcome of the proceedings would have been different but for these alleged errors. Accordingly, we find these claims to be lacking sufficient specificity to allow us to deal with them on appeal or preserve them for possible postconviction relief. See Dunbar, 515 N.W.2d at 15 (stating it is not enough to simply claim that counsel should have done a better job, but instead one must, among other things, identify how competent representation probably would have changed the outcome); Wagner, 410 N.W.2d at 215 (holding we will not preserve a claim of ineffective assistance for a postconviction proceeding unless defendant makes a minimal showing from which we can assess potential viability of the claim.).
Furthermore, in view of the fact he entered guilty pleas Bloch's conclusory claims of alleged error by counsel are not a sufficient assertion of prejudice. As set forth above, Bloch must show a reasonable probability that but for counsel's errors he would not have entered guilty pleas and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210; Myers, 653 N.W.2d at 578-79; Irving, 533 N.W.2d at 541. Bloch has failed to show, or even assert, there is a reasonable probability that but for counsel's errors he would not have pled guilty. For this additional reason these claims are therefore too vague and general in nature to address or preserve.
Finally, Bloch contends he was unable to confront his accusers. A defendant who pleads guilty waives certain constitutional rights, including the right to confront witnesses. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969); State v. Mann, 602 N.W.2d 785, 788 (Iowa 1999). Thus, "any constitutional challenge that would undermine the defendant's conviction, with certain exceptions not relevant here, is waived." Mann, 602 N.W.2d at 789. A review of the plea proceeding here shows that Bloch's right to confront witnesses against him was specifically identified by the district court and Bloch expressly waived this right. Accordingly, we need not address this claim because Bloch waived his right to confront his accusers when he entered his guilty pleas.
However, we need not rest our determination of this claim on waiver alone. Bloch merely alleges in one conclusory sentence that he was denied his right to confront his accusers. He does not state what he would have asked them if he had been afforded such an opportunity, how being able to confront them would have changed the outcome of the proceedings, or how he was prejudiced by not being able to do so. We will not preserve a claim for a postconviction proceeding unless the defendant makes "some minimal showing from which this court can assess the potential viability of his or her claim." Wagner, 410 N.W.2d at 215. We find this claim to be too general to either address or preserve for a possible postconviction relief proceeding. See Dunbar, 515 N.W.2d at 15.
We have considered all of Bloch's claims of ineffective assistance of counsel, whether specifically addressed herein or not, and with the exception of the one claim we are preserving for a possible postconviction proceeding as discussed above we find them to either be too general to address or preserve, or to be without merit.
III. CONCLUSION
We conclude the district court did not fail to give adequate reasons for the imposition of consecutive sentences. We preserve Bloch's claim of ineffective assistance based on counsel's alleged erroneous statements regarding Bloch's habitual offender status for a possible postconviction proceeding on a more fully developed record. We find the remainder of Bloch's claims of ineffective assistance to be either too general for us to address or preserve, or to be without merit.