Opinion
No. 5-038 / 04-1058
Filed February 9, 2005
Appeal from the Iowa District Court for Black Hawk County, Bruce Zager and Thomas N. Bower, Judges.
Wilson Bolden appeals from his convictions and sentences for possession of cocaine and public intoxication. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell Douglass, Assistant Attorney General, Tom Ferguson, County Attorney, and Sue Swan, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
Wilson Bolden appeals from his convictions and sentences for possession of a controlled substance, to wit: cocaine, third offense, in violation of Iowa Code sections 124.401(5), 902.8 and 902.9 (2003) (Count I), and public intoxication, third offense, in violation of Iowa Code sections 123.46, 902.8 and 902.9 (Count II). We affirm.
I. Background Facts Proceedings
On January 10, 2004, while responding to a trespassing complaint, Waterloo police officers arrested Bolden for public intoxication after he exhibited, "slurred speech, poor balance, watery/bloodshot eyes, and an odor consistent to that of alcohol emitting from his person." During Bolden's search incident to his arrest, officers located a "crack pipe" in the roll of his stocking cap.
The State charged Bolden by trial information on January 20, 2004, with the aforementioned offenses. On April 8, 2004, Bolden pled guilty to both counts. Thereafter, the court accepted Bolden's guilty pleas and sentenced him to serve a fifteen-year indeterminate term of imprisonment under Count I and a two-year term of imprisonment under Count II, to run concurrently, suspended his fines, and ordered him to pay attorney fees, victim restitution, and the applicable D.A.R.E. and law enforcement fees. Bolden appeals.
On appeal, Bolden raises the following issues for review:
I.THE COURT ERRED IN FAILING TO ESTABLISH AN ADEQUATE FACTUAL BASIS PRIOR TO ACCEPTING MR. BOLDEN'S PLEAS OF GUILTY.
II.DEFENSE COUNSEL WAS INEFFECTIVE FOR ALLOWING MR. BOLDEN TO PLEAD GUILTY TO AN OFFENSE FOR WHICH NO FACTUAL BASIS EXISTS AND FOR FAILING TO OBJECT TO A STATUTE WHICH IS UNCONSTITUTIONAL, DUE TO VAUGENESS AND OVERBREADTH, FACIALLY AND AS-APPLIED.II. Standard of Review
Generally, we review a claim of error in a guilty plea proceeding for legal error. Iowa R. App. P. 6.4. However, "when we consider a challenge to a guilty plea proceeding involving constitutional safeguards, we make an independent evaluation of the circumstances as shown by the entire record, which we review de novo." State v. Sayre, 566 N.W.2d 193, 195 (Iowa 1997) (citation omitted). We review ineffective assistance of counsel claims de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
III. Factual Basis
Bolden contends the court failed to establish a factual basis for his guilty pleas. He asserts, "The State failed, in Count I, to prove that the pipe confiscated contained any amount of contraband. Additionally, the State failed to prove, in Count II, that Mr. Bolden was, in fact, intoxicated. . . ."
Bolden failed to file a motion in arrest of judgment challenging his guilty pleas. We will not ordinarily consider a challenge to the validity of a defendant's guilty plea unless error is preserved for appellate review by filing a motion in arrest of judgment. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). This omission will not bar such a challenge if the failure to file the required motion in arrest of judgment resulted from ineffective assistance of counsel. Id. The State believes Bolden failed to preserve error because he did not specifically state his counsel was ineffective for failing to file a motion in arrest of judgment. We find Bolden's assertion that trial counsel was ineffective in failing to preserve this issue is adequate, and therefore, we will address it as a claim of ineffective assistance of counsel.
Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). "Preserving ineffective assistance of counsel claims that can be resolved on direct appeal wastes time and resources." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). We find the record adequate to address the issue on direct appeal.
To establish a claim of ineffective assistance of counsel, Bolden has the burden to prove (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. 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, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, Bolden faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second element is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
A trial court shall not accept a defendant's guilty plea without first determining that the defendant's plea is made voluntarily and intelligently and has a factual basis. Iowa R. Crim. P. 2.8(2)( b). "Where a factual basis for a charge does not exist, and trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an essential duty. Prejudice in such a case is inherent." State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (citations omitted). In deciding whether there is a factual basis supporting a guilty plea, we consider the entire record before the trial court at the plea proceeding, including the defendant's statements, facts related by the prosecutor, the minutes of testimony, and the presentence report. Id. The record must disclose facts to satisfy the elements of the crime. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). The court "must only be satisfied that the facts support the crime, `not necessarily that the defendant is guilty.'" Id. (citation omitted).
Bolden believes the State failed to prove a factual basis under either count because, "the conviction relies totally upon [his] admissions during the guilty plea hearing, and [he] was never qualified to advise the court regarding the presence of a controlled substance in the pipe, nor was he qualified to advise the court whether, or not, he was intoxicated by legal standards." We disagree.
During the guilty plea hearing, the following exchange took place between Bolden and the court:
COURT: You knew what you possessed at that time was, in fact, cocaine base, is that also correct?
BOLDEN: Yes.
. . . .
COURT: . . . It also states that on or about January 10, 2004, here in Black Hawk County Iowa you did, in fact, appear in a public place while intoxicated or simulating an intoxication; is that correct?
BOLDEN: Yes.
These admissions, along with the information contained in the officer's incident report provide ample evidence for the court to "be satisfied that the facts support the crime, `not necessarily that the defendant is guilty.'" Seeid. We accordingly find Bolden's pleas were supported by a factual basis and counsel is not ineffective for failing to raise a meritless issue. Greene, 592 N.W.2d at 29.
Additionally, we note Bolden's claim that his "plea should also be vacated if the Court determines that improper sentencing considerations were employed by the district court" is waived due to his failure to argue or cite supporting authority. See Iowa R. App. P. 6.14(1)( c).
IV. Unconstitutionally Overbroad or Vague Statute
Iowa's public intoxication statute provides, ". . . A person shall not be intoxicated or simulate intoxication in a public place." Iowa Code § 123.46. Bolden argues his trial counsel was ineffective in failing to challenge this statute as unconstitutionally vague and overbroad, "as the term `intoxication' is not defined in the code of Iowa." Bolden contends "Iowa citizens, of majority age, who may have consumed a small amount of alcohol . . . are chilled from exercising their constitutional right to traverse and associate on public streets for fear they may become targets of arbitrary and capricious seizures. . . ." Because the vagueness and overbreadth doctrines are closely related, we apply similar analysis for both. State v. Allen, 565 N.W.2d 333, 337 n. 1 (Iowa 1997).
A criminal statute must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." State v. Anspach, 627 N.W.2d 227, 232 (Iowa 2001). However, the Due Process Clause does not require that every statutory term be defined in the statute. State v. Baker, 688 N.W.2d 250, 256 (Iowa 2004). A person challenging the constitutionality of a statute faces a heavy burden of demonstrating its vagueness beyond a reasonable doubt. State v. Sylvester, 516 N.W.2d 845, 849 (Iowa 1994). "Statutes are not unconstitutionally vague if their meaning is fairly ascertainable through reference to similar statutes, common law, other judicial determinations, the dictionary, or the common and generally accepted meaning of the words themselves." Id.
A statute is unconstitutionally overbroad if it attempts to achieve a governmental purpose to control or prevent activities constitutionally subject to state regulation by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.
City of Maquoketa v. Russell, 484 N.W.2d 179, 181 (Iowa 1992). Overbreadth analysis is confined to the alleged denial of First Amendment rights; and the chilling of these rights must be substantial. Id.
The dictionary defines "intoxicate" as "to excite or stupefy by alcoholic drinks or a narcotic esp[ecially] to the point where physical and mental control is markedly diminished. . . ." Webster's Third New International Dictionary 1185 (unabr. ed. 2002). "Intoxicated" is defined as "being under the marked influence of an intoxicant. . . . Id. "Intoxicated" has also been defined when one or more of the following are true:
(1) the person's reason or mental ability has been affected; (2) the person's judgment is impaired; (3) the person's emotions are visibly excited; and (4) the person has, to any extent, lost control of bodily actions or motions.
Garcia v. Naylor Concrete Co., 650 N.W.2d 87, 90 (Iowa 2002).
Based on the officer's report, Bolden exhibited "slurred speech, poor balance, watery/bloodshot eyes, and an odor consistent to that of alcohol emitting from his person." The plain meaning of "intoxicated" in Iowa Code section 123.46 clearly applies to Bolden's physical state on January 10, 2004. We further find the reasonable person is provided with fair notice of the meaning of the term "intoxicated" and therefore, Iowa's public intoxication statute is not unconstitutionally vague.
Moreover, we conclude the statute is not overbroad because it has no "chilling" effect on the right to associate or traverse. The statute is constitutionally defined to address only those individuals who are intoxicated, or are simulating an intoxicated state. It does not prohibit or affect a substantial amount of First Amendment protected conduct. See Allen, 565 N.W.2d at 337-38 (finding sexual exploitation by counselor statute constitutional as it did not reach a substantial amount of protected conduct). Accordingly, counsel is not ineffective for failing to raise a meritless issue. Greene, 592 N.W.2d at 29. Bolden's convictions and sentences are affirmed.