Opinion
No. 2-1029 / 01-1671
Filed August 27, 2003.
Appeal from the Iowa District Court for Scott County, Mary Howes, District Associate Judge.
Defendant appeals from conviction and sentence for the aggravated misdemeanor of indecent contact with a child, claiming ineffective assistance of counsel. REVERSED AND REMANDED.
Kent Simmons, Davenport, for appellant, and Mark McDonnell, appellant pro se.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, William Davis, County Attorney, and Alan Havercamp and Robert Bradfield, Assistant County Attorneys, for appellee.
Considered by Habhab, Snell, and Brown, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
Defendant appeals directly from his conviction and sentence for the aggravated misdemeanor of indecent contact with a child in violation of Iowa Code section 709.12 (1999). At a final pretrial conference, defendant entered a guilty plea.
The facts involving this appeal came out at the sentencing hearing, held before a different judge from the judge taking the plea. The appeal charges that defendant's trial counsel gave ineffective assistance of counsel in several particulars. Upon our review, we reverse and remand for withdrawal of the guilty plea and for further proceedings accordingly.
A claim of ineffective assistance of counsel asserts constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution and section ten of the Iowa Constitution. We review these questions de novo. State v. Johnson, 406 N.W.2d 794, 796 (Iowa Ct.App. 1987).
To prove this charge, it must be shown that trial counsel (1) failed to perform an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 690, 80 L.Ed.2d 674, 695, 104 S.Ct. 2052 (1984); Taylor v. State, 362 N.W.2d 683, 685 (Iowa 1984).
The validity of the plea depends on whether the defendant entered the plea knowingly and intelligently. State v. Yarborough, 536 N.W.2d 493, 496 (Iowa 1995); Iowa R. Cr. P. 2.8(2)( b).
The trial judge established that there was no signed written Rule 9 plea agreement. 2.9 Iowa R. Cr. P. There is no requirement that the agreement be in writing or signed. The rule does require that the agreement be disclosed in open court at the time the plea is offered. The record discloses that at the time the plea was taken that was not done. Rather, defense counsel stated that if defendant receives proper treatment, the State would recommend a deferred judgment. Counsel then stated:
and we would delay sentencing, then, until he can get the treatment
THE COURT: Well, we can certainly delay the sentencing, but this is an open plea. It is not made pursuant to a firm plea agreement.
COUNSEL: Right.
It later developed before the sentencing judge, a different judge, that this was not true. Defense counsel, Neil Kroeger, stated:
Again, your honor, this case was one of those negotiations at the final pretrial conference, and Mr. Bradfield, (the prosecutor assigned to the case), had agreed to a deferred if Mr. McDonnell would go into treatment. That was our understanding at the end of that final pretrial conference, so we were given a period of time for him to contact Dr. McEchron, which he has done and he is participating in group therapy and, I understand, individual counseling with Dr. Whttlesey, is that right, or McEchron.
The hearing then proceeded as follows:
THE DEFENDANT: Well I had one individual with Whittlesey and then they moved it to group therapy.
THE COURT: Oh. I'm just looking for the Rule 9. There is none in the file.
MR. KROEGER: Well, Could I —
THE COURT: He is not getting a deferred. There's no way. Because of the facts and circumstances of the crime, I am not giving him a deferred.
MR. KROEGER: I understand that, but that's sort of — that sort of becomes a problem because of what we — I guess sometimes we get expedient in our final — would — what do you want to do? Do you want to proceed or —.
THE COURT: Well, he has to proceed. He's already pled guilty. The plea was accepted. We're here for sentencing. It's not his option to proceed with sentencing this morning or not.
MR. KROEGER: Well, that was not my understanding at the pretrial conference. I'm just saying that's — you know, if we reach agreements at those final pretrial conferences and they aren't upheld, then we're left —
THE COURT: Well, I think, Mr. Kroeger, what you are telling me is the State didn't have any problem with you asking for a deferred. You've asked for one. I'm not giving him one. That doesn't allow him to withdraw the plea of guilty.
MR. KROEGER: That wasn't my understanding. That's all I can say.
THE COURT: I am not sure — I don't think Judge McDonald or I indicated to you that he would get a deferred judgment.
Mr. KROEGER: Well then, I advised my client incorrectly then.
THE COURT: Well, there isn't a signed Rule 9 Plea Agreement, so I don't believe that you — and I don't know how you advised your client, but the State is free to — I think what they are saying is they are not opposing a deferred, and you've asked for one and I've denied it.
Okay. Mr. McDonnell, is there anything you want to say on your behalf?
THE DEFENDANT: Well, I suppose I never would have made the plea agreement if — I was under the assumption that if I made the plea agreement, I would have a deferred sentence.
THE COURT: All right. I want to see both counsel in my chambers right now. You sit right there. Bring your machine in.
The judge and both lawyers, for the State and defendant, then discussed the matter in chambers, outside the presence of the defendant. The prosecutor explained that he had a victim "who lives in Kansas who was coming back, but isn't coming back." The judge characterized the action as an "open and closed" case. In chambers, the following occurred.
THE COURT: I know you didn't say — I know you didn't say that you would recommend a deferred. Tell me —
PROSECUTOR: I have no objection to a deferred. I did say that based on the fact that he was in treatment, but maybe we have to try it, because I don't want Neill to feel like he's been —
THE COURT: I am sentencing him today. He can file a motion to withdraw the plea after sentencing.
Resuming in court, the judge said:
THE COURT: Okay. Mr. McDonnell, is there anything else you want to say to me? You are free to say whatever you want. You heard me say I wasn't going to give you a deferred judgment, so — based on the facts and circumstances of this case.
THE DEFENDANT: (No response)
THE COURT: Okay. I am going to take your silence to mean you don't have anything to add.
THE DEFENDANT: Considering I don't know what you guys talked about [in chambers], I have nothing to —
THE COURT: Well, I told him why —
MR. KROEGER: I will discuss it with you afterwards.
THE COURT: I told them that I couldn't go along with the deferred judgment because of the facts and circumstances in your case, mainly the indecent contact with a child. There was a six-year-old girl, and I don't believe you would be the appropriate person — I believe you would be an appropriate person to be on the Sex Offender Registry. And I don't believe a deferred judgment would be appropriate, because I believe the public would need to know about your previous criminal acts. That's in the interest of public safety that they do that. If I give you a deferred judgment, they aren't going to know. So I think you need to be on the Sex Offender's Registry for public safety. And whatever you thought your sentence was going to be, I don't know. There's no signed plea agreement, so the court is free to sentence you, as I interpret the court file, which is correct that you entered a plea on August 16th and now you are here for sentencing.
The court then proceeded into a recitation of other reasoning before sentencing him to two years in the custody of the Department of Corrections.
Trial counsel did not file a motion in arrest of judgment. However, the guilty plea can still be attacked on appeal if the failure to file the motion was due to ineffective assistance of counsel. State v. Miller, 590 N.W.2d 724 (Iowa 1999). Appellate counsel for the defendant charges this ground is satisfied in that defense counsel:
(1) Failed to inform the plea judge that there was a firm plea agreement.
(2) Failed to require the plea judge to address the defendant personally regarding defendant's understanding of the plea agreement as required by Iowa Rule of Criminal Procedure 2.8(2)(b), when the written plea stated there was a plea agreement.
(3) Failed to file a motion in arrest of judgment when the judge accepted the plea agreement on the basis there was no plea agreement.
(4) Failed to correct the sentencing judge's error of law when stating that she could not give a deferred judgment because defendant would not then be on the Sex Offender Registry.
(5) Failed to correct the sentencing judge's belief that a plea agreement was required to be in writing.
(6) Failed to move in arrest of judgment before imposition of sentence when the court stated there was no plea agreement and counsel knew he had incorrectly advised his client.
(7) Failed to object to the judge's discussion of the plea agreement outside the presence of the defendant.
On point (7) above, defendant cites Iowa Rule of Criminal Procedure 2.27(1) and State v. Wise, 472 N.W.2d 278, 279 (Iowa 1999). In Wise, our supreme court said "[b]arring exceptional circumstances, a criminal defendant should be personally present at every stage of trial. . . . This practice should be followed even if the conversation seems insignificant, and even if counsel has purported to waive the defendant's personal presence." Wise, 472 N.W.2d at 279.
The record shows that the court's summary of what occurred in chambers failed to include information that defendant's counsel understood there was a firm plea agreement and that the victim was not going to be present for trial. Defendant could not respond further when he was denied this information. Error occurred here.
The six other charges of ineffective assistance of counsel are proved by the record. The plea was not voluntary and was not made knowingly and intelligently. Prejudice is clearly shown in that defendant received a prison sentence instead of a deferred judgment for which he thought he bargained. Defendant's constitutional rights were violated.
Reversed and remanded for pleading anew.
REVERSED AND REMANDED.