Opinion
No. 5-335 / 04-1612
Filed April 28, 2005
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke and Thomas N. Bower, Judges.
Alleging ineffective assistance of counsel, William McNealy challenges his guilty plea to possession of a controlled substance with intent to deliver and a drug tax stamp violation. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Zimmer, JJ.
William McNealy agreed to plead guilty to possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(c) (2003), and failure to affix a drug tax stamp, in violation of section 453B.12. During the plea proceedings, the district court asked McNealy whether he understood the mandatory minimum and maximum sentence for violating section 124.401(c). McNealy indicated he did, and stated the maximum sentence he faced was ten years. The record contains no evidence McNealy knew he faced a one-third mandatory minimum under section 124.413.
After McNealy's plea was accepted, his counsel did not timely file a motion in arrest of judgment. He was sentenced to the statutory minimum and maximum sentence. He appeals, arguing his counsel was ineffective by failing to assert defects in the plea colloquy by timely filing a motion in arrest of judgment. After our de novo review, State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (scope of review for ineffective assistance of counsel claims), we affirm.
To show ineffective assistance of counsel, McNealy must prove (1) counsel breached an essential duty, and (2) prejudice resulted from that breach. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). The State properly concedes the plea colloquy was defective, as the district court did not determine whether McNealy understood the mandatory minimum he faced. Iowa R. Crim. P. 2.8(2)( b)(2); see also State v. Kress, 636 N.W.2d 12, 21-22 (Iowa 2001). The State further concedes counsel breached an essential duty by failing to call this defect to the court's attention. The State, however, argues McNealy fails to show prejudice. We now address this issue.
In Kress, our supreme court determined a trial court failed to properly advise a defendant of the mandatory minimum sentence she faced. Kress, 636 N.W.2d at 21. The Kress court further stated, "Turning to the prejudice element, we think the prejudice results from what Kress relinquished." Id. at 22. Noting Kress gave up an "`unqualified constitutional right to a trial on the issue of [her] guilt,'" the court set aside her guilty plea and remanded so she might plead anew. Id. (quoting Meier v. State, 337 N.W.2d 204, 208 (Iowa 1983)). Relying on this language, McNealy requests the same relief. In light of subsequent supreme court authority, we are unable to grant his request.
In State v. Myers, 653 N.W.2d 574 (Iowa 2002), our supreme court considered a challenge to a plea colloquy during which the trial court failed to advise Myers of her right to compulsory process. The Myers court defined Strickland prejudice, in the context of challenges to plea proceedings, as "`a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Id. at 578 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). On this point, we believe Myers represents a refinement of the rule announced in Kress. Specifically, we find no sensible way to treat a failure to advise a defendant about a mandatory minimum sentence any differently than a failure to advise a defendant about the right to compulsory process.
Rather than presuming prejudice from McNealy's plea colloquy defect, we must be convinced of a "reasonable probability" McNealy would have gone forward with his defense. Myers, 653 N.W.2d at 578. On the present record, McNealy fails to carry this heavy burden. The lower court judgment must be affirmed.
While we affirm McNealy's conviction, we must consider whether to preserve this claim for postconviction relief proceedings. McNealy's advocacy on appeal is entirely based on Kress, with no attempt to address whether he would have insisted on a trial had he been properly advised of the mandatory minimum sentence. Moreover, the record is inadequate to address the issue of prejudice. After reviewing the record made below and the appellate briefs, we believe the prudent course of action would be to preserve this claim for postconviction relief. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).