Opinion
No. 2-111 / 01-1143.
Filed March 13, 2002.
Appeal from the Iowa District Court for Cerro Gordo County, JAMES DREW, Judge.
Defendant Ollie Mitchell, Jr., appeals following his guilty plea, judgment and sentence to the charge of possessing contraband, in violation of Iowa Code section 719.7(3)(b) (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Paul Martin, County Attorney, and Gregg Rosenbladt, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Defendant-appellant Ollie Mitchell, Jr., appeals following his guilty plea, judgment and sentence to the charge of possessing contraband, in violation of Iowa Code section 719.7(3)(b) (1999). Defendant claims on this direct appeal that he was rendered ineffective assistance of counsel. We affirm but preserve defendant's claim for postconviction proceedings.
According to the minutes of testimony, defendant, an inmate in the Cerro Gordo County Jail, allegedly transferred some of his prescription medication to another inmate on April 21, 2001. On May 3, 2001, defendant was charged with 1) conveying contraband to a person confined in a correctional institution, in violation of Iowa Code section 719.7(3)(b), and 2) dispensing a prescription drug, in violation of Iowa Code sections 155A.4(1) and 155A.24. Defendant pled guilty to the first charge. The district court accepted his plea on June 12, 2001. On July 16, 2001 defendant was sentenced to a five-year suspended sentence, fined $750, which was also suspended, and placed on probation for three years. Defendant's second charge, dispensing a prescription drug, was dismissed.
On appeal defendant claims that his guilty plea was not supported by the facts because he claims he was charged erroneously under section 719.7(3)(b), instead of under section 719.8. Section 719.7(3)(b) makes illegal the conveyance of controlled substances in a "correctional institution" or "institution under the management of the department of corrections." Section 719.8 makes illegal the conveyance of controlled substances in a "detention facility." Defendant claims the Cerro Gordo County Jail is neither a "correctional institution" nor an "institution under the management of the department of corrections," but that it is instead a "detention facility." Defendant argues that his guilty plea, which admits his guilt under 719.7(3)(b) cannot, therefore, be supported by the facts.
Because the objection that the guilty plea was not supported by a factual basis was never raised in the trial court, and error was not preserved under Iowa Rule of Criminal Procedure 23(3)(a), defendant argues that he was not rendered effective assistance of counsel, as it is guaranteed by the Sixth Amendment to the United States Constitution. See State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).
We resolve claims of ineffective assistance of counsel on direct appeal only when the record adequately presents the issue. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct. App. 1998). We review defendant's constitutional claim de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). In order to demonstrate that his counsel rendered ineffective assistance, defendant must show that 1) counsel failed to perform an essential duty; and 2) prejudice resulted therefrom. Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). 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. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Prejudice in such a case is inherent. Id., citing State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996).
Iowa Code section 719.7(3) states, in part,
A person commits the offense of possessing contraband if the person, not authorized by law, . . .
b. knowingly conveys contraband to any person confined in a correctional institution or institution under the management of the department of corrections.
Defendant claims the facts of his case do not fit his plea of guilty under this section because, as an inmate in a jail, he was not confined in a "correctional institution" or "institution under the management of the department of corrections." The State counters that "correctional institution" includes jails, and that the legislature, in extending the scope of section 719.7 to include a broader definition of "contraband," would not have then limited it by excluding "jails" from its coverage.
Prior to the 1999 amendments, section 719.7 made it a violation to furnish intoxicating beverages to an inmate at a "detention facility, correctional institution, or an institution under the management of the Iowa department of corrections." Iowa Code § 719.7 (1997). Supplementing this prohibition against supplying inmates with alcohol, section 719.8 made it a violation to furnish a controlled substance to an inmate, if that inmate were similarly located in a "detention facility or correctional institution, or an institution under the management of the department of corrections." Iowa Code § 719.8 (1997). The 1999 amendments changed this scheme. Section 719.7 (1999) created a violation in the furnishing of any contraband, which now included weapons, to any inmate in a "correctional institution" or an "institution under the management of the department of corrections." No reference was made in this new section to "detention facility." The legislature instead treated detention facilities separately in section 719.8, where it made it a violation to furnish intoxicating beverages orcontrolled substances to an inmate in a detention facility. See Iowa Code § 719.8 (1999).
Directing us to references in the Iowa Code where "jails" are given the same treatment as "correctional facilities," the State reasons that "correctional institution" is a generic term that would naturally include "jail." The State further draws our attention to State v. Iowa Dist. Ct. for Winneshiek County, 464 N.W.2d 233, 235 (Iowa 1990), where the Supreme Court held that the phrase "detention facility" in section 719.8 included a county jail. In Winneshiekthe court reasoned that the legislature, drawing upon the precursor to section 719.8, which had prohibited the bringing of drugs into any "county jail, city jail, or other place where persons may be committed or detained," would not have intended to narrow the scope of the statute by replacing that phrase with "detention facility" in the amended section. Id. The State urges us to take a similar position in this case.
Were it not for the clear deletion of "detention facility" from section 719.7 and the separate treatment of "detention facility" in section 719.8, we would be inclined to agree. However, given the separate treatment "detention facility" receives in the code with respect to the furnishing of alcohol or controlled substances, we cannot accept the State's position. A plain reading of section 719.7 and a comparison of that section to section 719.8, especially in light of the history of both of these code sections, leads us to the conclusion that section 719.7 does not encompass the furnishing of contraband in detention facilities. County jails are one type of detention facility. See id. Because defendant allegedly conveyed contraband to another while in a jail, we consequently conclude that the facts in this case do not support the guilty plea under section 719.7(3)(b).
In spite of this conclusion, however, we find the record is insufficient to support a finding that defendant's attorney rendered ineffective assistance of counsel. Defendant refers us to Brooks and Hack to support his contention that there should be a finding of ineffective assistance of counsel in the case where a factual basis for a charge does not exist, but the defendant's counsel nevertheless allows him to plead guilty. Brooks, 555 N.W.2d at 448; Hack, 545 N.W.2d at 263. We recognize that these and other cases, including Schminkey, state that defendant's counsel is ineffective if he allows defendant to accept a plea that is not supported by the facts of a case. Generally this proposition leads to a just result. However, we believe it may be overridden by another well-founded principle, namely our reluctance to conclude there was ineffective assistance of counsel when it is clear that counsel followed a carefully thought-out strategy based upon a good-faith interpretation of the law, when allowing the defendant to accept the plea. We believe it is difficult to justify finding counsel ineffective when, in a case such as this, an appellate court interprets an arguably ambiguous statute in such a way that the facts of the case do not fall within the scope of the statute (as that scope is determined on appeal) when they otherwise would have, under defense counsel's initial interpretation.
We believe this case is distinguishable from Brooks and Hack because in Brooks, counsel was not found ineffective, and in Hack,although counsel was found ineffective, it was because he had failed to determine the facts of the case rather than misinterpreting an arguably ambiguous statute. Brooks, 555 N.W.2d at 450; Hack, 545 N.W.2d at 263. Similarly in Schminkey, to the extent that the statute interpretedwas unambiguous, we find that it, like Hack, does not conflict with our reluctance to find counsel ineffective. Schminkey, 597 N.W.2d at 789. To the extent that it was ambiguous, we cannot reconcile it with our inclination to afford attorneys the benefit of our statutory interpretations before holding them professionally delinquent for their misinterpretations. Id; See Caldwell v. State, 494 N.W.2d 213, 215 (Iowa 1992). Moreover, as the supreme court noted in Martinson Mfg. Co., Inc., v. Seery, 351 N.W.2d 772, 775 (Iowa 1984),
The defendant in Hack pled guilty to lascivious acts with a child, under Iowa Code section 709.8 (1993), but his victim, who was fourteen, was not a "child" as defined by the code (any person under the age of fourteen years) under section 702.5 (1993).
If an attorney acts in good faith and in an honest belief that his acts and advice are well founded and in the best interest of his client, he is not held liable for a mere error of judgment. A fortiori, an attorney is not liable for a mere error in judgment on points of new occurrence or of nice or doubtful construction, or for a mistaken opinion on a point of law that has not been settled by a court of last resort and on which reasonable doubt may well be entertained by informed lawyers.
7 Am. Jur. 2d Attorneys at Law§ 201 (1980).
If the defense attorney's decision in this case to counsel defendant to plea was based upon a legal strategy guided by the reasonable conclusion that section 719.7 applied to "jails," he or she cannot be considered ineffective. As we have said, miscalculated strategies generally do not rise to the level of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (citations omitted). We preserve this issue for further proceedings so the facts in this case can be further developed. State v. Mulder, 313 N.W.2d 885, 890 (Iowa 1981).
AFFIRMED.