Opinion
No. 2-263 / 01-0584.
Filed July 19, 2002.
Appeal from the Iowa District Court for Dubuque County, ALAN L. PEARSON, Judge.
Defendant appeals his conviction, following a guilty plea, to five counts of lascivious acts with a child, two counts of sexual exploitation of a minor, two counts of indecent exposure, one count of lascivious conduct, and one count of first-degree harassment. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Michael D. Morgan, pro se, Oakdale, for appellee.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Fred H. McCaw, County Attorney, and Ralph Potter And Christine Corken, Assistant County Attorneys, for appellee.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
Mark Morgan appeals the judgment and sentences entered upon his guilty plea to five counts of lascivious acts with a child, one count of sexual exploitation of a minor, one count of dissemination and exhibition of obscene material to a minor, two counts of indecent exposure, and one count of first-degree harassment. He contends the district court erred in failing to give reasons for imposing consecutive sentences. He also asserts counsel provided ineffective assistance in numerous respects. We affirm.
Background facts and proceedings .
On September 20, 2000, the State filed a trial information charging Morgan with one count of second-degree sexual abuse, one count of lascivious acts with a child, one count of sexual exploitation of a minor, one count of dissemination and exhibition of obscene material to a minor, two counts of indecent exposure, and one count of first-degree harassment. On the day of trial, Morgan and the State negotiated a plea agreement whereby he would plead guilty to several counts in an amended trial information. The State then filed a new trial information in which it replaced the second-degree sexual abuse count with four counts of lascivious acts. In return, Morgan agreed not to resist the State's recommendation that all the sentences run consecutively, for a total of fifty years. The court accepted the plea.
On March 27, 2001, the court entered judgment against Morgan and sentenced him to five years on each lascivious act count, ten years on each sexual exploitation count, one year on each indecent exposure charge, one year on the lascivious conduct charge, and two years on the harassment charge. The court ordered that the sentences run consecutively to each other, for a total indeterminate sentence of up to fifty years. Morgan appeals these sentences.
Reasons for consecutive sentences .
Morgan contends the court erred in failing to give reasons for its imposition of consecutive sentences. In analyzing this question, we review the record to determine whether the trial court abused its discretion by failing to state reasons for the sentence imposed. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998).
When it pronounced the consecutive sentences, the district court stated, "consistent with the plea negotiation you entered into, these sentences will run consecutively." It also gave the following reasons:
The court has imposed this penalty based on the negotiation that you have entered into with the State. In light of the nature of the offenses, the age of the victim and your prior history, the court believes the sentence to be appropriate.
In addition, both defense counsel and the prosecuting attorney agreed the sentence complied with the agreement reached by the State and Morgan. In its subsequent written judgment and sentence, the court gave the following reasons for the sentence imposed:
In pronouncing the judgment and sentence the court considered the factors set out in section 907.5 Code of Iowa. Although all such factors are important, in this case the court gave special consideration to the negotiation entered into between the State and the defendant, the nature of the offenses, the age of the victim and the defendant's prior history.
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. Oliver, 588 N.W.2d at 414. Although the reasons need not be detailed, at least a cursory explanation must be provided to allow appellate review of the trial court's discretionary action. Id. A trial court must also give reasons for its decision to impose consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000).
Here, we conclude the district court provided sufficient reasons to support its decision to impose a term of incarceration and for its decision to impose consecutive sentences. Cf. State v. Harrington, 349 N.W.2d 758, 763 (Iowa 1984) (sentence vacated where court failed to state reasons for imposing consecutive sentences). At the sentencing hearing, immediately following the announcement to run the various sentences consecutively, the court expressed reasons for the imposition of its sentence. Clearly, this exposition of reasons was intended to convey the court's rationale for the sentence in its entirety, including its consecutive nature. See State v. Johnson, 445 N.W.2d 337, 342 (Iowa 1989) (allowing the reviewing court to look to all parts of the record to determine the reasons for consecutive sentences, including the reasons expressed for the "overall sentencing plan.") We conclude this is a sufficient statement of the court's reasoning to enable a reviewing court to properly perform its duty, State v. Delaney, 526 N.W.2d 170, 178 (Iowa Ct.App. 1994), and we therefore reject Morgan's assertion the court failed in its task to articulate reasons for ordering consecutive sentences. See State v. Keopasqeuth, ___ N.W.2d ___, ___ (Iowa 2002).
Ineffective assistance of counsel .
In a pro se brief, Morgan alleges at least twenty-one instances in which his trial counsel provided ineffective assistance. We perform a de novo review of claims that trial counsel was constitutionally ineffective. State v. Belken, 633 N.W.2d 786, 794 (Iowa 2001).
To establish an ineffective assistance of counsel claim, the applicant must show that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984). The test of ineffective assistance of counsel focuses on whether the performance by counsel was reasonably effective. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The applicant must show the performance fell below an objective standard of reasonableness so that counsel failed to function as guaranteed by the Sixth Amendment. Id.
Following a valid guilty plea only those challenges that are fundamental to the plea itself still remain available to the defendant. See State v. Larue, 619 N.W.2d 395, 398 (Iowa 2000). This is because the entry of a guilty plea waives all defenses and objections which are not intrinsic to the plea itself. State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000). For example, our supreme court has previously found claims arising from the denial of a motion to suppress or from counsel's failure to investigate or file a motion to suppress do not survive the entry of a guilty plea. See State v. Sharp, 572 N.W.2d 917, 918-19 (Iowa 1997); State v. Freilinger, 557 N.W.2d 92, 93-94 (Iowa 1996); State v. Culbert, 188 N.W.2d 325, 326 (Iowa 1971).
Accordingly, we conclude Morgan waived a number of his ineffectiveness claims when he elected to plead guilty. These include claims counsel was ineffective in failing to (1) assert the "diminished responsibility doctrine," (2) investigate and procure witnesses regarding the diminished responsibility claim, (3) explain how his ingestion of drugs and alcohol precluded him from forming the specific intent to commit the crime, (4) subpoena character witnesses on his behalf, (5) complete depositions of certain witnesses, (6) procure a witness to testify about motives for false allegations, (7) file a motion to suppress evidence of an incriminating videotape, (8) object to alleged hearsay testimony, (9) file a motion in limine concerning the videotape, (10) file a motion to suppress the victim's testimony, (11) file a motion for change of judge, (12) order a psychiatric evaluation, (13) protect his Eighth Amendment rights against cruel and unusual punishment based on a lack of evidence, and (14) procure respectable attire for him to wear at trial. We also conclude Morgan has waived ineffectiveness claims based generally on counsel's conflict of interest. See State v. Larue, 619 N.W.2d 395, 398 (Iowa 2000).
Additionally, Morgan asserts counsel was ineffective in "failing to provide for the safe and secure environment" while in pre-trial confinement, which "resulted in a prolonged period (3 months) of recurring sleep deprivation and unnecessary anxiety." He contends the prosecutor acted maliciously, grossly distorted facts, and sought the imposition of an unreasonably high bail bond, and he claims the media publicity surrounding his case prejudiced his rights to a jury trial. With regard to these claims, we believe Morgan fails to satisfy the prejudice prong of the ineffectiveness test when considering it in a context of a guilty plea. In other words, we conclude Morgan failed to 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).
Morgan argues counsel acted ineffectively in a motion in arrest of judgment hearing. However, other than complaining of the hearing judge's bias, he makes no specific allegations of how counsel was ineffective. Morgan also complains counsel "willfully and wantonly" failed to raise several arguments at sentencing, including psychotropic drugs he had been taking, the absence of a victim impact report, and a psychiatric evaluation. He does not allege, though, what these would have shown, nor the manner in which they would have impacted the court's sentencing decision. We thus conclude these claims are too general in nature to address or be preserved for a possible postconviction proceeding. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).
AFFIRMED.