Opinion
No. 5-420 / 04-1690
Filed June 15, 2005
Appeal from the Iowa District Court for Story County, Thomas R. Hronek, District Associate Judge.
Randolph Tate appeals from his conviction and sentence following the entry of his guilty plea for voluntary absence. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Stephen Holmes, County Attorney, and Timothy J. Meals and Shawn Smith, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Randolph Tate appeals from his conviction and sentence following the entry of his guilty plea for voluntary absence. We now affirm.
I. Background Facts and Proceedings.
Tate was placed in a work release program in Ames as part of his sentence for operating without the owner's consent. On June 13, 2004, Tate was authorized to leave the Ames facility on a food furlough on the condition he would return to the facility by 2:00 p.m. that same day. He breached the conditions of his furlough when he traveled to Fort Dodge to visit his terminally ill girlfriend and failed to return as required. He was arrested later that week at his girlfriend's residence and charged with voluntary absence in violation of Iowa Code section 719.4(3) (2003).
A plea hearing on the matter was held August 18, 2004, at which Tate's appointed counsel informed the district court a plea agreement had been reached with the State whereby "the State and the defendant will recommend time served." The plea agreement, however, was not conditioned on the district court's willingness to be bound by it. The district court then engaged Tate in a colloquy during which Tate provided a factual basis for the guilty plea and acknowledged the plea was both informed and voluntary. The district court accepted the guilty plea and set a sentencing date.
In describing the penal consequences attendant to Tate's guilty plea as required by Iowa Rule of Criminal Procedure 2.8(2)( b)(2), the district court failed to inform Tate that Iowa Code section 901.8 mandated the sentence for voluntary absence "shall begin at the expiration of any existing sentence." The record is silent on whether counsel also failed, at or before the plea taking hearing, to inform Tate of the effect this statute would have on the sentence the court might impose as a consequence of a guilty plea. At the sentencing hearing of September 9, 2004, the district court ordered Tate to pay a $250 fine for the voluntary absence and sentenced him to six months imprisonment to be served, consistent with section 901.8, consecutive to Tate's period of confinement on the underlying sentence for operating a motor vehicle without its owner's consent. Following the entry of the sentence, Tate remarked "I would like to appeal it. Yes. I would like to retract [my guilty plea]. This is not what I was told was going to happen."
Tate now appeals contending plea counsel was ineffective for failing to file a motion in arrest of judgment in advance of sentencing. In particular, Tate claims such a motion should have been filed because his guilty plea was involuntary as it was entered without full knowledge of the penal consequences.
II. Scope and Standard of Review.
Normally, our review of a challenge to the entry of a guilty plea is for corrections of errors at law. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). However, where the ineffectiveness of counsel is alleged in connection with the entry of the guilty plea, we perform de novo review of the entire record. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective assistance of counsel raised on direct appeal are generally preserved for postconviction relief proceedings so that a sufficient record can be developed, and so attorneys whose ineffectiveness is alleged may have an opportunity to defend their actions. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). We note claims of ineffective assistance of counsel need not be raised on direct appeal to preserve them for postconviction proceedings. Iowa Code § 814.7 (2005). But where the defendant so chooses, and where the record on appeal is adequate to review the actions of trial counsel, or where the record permits us to determine whether prejudice resulted from counsel's alleged unprofessional error, we may decide the ineffectiveness claim on direct appeal. Allen, 348 N.W.2d at 248.
III. Discussion.
In order to prevail on his claim of ineffective assistance of counsel, Tate must demonstrate plea counsel's failure to perform an essential duty resulted in prejudice. State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999). Where counsel's alleged breach of an essential duty calls into question the validity of a guilty plea, the party claiming ineffective assistance of counsel must prove that but for counsel's breach, there is a reasonable probability the party would have insisted on going to trial. State v. Myers, 653 N.W.2d 574, 578-79 (Iowa 2002).
A. Breach of an Essential Duty.
Tate relies on State v. White, 587 N.W.2d 240, 243 (Iowa 1998), for the proposition that before a guilty plea may be accepted as both voluntary and knowing, the district court must inform the defendant of the direct consequences of the guilty plea, including the possibility the sentences would be served consecutively. Tate argues his plea counsel rendered ineffective assistance by failing to (1) comprehend that the district court's failure to disclose the effect of section 901.8 rendered the guilty plea involuntary, and (2) file a motion in arrest of judgment prior to sentencing. Tate argues his declaration to the court indicating a desire to retract his guilty plea is strong evidence he would have chosen a trial had he been properly represented by counsel and informed by the court of the penal consequences of a guilty plea. Tate also contends he received no substantial sentencing concessions in exchange for his agreement to plead guilty, and therefore the State cannot plausibly argue he would have pleaded guilty if appropriate disclosure of the penal consequences had been revealed to him.
The State contends rule 2.8(2)( b)(2) does not impose a duty on the district court to inform a defendant contemplating a guilty plea that the sentence for voluntary absence will be consecutive to any underlying sentence the defendant is then serving. In White, the defendant contemplating guilty pleas for two separate drug related offenses was not told of the possibility the sentences he might receive would run consecutively. White, 587 N.W.2d at 243. In reversing White's conviction, our supreme court held the failure of the district court to so apprise the defendant vitiated the voluntary nature of his guilty plea, and White was therefore allowed to plead anew. Id. at 246-47. The State contends White does not control in the case before this court, however, because Tate's underlying sentence for operating a vehicle without its owner's consent was not before the district court. In short, the State contends that because Tate was sentenced in this case on only one charge, the district court had no duty to inform Tate that a consecutive sentence was mandated by section 901.8. We disagree.
Rule 2.8(2)( b)(2) requires the district court to determine the defendant understands "[t]he mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered." Although it is true that the underlying offense was not before the district court in a technical sense, the offense of voluntary absence necessarily implies the existence of some underlying conviction and sentence from which the defendant absconded. As such, the district court was clearly aware of the underlying sentence and could have easily informed Tate any sentence of incarceration imposed as a consequence of his guilty plea would begin at the expiration of any existing sentence. We conclude the mandatory consecutive sentence requirement in section 901.8 falls within the sphere of information the district court is duty bound under rule 2.8(2)( b)(2) to relate to one contemplating waiving substantial trial rights. In fact, the removal of discretion to order a concurrent sentence cuts against the State's position, as the prospect of a concurrent sentence is no longer a possible incentive for pleading guilty. This lack of sentencing discretion should be disclosed to a defendant contemplating a guilty plea controlled by section 901.8. We therefore conclude plea counsel breached an essential duty in failing to file a motion in arrest of judgment on the basis of the incomplete plea colloquy conducted by the district court in this case.
B. Prejudice.
Tate argues the statement he made after receiving his sentence sufficiently proves he would have chosen a trial if he had known he would receive a consecutive sentence. As noted above, the statement effectively asked that he be allowed to withdraw his guilty plea because the sentence imposed was not consistent with "what [he] was told was going to happen." Our supreme court has previously held conclusory, self-serving statements by a defendant indicating an insistence to choose a trial but for plea counsel's error do not themselves amount to prejudice; noting a defendant's "right [to] compulsory process cannot be claimed in a vacuum." Myers, 653 N.W.2d 574, 578-79. We find informative the federal approach to the issue of prejudice stemming from defects in guilty plea proceedings, and we note the approach is consistent with the standards elucidated in Myers. That approach requires an applicant seeking post-conviction relief on the ground of ineffective assistance of trial counsel in connection with plea proceedings to support with "objective evidence" his contention that he would have insisted on going to trial but for counsel's ineffectiveness. United States v. Gordon, 156 F.3d 376, 380-81 (2nd Cir. 1998). In our view, "objective" evidence here would consist of some showing by Tate that he would have been better off to reject the plea offer and proceed to trial, based on either a defense waived or the vulnerability of the State's case against him. As we view the elements of the crime of voluntary absence and the overwhelming evidence in support of Tate's guilt, we believe Tate is unable to show by objective evidence a reasonable probability he would have chosen to go to trial but for plea counsel's breach, and has thus failed to establish prejudice. We therefore affirm Tate's conviction and sentence for voluntary absence.
We do acknowledge the difference between a defendant who first claims in his appellate brief or post-conviction application that he would have chosen a trial, and one like Tate who indicates a desire to withdraw his plea prior to the close of the sentencing proceeding — but after hearing the sentence ordered. In the latter instance, a stronger case could be made that the desire to choose a trial is bona fide, however both cases share an inherent credibility flaw in that we are unable to discern if it was in fact counsel's error that prompted Tate's statement, or whether the statement was instead prompted by "buyer's remorse" in response to the minimal leniency his waiver of trial produced. A showing of objective evidence — some weakness in the State's case — would help alleviate the specter of self-interest that necessarily attaches to Tate's statement. Because Tate is unable to show the State's case was wanting, or that some defense was foregone as a result of the guilty plea, we conclude Tate has failed to carry his prejudice burden.
AFFIRMED.
Vogel, P.J., concurs; Miller, J., concurs specially.
State v. White holds that unless a court accepting pleas of guilty not only informs a defendant of "the maximum possible [term of incarceration] provided by the statute defining [each] offense to which [a] plea is offered," see Iowa R. Crim. P. 2.8(2)( b)(2), but also informs the defendant that the court may order the maximum possible terms to be served consecutively, the record does not demonstrate that the pleas were "voluntarily and intelligently" made as required by rule 2.8(2)( b). I concur in the result in this case, but do so only because the holding in White remains our controlling authority and applying it to a guilty plea that brings Iowa Code section 901.8 into play constitutes a logical extension of that holding.