13 IN THE COURT OF APPEALS OF IOWA No

13 in the court of appeals of iowa no. 4-075 / 03-0458 filed april 14, 2004 state of iowa, plaintiff-appellee, vs.

13
IN THE COURT OF APPEALS OF IOWA
No. 4-075 / 03-0458
Filed April 14, 2004
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY LARRY ANDERSON,
Defendant-Appellant.
Appeal from the Iowa District Court for Audubon County, Timothy
O'Grady and Charles Smith, III, Judges.
Jeffrey Larry Anderson appeals following his guilty plea to
manufacture or delivery of methamphetamine, five grams or less.
AFFIRMED.
Heather Turner-Graves of Dunahoo Law Firm, P.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, and Francine Anderson, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan, J. and Brown, S.J.*
*Senior Judge assigned by order pursuant to Iowa Code section 602.9206
(2003).
BROWN, S.J.
Although the defendant-appellant, Jeffery Larry Anderson, pleaded
guilty in open court, with the assistance of counsel, to a
plea-bargained felony, he now challenges that guilty plea in this
direct appeal, claiming it was not voluntary. He also claims he was
provided ineffective assistance of counsel. We have carefully reviewed
Anderson’s contentions and disagree with his conclusions. We therefore
affirm the judgment and sentence of the district court.
I. Background.
On April 2, 2002, a search of Anderson’s home, pursuant to a warrant,
resulted in criminal charges of possession of marijuana in violation
of Iowa Code section 124.401(5) (2001), possession of methamphetamine
in violation of section 124.401(5), manufacture of marijuana in
violation of section 124.401(1)(d), possessing or tampering with
anhydrous ammonia in violation of section 124.401F(1), and child
endangerment in violation of section 726.6. The most serious charge,
manufacturing marijuana, was a class “D” felony. His wife, Jennifer,
was charged with manufacture of marijuana, possession of
methamphetamine, and child endangerment.
On May 13, 2002, the State moved to amend the trial information
against Anderson to include Count VI, manufacture or delivery of
methamphetamine, five grams or less, a class “C” felony. Following an
unresisted hearing on June 17, 2002, the court approved the amendment.
A calendar entry on June 24, 2002 indicated a written arraignment to
the new charge would be filed, but it was not. No formal arraignment
on the amended count was held. On July 29, 2002, Anderson’s motion to
continue the trial date was granted.
On December 10, 2002, the day of trial, following jury selection,
Anderson pleaded guilty to the added Count VI, the “C” felony. In
return, the plea bargain provided all other counts were dismissed as
were all the charges against his wife, except that she would plead
guilty to the simple misdemeanor charge of possession of paraphernalia
and pay a fine. There was no agreement as to Anderson’s sentence. The
court accepted Anderson’s Alford1 plea to the “C” felony. In February
2003, Anderson was sentenced to an indeterminate term of ten years in
prison and fined $1,000.
II. Issues.
Anderson has now appealed claiming his guilty plea was not voluntary.
His direct appeal asserts (1) he was never arraigned and given an
opportunity to assess the charges against him, (2) the factual basis
supporting his plea to the felony drug delivery charge was inadequate,
(3) the court did not advise him of the mandatory minimum sentence
involved in the crime to which he pleaded guilty, (4) the court
misadvised him in the plea colloquy, (5) the benefit he received by
his plea bargain was inadequate, and (6) he was coerced by his
attorney to plead guilty. He asserts these shortcomings in the
proceedings should suffice to invalidate his guilty plea and allow him
a trial.
Anderson also has asserted his counsel was ineffective in (1) failing
to assure he was properly arraigned on the amended charge, (2) failing
to object to the inadequate factual basis for the guilty plea, (3)
failing to correct the court in its recitation of prior probation
violations at sentencing, and (4) failing to request substance abuse
treatment for Anderson prior to sentencing.
III. Direct appeal.
We believe his plea of guilty and subsequent failure to file a motion
in arrest of judgment preclude asserting the alleged errors on direct
appeal. The rules which lead to this result are designed to further
the quite commendable notion that an intelligent and voluntary guilty
plea puts an end to criminal litigation.
“A guilty plea is normally understood as a lid on the box, whatever is
in it, not a platform from which to explore further possibilities.”
United States v. Bluso, 519 F.2d 473, 474 (4th Cir 1975); Zacek v.
Brewer, 241 N.W.2d [41], 49 [(Iowa1976)].
Kyle v. State, 322 N.W.2d 299, 304 (Iowa 1982).
The fact Anderson was not arraigned on the amended charge was clearly
waived by his plea of guilty. E.g., Speed v. State, 616 N.W.2d 158,
159 (Iowa 2000) (holding guilty plea waives all defenses not intrinsic
to the plea itself); State v. Hochmuth, 585 N.W.2d 234, 236 (Iowa1998)
(holding absence of formal charge waived by plea of guilty to
uncharged offense); State v. Davis, 581 N.W.2d 614, 616 (Iowa,1998)
(holding any challenge to amended trial information waived by guilty
plea); State v. Meyers, 256 Iowa 801, 805-806, 129 N.W.2d 88, 91
(1964) (holding failure to file new information and arraign defendant
waived by guilty plea); State v. Fortunski, 200 Iowa 406, 407-08, 204
N.W. 401, 401 (1925) (holding objections to defects in trial
information waived by defendant's failure, prior to plea, to move to
set aside information).
The alleged defects in the guilty plea process itself do not survive
Anderson’s failure to move in arrest of judgment as required by Iowa
Rule of Criminal Procedure 2.24(3). E.g., State v. Carter, 582 N.W.2d
164, 165 (Iowa 1998) (holding without motion in arrest of judgment,
defendant cannot attack validity of guilty plea on direct appeal
unless he can establish ineffective counsel); State v. Brooks, 555
N.W.2d 446, 448 (Iowa 1996) (holding failure to move in arrest of
judgment bars direct appeal of conviction following guilty plea);
State v. Lucas, 323 N.W.2d 228, 231 (Iowa1982) (holding failure to
move in arrest of judgment precludes challenge to plea-taking
process). Anderson has not alleged he was not properly advised of the
necessity and effect of filing a motion in arrest of judgment, and
indeed the record would not support such a claim.
Therefore we will not consider Anderson’s direct appeal, except as
those allegations are reasserted in his
ineffective-assistance-of-counsel claims. Kyle, 322 N.W.2d at 303-04)
(stating only challenge permitted to voluntary and intelligent
character of guilty plea, absent motion in arrest of judgment, is that
the advice he received from counsel did not meet applicable
standards). Although Anderson does not reassert his direct appeal
claim of coercion by counsel under the ineffective-assistance
umbrella, because it is a direct attack on counsel’s competence and
performance we will address it now despite the error preservation
problem. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003).
IV. Ineffective assistance of counsel.
The principles of ineffective-assistance-of-counsel claims may be
summarized as follows:
To establish a claim of ineffective assistance of counsel, [Anderson]
carries the burden of showing by a preponderance of the evidence that:
(1) counsel failed to perform an essential duty; and (2) [he]
experienced prejudice as a result of the counsel’s performance. To
establish the first element of the test, [Anderson] must overcome the
presumption that the counsel was competent and demonstrate that, when
considering the totality of the circumstances, the counsel’s
performance was not within the normal range of competency. In order to
demonstrate prejudice, [Anderson] must show counsel’s failure worked
to [his] actual and substantial disadvantage so that a reasonable
probability exists that but for the counsel’s error, the result of the
proceeding would have been different. ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ In the
context of guilty pleas, [Anderson] may establish the occurrence of
prejudice by showing “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.“
Irving v State, 533 N.W.2d 538, 540-41 (Iowa 1995) (all internal
citations omitted). Although we often defer
ineffective-assistance-of-counsel claims to postconviction relief
actions, where, as here, the record is adequate to resolve the issues
on direct appeal we will do so. State v. Graves, 668 N.W.2d 860, 869
(Iowa 2003).
Anderson urges his plea of guilty was defective because it was not
voluntary which in turn was based in part on his attorney’s failure to
assure certain things were done or not done in district court which
reasonably competent counsel should have done or prevented. We will
consider each of these contentions.
A. Absence of arraignment on added felony charge. The record does not
show Anderson was ever formally arraigned following the amendment to
the trial information adding the class “C” felony. However, the
amendment was properly served on him, along with extensive amended
minutes of testimony. Anderson then successfully moved to continue the
trial date, alleging he needed additional time to respond to the
amended charge. He later pleaded guilty to the amended charge,
therefore at least tacitly agreeing to the amendment. As noted before,
this waived any procedural error.
In the context of his ineffective-assistance claim we do not recognize
counsel’s failure to insist on a formal arraignment in these
circumstances as a dereliction of an essential duty. Anderson and his
attorney, at their request, had several months in which to address the
amended charge. See Davis, 581 N.W.2d at 616 (stating purpose of trial
information is to apprise the defendant of the crime charged so that
he may have the opportunity to prepare a defense). At all times
everyone concerned acted as if he had pleaded not guilty to the
amendment. Neither do we perceive any prejudice to Anderson in these
circumstances. He does not allege he would have proceeded otherwise if
an arraignment had been held. Even if such an allegation is implicit
in Anderson’s argument, we believe it stretches credulity beyond
limits to accept he would not have pleaded guilty but for the omission
of this procedural step.
B. Factual basis. Anderson urges his attorney should have objected to
the lack of a factual basis for his plea to the methamphetamine
manufacture or delivery charge. The specific omission claimed is that
there was no evidence of the quantity of methamphetamine allegedly
delivered or manufactured.
A court may not accept a guilty plea without determining there is a
factual basis for the plea, and this applies to Alford pleas as well.
State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). If counsel
permits his client to plead guilty to a charge for which there is no
factual basis, he has failed to perform an essential duty. State v.
Myers, 653 N.W.2d 574, 579 (Iowa 2002). Prejudice inheres in this
event. Id.
Our examination of the minutes of testimony2 belies Anderson’s claim
that there was no factual basis demonstrated. The proposed testimony
of a toxicologist with the Iowa Criminalistic Laboratory was that
items seized from Anderson’s home contained methamphetamine. To the
extent Anderson’s complaint is based on the belief the State had to
establish a precise quantity of methamphetamine, it is misplaced. When
the charge is manufacturing or delivering five grams or less of
methamphetamine, as it was here, the State is only required to
establish a detectable amount of methamphetamine, not the exact or
approximate amount. State v. Adney, 639 N.W.2d 246, 252 (Iowa Ct. App.
2001).
There was no violation of counsel’s duty here. Scalise, 660 N.W.2d at
62 (holding counsel is not incompetent for failing to pursue a
meritless issue).
C. Objections to probation violations. Anderson claims his attorney
was ineffective for failing to object to or correct the court’s
recitation at sentencing that he had previously violated probation on
three different occasions. However, the presentence investigation
report discloses Anderson’s probation for a 1983 conviction for
driving under suspension was revoked, his probation for a 1984 second
offense driving under suspension conviction was revoked, and his
probation for a 1988 operating while intoxicated conviction was
revoked. Since the court’s observation concerning Anderson’s probation
record is supported by the record, counsel had no duty to refer to it.
Scalise, 660 N.W.2d at 62.
D. Failure to request presentence substance abuse treatment.
Anderson’s final ineffective-assistance claim is that his counsel
advised him not to seek substance abuse counseling or rehabilitation
prior to sentencing. The record reflects the following remarks by his
counsel at sentencing:
We talked a lot about whether he should go into a treatment program
before sentencing, Judge. I did not feel that it was a good move on
his part, because he could probably teach the class. He has been there
before. He knows what he needs to do. He’s not done it in the past. He
knows there is a tremendous hammer over his head right now. He’s been
out looking for jobs. This is not a good area for him, because his
associations are pretty bad. We can go through the list of what he
would call friends, and they are all drug users. He needs to move from
this area, and he has been looking for the possibility of going up to
Okoboji, if the Court would consider probation.
We do not view this as the “grossly inadequate representation, advise,
and guidance” claimed by Anderson’s brief, but rather as a practical
analysis and realistic evaluation of the situation.
We seriously question whether failure to recommend or request
presentence substance abuse treatment constitutes a violation of an
essential duty of counsel. Anderson has cited us to no authority for
this proposition. It strikes us that the record we have quoted
reflects counsel gave serious consideration to the issue and made an
informed, tactical decision not to make the request. See Kyle v. State,
364 N.W.2d 558, 565 (Iowa 1985) (observing trial attorney’s decision
regarding strategy or tactics not ordinarily basis for relief). In any
event, we do not believe Anderson has demonstrated prejudice. There is
no requirement that the district court grant such a request3 and no
showing the court would have granted it had it been made.
E. Coercion claims. Anderson claims he was coerced into pleading
guilty by his attorney. The sole support for this claim is the
unsupported statement in Anderson’s brief that shortly after jury
selection was complete his attorney said “he would not be able to win
his trial with the jury that was selected.” This type of claim is
often better reserved for postconviction proceedings so that a more
complete record including counsel’s version of the events might be
available. Anderson does not, however, provide us any further argument
or citation to authority in support of his contention. Even assuming
this statement was made and constitutes impermissible pressure by
counsel, rather than an objective evaluation of the circumstances, in
view of the record made during the plea proceedings, we believe it did
not influence Anderson’s decision to plead guilty.
We think the following portion of the colloquy between the court and
Anderson bears significantly on his claim of a coerced, involuntary
plea.
Q [by the court]: The only agreement that you know of is what has been
stated in court, that the other charges against you will be dismissed
and the charge against your wife would be dismissed except for the
drug paraphernalia charge? A [by defendant]: Yes, sir.
Q: Has anyone threatened you or tried to force you to plead guilty? A:
No, sir.
Q: Are you doing so knowingly and voluntarily? A: Yes, sir.
Q: You’ve discussed this with Mr. Reedy [defendant’s counsel]?
A: Yes, sir.
Q: You’re satisfied that Mr. Reedy has fully and completely
represented and answered all of your questions and done all that he
can do for you in this case? A: Yes, sir. He’s done a good job.
Q: All right. And do you still want to plead guilty? A: Yes, sir.
We are not persuaded that Anderson has established his plea was
coerced and not a voluntary one. See State v. Boge, 252 N.W.2d 411,
413-14 (Iowa 1977) (finding bare allegations do not overcome record
showing adequate colloquy by trial court).
We have also considered Anderson’s claim his plea was involuntary
because he pleaded guilty only for the benefit his wife would receive.
Anderson urges us to accord heightened scrutiny to plea bargains in
which the only consideration to the accused is a benefit to a third
party. See State ex rel. White v. Gray, 57 Wis. 2d 17, 29, 203 N.W.2d
638, 644 (1973) (“[t]he voluntariness of a plea bargain which
contemplates special concessions to another -- especially a sibling or
a loved one -- bears particular scrutiny by a trial or reviewing court
conscious of the psychological pressures upon an accused such a
situation creates.”).
Although dismissal of most of the charges against his wife may well
have been an important consideration influencing his decision, it was
not the only consideration he received. All of the other charges
against him were dismissed. See Harmon v. Mohn, 683 F.2d 834, 837 (4th
cir. 1982) (stating benefit to wife was not sole benefit, but even if
it were, since there was probable cause for charges against wife and
no indication of bad faith by prosecutor, plea would be upheld). There
is no hint in this record of any overreaching by the prosecutor and
the court’s approval of the trial information charging the wife,
supported by the minutes of testimony, show probable cause for the
charges against her.
We understand that “buyer’s remorse” is a naturally occurring
phenomenon when a defendant’s sentence is not what he had hoped for.
See State v. Whitehead, 163 N.W.2d 899, 902 (Iowa 1969) (observing
disappointment with a sentencing outcome is not adequate reason to
vitiate a guilty plea). But in this case the district court faithfully
followed the mandates of Iowa Rule of Criminal Procedure 2.8(3)(b). We
should accord a certain finality to this guilty plea which took place
with the solemnity of such a proceeding in open court.
V. Summary and disposition.
We conclude Anderson waived the errors he asserts on direct appeal. We
have considered each of his ineffective-assistance-of-counsel claims,
as well as his claim of coercion by his trial counsel, and find them
without merit. Consequently we affirm the judgment and sentence
imposed by the district court.
AFFIRMED.
1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970) (accused may plead guilty without express admission of
guilt if the record available to the court establishes a factual basis
for the plea).
2 Minutes of testimony, presentence investigation report, if
available, and any statements of defendant or prosecutor may serve to
establish a factual basis. State v. Keene, 630 N.W.2d 579, 581 (Iowa
2001)
3 “Upon a plea of guilty . . . , the court may order the defendant to
submit to and complete a substance abuse evaluation, if the court
determines that there is reason to believe that the defendant
regularly abuses alcohol or other controlled substances and may be in
need of treatment.” Iowa Code § 901.4A (emphasis added).