Summary
rejecting ineffective-assistance claim based on defense counsel's failure to inform the defendant of the possibility of an Alford plea and noting the alleged prejudice “is much too speculative”
Summary of this case from Dudley v. StateOpinion
No. 4-049 / 03-0590
Filed February 27, 2004
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Applicant appeals the denial of his postconviction relief application. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, William Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Pablo Lopez appeals the district court's denial of his postconviction application alleging ineffective assistance of postconviction relief counsel. We affirm.
Background Facts.
After a bench trial on December 20 and 21, 1999, Lopez was convicted of robbery in the first degree, possession with intent to deliver a controlled substance, to wit: cocaine, and failure to affix a drug tax stamp. He was sentenced to concurrent terms not to exceed twenty-five years, ten years, and five years, respectively. Lopez appealed the convictions and sentence; the Iowa Supreme Court affirmed. See State v. Lopez, 633 N.W.2d 774 (Iowa 2001). On November 27, 2001, Lopez filed an application for postconviction relief and subsequently amended the application, alleging seven instances of ineffective assistance of trial counsel. On March 21, 2003, the district court denied Lopez's application. Lopez appeals.
Scope of Review.
Claims of ineffective assistance of counsel are constitutional challenges, and we conduct a de novo review of the district court ruling, assessing its decision in light of the totality of the circumstances. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Discussion.
Lopez argues that postconviction counsel was ineffective for failing to claim that (1) trial counsel was ineffective for failing to inform him about the possibility of entering an Alford plea and (2) the appellate counsel was ineffective for not claiming the trial counsel was ineffective for failing to inform him about the possibility of entering an Alford plea. The State contends that the claim of ineffective postconviction relief counsel for failing to assert that trial counsel was ineffective has been waived as this particular error was raised first in this postconviction appeal. The State also asserts that Lopez's ineffective assistance of appellate counsel claim is speculative at best and therefore does not meet the Strickland standard.
Typically, a claim of ineffective assistance of trial counsel must be raised on direct appeal, and failure to do so bars an attempt to raise the issue in the postconviction proceeding. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Failure will not waive the claim, however, if "sufficient reason" or "cause" for the failure is shown, and actual prejudice results. Id. Such cause may be provided by the ineffective assistance of appellate counsel. Id. We therefore agree with the State that Lopez's claim asserting ineffective assistance of postconviction counsel for failing to assert that trial counsel was ineffective for failing to inform him of the nature of an Alford plea is waived, however we will address his claim of ineffective assistance of postconviction relief counsel for failing to raise that appellate counsel was ineffective for failing to assert that trial counsel was ineffective for failing to inform him of the nature of an Alford plea.
Prior to trial, the State offered Lopez a plea agreement providing that if he plead guilty to robbery in the second degree, a lesser-included offense, and possession with intent to deliver, it would drop the tax stamp violation charge. The State would further recommend that Lopez be sentenced to two concurrent terms not to exceed ten years. Lopez rejected the State's plea offer, adamantly asserting his innocence and protesting his guilt. He now claims that had his trial counsel informed him about the possibility of an Alford plea he would have accepted the State's plea offer. An Alford plea allows a defendant to voluntarily and intelligently plead guilty even if he is unwilling or unable to admit his participation in the acts constituting the crime. North Carolina v. Alford, 400 U.S. 25, 32-38, 91 S.Ct. 160, 164-168, 27 L.Ed.2d 162, 168-172 (1970).
To establish ineffective assistance of trial counsel, the defendant must overcome a strong presumption of his counsel's competence. State v. Nucaro, 614 N.W.2d 856, 858 (Iowa Ct. App. 2000). He has the burden of proving his attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. State v. Carillo, 597 N.W.2d 497, 500 (Iowa 1999).
Even if we were to find that trial counsel breached an essential duty by not informing Lopez of the possibility of an Alford plea, we must still find resulting prejudice to reverse for ineffective assistance claims. The prejudice to the defendant must be actual. State v. Edwards, 571 N.W.2d 497, 501 (Iowa Ct. App. 1997) (citing State v. Trompeter, 555 N.W.2d 468, 470 (Iowa 1996)). General claims of prejudice are insufficient. Id. (citing Trompeter, 555 N.W.2d at 470). Mere speculation is similarly inadequate. Id. (citing United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir. 1989)). The standard is stringent. Id.
The State makes a compelling point in its brief, that is, we do not know what would have happened if Lopez had been told the nature of an Alford plea. As the State's plea offer specifically required the defendant to plead guilty, we do not know if the State would have modified the agreement to include an Alford plea. There was no testimony at the postconviction hearing indicating the State would so accept. Nor do we know if the district court would have accepted an Alford plea from Lopez. See generally Iowa R. Crim. P. 2.8(2)( b) ("The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis."). Finally, and probably most importantly, we do not know whether, had trial counsel explained an Alford plea to Lopez, he would have chosen to so plead. Lopez has been unwavering in his claim of innocence from the outset of this case and it is entirely possible that he would have proceeded to trial even if counsel had explained to him the nature of an Alford plea.
The prejudice of which Lopez complains is much too speculative to warrant a finding of ineffective assistance of postconviction counsel for failing to raise the issue of ineffective assistance of appellate counsel for failing to assert that trial counsel was ineffective for failing to inform him of the nature of an Alford plea. We therefore affirm Lopez's convictions and sentence.