Opinion
No. 5-710 / 05-0087
Filed November 9, 2005
Appeal from the Iowa District Court for Polk County, Don C. Nickerson (plea) and Artis I. Reis (sentencing), Judges.
Randy Cantwell appeals, arguing counsel was ineffective. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, and Jim Ward and Susan Cox, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Vogel and Vaitheswaran, JJ.
Randy N. Cantwell contends his trial counsel was ineffective in failing to challenge a guilty plea colloquy. We affirm.
I. Background Proceedings
Cantwell pled guilty to eluding, operating a motor vehicle while under the influence, and possession of a controlled substance (marijuana). Iowa Code §§ 321.279(3), 321J.2; 124.401(5) (2003). At the plea proceeding, the prosecutor stated he would recommend a suspended sentence, while Cantwell would seek a deferred judgment. The district court proceeded with a plea colloquy.
He was seventeen years old at the time he was charged but stipulated to a transfer of jurisdiction from juvenile court.
During the colloquy, the court discussed the potential for imprisonment, including the maximum terms of incarceration for each of the three charges to which Cantwell was pleading guilty. The court then asked Cantwell whether he was pleading guilty "with the full understanding of the consequences" of his plea. Cantwell responded, "Yes, sir." The court accepted Cantwell's plea and ordered a presentence investigation report. The drafters of that report recommended a prison sentence.
At sentencing, the prosecutor recommended a suspended sentence, as promised. The sentencing court determined "probation would not be appropriate" and sentenced Cantwell to indeterminate prison terms, to be served concurrently.
On appeal, Cantwell asserts the "trial court erred in failing to inform [him] at the time of his guilty plea that the plea agreement was not binding on the court and that the sentence imposed could be less favorable than the one contemplated in the agreement." He argues plea counsel was ineffective in failing to challenge this claimed omission.
II. Ineffective Assistance of Counsel
A person claiming ineffective assistance of counsel must rebut the presumption that counsel was effective by showing both a failure to perform an essential duty and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). On our de novo review, we conclude Cantwell did not establish either prong.
A. Breach of Essential Duty.
With respect to the first prong, breach of an essential duty, counsel was only obligated to challenge the plea if the district court violated the plea-taking requirements of Iowa Rule of Criminal Procedure 2.10. The district court did not.
Rule 2.10(4), on which Cantwell relies, states in pertinent part:
If, at the time the plea of guilty is tendered, the court refuses to be bound by or rejects the plea agreement, the court shall inform the parties of this fact, afford the defendant the opportunity to then withdraw defendant's plea, and advise the defendant that if persistence in a guilty plea continues, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
This rule on rejection of pleas does not apply, as the plea-taking judge stated, "I am accepting your pleas here today."
We turn to the rule on acceptance of pleas. That rule states in pertinent part:
When the plea agreement is conditioned upon the court's concurrence, and the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than the one provided for in the plea agreement.
Here, the district court could not embody "the disposition provided for in the plea agreement" because the agreement contained no disposition. The court advised Cantwell of this fact, stating "[t]he State is expected to argue for a suspended sentence and you and your counsel are expected to argue for deferred judgment." The court also advised Cantwell of the possibility of incarceration, stating, "I need to verify that . . . you understand the consequences you incur when you plead guilty; specifically in terms of potential fines, terms of imprisonment, and other consequences." And, as noted, the court apprised Cantwell of the maximum prison term for each crime to which he pled guilty. The court also encouraged the prosecutor and defense counsel to correct the description of penalties if they wished. Defense counsel availed himself of this opportunity and, in doing so, gave no hint that the State and defense had agreed to any disposition. As there was no agreed disposition, defense counsel breached no essential duty in failing to challenge the court's adherence to Rule 2.10(3).
B. Prejudice.
We move to the prejudice prong of the Strickland test. Cantwell must show "a reasonable probability that, but for [counsel's errors,] he would not have entered the plea." United States v. Dominguez Benitez, 542 U.S. 74, ___, 124 S. Ct. 2333, 2340, 159 L. Ed. 2d 157, 168 (2004). He has not done so.
First, as noted by the State, Cantwell's bare assertions that he would have gone to trial are insufficient to show prejudice. State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002).
Second, the evidence against Cantwell was strong. Dominguez Benitez, 542 U.S. at ___, 124 S. Ct. at 2341, 159 L. Ed. 2d at 169 (in guilty plea context, requiring court to examine "the overall strength of the Government's case and any possible defenses that appear from the record"). According to the minutes of testimony, an Iowa State Trooper began following the car Cantwell was driving after noticing that neither he nor his passenger was wearing a seatbelt. Cantwell increased his speed to eighty-miles per hour in a thirty-five-mile per hour speed zone. Cantwell lost control of the car and slammed into another vehicle. He took off on foot and was soon apprehended. Cantwell advised the officer he had consumed substantial amounts of marijuana and alcohol that day. He admitted to having marijuana with him and a breath sample tested above the legal limit for alcohol content. Finally, the car he had been driving was his grandmother's and he did not have her permission to use it. This proposed evidence can only be characterized as overwhelming.
Third, the State agreed to dismiss an operating-without-the-owner's-consent charge as part of the plea agreement. If Cantwell had proceeded to trial, a conviction on this charge might have increased his punishment.
Finally, the presentence investigator recommended prison, noting Cantwell had not followed through with prison and appeared "to be at extremely high risk to re-offend at a young age."
Based on this record, we conclude there is not a reasonable probability that Cantwell would have insisted on going to trial absent the errors he claims his attorney made.
III. Disposition
We affirm Cantwell's conviction and sentences.