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distinguishing White on the ground that "[t]he only reference made at the plea hearing to Reed's prior convictions was his counsel's request to continue the pending probation revocations to the date of sentencing."
Summary of this case from State v. CarmerOpinion
No. 2-1033 / 02-0480.
Filed February 28, 2003.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Richard Reed appeals his conviction based on a guilty plea to theft in the first degree in violation of Iowa Code sections 714.1 and 714.2(1) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Odell McGhee and Steve Foritano, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Richard Reed appeals his conviction based on a guilty plea to theft in the first degree in violation of Iowa Code sections 714.1 and 714.2(1) (2001). Specifically, he contends: (1) the district court erred in failing to inform him at the plea hearing about the possibility of consecutive sentences; and (2) his trial counsel was ineffective. We affirm the conviction and preserve Reed's claim of ineffective assistance of counsel.
Background Facts and Proceedings. On June 13, 2001, Reed was charged by trial information with theft in the first degree in violation of Iowa Code sections 714.1 and 714.2(1). Reed entered into a plea agreement whereby he would plead guilty to theft in the first degree and in exchange the State would dismiss a separate charge of theft in the second degree. At the plea hearing, the State made the agreed recommendation. Reed requested the district court continue pending probation revocation matters until the date of sentencing. However, he did not inform the court he intended to stipulate to those matters or to the imposition of the original sentences.
Reed was previously adjudged guilty of the crimes of conspiracy to manufacture a controlled substance and assault in violation of Iowa Code §§ 124.401(l)(c)(6), 708.1 and 708.2(5).
Next, the court informed Reed that theft in the first degree is a class "C" felony punishable by up to ten years in prison and a fine of $1,000 to $10,000. Reed said he understood the maximum possible sentence and that the court was not bound by the terms of any sentencing agreements, recommendations, or predictions. The court accepted Reed's plea as voluntary, knowing, and supported by a factual basis.
The district court held a sentencing hearing on February 26, 2002. Reed's guilty plea to theft in the first degree and his pending probation revocation matters in case numbers FECR 154390 and 151441 were before the court. The State recommended Reed be incarcerated. Reed agreed to the imposition of the original sentences on the probation revocations and requested the sentences run concurrently with the sentence for theft in the first degree. The court sentenced Reed to a term not to exceed ten years on the charge of theft in the first degree. See Iowa Code ch. 902. Further, the court revoked Reed's probations and imposed the original sentences on those charges. Reed was sentenced to a term of imprisonment not to exceed ten years on the charge of conspiracy to manufacture a controlled substance and thirty days on the charge of assault. These two sentences were ordered to run concurrently to each other and consecutively with the sentence on the charge of theft in the first degree, for a total term not to exceed twenty years. Reed appeals.
Consecutive Sentences. Our review on appeal is for errors at law. Iowa R.App.P. 6.4. Reed contends the district court failed to explain the possibility of consecutive sentences at the plea hearing and, thus, he did not understand the maximum possible punishment. We question whether Reed has preserved error on this issue because he failed to file a motion in arrest of judgment. See Iowa R.Crim.P. 2.24(3); State v. Hook, 632 N.W.2d 865, 867-68 (Iowa 2001) (stating a failure to file a motion in arrest of judgment typically bars a defendant from directly challenging the adequacy of a guilty plea proceeding on appeal). Even if Reed had preserved error on this issue, his claim lacks merit.
Reed contends our supreme court's decision in State v. White, 587 N.W.2d 240 (Iowa 1998), is controlling and grounds for a new sentencing hearing. In White, the supreme court noted the phrase "maximum possible punishment" means the district court must inform the defendant of the possibility of consecutive sentences. White, 587 N.W.2d at 246. While we note Reed cites a correct rule of law, White is factually distinguishable from the instant case. In White, the defendant pled guilty to two counts of possession of methamphetamine with intent to deliver. Id. at 241. The district court failed to inform the defendant, prior to the acceptance of his plea of guilty, of the possibility that consecutive sentences could be imposed. Id. at 246. In the instant case, Reed pled guilty to a single charge, theft in the first degree. The only reference made at the plea hearing to Reed's prior convictions was his counsel's request to continue the pending probation revocations to the date of sentencing. Reed's possible probation revocation and sentences on these matters was not before the court at any time during the plea proceeding, nor was it a part of Reed's plea agreement. The only case before the court was the single charge of theft in the first degree. Consequently, we find the district court did not have a duty to inform Reed of the possibility of consecutive sentences.
Ineffective Assistance of Counsel. Reed claims his trial counsel was ineffective in failing to advise him about the possibility of consecutive sentences. Reed's counsel also did not alert the district court to this potential problem at the commencement of the sentencing hearing. We review such claims de novo. State v. Ledezma, 626 N.W.2d 134, 141 (Iowa 2001).
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record before us does not provide a sufficient basis for determining counsel's effectiveness. We therefore preserve Reed's ineffective assistance of counsel claim for possible postconviction relief proceedings.