Opinion
No. 1-932 / 00-1667.
Filed January 28, 2002.
Appeal from the Iowa District Court for Des Moines County, JOHN G. LINN, Judge.
Applicant-appellant appeals the district court's denial of his petition for postconviction relief. AFFIRMED.
Margaret Haessler, Burlington, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Patrick Jackson, County Attorney, Scott Schroeder and Amy Snook, Assistant County Attorneys, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Applicant-appellant Juan G. Delgado pled guilty to robbery in the second degree, a class "C" felony, pursuant to a plea agreement. He did not file a direct appeal. He filed this petition for postconviction relief, contending he had ineffective assistance of counsel at the time he entered the plea, and that he suffered prejudice as a result. The district court denied his challenge on a number of grounds. We affirm.
Juan was initially charged with robbery in the first degree for aiding and abetting others who committed an assault on another person with the intent to commit a theft with a dangerous weapon. The charges stemmed from an incident in which Timothy Carl Merryman, the manager or supervisor of the McDonald's restaurant at 1111 Division, Burlington, Iowa, was robbed at gunpoint on May 14, 1997, just after the restaurant closed. The robbers were masked and took the restaurant's money bag, which contained $1741 dollars, from Merryman, who was in his car and preparing to leave the restaurant parking lot. Delgado, an employee at the restaurant, left the business with Merryman. He admitted at the time he pled guilty that he had helped close this McDonald's on prior occasions, so he was familiar with the closing routine, including how the money bag was taken from the store. He further admitted he had communicated information about the closing of the restaurant to codefendants Christopher Larkin and Jack Pfau, and that in escaping the scene he either assaulted Merryman or aided and abetted other persons who assaulted Merryman.
A plea bargain was entered and Delgado pled guilty to the lesser offense of robbery in the second degree, in violation of Iowa Code sections 711.1 and 711.3 (1997). Delgado was also charged in a companion case with carrying weapons on school grounds, in violation of Iowa Code section 724.4B, and after a jury trial he was found guilty of this charge. Attorney John Jellnick represented him on both matters. On September 15, 1997, a judgment entry was made on both charges. As part of the same order Delgado was sentenced to a term not to exceed five years on the weapons charge and a term not to exceed ten years on the robbery charge. The court ordered the sentences to run concurrently.
Jellnick appealed the weapons charge but did not appeal the robbery charge. After the time for appeal had passed, appellate counsel was appointed on the robbery charge. Counsel filed a motion for a delayed appeal, but it was denied. The appeal in the weapons case was dismissed pursuant to Iowa Rule of Appellate Procedure 104.
On February 9, 1999 Delgado filed a pro se application for postconviction relief in which he contended Jellnick (1) coerced him into accepting the plea agreement, and (2) did not provide adequate representation. Delgado asked that his conviction be reversed. An attorney was appointed to represent him, and an evidentiary hearing was held.
Delgado contended Jellnick was ineffective because he did not file a notice of appeal on the robbery charge and did not raise a compulsion defense. The district court rejected both contentions, finding Delgado did not tell Jellnick to appeal and did not tell him to raise a compulsion defense. The court further found Delgado could not show prejudice because he received a reduced charge with a concurrent sentence in accepting the plea bargain. Additionally, the district court found ample support for the robbery charge and noted the only evidence of compulsion concerned alleged threats made to Delgado after the robbery occurred. The district court concluded that all of Delgado's claims were waived because they had not been brought on direct appeal and also that Delgado had failed to show his counsel was not effective.
This is a constitutional claim. Consequently we review de novo. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). The entry of a guilty plea and the subsequent acceptance of it by the court is meant to be a final adjudication of the defendant's guilt. State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000). A guilty plea taken in conformity with Iowa Rule of Criminal Procedure 8(2)(b) waives all defenses and objections . State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000). Once a defendant has waived his right to a trial by pleading guilty, the State is entitled to expect finality in the conviction. State v. Mann, 602 N.W.2d 785, 789 (Iowa 1999). A plea of guilty is more than a confession, which admits that the accused did various acts; it is itself a conviction. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279 (1969). Accordingly, any constitutional challenge that would undermine the defendant's conviction, with certain exceptions, is waived. Mann, 602 N.W.2d at 789. One of those exceptions is a claim of ineffective assistance of counsel, which calls into question the voluntariness of the defendant's plea. Mott v. State, 407 N.W.2d 581, 582-83 (Iowa 1987).
However, the claims of ineffective assistance of counsel Delgado now makes were not raised on direct appeal. Claims not raised on direct appeal are waived unless Delgado can show both (1) cause, or sufficient reason for the failure to challenge the alleged errors on direct appeal; and (2) actual prejudice resulting from the errors. See Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989); Polly v. State, 355 N.W.2d 849, 856 (Iowa 1984) (citations omitted).
Delgado contends that his trial attorney failed to appeal this charge, even though he was instructed to do so. Delgado's attorney testified he was requested only to appeal the weapons charge, which he did, and that he was not requested to appeal the robbery charge. The district court rejected Delgado's argument that he had asked his attorney to appeal, specifically finding Jellnick's testimony at the postconviction hearing was consistent and credible, and that the testimony of Delgado and his mother was not believable. Giving the required deference to these credibility findings, we agree with the district court's assessment of this evidence. See State v. Boleyn, 547 N.W.2d 202, 206 (Iowa 1996). Having done so, we find Delgado has failed to preserve error on this issue.
We also agree with the district court's findings that Delgado failed to show prejudice and that the claims he raised were without merit. We affirm.
AFFIRMED.