Opinion
No. 3-240 / 02-1011
Filed August 27, 2003
Appeal from the Iowa District Court for Pottawattamie County, Leo Connolly, Judge.
James Hanisch appeals from a postconviction relief decision denying his claims of ineffective assistance of trial counsel in Rule 9 plea. REVERSED AND REMANDED WITH INSTRUCTIONS.
Martha McMinn, Sioux City, for applicant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Matt Wilber, County Attorney, and Daniel McGinn, Assistant County Attorney, for respondent.
Considered by Habhab, Harris, and Snell, Senior Judges.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
This appeal comes to us by applicant from an action for postconviction relief. Applicant was convicted by guilty plea of unlawful delivery of methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (1999). The guilty plea resulted from a Rule 9 plea agreement in which other charges were dismissed. The applicant was sentenced to imprisonment for twenty-five years. The statutory minimum of one-third of the sentence was not waived by the district court.
Five months after receiving his sentence, applicant first learned that the one-third minimum sentence provision had not been waived. Defendant then filed an application for postconviction relief.
The record shows the following. Defendant was represented by attorney Bill Bracker of Council Bluffs. The Rule 9 plea agreement was not reduced to writing, last minute negotiations occurred, and the plea was taken in court chambers. The plea taking judge was not advised of any agreement regarding a minimum sentence. No motion in arrest of judgment was filed.
Defendant claims that a waiver of the one-third minimum sentence was part of the Rule 9 plea agreement. He seeks relief on the ground of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
No motion in arrest of judgment was filed. That procedural problem, however, may be excused when the fault lies in ineffective assistance of counsel. State v. Kress, 636 N.W.2d 134, 142 (Iowa 2001).
At the postconviction hearing, applicant's trial lawyer, Bill Bracker, testified that his client, as part of the plea negotiations, told him he would accept the terms if the State would waive the mandatory minimum sentence. After negotiating with Assistant County Attorney Jeffrey TeKippe, Bracker told his client that the State would waive the mandatory minimum and the judge would approve that type of plea agreement but that he would not be considered for any type of shock probation. Bracker testified that the failure to include this agreement as part of the plea proceedings was "certainly not intentional."
Assistant County Attorney TeKippe testified that he did not specifically remember anything other than that defendant was pleading guilty and was going to prison. Reviewing his office file, he did not find any reference to waiver of the minimum sentence. He did not, however, deny that the agreement was made.
Judge Charles Smith, who took the plea, did not have any independent recollection of the matter. He said he did not waive the one-third minimum sentence provision, as a regular practice, but he may have on occasion.
Appellate counsel for applicant argues that trial counsel failed to perform an essential duty and prejudice resulted. State v. Keesay, 519 N.W.2d 836, 837-38 (Iowa Ct.App. 1994). When applicant is sentenced to a term more onerous than called for by the plea agreement, the applicant is prejudiced by counsel's failure to perform an essential duty. State v. Harness, 600 N.W.2d 294, 300 (Iowa 1999).
Applicant's claim of ineffective assistance of counsel, being of constitutional nature, is reviewed by us de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).
Our review of this record convinces us that defendant received ineffective assistance of counsel in this essential part of the plea agreement and prejudice resulted. The sentence and plea agreement are vacated without prejudice to defendant's right to seek a new plea agreement providing for a reduction of the mandatory minimum sentence by up to one-third or to the State's right to prosecute on all charges. See Iowa Code § 901.10 (2001).
REVERSED AND REMANDED WITH INSTRUCTIONS.