Opinion
No. 2-436 / 01-1962.
Filed June 19, 2002.
Appeal from the Iowa District Court for Black Hawk County, GEORGE STIGLER, Judge.
Appellant appeals a district court order that denied his postconviction relief application. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Considered by HABHAB, PETERSON, and SNELL, S.J.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
The appellant appeals a district court order that denied his postconviction relief application. In that application and on appeal, the appellant claims he was denied his sixth amendment right to effective assistance of counsel by counsel's failure to assert that a December 22, 1993, plea agreement barred the State from prosecuting him for second-degree sexual abuse. We affirm.
In State v. Hunter, No. 96-1976 (Iowa App. Feb. 7, 2001), we found the following facts:
Defendant [Hunter] was one of four men allegedly to have sexually abused L.H., then a minor child. The court could have found the following facts. The incident happened at the home of Griffin, a co-defendant. Sometime between ten p.m. and eleven p.m., on November 23, 1993, Lincoln Dixon and co-defendant Williams arrived at Griffin's house. Defendant followed L.H. into a bedroom and shut the door. L.H. was heard saying "no" and her friend went to the bedroom to see what was happening. Upon opening the door, the friend saw defendant on top of L.H. on the bed. L.H. was fighting the defendant. Defendant then slammed the door in the friend's face. The friend went to the living room. She saw Williams enter the house and she left. The friend also heard statements made that defendant was raping L.H.
Dixon, who pled guilty to a lesser offense in exchange for testifying against the other individuals alleged to have participated in the sexual abuse of L.H., testified he saw defendant on top of L.H. having sexual intercourse. Dixon testified L.H. was saying, "stop." Dixon further testified Williams next had sexual intercourse with L.H. while defendant held her down. Then Williams held L.H. down while Griffin had sexual intercourse with her. Finally, somebody held L.H. down while Dixon had sexual intercourse with her.
The appellant in that appeal raised a number of issues. We affirmed the judgment of guilty of second-degree sexual assault but remanded for resentencing for the trial court improperly considered unproven crimes in pronouncing sentence.
The defendant waived his right to a jury trial. Following a trial to the court, the defendant was found guilty as charged.
On December 22, 1993, Hunter was under prosecution in juvenile court for delinquent acts of burglary and theft. As to those charges, a plea agreement was reached on that date. The agreement was dictated into the juvenile court record by the prosecuting attorney and consented to by defense counsel. It read as follows:
It is the State's understanding at this time that the juvenile will make admissions to paragraphs 3b and 3c. It was a further agreement that the State will not file any additional burglary or theft charges against the young man in cases which are presently open in the Waterloo Police Department that have occurred prior to this date. (Emphasis added.)
The juvenile court thereafter entered its order finding Hunter a delinquent child for having committed the offense of burglary in the third degree and possession with intent to deliver a counterfeit and controlled substance. In that order, the juvenile court stated:
At the outset of the hearing the Court was informed that a plea agreement had been reached. The agreement was that the juvenile would enter admissions to paragraphs 3(b c) of the amended petition and that the State would agree not to file any charges related to complaints that had been filed with the Waterloo Police Department prior to today's date in which the juvenile may have been involved.
It is here that the appellant now claims that "Hunter did hold up to his end of the December 22, 1993, plea agreement by pleading guilty to certain charges in exchange for the State agreeing to not prosecute him on the second-degree sexual abuse case." The trial court, in overruling appellant's application for postconviction relief, held that "the plea agreement applies only to additional theft and burglary charges and not to any unknown sexual assault that the applicant had been involved in."
Postconviction proceedings are ordinarily reviewed on error. Kinnersley v. State, 494 N.W.2d 698, 699 (Iowa 1993). However, when a denial of constitutional rights is alleged, we make our own evaluation of the totality of circumstances in a de novo review. Id. The appellant claims ineffective assistance of counsel. To establish his claim, Hunter must show that : (1) counsel's performance fell outside the normal range of competency; and (2) the deficient performance so prejudiced the defendant as to give rise to a reasonable probability that, but for counsel's errors, the result would have been different. State v. Heacock, 521 N.W.2d 707, 710 (Iowa 1994) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2054, 80 L.Ed.2d 674, 693 (1984)).
More specifically, Hunter claims that his trial counsel failed in an essential duty because he did not object to the State's breach of the plea agreement. He claims that a plea agreement reached to resolve pending juvenile matters also precluded the defendant's prosecution on any charges arising out of any set of facts which preceded the agreement.
We find Hunter's claim to be without merit. In Santobello v. New York, the United States Supreme Court did recognize that "plea bargaining" is an essential component of the administration of justice. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Thus "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello, 404 U.S. at 262, 9 S.Ct. at 499, 30 L.Ed.2d at 433. And if the prosecution has not fulfilled its part of the agreement, the district court must follow through with the agreement or allow the defendant to withdraw the guilty plea. Id. at 262-63, 92 S.Ct. at 499, 30 L.Ed.2d at 433.
But here, the court statement relied on by Hunter must be considered with the agreement reached by the prosecutor and Hunter's counsel. That agreement clearly states that the State will not file any additional burglary or theft charge in cases which are presently open in the Waterloo Police Department that have occurred prior to this date (December 22, 1990). The plea agreement was limited to burglary or theft charges.
Further, and from our review of the record, we find that no complaint alleging that Hunter was involved in the sexual abuse of L.H. was on file at the time the plea agreement was reached. In fact, no complaint arising out of the sexual abuse incident was filed against Hunter until January 1996.
At the time the plea agreement was reached, neither the State nor defense counsel were aware that Hunter was involved in the sexual abuse of L.H. In the plea agreement itself, there is no mention of a sexual abuse charge. Even if defense counsel in the sexual abuse case had urged the plea agreement in the manner asserted by appellant, it would have been without merit. We find no breach of duty nor was the defendant in any respect prejudiced.
We find no error in the trial court's ruling denying Hunter's application. Accordingly, we affirm.
AFFIRMED.