Opinion
No. 3-242 / 02-1123.
Filed April 30, 2003.
Appeal from the Iowa District Court for Polk County, ARTHUR E. GAMBLE and SCOTT D. ROSENBERG, Judges.
Defendant appeals from the judgment and sentence entered following his guilty plea to possession of methamphetamine with intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John Sarcone, County Attorney, and Gary Kendell, Assistant County Attorney, for appellee.
Considered by ZIMMER, P.J., and HECHT and EISENHAUER, JJ.
David Callison appeals from the judgment and sentence entered following his guilty plea to possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c)(6) (2001). Callison claims his trial counsel was ineffective for (1) failing to preserve a suppression issue for consideration on appeal, and (2) agreeing to a joint recommendation that defendant's sentence would be served consecutive to another sentence he was already serving for a separate offense. We affirm.
I. Background Facts and Proceedings.
In the early morning hours of September 18, 2001, Officers Scott Fisher and Doug Brown observed a Ford Bronco speed up as it passed in front of their patrol vehicle at an intersection in Des Moines. Officer Fisher believed the driver was attempting to avoid the officers so he made a quick right turn and followed the vehicle. After the officers got behind the Bronco, the driver of the Bronco made an abrupt right turn without signaling. The officers then stopped the driver for failing to signal his turn.
The officers approached Callison, the vehicle's driver, and asked for his license and registration. Appearing nervous and fidgety, Callison stated he did not have any identification. Officer Fisher then asked Callison to step out of the car. Fisher became concerned that Callison was under the influence of methamphetamine and handcuffed him. After being handcuffed, Callison reached for his front pocket on at least two occasions. Concerned for his safety, Officer Fisher conducted a pat down search of Callison. The officer discovered a quantity of cash and a "fairly large amount of methamphetamine" in the defendant's pockets. A search of Callison's vehicle revealed more methamphetamine, marijuana, syringes, a daily planner, and a scale. The officers also determined the defendant's driver's license was revoked. They arrested Callison and took him to jail. At his initial appearance the following day, Callison pled guilty to the simple misdemeanor offenses of failure to use a turn signal and operating a vehicle while suspended.
On October 24, 2001, the State filed a trial information charging Callison with possession of methamphetamine with the intent to deliver in violation of Iowa Code section 124.401(1)(b)(7) (Count I), possession of marijuana with the intent to deliver in violation of section 124.401(1)(d) (Count II), failure to affix a drug tax stamp to methamphetamine in violation of sections 453B.3 and 453B.12, and failure to affix a drug tax stamp to marijuana in violation of sections 453B.3 and 453B.12. Counts II, III, and IV also alleged that Callison was subject to the habitual offender enhancement of section 902.8.
On November 28, 2001, Callison's attorney filed a motion to suppress. Following a hearing, the district court denied his motion. On December 13, the court appointed a new attorney to represent Callison after he became unhappy with his original counsel. Defendant's new counsel filed an application for discretionary review regarding the trial court's ruling on the motion to suppress. Our supreme court denied the application. Defendant filed another motion to suppress on May 30, 2002. Before a hearing was held on the merits of the motion, Callison negotiated a plea agreement with the State and pled guilty to the lesser-included offense of possessing methamphetamine with intent to deliver in violation of section 124.401(1)(c)(6). The district court sentenced defendant to a term of confinement not to exceed ten years as provided in Iowa Code sections 902.3 and 902.9, to be served consecutive to the sentence imposed in another case. Callison appeals.
II. Discussion.
Callison claims his counsel was ineffective for failing to preserve the issue of whether police officers had reasonable suspicion to stop his car when he failed to signal a turn and for agreeing that his sentence would be served consecutive to a sentence he was serving in another case.
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). To succeed on his claims, Callison must establish two elements. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998). He must show that his counsel failed to perform an essential duty, and prejudice must result therefrom. Id. In the context of guilty pleas, a defendant establishes prejudice when the record establishes a reasonable probability that, but for counsel's error, defendant would have insisted on going to trial. Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995).
Ordinarily, we preserve ineffective assistance of counsel claims for post-conviction proceedings in order to adequately develop the record and afford counsel an opportunity to respond. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). When the record is sufficient to address the issues, we may resolve the issue on direct appeal. Id. at 246. The record in this case is sufficient to address the defendant's claims.
A. Suppression Issue.
Callison submits that his trial counsel provided ineffective assistance because he failed to preserve the issue of whether Officers Fisher and Brown had reasonable suspicion to stop his car when he failed to signal a right turn.
By entering a valid plea of guilty, Callison has effectively waived any defenses and objections not intrinsic to the plea itself. Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000). Claims arising from the denial of a motion to suppress or from counsel's failure to investigate or file a motion to suppress do not survive the entry of a guilty plea. Id.; State v. Sharp, 572 N.W.2d 917, 918-19 (Iowa 1997); State v. Freilinger, 557 N.W.2d 92, 93-94 (Iowa 1996); State v. Culbert, 188 N.W.2d 325, 326 (Iowa 1971).
Accordingly, we reject this assignment of error.
B. Consecutive Sentencing.
Defendant next contends his trial counsel provided ineffective assistance by agreeing to a plea arrangement which provided his sentence in this case would run consecutive to the sentence he had received in another case. He claims he had a contradictory plea agreement in an unrelated case from which no appeal was taken, which called for concurrent sentences.
The record made at Callison's plea and sentencing does not support the defendant's assertion on appeal. At the plea and sentencing hearing, the State recited the agreement it had struck with Callison. The prosecuting attorney specifically confirmed Callison's sentence would run consecutive to the sentence he was already serving in FECR153030. Defendant's counsel agreed that the sentences were to be served consecutively pursuant to the plea arrangement. Then, the following colloquy took place between the court and defendant.
THE COURT: And, again, are you satisfied with Mr. Vald's [counsel's] performance?
MR. CALLISON: Yes.
THE COURT: Is there anything that he has failed to do that you have asked him to do to help you get ready for trial?
MR. CALLISON: No.
. . .
THE COURT:The Court can sentence you within these guidelines as the Court sees fit, and the Court can run this sentence consecutive to another sentence that you are currently serving. Do you understand that?
MR. CALLISON: Yes.
THE COURT: And the Court intends to do so. That's your plea agreement, right?
MR. CALLISON: Yes.
THE COURT: All right. Knowing all of that, do you still wish to plead guilty?
MR. CALLISON: Yes.
Based on the foregoing discussion, Callison can hardly claim that his counsel provided ineffective assistance.
The record reveals Callison negotiated a favorable plea agreement with the assistance of counsel. He pled guilty to a lesser-included offense under Count I of the trial information and the State dismissed the remaining felony charges. At his plea and sentencing, the defendant personally confirmed that the terms of the agreement called for a consecutive sentence. Callison fails to cite or even allege any erroneous advice he received from counsel that would have impacted his decision to plead guilty or prejudiced him. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (stating our preference for preserving ineffective assistance of counsel claims does not relieve a claimant from his duty on direct appeal to state the specific ways in which counsel's performance was inadequate and to identify how competent representation probably would have changed the outcome).
Accordingly, we reject Callison's claim of ineffective assistance of counsel and affirm his conviction.