Opinion
No. 4-162 / 03-1633
April 28, 2004.
Appeal from the Iowa District Court for Pottawattamie County, Gordon C. Abel, Judge.
Charles Kohl appeals from his conviction and sentence, following his guilty plea, for robbery in the second degree in violation of Iowa Code section 711.3 (2001). AFFIRMED.
Richard Crowl of Stuart, Tinley, Peters, Thorn, Hughes, Faust Madsen, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Matt Wilber, County Attorney, and Christopher Wilson, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Charles Kohl appeals from his conviction and sentence, following his guilty plea, for robbery in the second degree in violation of Iowa Code section 711.3 (2001). He contends the district court erred in not stating whether his sentence was to run concurrently with or consecutively to a federal sentence and that the court abused its discretion in denying his motion to withdraw his guilty plea. He also claims his counsel was ineffective for not filing a motion to withdraw his plea in a timely fashion and in failing to request that the court run his sentence in this case concurrently with a federal sentence. We affirm.
Procedural History.
On December 12, 2002 Kohl was charged, by trial information, with kidnapping in the first degree, robbery in the first degree, and burglary in the first degree based on incidents that occurred on October 2, 2002. On March 5, 2003 Kohl appeared in court with counsel. Pursuant to a plea agreement, the burglary and kidnapping charges were to be dismissed and Kohl pled guilty to an amended charge of robbery in the second degree. Kohl was to remain free on bond until sentencing which was set for April 21, 2003.
Sometime after the plea Kohl was arrested on a federal charge or charges and was incarcerated. He did not appear for his April 21 sentencing, presumably because he was being held out of state on the pending federal charges. Kohl was represented by counsel on the federal charges. However, neither Kohl nor his attorney in the federal case contacted his attorney in this case. Kohl was apparently moved to several different facilities and eventually ended up in the Pottawattamie County Jail in September of 2003. When the prosecutor learned Kohl was being held in the local jail he summoned him for sentencing.
The record before us does not reveal what the federal charge or charges against Kohl were, other than a statement by the prosecutor that they were for "methamphetamine, conspiracy, whatever it was." Nor does the record make clear what the stage of Kohl's federal prosecution was at the time of the September 2003 proceedings in this case. The only information is the prosecutor's statements that he knew the federal charges had been "settled," he did not know what Kohl was going to be sentenced to on those charges, but he knew that Kohl was "looking at ten to life" and was "probably getting ten federally. . . ."
At the September 2, 2003 sentencing Kohl moved to withdraw his guilty plea, contending he did not commit any of the crimes alleged, he did not feel he should get ten years, and the only reason he "pled to ten years" was because he thought it was the best deal he could get but he did not think that any longer. The court denied the motion, both on the record and in writing, finding it was not timely made. The burglary and kidnapping charges were dismissed and Kohl was sentenced to a term of incarceration not to exceed ten years on the second-degree robbery charge.
Merits.
We address Kohl's first two issues in reverse order.
Motion to Withdraw Plea.
Kohl contends the district court abused its discretion in denying his motion to withdraw his guilty plea. He asserts his plea was not voluntary and intelligent due to his subsequent indictment and arrest on the federal charges. He asserts that had he known he was the target in a federal case which involved a sentence of ten years to life he would not have entered his guilty plea in this case. Kohl further contends that in ruling his motion was untimely the district court misinterpreted his motion to withdraw his plea as a motion in arrest of judgment, because a motion to withdraw a guilty plea may be made at any time. He argues the court therefore failed to determine the merits of his motion, whether his guilty plea was voluntary and intelligent.
As set forth above, the only reasons given by Kohl to the district court for requesting to withdraw his plea were his assertions that he did not commit any of the crimes he was charged with, he did not think he should get ten years, and he only "pled to ten years" because he thought it was the best deal he could get. Kohl never asserted before the trial court that his guilty plea was not voluntary and intelligent. "Nothing is more basic in the law of appeal and error than the axiom that a party cannot sing a song to us [on appeal] that was not first sung in trial court." State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). We do not review issues, even of constitutional magnitude, that were not presented to the trial court and are raised for the first time on appeal. State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). Issues must ordinarily be presented to and passed on upon by the trial court before they may be raised and adjudicated on appeal. Jain v. State, 617 N.W.2d 293, 298 (Iowa 2000); State v. Ashburn, 534 N.W.2d 106, 109 (Iowa 1995). Accordingly, because the issue of whether Kohl's plea was voluntary and intelligent was never presented to the district court we conclude Kohl has not preserved error on this issue.
It appears that in overruling Kohl's motion to withdraw his guilty plea the district court in fact misinterpreted it as a motion in arrest of judgment. However, as we have already noted, Kohl has on appeal abandoned the grounds for withdrawal he asserted in the district court and now asserts a new and different ground, one on which he has thus not preserved error. Under such circumstances the district court's error in failing to address the merits, or lack of merits, of the now-abandoned grounds constitutes harmless error.
Sentencing.
Kohl next contends that the district court erred in not ruling whether his sentence was to run concurrently with or consecutively to any federal court sentence. He argues the case should be remanded for resentencing so the district court can determine whether the sentences should run concurrently or consecutively. We review sentencing issues for correction of errors at law. State v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999). Absent an abuse of discretion, a sentence within statutory limits will stand State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). We will only find an abuse of discretion where the sentencing court acts on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.
As set forth above, the record here does not establish what the federal charges against Kohl were, whether he had been convicted or sentenced on them yet, or what the term of incarceration, if any, was to be. There is only a brief and unsupported mention by the prosecution that the charge or charges were perhaps for methamphetamine or conspiracy, the "charges have been settled," Kohl could get ten years to life on the charges, and that "he was probably getting" ten years. It appears that Kohl had not yet been sentenced on the federal charges. The district court could not order Kohl's state sentence to run either concurrently with or consecutively to a sentence that did not yet exist at the time of sentencing in this case. The district court could not determine whether the state sentence should be concurrent or consecutive because it did not know the details concerning the federal charges or any sentence that might result. Furthermore, the court would have run the risk of purporting to usurp the federal court's discretion in any subsequent sentencing decision if it had attempted to predetermine that the state sentence must run either concurrently with or consecutively to the federal sentence.
If he had been sentenced, the record clearly fails to show that fact, and Kohl does not claim counsel was ineffective in that regard.
Iowa adheres to the general rule that unless the Iowa sentencing court specifies otherwise an Iowa sentence is consecutive to the prior sentence of another sovereign. Merchant v. State, 374 N.W.2d 245, 246 (Iowa 1985) (emphasis added). However, the situation here is unaffected by this general rule because there is no evidence in the record of a prior sentence by another sovereign and, in fact, what little information the record contains regarding the federal charges indicates Kohl had not yet been sentenced on them.
We conclude the district court did not commit error by not ordering Kohl's sentence to run concurrently with or consecutively to a sentence not yet imposed. It may in fact have exceeded its sentencing authority if it had so ordered. Cf. State v. McGuire, 860 P.2d 148, 149-50 (Mont. 1993) (holding that court exceeded its authority under state sentencing statute by ordering its sentence to be served consecutively to one not yet imposed, and stating that imposition of such a sentence improperly interferes with the sentencing discretion of the court which will impose the future sentence). We conclude there is no need to remand the case for resentencing to address this issue.
Ineffective Assistance of Counsel.
Finally, Kohl claims his counsel was "ineffective in not filing his motion to withdraw [his] plea in a timely fashion and in failing to request that the court run this sentence concurrent with [Kohl's] federal sentence." When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
While we often preserve ineffective assistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Neither party here asserts the record is insufficient, we find it to be adequate, and we address the claims.
As Kohl correctly points out under the second issue in his brief, a motion to withdraw a guilty plea may be made at any time prior to judgment. See Iowa R. Crim. P. 2.8(2)( a). Kohl's motion to withdraw his guilty plea was made prior to judgment. Therefore, counsel did not breach any duty by not filing the motion to withdraw the plea in a "timely fashion," because the motion was in fact timely made. Kohl's first claim of ineffective assistance must fail.
We have already determined that the district court could not have ordered this sentence to run concurrently with an unknown federal sentence that had not yet been imposed. Accordingly, any request by counsel that the court do so would have been futile and meritless. Counsel is not ineffective for failing to raise meritless issues or to make questionable or meritless objections. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999); State v. Smothers, 590 N.W.2d 721, 724 (Iowa 1999). We conclude counsel was not ineffective for failing to request the court run this sentence concurrently with any federal sentence.
Conclusion.
We conclude Kohl has failed to preserve error on his claim that that the trial court abused its discretion in denying his motion to withdraw his guilty plea. Furthermore, we cannot find the trial court erred in not ordering Kohl's sentence in this case to run either concurrently with or consecutively to an unknown federal sentence that had not yet been imposed. Finally, we find Kohl has failed to meet his burden to prove he received ineffective assistance of counsel.