Opinion
No. 1-1037 / 01-0092.
Filed February 20, 2002.
Appeal from the Iowa District Court for Black Hawk County, GEORGE L. STIGLER, Judge.
Martez McBride appeals the judgment and sentence following his guilty plea to the charge of robbery in the second degree in violation of Iowa Code section 711.3 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith and Jack Lammers, Assistant County Attorneys, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Martez McBride appeals the judgment and sentence following his guilty plea to the charge of robbery in the second degree in violation of Iowa Code section 711.3 (1999). He contends that trial counsel was ineffective for failing to file a motion in arrest of judgment. We affirm.
McBride entered a plea of guilty to a reduced charge of robbery in the second degree. The plea was the result of a plea agreement that allowed the minutes of evidence to be used to formulate a factual basis. The following colloquy took place between the court and McBride:
THE COURT: Okay. You've been charged with the crime of Robbery in the Second Degree. Have you been advised that the penalty for that is up to ten years in prison and a fine, if there is a fine, of from $1,000 to $10,000? And I believe there's no opportunity for probation or suspension on that.
Is that right, Ms. Griffith?
MS. GRIFFITH: That's right.
MR. STAUDT: Yeah, it would carry the 85 percent rule.
THE COURT: All right then. You understand that those are the penalties?
THE DEFENDANT: Yeah.
McBride was sentenced to an indeterminate term of ten years and said sentence was made subject to the eighty-five percent rule pursuant to sections 902.12 and 903A.2(1)(b). McBride did not file a motion in arrest of judgment.
McBride contends the district court failed to inform him of the mandatory minimum punishment aspects of the eighty-five percent rule and that his counsel was ineffective in failing to file a motion in arrest of judgment. We disagree.
The standards necessary to resolve ineffective assistance of counsel claims are well established. To establish a claim of ineffective assistance of counsel, defendant has the burden to prove: (1) counsel failed in an essential duty; and (2) 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); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App. 1999).
Iowa Rule of Criminal Procedure 8(2)(b)(2) requires a defendant be advised of any mandatory minimum punishment. Robbery in the second degree requires that a defendant serve eighty-five percent of his term before being eligible for parole. Iowa Code §§ 902.12, 903A.2(1)(b). This sentence is a mandatory minimum sentence and subject to rule 8(2)(b)(2). State v. Iowa District Court, 616 N.W.2d 575, 579 (Iowa 2000). McBride alleges that defense counsel's "cryptic" reference to the "85 percent rule" does not comply with the rule and that defense counsel should have filed a motion in arrest of judgment.
We look first to the prejudice prong of ineffective assistance of counsel. In order to establish prejudice in the context of a guilty plea, McBride must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985); Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995). A relevant factor is whether it can be determined to a reasonable probability that a defendant would have been acquitted. Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210.
In the instant case, McBride was armed with a utility knife when he entered the McDonald's restaurant, he held the knife to one employee and threatened a second one, took cash, and then left. The store manager and another employee recognized McBride, and McBride admitted to his participation in the robbery.
This was the same restaurant where he was employed.
Our review of the record leads us to conclude that McBride suffered no prejudice, and his claim of ineffective assistance must fail. This conclusion also makes it unnecessary to address the State's argument that there was substantial compliance with Iowa Rule of Criminal Procedure 8(2)(b)(2).
AFFIRMED.