Opinion
No. 3-810 / 03-0519.
Filed December 10, 2003.
Appeal from the Iowa District Court for Washington County, James Blomgren, Judge.
Norman Prescott McFedries appeals from his convictions for operating while intoxicated as a third offense offender, domestic assault, failure to appear for sentencing, failure to appear for a plea, and eluding. AFFIRMED.
Dennis Bjorklund, Coralville, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Barbara Edmondson, County Attorney, and Eric Goers, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Norman Prescott McFedries pled guilty to charges of operating while intoxicated as a third offender, domestic assault, failure to appear for sentencing, failure to appear for a plea, and eluding. He appeals claiming his trial counsel was ineffective for allowing him to plead guilty to the charges. Because we find no merit in any of his claims of ineffective assistance, we affirm.
I. Background Facts Proceedings
On March 1, 2002, McFedries was arrested for operating a vehicle while intoxicated (OWI). He was later charged with OWI, third offense, as an habitual offender, and driving while barred, in violation of Iowa Code sections 321J.2, 321.560, and 321.561 (2001) respectively. On August 6, 2002, McFedries assaulted his wife and was charged with assault causing bodily injury, in violation of Iowa Code sections 708.1(1), 708.2A(1), and 708.2A(2)(b).
On November 18, 2002, McFedries pled guilty to OWI, third offense, as part of a plea agreement. In exchange for his plea, the State withdrew the habitual offender sentencing enhancement applicable to the OWI charge and dismissed the charge of driving while barred. After McFedries pled guilty to OWI, third offense, the district court set sentencing for December 9, 2002. Later, the court entered another order scheduling a guilty plea on the charge of domestic abuse assault for December 9, 2002. McFedries failed to appear as ordered on the 9th of December. As a result, the State charged him in a two-count trial information with felony failure to appear as a habitual offender (sentencing) and serious-misdemeanor failure to appear (guilty plea), in violation of Iowa Code section 811.2(8).
On February 9, 2003, an officer arrested McFedries following a police chase. McFederies was subsequently charged with eluding, driving while revoked, and third degree criminal mischief, in violation of Iowa Code sections 321.279(2), 321J.4(4), 716.1, and 716.5 respectively.
On March 4, 2003, McFedries was sentenced for his conviction of OWI, third offense. He received an indeterminate term of five years in prison. On March 4, 2003, McFedries also pled guilty to both counts of failure to appear. He was sentenced that same day to an indeterminate term of fifteen years in prison for his conviction of felony failure to appear as a habitual offender, and thirty days in jail for his conviction of serious-misdemeanor failure to appear. McFedries also pled guilty to eluding on March 4 and was sentenced to an indeterminate term of two years. Finally, he pled guilty to simple misdemeanor domestic assault, in violation of Iowa Code section 708.2A(2)(a), and was sentenced to two days in jail with credit for time served. The district court ordered the defendant's sentences to be served concurrently. Other charges relating to the eluding incident were dismissed.
McFedries appeals. He claims his trial counsel was ineffective.
II. Scope of Review
Our scope of review is de novo because McFedries alleges a denial of his constitutional right to effective assistance of counsel. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
III. Ineffective Assistance of Counsel Claims
Normally, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Query, 594 N.W.2d 438, 444 (Iowa Ct.App. 1999). However, claims of ineffective assistance of counsel may be resolved on direct appeal when the record is adequate to decide the issue. Id.
Our ultimate concern in claims of ineffective assistance is with the fundamental fairness of the proceeding whose result is being challenged. State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987). The burden is on the defendant to prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. Risdal, 404 N.W.2d at 131-32. The test for prejudice is whether a reasonable probability exists that the outcome of the proceeding would have been different but for counsel's alleged omissions. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). In evaluating counsel's performance, we presume counsel acted competently. Risdal, 404 N.W.2d at 131.
McFedries raises five claims of ineffective assistance of counsel. All of his claims pertain to his guilty pleas. We address each of his claims in turn.
A. Plea to Operating While Intoxicated, Third Offense
On November 18, 2002, McFedries pled guilty to OWI, third offense. He now claims his counsel was ineffective because he did not "recognize that the arresting officer failed to Mirandize [him] until after he was placed under arrest." Although McFedries does not say so directly on appeal, his argument suggests that his trial counsel should have filed a motion to suppress evidence based on a violation of the Fifth Amendment.
We find that McFedries's guilty plea waived this issue. The defendant does not claim that his plea was involuntary, that it resulted from misleading advice from his counsel, or that it failed to comply with Iowa Rule of Criminal Procedure 2.8(2). With few exceptions a guilty plea waives all defenses and objections which are not intrinsic in the plea itself. State v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000). McFedries's Fifth Amendment challenge is not one of the recognized exceptions and thus does not survive the entry of a guilty plea. Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000).
Although we find that McFedries's guilty plea is determinative on this issue, it is worth mentioning that the record before us on appeal indicates that McFedries was advised of his Miranda rights. The minutes of testimony state:
. . . at approximately 8:08 p.m. [Washington Police Officer Kirk Bailey] advised McFedries of his [M]iranda rights; McFedries advised that he understood his rights; McFedries stated that he was driving and that he had 2 beers, maybe 3 tops; [he] stated that he started [drinking] in Williamsburg at 3 p.m. and finished no later than 4 p.m. and had been on a job assignment for Donahue Drywall; McFedries stated that he smokes marijuana regularly and that he doesn't want to take the urine test;
Because McFedries was timely warned of his Miranda rights, his counsel was not ineffective for allowing him to plead guilty to OWI.
B. Plea to Domestic Assault
On March 4, 2003, McFedries pled guilty to simple misdemeanor domestic assault. The record reveals the defendant kicked his wife in the leg, struck her in the head several times with a purse, and grabbed her and ripped her shirt while verbally abusing her. McFederies now contends his counsel was ineffective because "the evidence was insufficient to show that [he] intended his act to be offensive or injurious to his wife." McFedries does not contend his plea was not supported by a factual basis. In essence, he argues that if his case had gone to trial the State's evidence would have been insufficient to prove his guilt beyond a reasonable doubt. Once again McFedries does not claim that his guilty plea was involuntary, that it resulted from misleading advice from his counsel, or that it failed to comply with Iowa Rule of Criminal Procedure 2.8(2).
A plea of guilty relieves the State from proving the essential elements of the offense. State v. Young, 293 N.W.2d 5, 7 (Iowa 1980). The entry and acceptance of a guilty plea is a final adjudication of defendant's guilt. LaRue, 619 N.W.2d at 397. The decision to plead guilty was McFedries's decision, not his trial counsel's decision. The defendant cannot challenge the strength of the State's case on appeal because his guilty plea waived all defenses except those intrinsic to the plea itself. Id. at 398. We reject this assignment of error.
C. Pleas to Failure to Appear for Sentencing and Failure to Appear for Guilty Plea
On March 4, 2003, McFedries pled guilty to both counts of failure to appear. He now argues that his counsel was ineffective because the evidence against him was "insufficient to show that [his] failure to appear was willful." He also contends a police officer failed to "Mirandize" him before he made incriminating statements regarding his failure to appear.
There is no question that McFedries failed to appear on December 9, 2002, for sentencing on his OWI conviction and to plead guilty to a domestic assault charge. McFedries explained to Washington Police Officer Kirk Bailey why he did not appear for court on December 9, 2002, after he was arrested on February 9, 2003, for trying to elude the police. The minutes of testimony state:
[Officer Bailey] advised McFedries of his rights and McFedries stated he understood his rights; . . . he asked McFedries why he had run and McFedries stated that he thought there were warrants out for him; that he asked why he would think there were warrants out for him and McFedries stated that he was supposed to show up for court and was out of town for work and then stated "I decided not to go"; that he asked McFedries if he was referring to court and he stated yes; that McFedries stated that he was looking at 5 years in prison and that's why he didn't show up for court;
McFedries also admitted knowledge of his December 9, 2002 court dates when he pled guilty to both counts of failure to appear. At his plea hearing on March 4, 2003, the following colloquy occurred between McFedries and the district court:
THE COURT: Tell me what it was that caused you to be charged with failure to appear for sentencing as charged in Count I.
THE DEFENDANT: I was to be — appear to be sentenced on December 9th, and I didn't show up.
THE COURT: What was the sentencing for?
THE DEFENDANT: That was to be for OWI Third and Domestic.
. . .
THE COURT: And where was it that you were supposed to appear?
THE DEFENDANT: Right here, Washington County Courthouse.
. . .
THE COURT: At the time that the sentencing was to take place, you were aware that it was to take place?
THE DEFENDANT: Yes, I was, Your Honor.
THE COURT: And you intentionally did not appear?
THE DEFENDANT: Yes, I did, Your Honor.
. . .
MR. GOERS: If I may, Your Honor, his answer about whether he willfully didn't show up I thought was a little vague. If I may inquire directly.
Is it true, Mr. McFedries that you were aware of the sentencing hearing on December 9th, and willfully decided not to go?
THE DEFENDANT: Yes, I did, Your Honor, yes.
THE COURT: That's correct?
THE DEFENDANT: Yes, it is.
McFedries does not argue that his guilty pleas were involuntary, that they resulted from misleading advice from his counsel, or that they failed to comply with Iowa Rule of Criminal Procedure 2.8(2). For the reasons we have already discussed in divisions IIIA and IIIB of this opinion, we conclude the defendant's guilty pleas waived the claims he now seeks to assert on appeal. Moreover, the record reveals ample evidence to support the conclusion that McFedries willfully failed to appear as ordered.
D. Plea to Eluding
On March 4, 2003, McFedries pled guilty to eluding. He now claims his counsel was ineffective because "there was no factual basis to support the crime charged." Although he admits that he failed to stop his vehicle after being given a visual sign to do so, he argues that the State failed to show that he exceeded the speed limit by twenty-five miles per hour or more.
Before accepting a guilty plea, it is the responsibility of the district court to establish a sufficient factual basis for the plea on the record. State v. Keene, 629 N.W.2d 360, 366 (Iowa 2001). When a sufficient factual basis exists for a guilty plea, trial counsel is not ineffective for allowing her client to plead guilty. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).
During McFedries plea hearing, the prosecutor stated:
MR. GOERS: And finally in case AGIN 006825, the defendant to plead guilty to Count I Eluding, an aggravated misdemeanor, punishable by two years in prison . . . In addition, there were a number of simple misdemeanor traffic offenses associated with AGIN 6825. The defendant would be pleading guilty to speeding at 90 in a 55-miles-per-hour zone . . . and would also be pleading guilty to Interference with Official Acts . . . The charges of failure to maintain control, unsafe backing, driving on the wrong side of the roadway, and improper use of lanes would all be dismissed at the defendant's costs.
The minutes of testimony regarding the eluding incident state:
[Washington Police Officer Kirk Bailey] activated his siren and was directly behind the vehicle; that the vehicle continued to travel northbound going approximately 60 mph; that as they proceeded north he activated his wig wag lights and the vehicle continued north failing to yield; that as they proceeded to the north junction there is a left turning lane, a straight lane, a right turning lane and a divider in between the two lanes; that the McFedries vehicle passed a vehicle on the left side and also the right side going through the no-driving section of the intersection; that at this time the vehicle proceeded to travel at approximately 80 mph traveling north through the north junction; that as they proceeded north the vehicle reached a speed of 90 mph; that he paced the vehicle with the stationary radar which would be the python in the Unit 44 vehicle and also by the odometer in the patrol car . . .
Finally, McFedries signed a petition to plead guilty to the eluding charge. Paragraph eighteen of that petition, which McFedries initialed, stated: "I plead guilty because I know I am guilty. I read the Minutes of Testimony and agree they accurately describe what I did to commit the offense to which I am pleading."
The record contains a sufficient factual basis to establish that McFedries exceeded the speed limit by twenty-five miles per hour or more. Accordingly, McFedries counsel was not ineffective for allowing him to plead to eluding.
E. Plea Agreement
McFedries also claims that his trial counsel was ineffective "in accepting the plea agreement from the State" because it was not in his best interests. He argues that the plea agreement reached "provided little ascertainable benefit" to him.
The decision to plead guilty is made by the defendant, not his trial counsel. State v. Walton, 228 N.W.2d 21, 23 (1975). McFedries faced eight charges in Washington County. As part of a global plea agreement, he pled guilty to five of the charges. The rest of the charges against McFedries were dismissed. Since McFedries voluntarily pled guilty to the charges against him and does not now claim that his counsel misled him, his argument that his counsel was ineffective for allowing him to plead guilty must fail.
In summary, we find no merit in any of the defendant's claims of ineffective assistance of counsel. Accordingly, we affirm his convictions for operating while intoxicated, third offense, domestic assault, failure to appear for sentencing, failure to appear for plea, and eluding.