Opinion
No. 2-743 / 02-0637
Filed October 30, 2002
Appeal from the Iowa District Court for Black Hawk County, J. D. Coil, District Associate Judge.
Defendant appeals from the judgment and sentence entered following her guilty plea to theft in the third degree. She claims ineffective assistance of counsel and contends the sentencing court abused its discretion in failing to grant her a deferred judgment. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Linda Myers, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Louri Niedert appeals from the judgment and sentence entered following her guilty plea to theft in the third degree in violation of Iowa Code section 714.2(3) (2001). She claims her trial counsel was ineffective in permitting her to enter a written guilty plea which did not set forth the maximum possible fine she could receive. She also argues the sentencing court abused its discretion in not granting her a deferred judgment. We affirm.
I. Background Facts and Proceedings.
Niedert purchased a new computer at the Waterloo Wal-Mart store. At some point, she unpacked the new computer and placed her old computer in the box which held the new computer. Niedert then returned the old computer to a different Wal-Mart store and received a refund. She kept the new computer. Police investigated the incident and charged Niedert with third-degree theft, an aggravated misdemeanor.
Niedert entered a written guilty plea on March 8, 2002. The written plea agreement indicated the State would recommend a 180 day jail sentence, two years of supervised probation, and a $500 fine. It further provided that Niedert would ask for a deferred judgment.
Niedert appeared before the court for sentencing on April 1, 2002. The court denied her request for a deferred judgment and imposed a $500 fine and a ninety day suspended jail sentence. The court placed Niedert on probation for a period of twelve to twenty-four months. Niedert appeals.
II. Sentencing Discretion.
We first address Niedert's claim that the district court abused its discretion in failing to grant her a deferred judgment. Niedert argues a deferred judgment would serve the same purpose as a suspended sentence while allowing her to avoid the stigma of a criminal conviction. In support of her argument she points to her age, employment, education, lack of a prior criminal record, and her remorse for committing the offense.
We review a sentence imposed by the district court for correction of errors at law. Iowa R.App.P. 6.4; State v. Sailer, 587 N.W.2d 756, 758 (Iowa 1998). Sentencing decisions of the district court are cloaked with a strong presumption in their favor. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). A sentence will not be upset on appeal unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure such as the trial court's consideration of impermissible factors. Id.; State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). To demonstrate abuse of discretion, Niedert must show the court exercised its discretion to a clearly unreasonable extent or upon clearly unreasonable grounds. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). To assess whether discretion has been abused, we review the court's stated reasons for the sentence term. See State v. Mai, 572 N.W.2d 168, 170 (Iowa Ct.App. 1997).
In sentencing Niedert, the court referred to the nature and circumstances of her offense and specifically mentioned the "very calculating type of theft" she committed. The sentence imposed was within statutory limits. Nothing in the record suggests the sentence was based on unreasonable or untenable grounds. Accordingly, we find no abuse of discretion and reject this assignment of error.
III. Ineffective Assistance of Counsel Claim.
Niedert also contends her guilty plea was not knowing and voluntary because she was not advised through the plea form or by the court that she could receive the maximum fine of $5000. She acknowledges trial counsel did not preserve error on this issue. Niedert asserts her trial counsel was ineffective in failing to file a motion in arrest of judgment challenging the guilty plea.
To succeed on a claim for ineffective assistance of counsel, a claimant must establish two elements. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998). Claimant must show that his counsel failed in 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. In the instant case, the record is sufficient to resolve Niedert's contention.
For third-degree theft, the maximum period of incarceration is two years and the maximum fine is $5000. Niedert was informed in the written guilty plea that the maximum period of incarceration was two years. However, the written guilty plea did not contain information regarding the maximum fine of $5000. The record reflects that Niedert was aware she could receive a fine of at least $500. The written plea form states that the county attorney will recommend a $500 fine as part of its sentencing recommendation to the court. The court imposed the $500 fine recommended by the State as part of its sentence.
Although Niedert was not informed of the maximum fine of $5000 as required under Iowa Rule of Criminal Procedure 2.8(2)(b), she has failed to establish how trial counsel's failure to file a motion in arrest of judgment caused her any prejudice. Nothing in the record indicates Niedert would have insisted on going to trial if she knew of the maximum fine. On appeal, Niedert does not assert the promise of a specific fine induced her to plead guilty, or that she would have insisted on proceeding to trial if she was apprised of the maximum fine that could be imposed. We conclude the defendant has not shown she was prejudiced by the lack of information in her written guilty plea form. We would reach a different result if Niedert had received a fine greater than she was informed she might receive. See State v. King, 500 N.W.2d 100, 101-02 (Iowa Ct.App. 1993).