Summary
finding counsel did not breach a duty when counsel failed to file a motion in arrest of judgment following the defendant's written guilty pleas because the defendant agreed to sentencing after the court informed him it would reserve its sentencing options despite the terms of the plea agreement
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No. 0-809 / 00-290.
Filed February 7, 2001.
Appeal from the Iowa District Court for Black Hawk County, J. G. Johnson, District Associate Judge.
Lonnie Porter appeals from the judgments and sentences entered on his guilty pleas to operating while intoxicated, domestic abuse assault (enhanced), and two counts each of driving while barred and driving while license suspended. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Sue Swan, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Lonnie Porter appeals from the judgments and sentences entered on his guilty pleas to operating while intoxicated, domestic abuse assault (enhanced), and two counts each of driving while barred and driving while license suspended.
I. Background Facts and Proceedings .
Porter entered written guilty pleas to these offenses in exchange for the State's recommendation that he be sentenced to a four-year term of incarceration. Each of Porter's written guilty pleas included the following provision:
I further understand that if I wish to challenge this guilty plea, I must file a motion in arrest of judgment not later than forty-five days after entry of my plea and also at least five days before the date set for sentencing, and that failure to so file such challenges shall preclude the right to assert them on appeal. I also understand I have a right to a 15-day delay before being sentenced. I waive these rights and request that judgment and sentence be pronounced upon receipt of this plea.
At a subsequently convened sentencing hearing, the court informed Porter that the plea agreement was not binding and the court was free to impose any sentence authorized by law. After consulting with counsel, Porter elected to proceed with sentencing despite the court's reservation of its sentencing options.
The court accepted Porter's written guilty pleas without further inquiry or personally informing him concerning the need to file a motion in arrest of judgment or the consequences of failing to do so. The court, after a sentencing hearing, entered a judgment of conviction imposing a greater sentence of incarceration than that provided in the plea agreement.
On the day following entry of judgment and sentence, Porter filed a motion in arrest of judgment seeking permission to withdraw his guilty plea. Porter filed a notice of appeal before the district court's ruling denying his motion in arrest of judgment was entered.
On appeal Porter challenges the adequacy of his guilty plea, citing the court's failure to sentence him in accord with the plea agreement. The State argues Porter failed to preserve any error on this issue by failing to timely file a motion in arrest of judgment. Porter argues the trial court's failure to inform him concerning his obligation to timely file a motion in arrest of judgment and consequences of failing to do so excuse his failure to do so. He argues failure to file a motion in arrest of judgment resulted from ineffective assistance of counsel. Lastly, Porter argues the district court's judgment failed to properly credit him for time served prior to sentencing.
II. Motion in Arrest of Judgment .
A. Error Preservation.
Our review on this issue is for errors of law. Iowa R. App. P. 4.
A defendant's failure to timely file a motion in arrest of judgment generally precludes a challenge to a guilty plea on direct appeal. Iowa R. Crim. P. 23(3)(a). There is no such preclusion if the court accepting a defendant's guilty plea fails to personally inform the defendant concerning the need to file a motion in arrest of judgment and consequences of failing to do so. Iowa R. Crim. P. 8(2)(d); State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980).
Iowa Rule of Criminal Procedure 8(2)(d) provides:
The court shall inform the defendant that any challenges to a plea of guilty based on alleged defects in the plea proceedings must be raised in a motion in arrest of judgment and that failure to so raise such challenges shall preclude the right to assert them on appeal.
Substantial rather than literal compliance is sufficient to discharge the court's duty under rule 8(2)(d). State v. Oldham, 515 N.W.2d 44, 46 (Iowa 1994). Substantial compliance with rule 8(2)(d) occurs when a defendant's written guilty plea informs the defendant of the matters specified in rule 8(2)(d) and includes the defendant's acknowledgment that he or she has been so informed. State v. Kirchoff, 452 N.W.2d 801, 805 n. 3 (Iowa 1990).
Reference to Porter's written guilty pleas indicates he was informed and understood his obligation to file a motion in arrest of judgment and the consequences of failing to do so. The written plea also includes Porter's express waiver of his right to file a motion in arrest of judgment. Moreover, Porter's written guilty pleas were complimented by the record's express reference to the written pleas as those accepted by the court. See id. Because the record discloses substantial compliance with 8(2)(d), we find no error in the court's failure to otherwise comply with the rule.
B. Ineffective Assistance of Counsel.
As noted earlier, Porter alternatively claims his failure to timely file a motion in arrest of judgment resulted from ineffective assistance of counsel. Failure to file a motion in arrest of judgment does not preclude a challenge to a guilty plea on direct appeal if the failure to file the motion resulted from ineffective assistance of counsel. State v. Schoelerman, 315 N.W.2d 67, 71 (Iowa 1982).
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). Ordinarily, 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. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
The defendant bears the burden of demonstrating ineffective assistance of counsel. State v. Morgan, 559 N.W.2d 603, 612 (Iowa 1997). A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). In order to meet the first test, one must overcome the strong presumption his attorney's actions were reasonable under the circumstances and fell within the normal range of competency. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). To succeed on the second test, it must be shown that, but for counsel's error, the result of the proceedings would have been different. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994).
We have already determined that Porter's written guilty plea included an express waiver of his right to file a motion in arrest of judgment. Moreover, the record indicates Porter proceeded to sentencing after the court informed him of its intention to preserve its sentencing options despite the terms of the plea agreement. Under these circumstances, we find no conceivable merit in filing a motion in arrest of judgment, and counsel breached no duty by failing to do so. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (defense counsel has no duty to make a meritless motion).
We affirm on this issue.
III. Credit for Time Served .
Our review on this issue is for correction of errors at law. Iowa R. App. P. 4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
We find it sufficient to note this issue was effectively resolved against Porter in State v. Hawk, 616 N.W.2d 527, 530 (Iowa 2000) (rejecting the defendant's "contention that the trial court must, at sentencing or as part of a written judgment entry, announce the credit to which the defendant is entitled for time served").
We have carefully considered the remaining issues raised by the parties and find them to be either without merit or adequately resolved by the foregoing. The judgment of the district court is affirmed in its entirety.
AFFIRMED.