Opinion
No. 2-691 / 01-1841
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
Defendant appeals from the judgment and sentence entered following his guilty plea to the charges of possession of a controlled substance with intent to deliver and criminal gang participation. AFFIRMED.
Ta-Yu Yang, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John Sarcone, County Attorney, and Dan Voogt and Stephanie Cox, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Carlos Fabian Sanchez appeals from the judgment and sentence entered following his guilty pleas to charges of possession of a controlled substance with intent to deliverin violation of Iowa Code section 124.401(1)(d) (1999) and criminal gang participation in violation of sections 723A.1 and 723A.2. He contends the district court erred in denying his motion to suppress evidence and his motion to dismiss the charge of criminal gang participation. Additionally, Sanchez claims his trial counsel was ineffective in failing to adequately advise him of the immigration consequences of his guilty plea. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
As part of an investigation of property damage resulting from spray painting by rival street gangs, police officers Stueckrath and Gonzalez went to Sanchez's home to speak with him. Sanchez consented to a search of his basement with a limitation that the officers were not allowed to touch or move anything. The officers proceeded into the basement where they found evidence of gang graffiti in a room used for lifting weights. As the officers were leaving the basement, Officer Stueckrath noticed a large jar containing marijuana seeds and stems in plain view. The officer asked Sanchez what was in the jar and he replied that he wanted an attorney. The officers secured the area and obtained a search warrant before searching further. When the warrant was executed, officers seized 395.3 grams of marijuana, scales, a "Phillies blunt cigar box," a jar with marijuana stems and seeds, a bag with marijuana stems, a shotgun, a spray paint can, cash in the amount of $6400, and assorted gang related drawings and photos.
On May 14, 2001, the State charged Sanchez with possession of a controlled substance with intent to deliver in violation of Iowa Code section 124.401(1)(d) (count I), failure to possess a tax stamp in violation of Iowa Code sections 453B.3 and 453B.12 (count II), and criminal gang participation in violation of Iowa Code sections 723A.1 and 723A.2 (count III). On June 1, 2001, defendant filed a motion to suppress and on July 16, 2001, he filed a motion to dismiss the charge of gang participation. Following hearing, the district court denied the motions.
On August 17, 2001, pursuant to a plea agreement with the State, Sanchez pled guilty to possession of a controlled substance with intent to deliver and criminal gang participation. The State agreed to dismiss the tax stamp charge at the time of sentencing. The district court sentenced Sanchez to a five-year indeterminate term of incarceration for each offense and ordered the sentences to be served consecutively, but suspended the sentences and placed defendant on probation for a period of three years. Sanchez appeals.
II. MOTION TO SUPPRESS AND MOTION TO DISMISS.
Itis well established that the entry of a guilty plea pursuant to Iowa Rule of Criminal Procedure 8(2)(b) (now Iowa R.Crim.P. 2.8(2)( b)) waives all defenses and objections which are not intrinsic to the plea itself. Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000) (citations omitted).
No provision is made in rule 8 for conditional pleas of guilty. State v. Tobin, 333 N.W.2d 842, 844-45 (Iowa 1983). "[O]ur law recognizes only three pleas to a criminal charge: guilty, not guilty, or former judgment of conviction or acquittal of the offense charged." State v. Dorr, 184 N.W.2d 673, 674 (Iowa 1971). A defendant seeking to challenge a guilty plea must do so by motion in arrest of judgment. State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980). Failure to do so precludes the right to assert the challenge on appeal. Id.; Iowa R.Crim.P. 23(3)(a).
State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000).
The record reveals the district court complied with the mandates of Iowa Rule of Criminal Procedure 8(2)( b). Sanchez's guilty plea was made voluntarily and knowingly. The district court informed Sanchez of his right to file a motion in arrest of judgment after the court accepted his guilty plea. He failed to do so. Claims arising from the denial of a motion to suppress do not survive the entry of a guilty plea. See State v. Freilinger, 557 N.W.2d 92, 93-94 (Iowa 1996). Sanchez waived his right to challenge the district court's suppression ruling by pleading guilty.
We also find defendant waived any claim based on his motion to dismiss when he pled guilty. On appeal defendant claims the district court should have granted his motion to dismiss rather than deny it as untimely. He argues the minutes of testimony attached to the trial information did not contain sufficient evidence to support the charge of criminal gang participation. The record reveals that Sanchez provided a factual basis for this crime when he withdrew his not guilty plea and pled guilty. He conceded that he was a gang member in possession of marijuana with the intent to distribute. Accordingly, we conclude Sanchez has waived any challenge to the district court's ruling on his motion to dismiss.
III. INEFFECTIVE ASSISTANCE OF COUNSEL.
Sanchez claims his trial counsel was ineffective in failing to adequately advise him of the immigration consequences to his guilty plea. He asks us to preserve this issue for further postconviction proceedings. We decline to do so.
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, where the record is adequate, we can consider such claims on direct appeal. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).
To establish a claim of ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that trial counsel failed to perform an essential duty and that this failure resulted in prejudice. State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001). We affirm if either element is absent. Id.
When the ineffectiveness claim is based on alleged failure to advise a defendant of the consequences of a guilty plea, the rule is that, if the consequences flow "directly" from the plea, the plea may be held invalid. If, on the other hand, the fallout from the plea is "collateral," counsel is generally not held to be ineffective for failing to inform the defendant about it.
Mott v. State, 407 N.W.2d 581, 582-83 (Iowa 1987) (quoting Saadiq v. State, 387 N.W.2d 315, 325-26 (Iowa 1986)).
Our supreme court has already determined that counsel does not have a duty to advise a defendant of the deportation consequences of a guilty plea. See State v. Ramirez, 636 N.W.2d 740, 746 (Iowa 2001) (holding that a failure to advise a defendant concerning collateral consequences, even serious ones, cannot provide a basis for a claim of ineffective assistance of counsel); Mott, 407 N.W.2d at 584. Accordingly, we conclude that Sanchez's claim of ineffective assistance of counsel must fail.
Defendant makes no claim regarding Iowa Rule of Criminal Procedure 2.8(2)( b)(3) and could not because his plea occurred prior to a recent amendment to the rule. The rule now requires the court to inform the defendant "that a criminal conviction, deferred judgment, or deferred sentence may affect a defendant's status under federal immigration laws."
We affirm Sanchez's judgment and sentence.