Opinion
No. 04-0114.
March 16, 2005.
Appeal from the Iowa District Court for Clinton County, C.H. Pelton, Judge.
Tony Washington appeals from the denial of postconviction relief. AFFIRMED.
Brian Farrell, Goose Lake, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Mike L. Wolf, County Attorney, and Gary Strausser, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Decisions without published opinions. Affirmed.
Tony Washington appeals from the denial of postconviction relief. We now affirm.
I. Background Facts and Proceedings.
Following the December 17, 1998 armed robbery of a convenience store in Calamus, two men matching the description of the perpetrators were detained in a vehicle by police. Upon the removal of the driver, Daniel Hoenig, from the vehicle, the passenger moved into the driver's seat and drove away. Hoenig confessed to the robbery and named Tony Washington as his accomplice and passenger. Hoenig's vehicle was subsequently located in Cahokia, Illinois, where Washington was arrested. Washington was later identified as the escaping driver by the police officer who had stopped Hoenig's vehicle on December 17.
Washington's appointed counsel subsequently negotiated a written plea agreement that read as follows: "The Defendant shall plead guilty to the lesser included offense of Robbery 2nd degree 711.3, Code of Iowa (1999)." This was identical to the plea arrangement bargained for and accepted by Hoenig. Nothing in either plea agreement contemplated the possibility of an Alford plea, allowing the defendant to plead guilty without admitting his participation in the armed robbery. There is no evidence that Washington's trial counsel discussed the option of an Alford plea during the plea negotiations with the county attorney. Washington, his counsel, and the county attorney each signed the plea agreement, and a plea-taking hearing was scheduled for December 30, 1999. The following colloquy was had between the district court and Washington on that date:
THE COURT: . . . I just want you to at this time tell me what — tell me what happened that day at the convenience store in your own words.
THE DEFENDANT: I can't say nothing happened. What I know from the robbery —
THE COURT: Excuse me?
THE DEFENDANT: It was an armed robbery there.
THE COURT: Okay. What was your involvement in that.
THE DEFENDANT: I didn't have no part in it . . .
THE COURT: At this time the Court cannot accept the plea of guilty based on those statements.
The plea hearing was adjourned and the case against Washington proceeded to jury trial and resulted in a unanimous guilty verdict on the charge of robbery in the first degree. Washington was sentenced to serve an indeterminate twenty-five year prison sentence.
Washington appealed his conviction, contending in part that he was denied a fair trial due to his trial counsel's ineffectiveness. In 2001, a panel of this court affirmed Washington's conviction, but preserved his ineffective assistance claim for possible postconviction proceedings. Such proceedings were commenced on July 2, 2001 upon the filing of Washington's pro se application for postconviction relief. Counsel subsequently appointed for Washington in the postconviction proceedings argued trial counsel provided ineffective assistance in connection with the aborted plea proceeding.
The postconviction trial record reveals trial counsel did not explore the option of an Alford plea during his negotiations with the prosecutor. The prosecutor testified he would not have accepted a guilty plea that was not based on Washington's admission of participation in the robbery. The prosecutor noted he had required Hoenig to provide a factual basis for his guilty plea, and expected the same from Washington. The prosecutor further explained he believed he owed a duty to the victim of the robbery to require Washington provide his own factual basis for his guilty plea, just as Hoenig did. The district court denied the postconviction relief requested by Washington, who now appeals.
See North Carolina v. Alford, 400 U.S. 25, 32-38, 91 S. Ct. 160, 164-168, 27 L. Ed. 2d 162, 168-172 (1970) (holding defendant may voluntarily and intelligently plead guilty even if he is unwilling or unable to admit his participation in the acts constituting the crime).
II. Scope and Standard of Review.
We review postconviction relief proceedings on claimed error. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, because of the constitutional implications inherent with claims of ineffective assistance of counsel, our review here is de novo. State v. Mapp, 585 N.W.2d 746, 747 (Iowa 1998). III. Discussion.
We also note issues concerning the interpretation of a plea agreement are reviewed de novo. United States v. Austin, 255 F.3d 593, 596 (8th Cir. 2001).
Washington contends on appeal his trial counsel was ineffective in failing to pursue the possibility of an Alford plea (1) in negotiations with the county attorney, (2) with Washington himself, and (3) during the plea hearing. Washington contends he would have made an Alford plea had the opportunity been provided to him. The State responds that Washington suffered no prejudice as a consequence of the claimed breach of duty by trial counsel because the record clearly establishes that the State would not have agreed to such a plea. Because Washington was clearly unwilling to admit his involvement in the robbery, the case would have proceeded to trial and the result of the proceedings would not have been different even if trial counsel had proposed an Alford plea.
A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The defendant bears the burden of demonstrating ineffective assistance of counsel, and both prongs of the claim must be established by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). "[A] defendant, after rejecting the proposed plea bargain and receiving a fair trial, may still show prejudice if the plea bargain agreement would have resulted in a lesser sentence," and, but for counsel's error, the defendant would have been permitted to plead guilty. Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995).
An Alford plea is a guilty plea which allows a defendant to admit guilt without admitting participation in the criminal activity charged or otherwise providing his own factual basis from which the district court could find each element of the charged offense was committed by the defendant. State v. Heinen, 252 N.W.2d 454, 455 (Iowa 1977). While the district court need not extract a confession from the defendant to accept a guilty plea, whether the district court may accept an Alford plea is conditioned on that court's ability to find factual support for every element of the offense in the record from sources other than the defendant. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
A. Trial Counsel's Performance.
Pleading to the lesser included charge in the face of overwhelming identification evidence was clearly in Washington's best interest, and trial counsel's recommendation of a guilty plea to the lesser charge was clearly appropriate in this case. However the record clearly reveals trial counsel had reason to doubt Washington's willingness to admit his participation in the armed robbery at least as early as the plea hearing. The record available to the district court at the plea hearing would have allowed it to construct a factual basis for each element of the lesser-included offense; therefore an Alford plea could have been accepted by the district court. Id. We believe these circumstances should have prompted trial counsel to inquire about the possibility of an Alford plea and to pursue it either during plea negotiations with the county attorney, or prior to the adjournment of the plea hearing. The Alford plea has been recognized for over thirty years, and we conclude reasonably diligent counsel confronted with Washington's adamant unwillingness to confess would have proposed an Alford plea to Washington, and with Washington's agreement to the prosecutor. We find trial counsel breached a duty when he failed to do so.
B. Prejudice From Counsel's Deficient Performance.
Having found Washington's trial counsel breached a duty when he failed to pursue the possibility of an Alford plea, we next consider whether Washington suffered prejudice. To reiterate, Washington's claim fails if he is unable to show (1) he would have entered an Alford plea but for trial counsel's error and (2) he would have received a lesser sentence. Engelen, 68 F.3d at 241.
Pleading guilty to the lesser included charge in the face of overwhelming evidence of his participation in the robbery was clearly in Washington's best interest. Such a plea would certainly have produced a markedly shorter prison sentence. But Washington's adamant unwillingness to admit participation in the robbery dictated he could achieve a guilty plea to the lesser charge only if an Alford plea was available. His willingness to plead guilty without admitting his participation is established in this case by his written guilty plea agreement and the plea colloquy.
The county attorney testified credibly during postconviction proceedings that Washington's admission of involvement in the robbery was a nonnegotiable condition of any plea bargain with Washington. Thus it is clear that had trial counsel proposed an Alford plea during plea negotiations, the county attorney would have rejected it squarely. While the parties signed a written plea agreement, neither party proposed an Alford plea prior to the plea hearing.
Plea agreements are contractual in nature, and should be interpreted according to general contract principles. Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir. 1994). "It is a cardinal principle of contract law that the parties' intention at the time they executed the contract controls." State Pub. Defender v. Iowa Dist. Ct., 594 N.W.2d 34, 37 (Iowa 1999). Because neither party to the plea agreement intended an Alford plea, the written plea agreement did not confer upon Washington the benefit of a favorable plea bargain without first admitting his participation in the armed robbery.
Washington contends, however, had trial counsel advanced the opportunity of an Alford plea at the plea hearing after it was clear Washington would not confess participation, the district court could have accepted such a plea, even over the prosecutor's objection because the signed plea agreement did not expressly require Washington to supply a factual basis for the guilty plea. Washington contends the possibility that the district court would have accepted an Alford plea over the State's objection should suffice to undermine this court's confidence in the outcome arrived at below. We disagree.
Iowa Rule of Criminal Procedure 2.10 provides the procedural framework under which plea negotiations are to take place. We note nothing in the rule prohibits further negotiation between the parties once a particular written agreement is achieved and disclosed to the district court. Id. Trial counsel was therefore free to propose an Alford plea at any time before or after the aborted plea hearing.
However, the relevant case law and procedural rules do not support Washington's assertion that the district court could have imposed a plea arrangement to which either the prosecutor or the defendant did not expressly agree. Indeed, if we were to adopt Washington's argument, we would nullify the parties' freedom to contract now protected by the optional plea negotiation framework found in our procedural rules. Iowa R. Crim. P. 2.10(1). "The prosecuting attorney and the attorney for the defendant may engage in discussions with a view toward reaching an agreement." Id. (emphasis supplied). The district court's acceptance of a guilty plea is conditioned on the achievement of an agreement between the State and the defendant. Iowa R. Crim. P. 2.10(2). We conclude these procedural rules imposed no obligation upon the prosecutor to agree to modify the plea agreement to authorize an Alford plea by Washington.
If Washington's trial counsel had proposed an Alford plea, the proposal would have constituted a rejection of the existing written plea agreement and a counter-offer requiring acceptance by the State before it could be considered by the district court. See In re Marriage of Masterson, 453 N.W.2d 650, 653 (Iowa Ct.App. 1990) (noting that the late acceptance of a lapsed offer constituted a counter-offer that must be accepted by original offeror to form an agreement).
A counter-offer concerns the same matter as the original offer, but proposes "a substituted bargain differing from that proposed by the original offer." Restatement (Second) of Contracts, § 39 (1) (1981). A proposal to plead without admitting guilt differs substantially from a general guilty plea. While the entry of an Alford plea saves the State the time and expense of trial, a defendant's refusal to admit guilt might have a negative impact on the defendant's successful rehabilitation. See, e.g., Gollaher v. United States, 419 F.2d 520, 530 (9th Cir. 1969) (stating "the first step toward rehabilitation of an offender is the offender's recognition that he was at fault); Johnson v. Baker, 108 F.3d 10, 12 (2nd Cir. 1997) (stating "[a]n inmate who is unwilling to admit to particular criminal activity is unlikely to benefit from a rehabilitative process aimed at helping those guilty of that activity."). Given the potential negative impact on Washington's successful rehabilitation, the State would have been free to decline Washington's offer of an Alford plea if it had been made.
The county attorney testified credibly during the postconviction hearing that he would have objected to an Alford plea if it had been proposed during the plea hearing. Moreover, we find no factual basis in the record to support a finding that the State would have accepted an Alford plea offer from Washington if such a plea had been proposed. Because the district court could not accept guilty plea terms to which the county attorney did not agree, no prejudice was occasioned by trial counsel's failure to propose an Alford plea in this case. We therefore affirm the ruling of the district court rejecting Washington's prayer for postconviction relief.