IN THE COURT OF APPEALS OF IOWA
No. 15-0014
Filed April 27, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NICHOLAS THORNE WIREMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
A defendant appeals following his Alford pleas to two counts of
possession with intent to deliver controlled substances while in possession of a
firearm. AFFIRMED.
Karmen R. Anderson of The Law Office of Karmen Anderson, Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Heard by Potterfield, P.J., and Mullins and McDonald, JJ.
2
MULLINS, Judge.
Nicholas Wireman challenges his Alford1 pleas to one count of possession
of mushrooms with intent to deliver while in possession of a firearm and one
count of possession of marijuana with intent to deliver while in possession of a
firearm. Wireman claims his plea was not voluntary because (1) the State
amended the trial information to change the charged lysergic acid diethylamide
(LSD) offense, which was subsequently dismissed, from a class “C” to a class “B”
felony on the morning of trial and (2) his wife’s plea agreement with the State
was contingent on his pleas. He also asserts his trial counsel rendered
ineffective assistance in (1) failing to object to the amendment to the trial
information and (2) not objecting to the package plea deal and instead advising
Wireman to accept the offer. We affirm.
I. Background Facts and Proceedings
On March 18, 2011, officers of the Cedar Falls Police Department
executed a search warrant at the apartment Wireman shared with his wife,
Jessica Smith. The officers found marijuana, LSD, psilocin mushrooms,
prescription pills, cash, a digital scale, packaging materials, drug paraphernalia,
an AK-47 semiautomatic rifle, a loaded twenty-gauge shotgun, a twelve-gauge
shotgun, and various ammunition in Wireman and Smith’s shared bedroom and a
shared common area accessible to their young children. The officers arrested
Wireman and Smith.
1
An Alford plea allows a defendant to “voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence” without admitting “participation in the
acts constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37 (1970).
3
On April 29, the State filed a trial information charging Wireman and Smith
as codefendants and coconspirators with one count of possession of LSD with
intent to deliver, a class “C” felony, in violation of Iowa Code section
124.401(1)(c) (2011) (count I);2 one count of possession of psilocin mushrooms
with intent to deliver, a class “C” felony, in violation of section 124.401(1)(c)
(count II); and one count of possession of marijuana with intent to deliver, a class
“D” felony, in violation of section 124.401(1)(d) (count III). All charges were
enhanced by possession of a firearm, in violation of section 124.401(1)(e), which
doubled the applicable maximum sentences.
On April 8, 2014, while awaiting jury selection for trial, the State orally
amended the trial information, correcting the code section for count I to section
124.401(1)(b)(5) and the classification to a class “B” felony. The State offered a
plea agreement, which provided Wireman would plead guilty to counts II and III
immediately and plead guilty to count I without the firearm enhancement at the
time of sentencing on all three counts.3 In exchange, Wireman would receive a
suspended twenty-five-year sentence on count I, a twenty-year sentence on
count II, and a ten-year sentence on count III, all to run concurrently.
Additionally, Wireman would have all fines suspended and would not be subject
to any mandatory minimums. The State also indicated it would offer a plea deal
2
The complaint, dated March 19, 2011, accuses Wireman and Smith of conspiracy to
distribute LSD while in the immediate possession of a firearm (total weight less than ten
grams), in violation of Iowa Code section 124.401(1)(b)(5). The original trial information
classifies the charge of possession of LSD as a class “C” felony and cites section
124.401(1)(c). On April 8, 2014, the State orally requested an amendment of the trial
information to reflect the correct classification as a class “B” felony and code section as
section 124.401(1)(b)(5); Wireman did not object.
3
The State crafted the plea agreement regarding Wireman’s guilty plea to count I so that
he could delay being taken into custody until sentencing, which was to be scheduled for
four weeks later.
4
to Smith,4 but the offer was conditioned on Wireman’s acceptance of his own
plea deal. Wireman accepted the plea agreement, entered an Alford plea of
guilty to counts II and III, and agreed to enter an Alford plea to count I at the time
of sentencing.
At the September 29, 2014 sentencing hearing, Wireman refused to enter
an Alford plea to count I and claimed he had been “misled and lied to and bullied
into” accepting the plea agreement. The district court continued sentencing and
appointed new counsel for Wireman. At the second sentencing hearing on
December 19, the court sentenced Wireman to a prison term of twenty years on
count II and ten years on count III, to run concurrently, and suspended all fines.
The court also ordered Wireman to pay all surcharges and court costs, and
revoked his license. The court dismissed count I on the State’s motion.
Wireman appeals.
II. Error Preservation
In order to challenge a guilty plea on appeal, a defendant must file a
motion in arrest of judgment. See State v. Meron, 675 N.W.2d 537, 540 (Iowa
2004) (“Generally, a defendant must file a motion in arrest of judgment to
preserve a challenge to a guilty plea on appeal.”); Iowa R. Crim. P. 2.24(3)(a) (“A
defendant’s failure to challenge the adequacy of a guilty-plea proceeding by
motion in arrest of judgment shall preclude the defendant’s right to assert such
4
The plea agreement offered to Smith provided that she would enter Alford pleas to all
counts charged, without the firearm enhancements, and receive suspended sentences
and fines on all counts, plus fees, surcharges, and a license revocation. Smith accepted
the plea offer and entered Alford pleas of guilty to counts II and III without the firearm
enhancement and with the expectation that she would enter an Alford plea to count I at
the time of sentencing.
5
challenge on appeal.”). However, before we will penalize a defendant for failing
to file the motion in arrest of judgment, the district court must have informed the
defendant of the obligation to file the motion and the consequences of failing to
file the motion. See Meron, 675 N.W.2d at 540; Iowa R. Crim. P. 2.8(2)(d) (“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.”).
Wireman did not file a motion in arrest of judgment here. The State
concedes the plea colloquy contained no discussion of the requirement that
Wireman must file a motion in arrest of judgment to challenge his plea or the
consequences for failing to do so. Because the court failed to advise Wireman
pursuant to rule 2.8(2)(d), Wireman is relieved of the requirement to file the
motion in arrest of judgment in order to challenge his guilty plea on appeal. See
Meron, 675 N.W.2d at 541. Thus, we need not consider Wireman’s alternative
claim trial counsel provided ineffective assistance in failing to file a motion in
arrest of judgment.
III. Standards of Review
“We generally review a defendant’s challenge to a guilty plea for
correction of errors at law.” State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011).
However, a claim that a guilty plea was not entered voluntarily is reviewed de
novo because it implicates the Due Process Clause of the Fourteenth
Amendment. State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003).
6
IV. Analysis
We now turn to the merits of Wireman’s claims. At the plea hearing,
Wireman stated that other than the plea agreement offered by the State, he had
not received any threats or promises persuading him to plead guilty. Wireman
now argues his Alford pleas were not voluntary because (1) the State amended
the trial information on the day set for trial to reflect that count I was not a class
“C” but instead a class “B” felony, which carried a longer sentence; and (2) the
State refused to extend a plea offer to his wife unless he accepted his offer and
pled guilty.
“A defendant’s plea of guilty is a serious act that he or she must do
voluntarily, knowingly, and intelligently with an awareness of the relevant
circumstances and consequences.” Utter, 803 N.W.2d at 651. “To enter a guilty
plea voluntarily and intelligently means the defendant has a full understanding of
the consequences of a plea.” State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005)
(quoting State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001)). A guilty plea is not
voluntary if it is induced by undue influence, fraud, or coercion. State v.
Hellickson, 162 N.W.2d 390, 394 (Iowa 1968). However, the law does not
require a defendant act “of his own free will,” but rather, a defendant “may elect
to plead guilty to a lesser offense when he is also charged with a more serious
offense” and his plea will not be considered coerced. State v. Speed, 573
N.W.2d 594, 597 (Iowa 1998) (quoting State v. Lindsey, 171 N.W.2d 859, 865
(Iowa 1969)); see also State v. Longbine, 263 N.W.2d 527, 528 (Iowa 1978)
(“[T]he fact that a plea was induced by the possibility of a more serious charge
does not render the plea involuntary.”). The question before us is “whether in the
7
circumstances of this case the inducement for the guilty plea was one which
necessarily overcame [Wireman]’s ability to make a voluntary decision.” State v.
Whitehead, 163 N.W.2d 899, 903 (Iowa 1969) (quoting Cortez v. United States,
337 F.2d 699, 701 (9th Cir. 1964)).
A. Amendment of the Trial Information
Wireman argues he was unduly influenced into accepting the State’s plea
offer because, on the day set for trial, the State amended the trial information,
changing count I from a class “C” to a class “B” felony—effectively increasing his
potential sentence by another thirty years.5 The State contends Wireman had
notice count I charged him with a class “B” felony because the offense charged—
possession of less than ten grams of LSD with intent to deliver—is always a
class “B” felony. See Iowa Code § 124.401(1)(b)(5). For support, the State
notes the original trial information included the correct title of the code section
even though it did not cite the correct section number.6
Pursuant to Iowa Rule of Criminal Procedure 2.4(8)(a), a court may order
the trial information amended “either before or during the trial . . . to correct errors
or omissions in matters of form or substance,” so long as “(1) substantial rights of
the defendant are not prejudiced [by the amendment], and (2) a wholly new or
different offense is not charged.” State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997).
5
The trial information originally cited Iowa Code section 124.401(1)(c), providing the
offense was a class “C” felony, carrying a maximum ten-year sentence under section
902.9(1)(d), doubled to a twenty-year maximum with the firearm enhancement under
section 124.401(1)(e). After the State amended the trial information to correct the code
section for possession of ten grams or less of LSD with intent to deliver to section
124.401(1)(b)(5), providing the offense was a class “B” felony, Wireman faced a twenty-
five-year sentence under section 902.9(1)(b), which was doubled to a fifty-year
maximum pursuant to the firearm enhancement under section 124.401(1)(e).
6
The complaint filed March 19, 2011, correctly cited section 124.401(1)(b)(5).
8
In determining whether a “wholly new or different offense” is charged, the
Maghee court considered that
the original charges and the amended charges involve[d] violations
of the same code section: Iowa Code section 124.401(1) [(1993)].
This provision contains the base prohibition that no one shall
manufacture, deliver, or possess with the intent to manufacture or
deliver certain controlled substances or conspire to do so. The
elements under the original or amended charges are therefore the
same.
Id. The Maghee court thus concluded the amendment changing the charged
offenses from a class “C” to a class “B” felony “did not charge a ‘wholly new or
different offense,’” but rather “charged the same offense . . . resulting in a
potentially more severe sentence.” Id.
Here, the original trial information charged Wireman with a class “C” felony
in violation of section 124.401(1)(c) (2011). The State amended the trial
information, correcting the citation of the charged offense to section
124.401(1)(b)(5), a class “B” felony. The amendment “result[ed] in a potentially
more severe sentence” but effectively “charged the same offense” under section
124.401, which prohibits possession of a controlled substance with the intent to
deliver the substance. See id. Accordingly, we find the State’s amendment did
not charge “a wholly new or different offense.” See Iowa R. Crim. P. 2.4(8)(a);
see also Maghee, 573 N.W.2d at 5.7
7
Moreover, the Iowa Rules of Criminal Procedure do not “explicitly require the State to
charge the defendant with a specific paragraph.” State v. Dalton, 674 N.W.2d 111, 120
(Iowa 2004). This court has previously held that even when the “trial information
misstate[s] both the type of controlled substance [the defendant] allegedly delivered, and
the applicable subparagraph of section 124.401(1),” the defendant will be considered
“properly charged with a violation of Iowa Code section 124.401.” State v. Brisco, 816
N.W.2d 415, 419 (Iowa Ct. App. 2012).
9
The remaining question then is whether the amendment prejudiced
Wireman’s “substantial rights.” See Maghee, 573 N.W.2d at 6. “An amendment
prejudices the substantial rights of the defendant if it creates such surprise that
the defendant would have to change trial strategy to meet the charge in the
amended information.” Id. (citing State v. Fuhrmann, 257 N.W.2d 619, 624 (Iowa
1977)).
The record shows the minutes of testimony attached to the original trial
information put Wireman on notice the State considered his offense to be a class
“B” felony. Additionally, the original complaint alleged: “[Wireman] is accused of
the crime of Conspiracy to Distribute Lysergic Acid Diethylamide (LSD) while in
Immediate Possession of a Firearm . . . in violation of: [section] 124.401(1)(b)(5).”
Clearly, Wireman was on notice the State was pursuing the charge of possession
of LSD with intent to deliver while in the immediate possession of a firearm in
count I, which is a class “B” felony. Therefore, we determine the amendment did
not surprise Wireman and find his substantial rights were not prejudiced. See
Iowa R. Crim. P. 2.4(8)(a).
Accordingly, we conclude the State’s amendment to the trial information
neither charged a wholly new or different offense nor prejudiced the substantial
rights of Wireman, and thus, his plea was voluntary and without undue influence
or coercion. See Hellickson, 162 N.W.2d at 394; see also Maghee, 573 N.W.2d
at 5–6.
Wireman also appears to argue his counsel provided ineffective
assistance in failing to object to the amendment to the trial information. To
succeed on a claim of ineffective assistance of counsel, Wireman must show “by
10
a preponderance of the evidence: ‘(1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in prejudice.’” State v. Thorndike, 860
N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams, 810 N.W.2d 365, 372
(Iowa 2012)); accord Strickland v. Washington, 466 U.S. 668, 687 (1984).
Failure to prove either prong is fatal to the claim. See State v. Shanahan, 712
N.W.2d 121, 142 (Iowa 2006). In examining Wireman’s claims, we presume his
trial attorney performed his duties competently. See Thorndike, 860 N.W.2d at
320. We review claims of ineffective assistance of counsel de novo. Id. at 319.
As noted above, Wireman was on notice he was being charged with a class “B”
felony in count I prior to the State’s oral amendment. Furthermore, Wireman
never pleaded guilty to count I, and the State ultimately dismissed the charge.
Wireman was not prejudiced by the amendment on the day of trial, and therefore,
counsel was not ineffective in failing to object to the amendment to the trial
information.
B. Package Plea Deal
Wireman argues the State’s refusal to offer his wife, codefendant Smith, a
plea deal unless Wireman accepted his plea offer from the State, amounted to
undue influence, and therefore, his plea was involuntary. Wireman does not
argue that all package plea deals are involuntary per se, thus we need not decide
this issue.8 The State contends the conditional offer of leniency extended to
Smith did not undermine the voluntariness of his Alford pleas.
8
The State urges us to reach the issue and cites numerous federal and out-of-state
cases in support of its argument that “a package deal plea agreement does not
automatically undermine the voluntariness of a guilty plea.”
11
In general, federal circuit courts examining similar package plea deals
involving immediate family have held conditional promises of leniency do not
automatically render a guilty plea involuntary. See, e.g., United States v.
Marquez, 909 F.2d 738, 741–42 (2d Cir. 1990) (holding the defendant’s plea was
voluntary despite the prosecutor’s offer of leniency to defendant’s wife being
conditioned on his pleading guilty and discussing other federal circuit court cases
concluding the same); see also United States v. Gamble, 327 F.3d 662, 664 (8th
Cir. 2003) (holding plea was voluntary even though “the government would only
agree to more lenient treatment for his brother if Gamble himself pleaded guilty”).
Numerous state courts have also held a defendant’s plea deal may be voluntary
even when the state’s offer of leniency to an immediate family member is
contingent upon the defendant pleading guilty. See, e.g., Stinson v. State, 839
So. 2d 906, 908–09 (Fla. Dist. Ct. App. 2003) (holding the government’s offer to
the defendant of leniency for his codefendant brother in exchange for a guilty
plea and agreed sentence of thirty years in prison did not render the plea
involuntary); see also In re Ibarra, 666 P.2d 980, 986–87 (Cal. 1983), abrogated
on other grounds by People v. Mosby, 92 P.3d 841 (Cal. 2004) (requiring a court
to conduct “an inquiry into the totality of the circumstances whenever a plea is
taken pursuant to a ‘package-deal’ bargain” considering the following factors: (1)
“whether the inducement for the plea is proper” and the prosecutor has “a
reasonable and good faith case against the third part[y] to whom the leniency is
promised”; (2) “the factual basis for the guilty plea”; (3) “the nature and degree of
coerciveness,” including any special relationship between the defendant and the
third party and the presence of any psychological pressures or specific threats;
12
(4) whether “the promise of leniency to a third party was an insignificant
consideration by a defendant in his choice to plead guilty”; and (5) any other
relevant factor, including “the age of the defendant, whether defendant or the
prosecutor had initiated the plea[] negotiations, and whether charges have
already been pressed against a third party” (citations omitted)); State v. Salvetti,
687 S.E.2d 698, 707–08 (N.C. Ct. App. 2010) (holding the prosecutor’s offer of
leniency to the defendant’s wife, which was made contingent on the defendant’s
pleading guilty, did not render the defendant’s guilty plea involuntary).
We recognize the State’s offer of leniency to Smith may well have been an
important consideration influencing Wireman’s decision to enter an Alford plea,
but it was not the only consideration he received. See State v. Anderson,
No. 03-0458, 2004 WL 794484, at *6 (Iowa Ct. App. Apr. 14, 2004). Wireman
received additional, significant consideration for his plea deal, including having
his sentences on counts II and III run concurrently; having all of his fines
suspended; having his convictions not be subject to any mandatory minimums;
and having the ability to plead guilty to count I without the firearm enhancement
at a later date and avoid being immediately taken into custody pending the
sentencing hearing.9 See Harmon v. Mohn, 683 F.2d 834, 837 (4th Cir. 1982)
(stating benefit to wife was not sole benefit, but even if it were, since there was
probable cause for charges against wife and no indication of bad faith by
prosecutor, plea would be upheld). Here, the record shows there was probable
cause for the charges against Smith, and there is no indication of bad faith by the
9
In fact, Wireman received even more of a benefit than he bargained for in the plea
agreement when the State eventually dismissed count I entirely “to assure that the
defendant [did] not get a more severe sanction than was initially bargained for.”
13
prosecutor. Further, the court asked Wireman whether he had received any
threats or promises other than the plea agreement that persuaded him to plead
guilty, and Wireman stated he had not. Accordingly, we cannot determine
Wireman’s plea was involuntary simply because the State conditioned its offer of
leniency to his wife on Wireman pleading guilty. See Kent v. United States, 272
F.2d 795, 798–99 (1st Cir. 1959) (“If a defendant elects to sacrifice himself for
such motives, that is his choice, and he cannot reverse it after he is dissatisfied
with his sentence, or with other subsequent developments.”).
Wireman also seems to argue his trial counsel provided ineffective
assistance in failing to object to the package plea deal as coercive or unduly
influential and in subsequently advising Wireman to accept the offer. As noted
above, Wireman must show counsel failed to perform an essential duty and
prejudice resulted. See Thorndike, 860 N.W.2d at 320. The record shows
Wireman received significant consideration for his plea deal other than the offer
of leniency to his wife. Thus, we cannot conclude Wireman suffered prejudice as
a result of any failure of his counsel in objecting to the package plea deal or in
allowing Wireman to accept the plea offer.
We conclude Wireman voluntarily entered his Alford pleas to two counts of
possession with intent to deliver controlled substances while in possession of a
firearm and affirm.
AFFIRMED.