IN THE COURT OF APPEALS OF IOWA
No. 16-0289
Filed December 21, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TAD WALKER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jones County, Lars G. Anderson,
Judge.
A defendant appeals his conviction for possession of methamphetamine
with intent to deliver, claiming his attorney did not effectively communicate the
State’s plea offers. AFFIRMED.
John J. Bishop, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J.
Buller, Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.
A jury found Tad Walker guilty of possessing methamphetamine with
intent to deliver, a class “B” felony. That conviction carried an indeterminate
twenty-five-year sentence with a mandate he serve one-third of his sentence
before being eligible for parole. On appeal, he claims his attorney did not
adequately explain the State’s plea offers and argues for an extension of the
holding in Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012). Because the record
does not contain enough information for us to decipher whether Walker received
competent representation, we affirm his conviction and preserve his ineffective-
assistance claim.
I. Facts and Prior Proceedings
In the early morning hours of April 7, 2015, an Anamosa police officer
stopped a car driven by Karen Waters for equipment violations. Walker was a
front-seat passenger. During the stop, a second officer arrived with a drug dog
that “hit on the vehicle.” Inside the car, officers found a silver canister holding 1.5
grams of methamphetamine and a second canister in a camouflage coat on the
backseat holding another 17.5 grams of methamphetamine. Also inside the coat
was a flashlight marked with the initials T.W. Waters told police the coat
belonged to Walker, though he denied ownership.
The Jones County Attorney charged Walker with possession of more than
five grams but not more than five kilograms of methamphetamine with intent to
deliver, a class “B” felony, in violation of Iowa Code sections 124.401(1)(b)(7)
and 124.413 (2013). The parties participated in several pretrial conferences
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before going to trial on December 8, 2015. On December 9, the jury found
Walker guilty as charged.
On January 5, 2016, Walker—through new counsel—filed a motion in
arrest of judgment under Iowa Rule of Criminal Procedure 2.24(3), alleging he
“did not receive proper or complete representation by his trial counsel Tim
Schemmel.” In particular, the motion alleged:
Mr. Schemmel was extremely difficult (near impossible) to
get a hold of to discuss his case due to Mr. Schemmel[]’s very
heavy and extreme case load. This inability to speak with and
confer with counsel led Defendant to not fully understand the
pending charges (and resulting consequences of a conviction on
those pending charges), the pros and cons of proceeding to trial,
along with the potential benefits and terms of various plea offers
forwarded by the State . . . .
Attached to the motion was an exhibit listing three plea offers made by the State
with Schemmel’s handwritten notations.1 The court held a hearing on Walker’s
motion in arrest of judgment on January 22, 2016. Before sentencing on
February 8, the court denied relief on the motion. Walker now appeals,
contending the court erred in denying the motion in arrest of judgment.
II. Scope and Standards of Review
We review claims of ineffective assistance of counsel de novo because
they are grounded in the Sixth Amendment. See State v. Thorndike, 860 N.W.2d
316, 319 (Iowa 2015). Walker bears the burden to show a breach of duty by trial
1
Counsel memorialized the offers as follows:
1 FE6123 - Plead to Class C 10 (down from B 25)
- State bound by PSI rec, Δ may req Deferred
- SR6163 dismissed
2 FE6123 - Plead to Agg PCS, 1 yr. in Jones Co. Jail
- SR6163?
3 FE6123 - Plead to Class D 5 (down from B 25)
- Probation (street)
- SR6163: 30 d in JCJ
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counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668,
687 (1984).
A defendant need not raise an ineffective-assistance-of-counsel claim on
direct appeal from the criminal proceedings to preserve the claim for
postconviction purposes. See Iowa Code § 814.7(1). But a defendant may do
so if he has “reasonable grounds to believe that the record is adequate to
address the claim on direct appeal.” Id. § 814.7(2). Generally, we postpone
deciding such claims until they are raised in postconviction proceedings, but we
will resolve them on direct appeal if the record is adequate. See Thorndike, 860
N.W.2d at 319. Although Walker made a record on his motion in arrest of
judgment, we find the evidence presented was insufficient to decide the
competence and reasonableness of trial counsel’s performance.
III. Analysis
The question posed on appeal is whether trial counsel delivered effective
assistance during the plea-bargaining process. The right to effective assistance
applies to “certain steps before the trial.” Frye, 132 S. Ct. at 1405. The Frye
court observed the negotiation of a plea bargain is “almost always the critical
point for a defendant” and held, “as a general rule, defense counsel has the duty
to communicate formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.” Id. at 1407-08.
Walker acknowledges his case differs from Frye because attorney
Schemmel did tell him about the plea offers. But Walker argues Frye should be
extended to circumstances where defense counsel did not adequately explain
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the plea offers and was not available to answer the client’s questions about them
before the offers expired.
We decline to reach those questions today because the record is not
adequate to verify the details of Walker’s allegations. That is not to say the
record is nonexistent. Before sentencing, Walker did obtain new counsel who
raised claims regarding trial counsel’s conduct during plea negotiations. But
Walker’s new counsel raised those claims in the context of a motion in arrest of
judgment. “A motion in arrest of judgment is an application by the defendant that
no judgment be rendered on a finding, plea, or verdict of guilty. Such motion
shall be granted when upon the whole record no legal judgment can be
pronounced.” Iowa R. Crim. P. 2.24(3)(a). The term “whole record” does not
refer to the evidence of the trial itself. State v. Oldfather, 306 N.W.2d 760, 762
(Iowa 1981). Rather, a motion in arrest of judgment may be used after a jury’s
verdict to challenge the applicability of the underlying statute. Id. at 763. As the
State argued both before the district court and on appeal, a motion in arrest of
judgment is not the proper mechanism to argue ineffective assistance of counsel.
The hearing on Walker’s motion in arrest of judgment did not allow for a
fully developed record. Although the district court tried to resolve the ineffective-
assistance claim, it acknowledged the record before it was “really insufficient.”
On appeal, the State points out:
There is no record of the specifics of the plea agreement,
which are essential to verifying the defendant’s claim of ineffective
assistance. . . . Evidence of specific meetings, correspondences,
and conversations is relevant to determining the competence and
reasonableness of trial counsel’s conduct. The current record may
be insufficient to determine the adequacy of trial counsel’s
effectiveness.
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The State’s multiple plea offers appear to encompass a wide-range of
options, including sentences much more lenient than that received by Walker
following the jury’s verdict. We believe it will be important for a postconviction
court to assess whether Walker received reasonably competent assistance
before rejecting those offers and going to trial. We are unable to make that
assessment on the current record.
AFFIRMED.