IN THE COURT OF APPEALS OF IOWA
No. 16-1018
Filed February 22, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BARBARA KAY SVOBODA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Guthrie County, Paul R. Huscher,
Judge.
A defendant challenges her guilty plea to forgery. AFFIRMED.
Susan R. Stockdale, Windsor Heights, for appellant.
Thomas J. Miller, Attorney General, and Kristin A. Guddall (until
withdrawal) and Kevin R. Cmelik, Assistant Attorneys General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
TABOR, Judge
Barbara Kay Svoboda claims her guilty plea was “defective” because the
district court did not ensure she understood the nature of the forgery charge and
did not review her right to have an attorney at trial. See Iowa R. Crim. P.
2.8(2)(b). For the reasons described below, Svoboda may pursue these claims
only by alleging her plea counsel was ineffective in failing to file a motion in arrest
of judgment. Under that framework, Svoboda fails to show counsel had a duty to
challenge the guilty plea or that she suffered prejudice from counsel’s
performance. Accordingly, we affirm Svoboda’s forgery conviction.
In April 2016, the State charged Svoboda with forgery, an aggravated
misdemeanor, in violation of Iowa Code section 715A.2(1)(a) and 715A.2(2)(b)
(2016). The trial information alleged Svoboda altered the writing of a rental
agreement without permission to do so with the intent to defraud another person
and/or made, completed, issued, or transferred the rental agreement purporting
to be the act of another without authorization. Svoboda also faced six felony
charges in two previously filed cases. She reached a plea agreement with the
State encompassing all three cases. Svoboda agreed to enter guilty pleas to
three class “D” felonies (second-degree theft, identity theft, and forgery), as well
as this aggravated-misdemeanor forgery, in return for the State’s dismissal of
three other counts, including the class “B” felony of ongoing criminal conduct.
The State also agreed to forgo filing five perjury counts and additional charges
connected to fraudulent state income-tax returns.
At the start of the April 25 plea hearing, the district court asked Svoboda if
she had a chance to read the trial information and minutes of evidence
3
previewing the expected testimony of the State’s witnesses. After discovering
she had not read them, the court took a ninety-minute recess to allow that to
happen. After the break, Svoboda assured the court she had read the charges
and confirmed she wanted to plead guilty. The court went through the rights
Svoboda was giving up as a consequence of entering her plea, noting Svoboda
and her attorney would assist in the selection of a jury and she would have,
“through counsel,” the opportunity to confront and cross-examine witnesses. The
court then established a factual basis for the forgery offense and accepted
Svoboda’s guilty plea.
At the close of the plea hearing, the court advised: “[I]f you believe there is
something improper or illegal about what we’ve done today, you can challenge
the entry of these pleas by filing what’s called a motion in arrest of judgment.”
The court then set out the deadlines for filing that motion and stated: “If you fail to
file that motion within that time frame, you’ll give up any right you have to
challenge the entry of these pleas.” Finally, the court told Svoboda if she had
any questions about the right to file that motion, or the method for doing so, her
attorney could further advise her.
Svoboda’s counsel did not file a motion in arrest of judgment on behalf of
Svoboda. In June 2016, the district court entered judgment and sentenced
Svoboda to an indeterminate two-year term for this aggravated misdemeanor
offense, suspended all but 120 days, and placed her on probation for twenty
months following the jail term. The court ordered this sentence to run
consecutively to the sentences imposed in two other cases. Svoboda now
appeals.
4
We first examine whether Svoboda may directly challenge her guilty plea
or may do so only through a complaint about her counsel’s performance.
Generally, “[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 challenge on appeal.” Iowa R.Crim. P. 2.24(3)(a). But this rule does
not apply to defendants who are not properly advised under rule 2.8(2)(d) that
failure to file a timely motion in arrest of judgment extinguishes their right to
assert the guilty-plea challenge on appeal. State v. Fisher, 877 N.W.2d 676, 680
(Iowa 2016) (noting “substantial compliance” with rule 2.8(2)(d) will suffice).
Here, the district court substantially complied with rule 2.8(2)(d). The
order accepting Svoboda’s plea advised that she had the right to contest the
guilty plea by filing a motion in arrest of judgment within forty-five days of
entering the plea but no later than five days before sentencing. The order stated:
“[F]ailure to file a motion in arrest of judgment within that time frame will result in
the loss of his/her right to challenge on appeal the Court’s acceptance of his/her
plea of guilty.” This written advisory followed the court’s personal admonition to
Svoboda that she would “give up any right . . . to challenge” the guilty plea by not
filing a timely motion in arrest of judgment. The court’s wording was sufficient to
“indicate that all avenues for challenging the plea were being cut off” if no motion
in arrest of judgment was filed. See id. at 681 (describing standard for
substantial compliance); see also State v. Taylor, 301 N.W.2d 692, 692–93 (Iowa
1981) (finding sufficient compliance when defendant was told if he requested
immediate sentencing his right to “question the legality of his plea of guilty” would
be “gone”).
5
Because Svoboda was advised of the necessity of filing a motion in arrest
of judgment to challenge her guilty plea but opted not to do so knowing the
consequences, she is barred from a direct appeal of her conviction. Iowa R.
Crim. P. 2.24(3)(a); State v. Straw, 709 N.W.2d 128, 132–33 (Iowa 2006).
Contemplating this bar, Svoboda raises an alternative argument on appeal that
the failure to file a motion in arrest of judgment resulted from ineffective
assistance of counsel. See Straw, 709 N.W.2d at 133. That alternative
argument sets the framework for our analysis.1
We review Svoboda’s ineffective-assistance-of-counsel claim de novo.
See id. To prevail, she must prove by a preponderance of the evidence (1) her
plea counsel failed to perform an essential duty and (2) the breach of duty
resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687−88 (1984).
Failure to prove either prong is fatal to her claim. See State v. Shanahan, 712
N.W.2d 121, 142 (Iowa 2006). Counsel’s performance is measured “against the
standard of a reasonably competent practitioner with the presumption that the
attorney performed [her] duties in a competent manner.” Straw, 709 N.W.2d at
133. For guilty pleas, the prejudice element “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea
process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Consequently, Svoboda must
show a reasonable probability that, but for counsel’s error, she would not have
pleaded guilty and would have insisted on going to trial. See Straw, 709 N.W.2d
at 135–36.
1
We often find the guilty-plea record alone is not sufficient to resolve a claim against
counsel on direct appeal. See Straw, 709 N.W.2d at 133. But in this case, the record is
sufficient to reject Svoboda’s claim for lack of prejudice.
6
Svoboda contends the plea colloquy did not comply with rule 2.8(2)(b)
because the district court did not make sure that she understood the nature of
the forgery offense and did not inform her about the right to have the assistance
of counsel at trial. She contends “her trial attorney should have been aware of
[these defects] and should have filed a motion in arrest of judgment.”2
On the duty prong, we see no flaws in the plea colloquy that called for
counsel to file a motion in arrest of judgment. At the outset of the plea hearing,
the prosecutor described the specifics of the forgery charge in plain English; the
court gave Svoboda extra time to read the trial information and minutes; after
reading, Svoboda confirmed she understood the charge and wished to plead
guilty. Nothing about the plea hearing suggests Svoboda would have been
confused about the nature of the forgery charge. See State v. Philo, 697 N.W.2d
481, 488 (Iowa 2005) (“The overriding question is whether defendant, on the
whole record, understood the elements of the crime and the nature of the charge
against [her].” (citation omitted)). As for being informed of her right to the
assistance of counsel should she go to trial, the court’s colloquy with Svoboda
made it clear her trial rights included representation by an attorney. Because
these challenges to the plea colloquy would not have been fruitful, Svoboda’s
counsel had no duty to file a motion in arrest of judgment. See State v. Utter,
803 N.W.2d 647, 652 (Iowa 2011) (noting attorneys have “no duty to pursue a
meritless issue”).
2
In this case, we have the unusual circumstance where the attorney representing
Svoboda on appeal was also defense counsel when the plea was entered and that
attorney is now alleging her own ineffectiveness. See generally Bear v. State, 417
N.W.2d 467, 472 (Iowa Ct. App. 1987) (observing it would not be “realistic” to expect
attorneys to raise their own ineffectiveness).
7
Moreover, even if Svoboda’s counsel had breached an essential duty by
not filing a motion in arrest of judgment to challenge the alleged deficiencies in
the plea colloquy, Svoboda still falls short on the prejudice prong. Svoboda does
not argue that, but for counsel’s alleged error, she would not have entered the
guilty pleas and would have insisted on going to trial. See Straw, 709 N.W.2d at
138. In fact, her attorney made a professional statement in the appellant’s brief
that she discussed the possibility of filing a motion in arrest of judgment with
Svoboda—in light of counsel’s misstatement at the plea hearing concerning the
availability of a deferred judgment—and Svoboda “stated she did not want to
take back her guilty pleas.” Because Svoboda “fail[s] to allege the kind of
‘prejudice’ necessary to satisfy the second half of the Strickland . . . test,” she is
not entitled to relief. See Hill, 474 U.S. at 60.
AFFIRMED.