IN THE COURT OF APPEALS OF IOWA
No. 16-1846
Filed May 17, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ADAM B. ARTERBURN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Cheryl Traum,
District Associate Judge.
Adam Arterburn appeals following his plea of guilty to absence from a
place he was required to be. CONVICTION AFFIRMED, SENTENCE
VACATED, AND REMANDED WITH INSTRUCTIONS.
Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.
Adam Arterburn appeals following judgment and sentence entered upon
his written plea of guilty to absence from custody, in violation of Iowa Code
section 719.4(3) (2016).
“We ordinarily review challenges to guilty pleas for correction of errors at
law.” State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).
On October 5, 2016, Arterburn entered a written guilty plea to one count of
absence from custody. The written guilty plea indicates, “A plea agreement in
my case exists as evidenced by a memorandum of plea agreement which I have
signed. I understand the plea agreement is not binding on the court.”
The written guilty plea also contained a discussion of penalties:
9. On a plea of guilty to:
....
__√__ A serious misdemeanor, the Court can sentence me to jail
for up to one year, and fine me between $315.00 and $1875.00,
plus surcharge and court costs.
It also explained that to challenge the guilty plea a motion in arrest of judgment
must be filed and that failing to file a motion in arrest of judgment before
sentencing would “preclude [his] right to assert any defects in this plea in any
appeal.” He also signed an additional waiver stating: “I wish to be sentenced
today.”
Defense counsel’s signature appears below the statement, “I have fully
advised my client of the consequences of this document. My client’s decision to
sign this document and waive the rights described above is knowing and
voluntary.”
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That same date, October 5, 2016, the district court accepted Arterburn’s
written guilty plea, along with his written waiver of a reported plea hearing. The
sentencing order provides further:
The court has reviewed the signed plea of guilty form and
considered the statements of the defendant. The court finds that
the defendant understands the charge, the penal consequences
and the constitutional rights being waived. Based on the
statements of the defendant, statements of the prosecutor, and the
minutes of testimony accepted as true by the defendant and
considered by the court, the plea has a factual basis and is
knowing, voluntary and intelligent.
....
. . . The following sentence is based on all of the available
sentencing considerations set out in Iowa Code section 907.5. The
court finds the following factors the most significant to determine
this particular sentence:
The plea agreement of the parties
The nature and circumstances of the crime
Maximum opportunity for rehabilitation and treatment in
the community
The court sentenced Arterburn to 365 days in jail with all but 330 days
suspended, to run consecutive to the sentence Arterburn was already serving
when he committed this absence-from-custody offense.
On appeal, Arterburn contends he was not adequately informed of the
mandatory penalties for the offense to which he pled, the failure to file the plea
memorandum negates any ability to find the plea was knowingly and voluntarily
entered, and the court failed to state adequate reasons for imposing consecutive
sentences.
Arterburn concedes that his written plea of guilty establishes that he was
made aware of the time limit for filing a motion in arrest of judgment and did not
timely file a motion in arrest of judgment. He is thus precluded from challenging
the adequacy of the plea proceedings on direct appeal. See Iowa R. Crim. P.
4
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 challenge on appeal.”); State v. Straw, 709 N.W.2d 128, 132 (Iowa
2006) (“Straw’s failure to move in arrest of judgment bars a direct appeal of his
conviction.”).
However, Arterburn contends plea counsel was ineffective, which excepts
him from normal error-preservation rules. See Straw, 709 N.W.2d at 133. To
establish his claim of ineffective assistance of counsel, Arterburn must
demonstrate (1) his plea counsel failed to perform an essential duty, and (2) this
failure resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Only in “rare cases” will the record be adequate for the court to address
the ineffectiveness claim on direct appeal. Straw, 709 N.W.2d at 133.
The record before us is not adequate to determine if Arterburn was
adequately informed of the actual terms contained in the plea memorandum
because the plea memorandum is not in this record. Arterburn asserts that
because the plea memorandum is not available we cannot presume the district
court’s recitation of that the sentence was based—at least in part—upon the plea
agreement. The State argues the proper remedy is to remand.
Because the plea memorandum is not in the record, we remand to the
district court for further proceedings consistent with State v. Thacker, 862 N.W.2d
402, 410-11 (Iowa 2015):
On remand, if the district court determines it merely gave
effect to the parties’ agreement and exercised no discretion in
sentencing other than to accept the plea agreement as advanced
by the parties, it should make the particulars of the plea agreement
with respect to the sentence a part of the record. See [State v.
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Matlock, 304 N.W.2d 226, 228 (Iowa 1981)] (“If the court has no
discretion in sentencing, it should so state.”). If, on the other hand,
the parties did not come to an agreement with respect to the
particulars of the sentence or the district court departed from any
agreement the parties may have had, then the district court
exercised discretion and, as a result, must make a statement on the
record as to why it exercised its discretion in the way it did. On
remand, there is no requirement the district court arrive at a
different sentence, but only that it satisfy the requirements of Iowa
Rule of Criminal Procedure 2.23(3)(d).
We do not address any additional ineffectiveness claims here as they may be
raised in a postconviction-relief action. See Thacker, 862 N.W.2d at 411.
CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE
REMANDED WITH INSTRUCTIONS.