IN THE COURT OF APPEALS OF IOWA
No. 16-1387
Filed July 6, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
FELIX GOMEZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly
(guilty plea) and Carla T. Schemmel (sentencing), Judges.
A defendant appeals two felony convictions. AFFIRMED.
Karmen R. Anderson of The Law Office of Karmen Anderson, Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
TABOR, Judge.
Worried about losing his parental rights while he served time in prison,
Felix Gomez filed a motion in arrest of judgment asking to withdraw his guilty
pleas to two felonies. The district court found no legal basis for the motion and
denied his request. On appeal, Gomez asks us to reverse the district court and
allow him to withdraw his pleas. Because Gomez’s concerns about his parental
rights are collateral to the plea process, we find no abuse of discretion in the
district court’s denial of his motion in arrest of judgment.
The State charged Gomez with second-offense failure to comply with the
sex offender registry, a class “D” felony, in violation of Iowa Code section
692A.111 (2016), and third-offense domestic abuse assault, a class “D” felony, in
violation of sections 708.1(2) and 708.2A(4). On June 22, 2016, Gomez pleaded
guilty to the two felony offenses in exchange for the State dismissing
misdemeanor charges of driving while barred and interference with official acts.
The plea agreement included a recommendation for consecutive sentences.
Gomez also was advised the domestic-abuse conviction carried a one-year
mandatory minimum before he was eligible for parole.
On July 19, 2016, Gomez filed a motion in arrest of judgment. 1 The
motion stated:
The Defendant now wishes to be allowed to withdraw his former
plea of guilty on the grounds that he believes the plea of guilty
entered in these cases will adversely affect him in pending and
future DHS matters and this was not something he had taken into
consideration at the time of the plea.
1
The motion asserted Gomez was acting “pro se but with the assistance of counsel” in
seeking to withdraw his guilty pleas.
3
At a hearing on August 2, 2016, Gomez expanded on his motivation to file
the motion in arrest of judgment, telling the court his wife—who was the victim in
the assault conviction—gave birth to their daughter just a day earlier and Gomez
was concerned the “one-year mandatory” would result in him losing his parental
rights. The district court denied the motion in arrest of judgment and proceeded
to sentencing, telling Gomez: “[T]o attack your plea there has to be a legal
reason. And while you have given me emotional reasons, they are not legal
reasons.” The court then imposed consecutive sentences, for an indeterminate
ten-year term, in accord with the plea agreement.
On appeal, Gomez challenges the district court’s denial of his motion in
arrest of judgment and generally contends he received ineffective assistance
from his plea counsel. On his first claim, we review the district court’s denial of a
motion in arrest of judgment and a motion to withdraw a plea for abuse of
discretion. See State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008). On the
second claim, if Gomez had adequately pinpointed an alleged instance of
ineffective assistance of plea counsel, our review would be de novo. See State
v. Nall, 894 N.W.2d 514, 517 (Iowa 2017). The burden rests with Gomez to
establish his attorney failed to perform an essential duty and prejudice resulted
from such failure. See State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011).
We turn first to the denial of Gomez’s motion in arrest of judgment. 2
Gomez does not dispute the district court “painstakingly followed” Iowa Rule of
Criminal Procedure 2.8(2)(b) before accepting his guilty pleas. But he contends
2
“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).
4
the impact of his incarceration on his ability to maintain his parental rights was a
“term of the plea agreement that would have affected his willingness to enter the
plea and the term was not disclosed to him.” More specifically, he claims:
“Subsequent to the plea, Gomez learned that during his one-year mandatory
incarceration, the Iowa Department of Corrections would not allow Department of
Human Services (DHS) reasonable efforts visitation with his offspring.”3
The district court did not abuse its discretion in denying the motion in
arrest of judgment. Gomez fails to identify any real flaw in the plea proceedings.
The district court properly advised Gomez regarding the direct consequences of
his guilty pleas; the negative impact of incarceration on Gomez’s prospects for
maintaining his parental rights was a collateral consequence. See Saadiq v.
State, 387 N.W.2d 315, 325 (Iowa 1986) (reiterating distinction between direct
and collateral consequences of a guilty plea). We have recognized “a parent’s
imprisonment may create difficulties in providing reunification services” for the
DHS. See In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000). But such
potential difficulties do not render Gomez’s plea agreement unenforceable.
Gomez points to no evidence showing he was misled or coerced into pleading
guilty. See State v. Speed, 573 N.W.2d 594, 597 (Iowa 1998) (upholding denial
of motion in arrest of judgment because record supported court’s finding that plea
was voluntary).
3
Gomez fails to cite any support in the record for this factual allegation. At the August 2
hearing, Gomez and his counsel discussed whether he would have immediate access to
classes on parenting and domestic abuse while in prison but did not mention visitation
with his daughter. The assistant county attorney told the district court: “Just because he
has a mandatory time that he has to serve, doesn’t mean he can’t apply for . . .
programming. That is not part of this particular plea agreement. I’m not trying to keep
him from seeing any children.” Before imposing sentence, the district court explained it
did not oversee prison programming.
5
We next turn to Gomez’s generic claim of ineffective assistance of
counsel. Nowhere in his appellant’s brief does he identify how his plea counsel
breached a material duty or how Gomez was prejudiced. “When complaining
about the adequacy of an attorney’s representation, it is not enough to simply
claim that counsel should have done a better job.” Dunbar v. State, 515 N.W.2d
12, 15 (Iowa 1994). A defendant must “state the specific ways in which counsel’s
performance was inadequate and identify how competent representation
probably would have changed the outcome.” Id. Gomez does not frame his
complaint with enough specificity for us to resolve it on direct appeal. Under
Iowa Code section 814.7, Gomez may seek determination of a claim of
ineffective assistance of counsel by filing an application for postconviction relief.
AFFIRMED.