IN THE COURT OF APPEALS OF IOWA
No. 17-0394
Filed October 11, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHARLES P. TATUM,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith
(motion to suppress and plea), and Paul L. Macek (sentencing), Judges.
The defendant appeals his guilty pleas and sentences. AFFIRMED.
Lauren M. Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.
Charles Tatum appeals from his guilty pleas and the resulting sentences.
On appeal, Tatum claims: (1) the district court erred in denying his motion to
suppress; (2) there is not a factual basis to support his guilty plea for assaulting a
peace officer; (3) trial counsel was ineffective for failing to object to his guilty plea
for assaulting a peace officer; and (4) the district court abused its discretion when
it sentenced him to incarceration rather than deferring judgment.
I. Background Facts and Proceedings.
Based on two separate events that occurred in July 2016, Tatum was
charged by trial information with possession of a controlled substance with intent
to deliver (marijuana) and failure to affix a drug tax stamp (FECR378714), and
carrying weapons (AGCR378826).
On September 14, Tatum was a passenger in a car stopped by law
enforcement officers. When the officers reached the vehicle, they could smell
the odor of burnt marijuana. The officers searched the vehicle and found a
grinder with marijuana residue and a marijuana cigarette; both were within the
reach of Tatum’s seat in the car. The officers advised Tatum they were going to
place him under arrest for the marijuana cigarette, and Tatum fled on foot.
Officers Tyler Gratz and Matthew Lovelady chased him. According to Officer
Lovelady’s report:
After a short foot pursuit, with my left hand I was able to get hold of
Tatum’s shirt and pull him towards me at the same time Officer
Gratz was able to get hold of Tatum’s shirt. While doing this,
Tatum swung his body around and with his left hand and with a
closed fist, struck me on the left side of my forehead.
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After Tatum was taken to the jail, 3.7 grams of crack cocaine were found in his
sock. Tatum was charged with possession of a controlled substance (crack
cocaine); assault on a peace officer; interference with official acts; and
possession of a controlled substance (marijuana), second offense
(FECR380147).
Tatum filed a motion to suppress, arguing the warrantless search of the
vehicle was illegal because the owner/driver of the vehicle had told the officers
they could not search. Tatum maintained that if the officers had not searched the
vehicle, they would not have stated they were arresting him for the found
marijuana, and none of the other charges would have followed.
The State filed a resistance to the motion, arguing Tatum lacked standing
to challenge the validity of the search because as a passenger he did not have a
legitimate expectation of privacy. Alternatively, the State claimed that even if
Tatum had standing to challenge the search, the officers had probable cause for
the search based on the smell of burnt marijuana emanating from the vehicle.
At the hearing on the motion, Tatum stipulated that he was a passenger in
the vehicle that was searched. The court denied Tatum’s motion to suppress,
stating:
[B]ased on the stipulation that the defendant was a passenger in
the motor vehicle, the Court finds that he does not have standing
and there’s no reason to produce evidence because of the lack of
standing to object to the search of a motor vehicle in which he was
a passenger, and State v. Halliburton[1] clearly says that, and,
therefore, the Court overrules the motion for that reason.
1
539 N.W.2d 339, 342 (Iowa 1995).
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Tatum reached a plea agreement with the State, which involved all three
of the foregoing cases. The agreement provided that Tatum would plead guilty to
possession of a controlled substance (crack cocaine); assault on a peace officer;
possession of a controlled substance with intent to deliver (marijuana); and
carrying weapons. The State would dismiss the rest of the charges and would
make no recommendation at sentencing.
On January 18, 2017, the district court accepted Tatum’s plea in open
court. Regarding Tatum’s plea for assaulting a peace officer, the following
exchange took place between the court and Tatum:
THE COURT: You’re also pleading guilty to Count 2, assault
on persons engaged in certain occupations, in violation of Iowa
Code Section 708.3A(3) [(2016)]. Under that section it reads that:
A person who commits an assault, as defined in section 708.1,
against a peace officer, jailer, correctional staff, member or
employee of the board of parole, health care provider, employee of
the Department of Human Services, employee of the Department of
Revenue, or firefighter, whether paid or volunteer, who knows that
the person against whom the assault is committed is a peace
officer, jailer, correctional staff, member or employee of the board
of parole, health care provider, employee of the Department of
Human Services, employee of the Department of Revenue, or
firefighter who causes bodily injury or mental illness is guilty of an
aggravated misdemeanor.
....
Did you understand the definition of assault on persons
engaged in certain occupations?
TATUM: Yes, sir.
THE COURT: Did you understand the penalty which may be
imposed upon your plea of guilty to this offense?
TATUM: Yes, sir.
THE COURT: Before you can be found guilty of this offense,
the State must prove beyond a reasonable doubt each of the
following: That on or about September 14, 2016, in Scott County,
State of Iowa, you did assault Davenport Police Officer Matthew
Lovelady.
TATUM: Yes, sir.
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THE COURT: Number two, that you knew that the
Davenport police officer was in fact a police officer; and, number
three, that you did so without any type of justification.
Did you understand the elements the State must prove
beyond a reasonable doubt to the satisfaction of a jury of twelve
people before you can be convicted of this offense?
TATUM: Yes, sir
....
THE COURT: In Count 2, can you tell me what you did in
order to be charged with assaulting a police officer?
TATUM: I attempted to flee and the officer reached out and
grabbed me, and I turned around and swung at the officer.
THE COURT: All right. You knew he was a police officer; is
that correct?
TATUM: Yes.
THE COURT: You said you swung at him; is that correct?
TATUM: Yes.
THE COURT: And that occurred on September 14, 2016, in
Scott County, Iowa; is that correct?
TATUM: Yes.
....
THE COURT: And what is your plea to Count 2, assaulting a police
officer, guilty or not guilty?
TATUM: Guilty.
Following his guilty pleas, Tatum filed a pro se “motion requesting new counsel
and plea withdrawal.” In the motion, Tatum maintained his plea should be
withdrawn because “it was entered by faulty advice from counsel” and “it was
entered unintelligently.”
At the onset of the sentencing hearing, Tatum’s counsel informed the
court Tatum had filed a motion in arrest of judgment and a motion to substitute
counsel but Tatum had decided to withdraw the motions and proceed to
sentencing, and Tatum confirmed it. The court considered Tatum’s extensive
criminal history as well as the fact that he was out on bond for the charges in
case FECR378714 when he committed the other criminal acts. The court also
considered the report from the presentence investigation (PSI), noting, “Mr.
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Tatum, the PSI report says this, ‘The defendant scored in intensive risk for
violence and intensive risk for victimization. The defendant’s incarceration is
recommended.’” Tatum was sentenced to a term of incarceration not to exceed
ten years.
He appeals.
II. Discussion.
A. Motion to Suppress.
Tatum maintains the district court erred in denying his motion to suppress
evidence in case FECR380147.
Tatum cannot directly appeal the district court’s denial of his motion to
suppress; his guilty plea waived any such right. See State v. Door, 184 N.W.2d
673, 674 (Iowa 1971) (“We have repeatedly held a guilty plea is not only a
confession of guilt but is, itself, a conviction of the highest order. Such a plea
waives all irregularities except that the information or indictment charges no
offense and the right to challenge the plea itself.”).
Our case law allows Tatum to appeal from his guilty plea if his counsel
failed to investigate or file a meritorious motion to suppress. See State v. Carroll,
767 N.W.2d 638, 643 (Iowa 2009) (holding claims of ineffective assistance
arising from counsel’s failure to investigate or file a meritorious motion to
suppress can survive a guilty plea). But that is not the case here. The motion to
suppress was filed, and the district court denied it. Moreover, although Tatum
mentions that he may raise his claim under the ineffective-assistance framework,
it does not appear that he has actually done so. Tatum has not articulated how
counsel breached a duty in such an instance, and he does not offer any
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explanation of how he believes he was prejudiced. He also failed to cite any
case law in support of the necessary framework. We do not consider this claim
further. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite an authority in
support of an issue may be deemed waiver of that issue.”); State v. Walden, No.
02-0445, 2003 WL 1041148, at *2 (Iowa Ct. App. Mar. 12, 2003) (“Because [the
defendant] fails to articulate any arguments to that end, the point is moot.
Therefore, we need not consider [the defendant’s] claim.” (citation omitted)).
B. Factual Basis: Assaulting a Peace Officer.
Tatum maintains the district court erred in accepting his guilty plea for
assaulting a peace officer because there is not a factual basis to support it.
Specifically, he claims there is nothing in the record to support a finding he
intended to cause pain, injury, insult, or offense to the officer, or to place him in
fear of such contact.
Because Tatum was advised of the need to file a motion in arrest of
judgment if he wanted to withdraw his plea and he ultimately withdrew the motion
without having the district court hear or decide it, Tatum has not preserved this
claim. See 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 a challenge on direct appeal.”); see
also DuTrac Cmty. Credit Union v. Hefel, 893 N.W.2d 282, 293 (Iowa 2017)
(“Generally, we will not decide an issue presented to us on appeal that was not
presented to and decided by the district court.”).
Tatum also argues counsel was ineffective for allowing him to withdraw his
motion in arrest of judgment when there was not a factual basis to support his
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plea. Such an argument is an exception to our error-preservation requirement.
See, e.g., State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
“If a defendant enters a plea of guilty to a crime and the record fails to
disclose a factual basis, defense counsel failed to provide effective assistance.
Additionally, prejudice in inherent under the circumstances.” Id. (citation
omitted). When determining if there is a factual basis to support the plea, we
consider “the minutes of testimony, statements made by the defendant and the
prosecutor at the guilty plea hearing, and the presentence investigation report.”
Id. The record does not need to establish that Tatum committed the crime
beyond a reasonable doubt, “but only that there be a factual basis to support the
charge.” State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013).
Because proof that Tatum intended to cause pain, injury, insult, or offense
to the officer, or to place him in fear of such contact “requires a determination of
what the defendant was thinking when an act was done, it is seldom capable of
being established with direct evidence.” State v. Schminkey, 597 N.W.2d 785,
789 (Iowa 1999). “[T]he facts and circumstances surrounding the act, as well as
any reasonable inferences to be drawn from those facts and circumstances, may
be relied upon to ascertain the defendant’s intent.” Id.
Here, Tatum was attempting to flee from the officers; when the officers
reached him and were able to get a hand on his clothing, Tatum hit one of the
officers in the head with a closed fist. Tatum argues that rather than intending to
hit or harm the officer, “it is just as likely that he simply was flailing around to
keep his balance” and “the blow was actually an accident.” However, during his
colloquy with the court, Tatum admitted “[he] turned around and swung at the
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officer.” Because the natural consequence of swinging a closed fist at the officer
is to causing pain, injury, insult, or offense to the officer, or to place him in fear of
such contact, there is a factual basis to support the finding Tatum had the
requisite intent. See State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004) (“[A]n
actor will ordinarily be viewed as intending the natural and probable
consequences that usually follow from his or her voluntary act.”). In reaching this
conclusion, we have not considered the statements Tatum made at sentencing,
as those were not part of the record before the district court at the time Tatum
entered his guilty plea. See Schminkey, 597 N.W.2d at 787 (noting “the ultimate
focus in this case is on the record before the district court at the time of the guilty
plea proceedings”).
Because a factual basis supports that Tatum had the specific intent to
assault the police officer, counsel was not ineffective for allowing Tatum to
withdraw his motion in arrest of judgment.
C. Sentencing.
Tatum maintains the district court abused its discretion when it sentenced
him to a period of incarceration not to exceed ten years.
Although Tatum maintains he could have been successful with a less-
restrictive sentence, he also concedes that the sentences he received were
within the statutory limits and are cloaked with a strong presumption in their
favor. See State v. Lloyd, 530 N.W.2d 708, 713 (Iowa 1995). Tatum has several
arguments about why the court should have exercised its discretion differently,
but he has not established that the court made a reversible error. See State v.
Formaro, 638 N.W.2d 720, 724 (Iowa 2002) (“We will not reverse the decision of
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the district court absent an abuse of discretion or some defect in the sentencing
procedure.”).
Tatum asked the court to defer judgment for all four of his convictions; the
court decided that was not appropriate, noting that Tatum had assaulted a police
officer while out on bond for two other cases; had an extensive criminal history,
which “clearly suggest[ed he was] not good at following rules”; and had “scored
in intensive risk for violence and intensive risk for victimization.” We cannot say
the sentence imposed by the district court was unreasonable or an abuse of
discretion. See State v. Hopkins, 860 N.W.2d 550, 545 (Iowa 2015) (“On our
review, we do not decide the sentence we would have imposed, but whether the
sentence imposed was unreasonable.”).
We affirm Tatum’s convictions and sentences.
AFFIRMED.