IN THE COURT OF APPEALS OF IOWA
No. 17-0815
Filed April 4, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NICHOLAS DEAN FREITAG,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman
Salic, District Associate Judge.
Nicholas Freitag appeals his convictions following his guilty pleas to
possession of firearm or offensive weapon by a felon and domestic abuse assault.
AFFIRMED.
F. David Eastman of Eastman Law Office, Clear Lake, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.
Nicholas Freitag appeals his convictions following his guilty pleas to
possession of a firearm or offensive weapon by a felon and domestic abuse
assault. He claims his trial counsel rendered ineffective assistance for (1)
pressuring him to withdraw a motion in arrest of judgment, (2) failing to inform the
trial court the plea colloquy was insufficient, specifically concerning the
requirement to complete batterer’s education, and (3) not challenging the State’s
alleged failure to abide by its obligations under the plea agreement.
I. Background Facts and Prior Proceedings
On or about February 28, 2017, Freitag was in a physical altercation with
his girlfriend, A.A., during which he picked up a firearm, pointed it at her, and
physically assaulted her. On March 10, Freitag was charged by trial information
with being a felon in possession of a firearm or offensive weapon as a habitual
offender (count one), domestic abuse assault while displaying a dangerous
weapon (count two), and domestic abuse assault impeding breathing or circulation
of blood causing bodily injury as a habitual offender (count three).
On April 12, Freitag filed a written plea of guilty that recited the plea
agreement. In exchange for Freitag’s guilty plea, the State agreed to amend count
one to dismiss the habitual-offender allegation, reduce count two to a simple
misdemeanor, and dismiss count three. The State further agreed it would concur
with the presentence investigation report’s recommendations for count one, and
for count two would recommend two days of jail time, to run concurrently with any
sentence of incarceration imposed on count one. Freitag agreed he would be
required to complete the domestic-abuse program and pay associated court costs,
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fees, and restitution. There is no mention of the no-contact order between Freitag
and A.A. in the guilty plea. The written guilty plea recited Freitag understood the
State’s recommendation would not be binding on the court, the court could
sentence him up to the maximum allowed by law, and the court would not accept
his plea unless it was satisfied he was guilty and had sufficient knowledge of his
rights.
The court held a hearing the same day, conducted a guilty plea colloquy,
and accepted Freitag’s plea of guilty. At the plea hearing, the court stated the
following regarding the terms of the plea agreement:
THE COURT: It appears there’s a plea agreement in which
the habitual felony offender enhancement for this offence would be
omitted and that the state will make a recommendation consistent
with that made by the presentence investigator. Also, that you pay
court costs and fees and surcharges. Also, that Count II, the
Domestic Abuse Assault charge, would be amended to a simple
misdemeanor with a recommendation of two days in jail concurrent
with Count I; no fine but the hundred dollar domestic abuse assault
surcharge; completion of the Iowa Domestic Abuse Program; court
costs, restitution and fees; and that Count III be dismissed. Is that
your understanding of the plea agreement?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that’s not binding on the
Court and the Court could impose any sentence up to the maximum
penalties we discussed earlier?
THE DEFENDANT: Yes, Your Honor.
....
THE COURT: Knowing all these rights, are you wanting to
give them up and plead guilty?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Has anyone made any threats or promises to
force you to plead guilty?
THE DEFENDANT: No, Your Honor.
THE COURT: Has the decision to plead guilty been made by
you voluntarily?
THE DEFENDANT: Yes.
....
THE COURT: Based on our discussion here and your written
plea, Mr. Freitag, I find that you are knowingly and voluntarily
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entering your plea of guilty to each of the charges with a full
understanding of the nature of the charge, the possible
consequences, and any defenses you might have. I further find there
is a factual basis for each plea and your plea of guilty to each Count
I and II is entered of record.
If you wish to challenge the legality of the guilty plea
proceedings, you must do so by filing a written Motion in Arrest of
Judgment. That has to be filed with the Clerk of Court within 45 days
of today’s date but not less than five days before the day of
sentencing. If you fail to timely file that, you’ll give up your
opportunity to appeal.
After the plea hearing, Freitag’s plea counsel withdrew, and Freitag retained
new counsel who appeared on April 27. On May 1, Freitag filed a motion in arrest
of judgment claiming the guilty plea proceeding was inadequate because he did
not fully understand his constitutional rights and did not fully understand and
appreciate the legal consequences of his guilty plea. On May 22, the court
convened to address both the motion in arrest of judgment and sentencing, and
made the following record:
THE COURT: The defendant had filed a Motion in Arrest of
Judgment. That was set for hearing today as well. The defendant
this morning has filed a withdrawal of that motion.
Is that correct, [defense counsel]?
[DEFENSE COUNSEL]: Yes, Your Honor.
....
THE COURT: And, [defense counsel], now with the
withdrawal of the Motion in Arrest of Judgment, do you know of any
reason why we should not proceed with sentencing at this time?
[DEFENSE COUNSEL]: No, Your Honor, and I would like to
state for the record that I did review, again, the document entitled
Entry of Guilty—Entry of Plea of Guilty filed April 12, 2017, with my
client, and although it at the time did not include spaces to initial each
paragraph, I believe Mr. Freitag fully understands all of his rights
attendant to this proceeding and is now ready to proceed.
THE COURT: And I would note that, [defense counsel], you
were not present at that hearing because the defendant had different
counsel at that time and we did review the defendant’s plea with him
in full for a felony colloquy so we did review all of that and I do believe
that he understood the provisions of the guilty plea as well as our
discussion.
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[DEFENSE COUNSEL]: That’s my understanding as well, and
I’m satisfied that the Court did its usual thorough job with that during
the colloquy.
The court then proceeded with sentencing. For count one, the State
recommended five years of incarceration, not suspended. The State also
recommended two days in jail for count two, to run concurrently with the sentence
for count one.
The court sentenced Freitag to an indeterminate term of incarceration not
to exceed five years for count one and a concurrent term of thirty days for count
two. During the sentencing hearing, the court also ordered Freitag to complete the
Iowa Domestic Abuse Program and terminated the no-contact order. On May 25,
the court filed a nunc pro tunc order, adding the required completion of the Iowa
Domestic Abuse Program, which was omitted from the original written judgment
and sentencing order. As noted, Freitag appeals.
II. Scope and Standards of Review
Generally, a defendant must file a motion in arrest of judgment in order to
challenge a guilty plea. State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006). If a
defendant fails to file a motion in arrest of judgment after the court has informed
the defendant of their obligation to do so, they cannot directly appeal from the guilty
plea. Iowa R. Crim. P. 2.24(3)(a); Straw, 709 N.W.2d at 132. When counsel fails
to file such a motion, a defendant may attack the plea on appeal through a claim
of ineffective assistance of counsel. State v. Perkins, 875 N.W.2d 190, 192 (Iowa
Ct. App. 2015). “In a criminal case, an ineffective-assistance-of-counsel claim
‘need not be raised on direct appeal from the criminal proceedings in order to
preserve the claim for postconviction relief purposes.’” Everett v. State, 789
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N.W.2d 151, 156 (Iowa 2010) (quoting Iowa Code § 814.7(1)). However, such
claims may be raised on direct appeal when the record is adequate to permit a
ruling. State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).
Because ineffective-assistance-of-counsel claims are rooted in the Sixth
Amendment, we review them de novo. State v. Thorndike, 860 N.W.2d 316, 319
(Iowa 2015). We will resolve ineffective-assistance claims on direct appeal only
when the record is sufficient to do so; if the record is lacking, we will preserve the
claim for postconviction-relief proceedings. See id. To prevail, Freitag must show
by a preponderance of the evidence that (1) counsel failed to perform an essential
duty and (2) prejudice resulted. See id. “[T]he court may consider either the
prejudice prong or breach of duty first, and failure to find either one will preclude
relief.” State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015).
III. Analysis
Due process requires a guilty plea be voluntary. See State v. Loye, 670
N.W.2d 141, 150 (Iowa 2003). “To be truly voluntary, the plea must not only be
free from compulsion, but must also be knowing and intelligent.” Id. at 151. Due
process requires the defendant to have an understanding of “the constitutional
protections that he gives up by pleading guilty, . . . ‘the nature of the crime with
which he is charged’ and the potential penalties.” Id. (quoting State v. Fluhr, 287
N.W.2d 857, 863 (Iowa 1980)). Before a court accepts a guilty plea for serious
crimes, the district court must engage in some kind of colloquy with the defendant
in order to ensure there is a factual basis for the plea and the defendant has
knowingly and voluntarily waived important constitutional rights. Finney, 834
N.W.2d at 50.
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In order to challenge his guilty plea on appeal, Freitag needed to file a
motion in arrest of judgment. Freitag did, in fact, file a motion in arrest of judgment
prior to sentencing. However, he withdrew the motion the morning of his
sentencing hearing. Because the motion was withdrawn before sentencing, the
court had no opportunity to address these claims. So, the claims are not preserved
for our review. See Iowa R. Crim. P. 2.24(3)(a); Meier v. Senecaut, 641 N.W.2d
532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues
must ordinarily be both raised and decided by the district court before we will
decide them on appeal.”). However, Freitag claims the withdrawal of the motion
was due to ineffective assistance of counsel, contending defense counsel placed
undue pressure on him to withdraw the motion before it was heard.
In reviewing a claim of ineffective assistance of counsel, “[i]f a claim lacks
prejudice, it can be decided on that ground alone without deciding whether the
attorney performed deficiently.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa
2001). When a defendant raises a claim of ineffective assistance in relation to a
guilty plea, the defendant has the burden to show “there is a reasonable probability
that, but for counsel’s errors, he or she would not have pleaded guilty and would
have insisted on going to trial.” Straw, 709 N.W.2d at 138. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Ledezma, 626 N.W.2d at 142.
Here, Freitag claims his defense counsel pressured him to withdraw the
motion in arrest of judgment before it was decided by the court, contending counsel
advised him that he would be sent to prison if he did not withdraw it. A review of
the sentencing hearing transcript does not reveal the circumstances surrounding
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the withdrawal of the motion, and while defense counsel was asked to confirm its
withdrawal, Freitag was not. The record is not adequate for us to consider this
claim. Therefore, we preserve this claim for a possible postconviction-relief
proceeding to allow further development of the record.
Freitag also claims the court failed to inform him of the need to complete
the batterer’s education program during the plea hearing, so consequently counsel
was ineffective for failing to act on this insufficient plea colloquy. In order to ensure
a guilty plea is voluntarily and intelligently made in indictable cases, the court must
articulate the consequences of the plea to the defendant. See Iowa Rs. Crim. P.
2.1(1), 2.8(2)(b).
However, Freitag was facing the requirement to complete batterer’s
education for the simple misdemeanor domestic-assault charge pursuant to Iowa
Code section 708.2A(10) (2017), which provides “the court shall order a person
convicted under subsection 2 or 3 to participate in a batterers’ treatment program
as required under section 708.2B.” Simple misdemeanors are not subject to rule
2.8(2)(b). The written guilty plea together with Freitag’s response of “guilty” when
the court asked him his plea to count two were adequate for the court to accept
the plea to the simple misdemeanor charge. No further colloquy was required.
Compare Iowa R. Crim. P. 2.63, with Iowa R. Crim. P. 2.8(2)(b); see generally
State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (noting “counsel has no duty to
raise issues that have no merit,” so counsel cannot be found to be ineffective if the
defendant’s underlying claims lack validity). Consequently, Freitag’s claim on this
issue fails.
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Finally, in his brief on appeal, Freitag argues his understanding of the plea
agreement was that the State would recommend that any incarceration sentence
would be suspended and the no-contact order be terminated. He contends that
his defense counsel was ineffective for not requiring the State to abide by its
promised recommendations identified in the plea agreement.
A review of the record finds that in Freitag’s written guilty plea for count one,
the State’s recommendation would be consistent with the presentence
investigation report’s recommendation. Further, during the guilty plea colloquy,
the court repeated the same was part of the agreement. The presentence
investigator recommended that Freitag be sentenced to five years in the custody
of the department of corrections for count one, thirty days in jail for count two, and
that both sentences run concurrently with one another. The presentence
investigator did not recommend that any term of incarceration be suspended.
Consequently, the State’s recommendation for incarceration was consistent with
the presentence investigation report and the plea agreement. Counsel had no
obligation to object to the State’s compliance with the terms of the written guilty
plea as confirmed during the court’s colloquy. Freitag’s claim on this issue fails.
At the time of sentencing, the court terminated the no-contact order. To the
extent Freitag has argued the State’s request to extend the no-contact order
violated the plea agreement, he can show no prejudice, so this claim fails.
Therefore, we affirm Freitag’s conviction but preserve one claim of
ineffective assistance of counsel for possible postconviction-relief proceedings.
AFFIRMED.