IN THE COURT OF APPEALS OF IOWA
No. 16-1545
Filed July 19, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHAWN KENYA DUNCAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,
Judge.
A defendant appeals his convictions. AFFIRMED.
Karmen Anderson of The Law Office of Karmen Anderson, Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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VOGEL, Presiding Judge.
Shawn Duncan claims his guilty pleas were not knowing and voluntary,
and his counsel was ineffective. Specifically, Duncan asserts both the district
court and his counsel failed to fully inform him of the consequences of
withdrawing his motion in arrest of judgment; he also claims his counsel failed to
fully inform him about the terms of his plea.
I. Background Facts and Proceedings
On April 21, 2016, the State charged Duncan with possession of a
controlled substance with intent to deliver, in violation of Iowa Code section
124.401(1)(b)(7) (2014) and failure to possess a tax stamp, in violation of Iowa
Code section 453B.3 and 453B.12. On June 10, Duncan appeared before the
district court and agreed to plead guilty to a lesser-included offense of the
possession charge and to the tax-stamp violation. At the plea hearing, the State
described the terms of the plea agreement:
Your Honor, the terms of the plea agreement are as follows: That
should Mr. Duncan be capable of providing a factual basis to a
lesser included count I of the trial information, that being
possession of a controlled substance with intent to deliver, a class
“C” felony, and to count II of the trial information, that being failure
to possess a tax stamp, the State at the time of sentencing will
agree, first, to recommend to the court that his probationary matters
be resolved by way of credit for time served. The parties then will
be free to argue for whatever disposition they deem appropriate
with regards to the two counts.
Obviously, by the State reducing count I from a class “B”
felony to a class “C” felony, it gives Mr. Duncan the ability to
request a probationary sentence. As presently charged and if
convicted, he would not have that opportunity. He would be looking
at a mandatory twenty-five-year prison term with the one-third
mandatory minimum. So this disposition gives him the ability to
make a probationary request to the court. Thank you.
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Duncan’s counsel agreed that her understanding of the plea agreement was
consistent with the State’s description. The court then spoke to Duncan:
THE COURT: Okay. Mr. Duncan, you understand at the
time of sentencing ultimately it’s the court’s decision as to what
sentence to impose; is that right?
THE DEFENDANT: Yes, I do.
THE COURT: All right. Knowing that, you still want to move
forward?
THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. So have any threats or promises been
made to get you to plead guilty today?
THE DEFENDANT: No, ma’am.
THE COURT: Has anyone predicted or guaranteed to you
what your sentence will be?
THE DEFENDANT: No, ma’am.
....
THE COURT: Bond is going to be continued pending
sentencing.
And I need to let you know now, sir, that you do have the
right to file something called a motion in arrest of judgment. That
means that if you think that we have made an error in this plea
colloquy that we’ve gone through, you file that motion in order to set
aside this guilty plea. This is what you need to know about that
motion in arrest of judgment, it has to be filed 45 days from today’s
date but no later than five days before your sentencing or you
waive that filing of the motion in arrest of judgment.
THE DEFENDANT: Yes, ma’am.
At the sentencing hearing on August 1, the State argued for incarceration.
Following the State’s argument, Duncan’s counsel informed the court that
Duncan did not believe the State was going to make a recommendation under
the terms of the plea agreement:
My client indicated to me during the State’s argument that it was his
understanding that the State was not making a recommendation.
The—and he is—was not aware of the plea agreement or the terms
of the plea agreement and—Judge, I don’t know how to proceed. If
I can—well, the document that is filed with the court states that the
parties are free to argue. I don’t want to reveal what my notes say
because I believe that is revealing confidences. But the paperwork
that was filed with the order that took the plea is consistent with
what Mr. Crisp just did, which is make an argument. We intend to
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make an argument as well. That is the dispute Mr. Duncan or the
misunderstanding that Mr. Duncan has is that he did not believe the
State was going to make its own recommendation.
The court continued sentencing for one week so Duncan could fully
discuss the issue with counsel. Later that day, Duncan filed a motion in arrest of
judgment, claiming his plea was not knowing and voluntary because he did not
fully understand the terms of the plea agreement.
On August 23, Duncan, through newly appointed counsel, following the
withdrawal of his prior counsel, filed a motion to withdraw his motion in arrest of
judgment. One week later, Duncan appeared before the district court and
indicated that he wished to withdraw his motion in arrest of judgment and
proceed to sentencing:
THE COURT: . . . Additionally, the court would note that you
had originally filed a motion in arrest of judgment in this matter. . . .
However, it is my understanding, after reviewing the court file
recently, that you are actually withdrawing that motion in arrest of
judgment. Is that correct, sir?
THE DEFENDANT: That is correct, ma’am.
THE COURT: So it is your intention to withdraw the motion
in arrest of judgment previously filed and go directly to sentencing.
Is that accurate?
THE DEFENDANT: That is correct.
The court then proceeded with sentencing.
Duncan appeals.
II. Scope and Standard of Review
On appeal, we review challenges to guilty pleas for errors at law. State v.
Fisher, 877 N.W.2d 676, 680 (Iowa 2016). “[W]e review claims of ineffective
assistance of counsel de novo.” Ledezma v. State, 626 N.W.2d 134, 141 (Iowa
2001).
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III. Guilty Plea
A. Error Preservation
Iowa Rule of Criminal Procedure 2.8(d) provides: “The court shall inform
the defendant that any challenges to a plea of guilty based on alleged defects in
the plea proceedings must be raised in a motion in arrest of judgment and that
failure to so raise such challenges shall preclude the right to assert them on
appeal.” “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); see also State v.
Meron, 675 N.W.2d 537, 540 (Iowa 2004) (“Generally, a defendant must file a
motion in arrest of judgment to preserve a challenge to a guilty plea on appeal.”).
Yet, when a defendant is not fully advised of the consequences of failing to
challenge a plea through a motion in arrest of judgment, rule 2.24(3)(a) does not
apply. Fisher, 877 N.W.2d at 680.
Here, while the district court did inform Duncan that he needed to file a
motion in arrest of judgment to challenge his guilty pleas, the court never told him
“that failure to so raise such challenges shall preclude the right to assert them on
appeal.” See Iowa R. Crim. P. 2.8(d). Accordingly, the bar of rule 2.24(3)(a)
does not apply, and Duncan may challenge his guilty pleas on appeal. See
Fisher, 877 N.W.2d at 680.
B. Merits
Duncan claims that his guilty pleas were not knowing and voluntary
because he did not fully understand the terms of the plea agreement, specifically,
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that the State would argue for incarceration at sentencing. The State claims
Duncan was fully aware of the terms of the plea agreement.
Based on our review of the record, it is clear that, by the time Duncan
withdrew his motion in arrest of judgment and opted to proceed with sentencing,
he was aware the State was free to argue for incarceration at sentencing.
Initially, Duncan was present at the guilty-plea hearing when the State described
the terms of the plea agreement, including “the parties then will be free to argue
for whatever disposition they deem appropriate with regards to the two counts.”
Duncan was also informed by the district court when he entered the pleas that,
ultimately, the sentence was up to the court. Duncan indicated that he
understood and also that he had not been promised or guaranteed a particular
sentence. Nevertheless, at the sentencing hearing on August 1, Duncan claimed
he was unaware the State was free to argue for incarceration. Later that day, he
filed a motion in arrest of judgment seeking to set aside his guilty pleas based on
this ground. Yet, Duncan later filed a motion to withdraw his motion in arrest of
judgment and indicated that he wished to do so at the sentencing hearing on
August 30. By that point, Duncan was undeniably aware the plea agreement
allowed the State to argue for incarceration, and he chose to withdraw his motion
in arrest of judgment and proceed with sentencing based on his guilty pleas.
Accordingly, we affirm the knowing and voluntary nature of Duncan’s guilty pleas.
IV. Ineffective Assistance of Counsel
Duncan next claims his initial counsel was ineffective in failing to fully
inform him about the consequences of his pleas and his substitute counsel for
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failing to fully inform him about the consequences of withdrawing his motion in
arrest of judgment.
“In order to succeed on a claim of ineffective assistance of counsel, a
defendant must prove: (1) counsel failed to perform an essential duty; and (2)
prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “Both
elements must be proven by a preponderance of the evidence. However, both
elements do not always need to be addressed. If the claim lacks prejudice, it can
be decided on that ground alone without deciding whether the attorney
performed deficiently.” Ledezma, 626 N.W.2d at 142 (citations omitted). To
show counsel failed to perform an essential duty, “the [defendant] must
demonstrate the attorney performed below the standard demanded of a
reasonably competent attorney.” Id. In order to prove prejudice, Duncan must
show but for counsel’s errors, he would have not pled guilty but would have
insisted on going to trial. See State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).
When a claim of ineffective assistance of counsel is raised on direct appeal, we
will only decide it if we determine the record is adequate to resolve the claim. Id.
A. Failure to Fully Inform Duncan About Terms of the Plea
Agreement1
Duncan alleges his initial counsel failed to inform him that the State was
free to argue for incarceration at sentencing and, consequently, he would not
have pled guilty had he known of that option.
1
It is not entirely clear from Duncan’s brief the quantity or specific substance of his
claim/s of ineffective assistance of counsel. Thus, we address the claims that we can
delineate.
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Assuming without deciding Duncan’s counsel did not inform him about the
provision in the plea agreement that allowed both sides to argue at sentencing,
Duncan cannot demonstrate prejudice. Duncan became aware that both sides
were free to argue at sentencing at the plea hearing because that provision was
discussed at the plea hearing. Further, Duncan demonstrated his awareness of
this provision when he raised it as an issue at the initial sentencing and in his
motion in arrest of judgment. Nevertheless, Duncan later chose to withdraw his
motion in arrest of judgment and proceed with sentencing rather than going
forward and challenge his pleas. Duncan cannot now claim he was prejudiced
by not knowing a provision of the plea agreement that he was plainly informed of
on the record. We conclude Duncan has not demonstrated a reasonable
probability that he would have insisted on going to trial but for his counsel’s
alleged failure to fully inform him about the terms of the plea agreement.
Duncan’s claim of ineffective assistance of counsel fails.
B. Failure to Fully Inform Duncan About the Consequences
of Withdrawing His Motion in Arrest of Judgment
Duncan next asserts his substitute counsel was ineffective for failing to
inform him that withdrawing his motion in arrest of judgment would forego his
opportunity to appeal his guilty pleas.
Even if counsel had so failed, Duncan cannot demonstrate prejudice. As
discussed earlier in this decision, because the district court did not inform
Duncan that failure to file a motion in arrest of judgment would preclude his right
to appeal, Duncan is not barred from challenging his guilty pleas on appeal. See
Fisher, 877 N.W.2d at 680. Thus, Duncan was spared the sanction that normally
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would accompany the alleged failure of his counsel. Regardless of any alleged
error, the outcome is the same—Duncan was allowed to appeal his guilty pleas.
However, his complaint with the guilty-plea proceeding was that he did not know
the State would argue for incarceration at sentencing. Because the record belies
his claim, Duncan cannot demonstrate prejudice, and his claim fails.
V. Conclusion
Because we conclude Duncan’s guilty pleas were knowing and voluntary,
and because we conclude he did not suffer any prejudice from the alleged errors
of his counsel, we affirm Duncan’s conviction.
AFFIRMED.