State of Iowa v. Brian Winchester ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-2219
Filed August 2, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRIAN WINCHESTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Harrison County, James S.
Heckerman (guilty plea) and Jeffrey L. Larson (sentencing), Judges.
Brian Winchester appeals his judgment and sentence for sexual abuse in
the third degree, to which he pled guilty. GUILTY PLEA AFFIRMED,
JUDGMENT AND SENTENCE VACATED, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
MULLINS, Judge.
Brian Winchester appeals his conviction, judgment, and sentence for
sexual abuse in the third degree, to which he pled guilty on September 19, 2016.
On October 13, 2016, Winchester filed a motion in arrest of judgment, which the
district court denied as untimely. Winchester appeals, claiming his counsel
provided ineffective assistance because his plea was not knowing or voluntary
and his counsel should have objected to certain victim-impact statements. Our
review is de novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).
“Normally, ineffective-assistance-of-counsel claims are considered in
postconviction relief proceedings.” State v. Vance, 790 N.W.2d 775, 785 (Iowa
2010). When the record is sufficient to address an ineffective-assistance-of-
counsel claim, we resolve the claim on direct appeal. Id.Winchester claims his plea was not knowing and voluntary because of
purported inconsistencies in the record. He also complains he was not informed
he was pleading to a forcible felony for which a suspended sentence is not an
option. There is no indication in the record he was informed he was pleading to a
forcible felony. The transcript of the sentencing hearing leaves the impression
the parties thought a suspended sentence was an option. A defendant is
required to be informed of the maximum and minimum penalties of an offense.
See Iowa R. Crim. Pro. 2.8(2)(b)(2). If he was not informed that the charge to
which he pled guilty was not eligible for a suspended sentence, then the plea
may not have been intelligently made. We cannot resolve this issue on the
record before us, so we preserve it for possible postconviction relief. See State
v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).
3
With regard to the plea proceeding itself, Winchester claims there were
inconsistences as to which count of the trial information he was pleading, notes
there are some inconsistencies as to which year the sexual abuse occurred, 1 and
contends the court stated and he provided a factual basis for elements of a crime
that are derived from more than one code section.
During the guilty plea, the court stated Winchester was pleading guilty to
count II of the trial information. Winchester in fact pled guilty “to the charge of
sexual abuse in the third degree,” consistent with count II of the trial information,
which provides Winchester is accused of “sexual abuse in the [thi]rd degree in
violation of Iowa Code [s]ection 709.4(2)(b)[ (2011)], a class C [f]elony.”
Winchester’s written guilty plea stated: “I hereby plead guilty to the charge of
sexual abuse in the third degree in violation of the Code of Iowa [s]ections 709.1
[and] 709.4(2)(b).” Similarly, the order entered following the guilty plea states
Winchester pled guilty to “Count II: Sexual Abuse in the [Third] Degree in
violation of Iowa Code [s]ection[s] 709.1 and 709.4(2)(b).” There are no
identified inconsistencies with regard to the applicable code section at the plea
proceeding itself. Thus, Winchester has failed to show his trial counsel breached
an essential duty. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015)
(noting a claimant must show “trial counsel failed to perform an essential duty”
that “resulted in prejudice”).
The only factual inconsistency with regard to the guilty plea is that—when
providing the factual basis at the hearing and in his written guilty plea—
1
Winchester was charged in multiple counts with committing sexual abuse from 2010
through 2014.
4
Winchester admitted the offense occurred in 2012, while the trial information for
count II states the offense occurred in 2011. But the time at which the crime was
committed is not an essential element of the crime. See State v. Griffin, 386
N.W.2d 529, 532 (Iowa Ct. App. 1986) (finding, where the relevant statute does
not make a particular time period a material element of the offense, “the exact
time of the act is not material”); see also Iowa Code § 709.4 (defining sexual
abuse in the third degree as performing a sex act “under any of the following
circumstances,” all relating to age, mental capacity, or family relationship but
none relating to a date or time); State v. Schneider, No. 14-1113, 2015 WL
2394127, at *8 (Iowa Ct. App. May 20, 2015) (discussing cases addressing the
time-frame issue). Winchester does not dispute that an offense committed in
2012—as opposed to 2011—would also otherwise satisfy the elements of section
709.4(2)(b).2 Nor has he claimed he would not have pled guilty had his counsel
identified this error at the plea hearing; accordingly, Winchester has also failed to
prove prejudice. See State v. Utter, 803 N.W.2d 647, 654 (Iowa 2011) (“[T]o
prove prejudice, [the applicant] must establish that ‘but for counsel’s breach of
duty, [he] would not have pled guilty and would have elected instead to stand
trial.’” (citation omitted)).
Regarding Winchester’s element claim, the district court informed him at
the plea hearing that the applicable charge required the State to prove he
“performed a sex act” on a victim that “was [twelve] or [thirteen] years old” while
he was “four or more years older than her” and he and the victim were not
2
Winchester was charged with the same offense occurring in both 2011 (in count II) and
2012 (in count III).
5
cohabitating as husband and wife, which Winchester claims blurs the
requirements of section 709.4(2)(b) and section 709.4(2)(c)(4). Section 709.4
provides, in relevant part:
A person commits sexual abuse in the third degree when the
person performs a sex act under any of the following
circumstances:
....
2. The act is between persons who are not at the time
cohabiting as husband and wife and if any of the following are true:
....
b. The other person is twelve or thirteen years of age.
While the district court improperly recited the State would have to prove
Winchester was four or more years older than the victim,3 the district court did
properly state those elements that were required. Winchester does not claim any
necessary element was omitted. Counsel’s failure to object to the district court’s
accidental inclusion of an extra element—one that was clearly satisfied by the
facts of the case but that was not required for commission of the crime that was
charged—does not rise to the level of a breach of duty. Moreover, Winchester
has demonstrated no prejudice. See Dempsey, 860 N.W.2d at 868 (providing
“[r]eversal is warranted only where claimant makes a showing of both elements”).
In arguing his plea was not knowing or voluntary, Winchester also notes
inconsistencies that occurred during his sentencing. At his sentencing hearing
on December 19, 2016, the district court stated Winchester was sentenced for
the crime of sexual abuse in the third degree, a class “C” felony, in violation of
section 709.1(b)(3).4 While no such code section was then in existence, it is
apparent from the record the district court made a simple error and was intending
3
This element appears in section 709.4(2)(c)(4).
4
Section 709.1 of the 2011 Iowa Code defines sexual abuse.
6
to refer to section 709.4(1)(b)(3), as this was the code section cited in the
sentencing order. Winchester was charged with violating Iowa Code section
709.4(1)(b)(3) (2013) in the fourth and fifth counts of the trial information.
However, this was not the count or code section to which Winchester pled, and
this code section was not yet enacted in 2011. Following sentencing, on
December 21, 2016, the district court entered a nunc pro tunc order dismissing
counts II through V, despite Winchester having pled guilty to the second count.
On appeal, the State argues the record demonstrates Winchester entered
a guilty plea to a reduced charge of count I, citing in support the district court’s
sentencing order. But, the State concedes it did not seek to orally amend the
trial information, instead relying on an “inference” that the State must have
sought such an amendment. However, upon this record, at the time of the plea,
count I of the trial information charged Winchester under section 709.3(1)(b), a
class “B” felony, to which Winchester did not plead. That count charged him with
committing sexual abuse upon a child under the age of twelve in 2010, a crime to
which Winchester did not admit guilt. There is simply no basis upon which to
make such an “inference.”
Ultimately, Winchester’s sentencing contains errors. Notably, Winchester
has not alleged that these errors gave rise to an illegal sentence. Instead,
Winchester contends these errors made his plea not knowing and voluntary, but
these errors do not impact the knowing nature or voluntariness of his plea. And,
again, Winchester has failed to argue that—without these errors—he would not
have plead guilty. In fact, Winchester has wholly failed to argue how prejudice
resulted.
7
The record does, however, clearly show the defendant pled guilty to count
II. Further, at the time of sentencing and in the sentencing order, the court
sentenced Winchester for the crime of sexual abuse in the third degree.
Although the reasons for the confusion in entry of judgment are not clear in our
record, it is clear to us the court was sentencing Winchester for the crime of
sexual abuse in the third degree, based on his plea of guilty. He pled guilty to
count II. The errors made by the court were either scrivener’s errors or spoken
errors in the nature of scrivener’s errors. That is, there does not appear to be an
error in the legal reasoning or ultimate determinations: Winchester pled guilty to
sexual abuse in the third degree, had a sentencing hearing at which all present
understood he was being sentenced for sexual abuse in the third degree, and the
sentence entered was a legal sentence for sexual abuse in the third degree.
Thus, we vacate the judgment and sentence and remand with instruction for
entry of a corrected order of judgment and sentence to show entry of judgment to
count II for a violation of Iowa Code section 709.4(2)(b) (2011), and to document
the sentence as ordered in open court. See State v. Putnam, No. 15-1222, 2016
WL 3309062, at *6-7 (Iowa Ct. App. June 15, 2016); State v. Pearson, No. 13-
1311, 2013 WL 5291941, at *2-3 (Iowa Ct. App. Sept. 18, 2013).
Winchester next argues his trial counsel should have challenged the victim
impact statements filed by the State that came from individuals who did not
qualify as “victims” under the Iowa Code. See Iowa Code § 915.10(3). While the
record reflects letters were submitted from ineligible persons—such as the
victim’s mother’s coworker—there is no indication the court considered or relied
upon these letters. At sentencing, only the victim and her mother read
8
statements, and the court made no mention of the other letters.5 Accordingly,
Winchester has not shown “a reasonable probability that, but for the [alleged]
unprofessional errors, the result of the proceeding would have been different.”
Dempsey, 860 N.W.2d at 868 (citation omitted). We, therefore, conclude
Winchester has not shown prejudice.
We affirm the court’s acceptance of the guilty plea, vacate the judgment
and sentence, and remand for entry of a corrected order of judgment and
sentence as set forth above.6 We preserve for possible postconviction relief
Winchester’s challenge to the guilty plea for failure to inform him the sentence
could not be suspended. We deny all other claims of ineffective assistance of
counsel.
GUILTY PLEA AFFIRMED, JUDGMENT AND SENTENCE VACATED,
AND REMANDED.
5
We note the preferred practice is to disavow any reliance on information submitted at
sentencing that should not be considered by the sentencing court.
6
This is not a remand for resentencing, only entry of a corrected order.