State of Iowa v. Alfred Kakki Anitok ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1234
Filed October 26, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALFRED KAKKI ANITOK,
Defendant-Appellant.
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Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon
(plea hearing) and Myron L. Gookin (sentencing), Judges.
Alfred Anitok appeals his conviction and sentence after pleading guilty to
incest. AFFIRMED.
Benjamin D. Bergmann of Parrish Kruidenier Dunn Boles Gribble Gentry
Brown & Bergmann L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.
Alfred Anitok appeals his conviction and sentence after pleading guilty to
incest. He contends his trial counsel was ineffective in failing to file a motion in
arrest of judgment because he was not advised of the maximum penalty for the
crime to which he pled guilty and, therefore, his guilty plea was not knowing and
voluntary. Having shown no prejudice, we reject Anitok’s ineffective-assistance-
of-counsel argument. We therefore affirm Anitok’s judgment and sentence.
Anitok was charged with three counts: (1) sexual abuse in the third
degree, a class “C” felony; (2) incest, a class “D” felony; and (3) assault with
intent to commit sexual abuse, an aggravated misdemeanor. The charges were
based on an allegation that Anitok inappropriately touched a minor. In a
negotiated plea agreement, Anitok agreed to plead guilty to the charge of incest,
in violation of Iowa Code sections 762.2 and 903B.2 (2013). The terms of the
plea agreement were outlined by the State at a plea hearing as follows:
[Anitok] will plead to incest, a [class] “D” felony; five years of
imposed [prison] time; court costs; fees, attorney’s fees, surcharge;
that he will be on [the] sex offender registry for ten years; and that
he will also have to register and complete the sex offender
treatment program and that the other counts under the trial
information will be dismissed.
Anitok’s counsel agreed these were the terms of the parties’ agreement and
added that a minimum fine would be assessed and that Anitok would be
responsible for victim restitution. In outlining the maximum and minimum
penalties, the court informed Anitok of the applicable maximum and minimum
fine, and it advised Anitok that he faced a maximum of five years in prison and
that there was a surcharge, court costs, possible court-appointed attorney fees,
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and victim restitution. The court also informed Anitok: “You would have to be on
the sex offender registry for ten years. There would be a special sentence, as if
on parole, after the conclusion of your prison sentence. You would have to
complete the sex offender treatment program.”
The court accepted Anitok’s plea. A sentencing hearing was held five
months later, and Anitok was sentenced to five years in prison and assessed a
fine, surcharge, crime-victim-assistance reimbursement, court-appointed attorney
fees, and a civil penalty. He was ordered to register with the sex offender
registry. The court also imposed a ten-year special sentence of supervision
under Iowa Code section 903B.2. This section provides that a person convicted
of a class “D” felony offense under chapter 709 or section 726.2
shall also be sentenced, in addition to any other punishment
provided by law, to a special sentence committing the person into
the custody of the director of the Iowa department of corrections for
a period of ten years . . . commenc[ing] upon completion of the
sentence imposed under any applicable criminal sentencing
provisions for the underlying criminal offense and the person shall
begin the sentence under supervision as if on parole or work
release.
Iowa Code § 903B.2.
Anitok contends his trial counsel was ineffective in failing to file a motion in
arrest of judgment because he was not advised of the maximum penalty for the
crime to which he pled guilty and, therefore, his guilty plea was not knowing and
voluntary. We review ineffective-assistance-of-counsel claims de novo. See
State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). To succeed in making such a
claim, a defendant must prove by a preponderance of the evidence that trial
counsel failed to perform an essential duty and this failure resulted in prejudice.
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See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Counsel breaches an
essential duty by failing to file a motion in arrest of judgment to challenge a plea
that is not knowingly and voluntarily made. See id. To prove prejudice, “the
defendant must show that there is a reasonable probability that, but for counsel’s
errors, he or she would not have [pled] guilty and would have insisted on going to
trial.” Id. at 136 (citation omitted). Reversal is only warranted if both breach and
prejudice are shown. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).
Turning to the merits, Anitok argues his guilty plea was rendered
unknowing and involuntary because he was not sufficiently informed of the
mandatory ten-year special sentence of supervision under Iowa Code section
903B.2. Specifically, he complains the court did not say anything regarding the
length of the special sentence. Before accepting a plea, a court must inform the
defendant of the mandatory minimum and maximum punishment provided by
statute. See Iowa R. Crim. P. 2.8(2)(b)(2). Convicted of a class “D” felony
offense under section 762.2, Anitok is subject to the mandatory ten-year special
sentence. See Iowa Code § 903B.2. This special sentencing provision is a part
of Anitok’s sentence. See State v. Hallock, 765 N.W.2d 598, 605 (Iowa Ct. App.
2009). Thus, the district court had an obligation to inform Anitok of the ten-year
period of parole at the plea hearing. See id. at 606. This it did not do. Anitok’s
counsel neither corrected the omission nor filed a motion in arrest of judgment.
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Assuming, but without deciding,1 counsel failed to perform an essential duty, we
turn to the prejudice prong of the ineffective-assistance-of-counsel analysis.
Anitok must show a reasonable probability that, but for counsel’s error, he
would not have entered the plea and instead would have insisted on going to
trial. See id. Anitok asserts he would not have pled guilty had he been informed
of the ten-year period of the special sentence, characterizing the ten-year period
as “a significant part of the penalty associated with the plea.” Further, he
contends the “he-said-she-said” case against him “was far from a slam dunk
case.”
As a part of the plea agreement, the State agreed to dismiss the charge of
sexual abuse in the third degree, a class “C” felony, which carries a maximum of
ten years in prison and a lifetime special sentence under section 903B.1. See
Iowa Code §§ 709.1, 709.4(2)(c)(4), 902.9(4), 903B.1. The State also agreed to
dismiss the charge of assault with intent to commit sexual abuse, an aggravated
misdemeanor, which carries a maximum of two years in prison and a ten-year
special sentence. See id. §§ 709.11, 903.1(2), 903B.2. By pleading to the one
charge, incest, Anitok avoided imposition of a sentence of up to twenty-two years
in prison and mandatory lifetime supervision. Instead, he received a maximum of
five years in prison and ten years of supervision. Under all the circumstances
presented to us, we find no reasonable probability Anitok would have rejected the
plea agreement and insisted on going to trial had he been informed by the court
1
In clarifying the terms of the plea agreement at the sentencing hearing, the court stated
its understanding was that Anitok would also be subject to the special sentence for ten
years. The State responded: “Yes, that would be correct.” Anitok’s counsel responded
the special sentence “[was] in contemplation of the parties at the time of the agreement.”
Here, there was no written plea agreement.
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at his plea hearing of the ten-year period concerning the section 90B.2 special
sentence. See Hallock, 765 N.W.2d at 606. Having shown no prejudice, we
reject Anitok’s ineffective-assistance-of-counsel claim. We therefore affirm
Anitok’s judgment and sentence.
AFFIRMED.