State of Iowa v. Larry Dean Bell Sr. ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1681
Filed June 21, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LARRY DEAN BELL SR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Henry W. Latham II
(plea) and Mark R. Lawson (motion in arrest of judgment), Judges.
The defendant appeals from the district court’s denial of his motion in
arrest of judgment following his guilty plea to one count of failure to comply with
sex offender registry requirements, second offense, as an habitual offender.
AFFIRMED.
Lauren M. Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2
POTTERFIELD, Judge.
Larry Bell Sr. appeals from the district court’s denial of his motion in arrest
of judgment following his guilty plea to one count of failure to comply with sex
offender registry requirements, second offense, as an habitual offender. Bell
maintains his trial counsel coerced him into pleading guilty; he argues the record
makes it clear his plea was not voluntary and, thus, the court abused its
discretion in denying his motion in arrest of judgment.1
“We review a trial court’s decision to grant or deny a request to withdraw a
guilty plea for abuse of discretion.” State v. Speed, 573 N.W.2d 594, 596 (Iowa
1998). “The refusal to allow withdrawal will be upheld ‘where “a defendant, with
full knowledge of the charge against him and of his rights and the consequences
of a plea of guilty, enters such a plea understandably and without fear of
persuasion.”’” Id. (citations omitted).
At the hearing on the motion in arrest of judgment, Bell told the court he
wanted to withdraw his guilty plea because:
I was forced into that. I was actually threatened by my previous
attorney. Put his finger in my face and yelled at me.
And at the beginning, in front of another judge—I don’t know
his name—judge stopped the case because I was advised to plead
guilty to anything the judge said I was supposed to agree with it.
And after three or four I disagreed and the judge said he couldn’t
sentence me like this so we took a break.
1
On appeal, Bell mentions in passing other reasons the court should have granted his
request to withdraw his guilty plea, claiming the court should have inquired into his
competency during the plea proceeding and there was not a factual basis to support his
plea regarding the habitual offender enhancement. But these issues were not raised in
the motion in arrest of judgment or at the hearing on the motion, and the district court
has not ruled on them. Additionally, these issues have not been raised under the
ineffective-assistance framework on appeal. As such, they are not properly before us for
review. See 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.”).
3
And during the break, the recess, my attorney got in my face
and threatening and telling me—and told me trust him. That I
would go home today. And he lied to me said you will go home
today with unsupervised probation. Just go along with anything the
judge says.
The State responded that the transcript from the plea proceeding indicates Bell
was asked by the court, “Other than this plea agreement, have there been any
promises made or is anyone forcing you or threatening you to make you come
forward to enter this guilty plea?” and Bell had responded, “No, sir.”
The court then reviewed the transcript from the plea proceedings before
issuing a verbal ruling denying Bell’s motion in arrest of judgment. In doing so,
the court noted there was no break in the plea proceedings—in marked contrast
to Bell’s claim. Additionally, the plea-proceeding court had advised Bell he could
stop the plea proceedings at any time, which Bell had not done, and had asked
Bell if he was satisfied with the work of his trial attorney, and Bell agreed he was.
On appeal, Bell maintains the transcript shows he was coached on his
responses. Bell points out that when the court asked him to tell in his own words
what made him guilty of the offense, he first responded by telling the court about
a different pending charge, stating:
It was a form of protesting. I was protesting when I
committed this offense, of racial hiring practices and a violation of
affirmative action, I believe. I was protesting in front of—oh, sorry.
I’m sorry, Your Honor. There’s two parts to this. I was answering
the wrong part of it. Sorry. Can I start over?
The court responded that he could, and Bell then stated, “Yeah, I was told—I was
advised by the Court to register and I failed to register. I’m sorry.”
We agree that Bell’s statements to the court show some confusion, but we
note that Bell was entering a guilty plea as part of a plea agreement that covered
4
two separate cases—the case involving Bell’s failure to comply with the sex
offender registry requirements (FECR371119) and the case involving six counts
of indecent exposure (SRCR367430).2 Bell was right insofar as there were “two
parts” to the plea agreement; he was just momentarily confused as to what part
the court was handling at that time, which is clear because he responded by
explaining his understanding of the indecent exposure charge. We are not
convinced this slight lapse is enough to find his guilty plea was involuntary.
Additionally, we agree with the district court that the transcript of the plea
proceedings belies Bell’s claims that his attorney coerced him into pleading
guilty; the transcript does not corroborate Bell’s claims that he disagreed with the
judge, that the disagreement resulted in the judge saying he could not “sentence
him” like this, or that a break of any kind was taken when the attorney would
have threatened Bell into pleading guilty. Based on this record, we cannot say
the district court abused its discretion in denying Bell’s motion for arrest of
judgment.3
Bell also raises other additional claims. He mentions a separate motion in
arrest of judgment filed by his trial counsel, which indicated Bell should be
allowed to withdraw his guilty plea because the State had agreed to take “no
position” on whether the court should release Bell after his guilty plea while
sentencing was pending but then had objected to Bell’s release at the plea
2
As part of the agreement, Bell pled guilty to only one count of indecent exposure and
the other five counts were dismissed; this occurred in a separate proceeding not
including the failure-to-register charge. Bell’s defense to those charges involved his
protest against racial discrimination.
3
We note Bell entered into the plea agreement with the State on March 15, 2016. The
same day, the court scheduled the March 25 plea proceeding, and Bell did in fact enter
his guilty plea on March 25. We have no record that a different plea proceeding was
ever scheduled or took place in this case.
5
proceeding. This motion in arrest of judgment was never set for hearing, and the
district court did not rule on it. We will not now consider for the first time Bell’s
claim that the State breached the plea agreement. See Meier, 641 N.W.2d at
537.
Bell indicates he has several claims of ineffective assistance involving his
trial counsel and his substitute trial counsel but notes the record is not adequate
for us to review the claims at this time. He asks that we preserve them for
possible future postconviction-relief proceedings. His ineffective-assistance
claims are preserved. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010)
(noting Iowa Code section 814.7 allows a defendant “to forego raising his
ineffective-assistance-of-counsel claim on direct appeal” and requires us to
“preserve the issue of trial counsel’s ineffective assistance” for a postconviction-
relief proceeding).
Insofar as Bell’s handwritten pro se brief alleges ineffective assistance of
his trial counsel and his substitute trial counsel, those claims are preserved for
further development of the record.4 See id. We are unable to review any other
claims made by Bell; some of his concerns seem to involve a different criminal
conviction than the one presently before us on appeal. Additionally, he has not
cited any authority for his claims, and “[w]e do not utilize a deferential standard
when persons choose to represent themselves.” Kubik v. Burk, 540 N.W.2d 60,
4
Bell filed a second pro se brief May 22, 2017. The second brief is untimely, and we did
not consider it. See Iowa R. App. P. 6.901(2)(a) (stating criminal defendants may
“submit a pro se supplemental brief or designation of appendix to the clerk of court within
fifteen says after service of their proof brief filed by their counsel. . . . Any pro se
supplemental brief or designation submitted beyond this period by a properly served
defendant, applicant, or respondent will not be considered by the court and no response
by the State will be allowed.”).
6
63 (Iowa Ct. App. 1995); see also Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite
authority in support of an issue may be deemed waiver of that issue.”).
We affirm.
AFFIRMED.