State of Iowa v. William Polton ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 16-2194
Filed May 2, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WILLIAM POLTON,
Defendant-Appellant.
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Appeal from the Iowa District Court for Linn County, Angeline Wilson,
District Associate Judge.
A defendant appeals his conviction for possession of marijuana.
AFFIRMED.
John J. Bishop, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.
William Polton appeals his conviction for possession of marijuana. Polton
claims his guilty plea was not voluntary and trial counsel was ineffective for
allowing him to plead guilty without knowing the full consequences of the plea. We
find Polton did not preserve the claim of an involuntary plea. We preserve Polton’s
claim of ineffective assistance of counsel for a potential post-conviction relief
hearing.
I. Background Facts and Proceedings
On July 28, 2016, Polton was being issued a trespass warning at a Hy-Vee
in Cedar Rapids. Police found an active warrant for his arrest issued by the state
of Colorado. Polton was arrested and transported to jail. Polton admitted he had
marijuana in his pocket. Officers searched Polton and discovered marijuana in his
pocket as well as an additional thirteen grams in a bag in his buttocks.
Polton was charged by trial information with possession of marijuana and,
on November 28, he filed a written plea of guilty and waiver of rights. He requested
immediate sentencing. The district court sentenced Polton to two days in jail and
revoked his driving privileges for 180 days. Polton now appeals.
II. Standard of Review
Claims of ineffective assistance of counsel are reviewed de novo. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective
assistance of counsel, the [defendant] must demonstrate both ineffective
assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it can be
decided on that ground alone without deciding whether the attorney performed
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deficiently.” Id. Both elements must be proved by a preponderance of the
evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991).
“We ordinarily review challenges to guilty pleas for correction of errors at
law.” State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).
III. Error Preservation
Polton claims his guilty plea was involuntary as he was not informed his
driving privileges would be revoked. The State claims Polton did not properly
preserve the issue for appellate review as he did not file a motion in arrest of
judgment. Polton claims he was not required to file the motion as he was not
advised “that challenges to the plea must be made in a motion in arrest of judgment
and that the failure to challenge the plea by filing the motion within the time
provided prior to sentencing precludes a right to assert the challenge on appeal.”
See Iowa R. Crim. P. 2.8(2)(d). However, Polton signed a document giving up his
right “to challenge or appeal any irregularities or errors in the taking of [his] guilty
plea since such challenge must be ruled prior to sentencing by the filing of a Motion
in Arrest of Judgment.” We find Polton was sufficiently advised by the court and
counsel of his need to file a motion in arrest of judgment in order to challenge his
guilty plea. We find Polton did not preserve this issue for review.
IV. Ineffective Assistance
Polton also claims trial counsel was ineffective for failing to advise him his
driving privileges would be suspended for 180 days. We find the record before this
court is not adequate to resolve this claim. Therefore, we affirm Polton’s conviction
but preserve his claim of ineffective assistance of counsel for possible
postconviction-relief proceedings. See State v. DeCamp, 622 N.W.2d 290, 296
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(Iowa 2001) (“Ineffective assistance of counsel claims presented on direct appeal
are typically preserved for [postconviction-relief] proceedings to allow for a full
development of the facts surrounding the conduct of counsel.”).
AFFIRMED.