Teodoro Borrego, Applicant-Appellant v. State of Iowa ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1590
Filed September 23, 2015
TEODORO BORREGO,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley
(PCR hearing) and Thomas A. Bitter (plea and sentencing), Judges.
Teodoro Borrego appeals from the summary dismissal of his application
for postconviction relief. AFFIRMED.
Mark C. Smith, State Public Defender, and Rachel C. Regenold,
Assisstant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Ralph R. Potter, County Attorney, and Brigit M. Barnes,
Assistant County Attorney, for appellee State.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
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DOYLE, Presiding Judge.
Teodoro Borrego appeals from the summary dismissal of his application
for postconviction relief, contending there is a genuine issue of material fact as to
whether his guilty plea to second-degree murder was knowing and voluntary.
We affirm.
I. Background Facts and Proceedings
In 2011, Borrego was charged with murder in the first degree. Consistent
with the terms of a plea agreement, Borrego pled guilty to second-degree
murder. The plea memorandum provided Borrego would be sentenced to an
indeterminate term not to exceed fifty years with a seventy percent mandatory
minimum. The memorandum, signed by Borrego, specifically states: “Pursuant
to Iowa Code section 902.12(1), the Defendant shall be denied parole or work
release unless he has served at least seven-tenths of the maximum term of his
sentence.”
Borrego appeared with counsel for the plea and sentencing hearing,
where the following colloquy took place:
COURT: Okay. Mr. Borrego, are you aware that the
maximum and mandatory penalty for murder in the second degree
is a period of incarceration not to exceed 50 years?
DEFENDANT: Yes.
COURT: And by statute, are you aware that you are required
to serve at least 70 percent of that sentence?
DEFENDANT: Yes.
COURT: Do you understand that the plea negotiations that
you’ve entered into through the attorneys are not binding on the
Court at the time of sentencing?
DEFENDANT: Yes.
3
The district court proceeded to the factual basis for Borrego’s plea, asking
Borrego to explain in his own words the incident leading to his charge. The
following colloquy took place:
DEFENDANT: Well, what happened that night just we’ve
been—she just been—for the last two years she’s been seeing
other guys and stealing my money and lying to me, and that night I
come home and I was going to tell her just give me my $2300 that
she owed me so I could move out, and when I walked in the room,
she had a big grin on her face and there was a naked guy on her
phone and I lost it.
COURT: Okay. What happened then?
DEFENDANT: I went a—I went across the hallway and I had
a shotgun there and I just—out of rage, I just grabbed it and went in
the room, shot her.
The court thereafter accepted Borrego’s guilty plea and sentenced him per the
plea memorandum.
Borrego filed an application for postconviction relief (PCR) challenging the
voluntariness of his plea and contending he received ineffective assistance of
counsel. Borrego subsequently filed an amended application through counsel.
In an affidavit attached to the amended application, Borrego stated:
When I entered my guilty plea in 2011, I was told by my
lawyer to take the plea offer or else I would be sentenced to life in
prison. I was not advised by my lawyer that I would have to serve
35 years of a 50 year sentence before I was eligible for parole. I
thought that I would be eligible for parole. I also thought that I
would receive day for day credit against my sentence for the time I
spent in jail. I did not realize that I would not until I was informed
differently by my counselor at Oakdale.
If I had known that I was not eligible for parole for 35 years, I
would not have pled guilty. I would have gone to trial. I felt
pressured to plead guilty.
The State filed a motion for summary judgment of Borrego’s application,
claiming the grounds urged by Borrego in his application were in contradiction to
the record and the guilty plea colloquy. Specifically, the State alleged, “Contrary
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to Borrego’s claims, the transcript of the plea proceedings show that Borrego in
fact knew that he was required to serve at least 70 percent of his sentence at the
time he pleaded guilty to murder in the second degree.” Attached to the State’s
motion for summary judgment was an affidavit by defense counsel Thomas
Goodman, stating in part:
5. I informed Mr. Borrego that he could go to trial on the
charge of murder in the first degree but that the evidence was very
strong in the State’s favor. I also informed Mr. Borrego that if he
were convicted of murder in the first degree, the penalty for that
charge was life in prison without parole. I also informed Mr.
Borrego that if he were convicted of murder in the second degree,
the penalty for that charge would be fifty years in prison. I also
advised him that the law required him to serve seventy percent of
that fifty year sentence before he would be eligible for parole. I
shared all of this information with Mr. Borrego’s daughter and son
as well.
6. In light of the strong evidence in favor of the State in this
case, I advised Mr. Borrego that a sentence of thirty-five years was
more beneficial to him than that of life in prison, and that, given the
facts in this case, this was probably the best outcome he could get.
I advised Mr. Borrego to plead guilty to murder in the second
degree.
7. From the inception of the case, Mr. Borrego admitted his
guilt. He was very remorseful and wanted to put the matter behind
him. It was his decision to plead guilty to murder in the second
degree.
8. At his plea proceeding, the Court asked Mr. Borrego if he
knew that he would have to serve thirty-five years of his sentence.
Mr. Borrego affirmed he knew this fact.
According to the State, “Goodman acted properly in giving his advice to Borrego.”
Following a hearing, the district court entered an order granting the State’s
motion for summary judgment and dismissing Borrego’s PCR application. The
court found Borrego “has not produced any credible evidence that there are
genuine issues of material fact for resolution at a trial” where “[t]he plea colloquy
clearly identifies the necessary elements to create an understanding by the Court
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that the defendant knowingly and voluntarily entered into the plea, understood
the rights and consequences associated with the plea, and that a factual basis
exists for the plea,” and where “it was said to [Borrego] on three separate
occasions during the plea colloquy and the sentencing that he would be required
to serve 70 percent of this sentence prior to any possible consideration for
parole.”
Borrego filed a motion to reconsider,1 which the court denied. Borrego
appeals.
II. Standard of Review
We review postconviction proceedings for errors at law. See Perez v.
State, 816 N.W.2d 354, 356 (Iowa 2012). Everett v. State, 789 N.W.2d 151, 155
(Iowa 2010). This includes summary dismissals of applications for postconviction
relief. See Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002). However, we
conduct a de novo review of applications for postconviction relief raising
constitutional infirmities, including claims of ineffective assistance of counsel.
Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). “In determining whether
summary judgment is warranted, the moving party has the burden of proving the
material facts are undisputed. We examine the facts in the light most favorable
to the nonmoving party.” Id.
III. Discussion
Summary disposition of a postconviction application is authorized “when it
appears from the pleadings, depositions, answers to interrogatories, and
1
Borrego’s motion was captioned a “motion to modify and substitute judgment”; the
court ruled on it as a motion to reconsider.
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admissions and agreements of fact, together with any affidavits submitted, that
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” Iowa Code § 822.6 (2013). Disposition under this
provision is similar to the summary judgment procedure set forth in Iowa Rule of
Civil Procedure 1.981(3). See Manning, 654 N.W.2d at 559-60.
Borrego contends his guilty plea “was not knowing, voluntary and
intelligent because plea counsel failed to advise him that he would have to serve
thirty-five years of his sentence before being paroled and that he would not
receive day-to-day credit for his jail time.” According to Borrego, these were
“genuine issues of material fact that precluded summary disposition in this case.”
The State counters an evidentiary hearing is not required where Borrego’s claim
is directly contradicted by the record.
“A plea colloquy that covers the specific ground subsequently raised in a
postconviction relief application would normally support summary judgment on
those grounds.” Castro, 795 N.W.2d at 795; see Wise v. State, 708 N.W.2d 66,
71 (Iowa 2006) (indicating that statements made to court in plea colloquy
establish a presumption of the true facts on the record). Where the record
directly contradicts the claim a guilty plea was unintelligent and involuntary, “the
applicant bears a special burden to establish the record is inaccurate.” See
Arnold v. State, 540 N.W.2d 243, 246 (Iowa 1995).
In dismissing Borrego’s application for postconviction relief, the district
court detailed Borrego’s communications with the court and his attorney
regarding his plea. The court concluded:
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The Applicant has not produced any credible evidence that
there are genuine issues of material fact for resolution at a trial.
The plea colloquy clearly identifies the necessary elements to
create an understanding by the Court that the defendant knowingly
and voluntarily entered into the plea, understood the rights and
consequences associated with the plea, and that a factual basis
exists for the plea based on the colloquy and the Court’s reading of
the Minutes of Testimony. The Applicant was able to make inquiry
during the plea. He asserted his own recitation of the facts. He
acknowledged his responsibility associated with his conduct. And
the Court made the finding consistent thereto that he understood
what was occurring.
The findings herein are further supported by the fact that
defense counsel spoke with the Applicant pertaining to trial on the
original charge of murder in the first degree, which would have
resulted in life imprisonment in the event the jury found him guilty
thereof. There is no credible evidence to support an allegation that
the Applicant was not aware that he was poised to suffer further
consequences more onerous in the event of trial.
The Applicant further asserts that he was not made aware of
the fact that he would not receive day-for-day credit against his
sentence for the time spent in jail. He indicated that if he had
known he was not eligible for parole for 35 years, he would not
have pled guilty but instead would have gone to trial.
That statement is not credible in light of the fact that he
would have been facing life imprisonment in the event of a finding
of guilt on the original offense. The Court further does not find it
credible that he felt pressured to plead guilty as both he and his
attorney indicated that on all occasions when questioned pertaining
to the events, he acknowledged his responsibility and felt remorse.
He spoke to law enforcement and acknowledged his responsibility.
In fact, there was never a denial of the chain of events that lead to
the death of the victim. Additionally, as previously stated, it was
said to him on three separate occasions during the plea colloquy
and the sentencing that he would be required to serve 70 percent of
this sentence prior to any possible consideration for parole.
Upon our review of the record, including the plea memorandum, the plea
and sentencing proceeding, and the affidavits of Borrego and his plea attorney,
we conclude Borrego was informed of and agreeable to the plea agreement he
reached with the State. Borrego signed a plea memorandum acknowledging that
the State would recommend a fifty-year sentence and that he would be denied
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parole or work release until he served seven-tenths of the maximum term of his
sentence. Borrego’s attorney stated Borrego admitted his guilt and it was
Borrego’s decision to plead guilty to second-degree murder given the evidence
against him and the potential punishment he faced. Borrego’s attorney also
stated the court addressed Borrego’s minimum punishment with him at the plea
hearing, and “Borrego affirmed he knew this fact.” “Our rules of summary
judgment do not permit the nonmovant [Borrego] to rest on conclusory
allegations in the pleadings in the face of a properly supported motion for
summary judgment.” See Castro, 795 N.W.2d at 795.
Specifically with regard to the day-to-day credit for time spent in jail, the
State agrees Borrego is entitled to credit against his sentence for each day he
spent in jail on this offense. See Iowa Code § 903A.5(1) (“An inmate shall be
deemed to be serving the sentence from the day on which the inmate is received
into the institution. If an inmate was confined to a county jail . . . at any time prior
to sentencing, or after sentencing but prior to the case having been decided on
appeal, . . . the inmate shall be given credit for the days already served upon the
term of the sentence.”); Kolzow v. State, 813 N.W.2d 731, 740 (Iowa 2012)
(applying the provision).
Although we believe Borrego has or will receive appropriate credit for time
served (as will be discussed below), under these circumstances, we conclude
Borrego has failed to show, considering the evidence against him, he would have
elected to proceed to trial on the first-degree murder charge with the possibility of
receiving a sentence of life imprisonment. See Dempsey v. State, 860 N.W.2d
860, 868 (Iowa 2015) (noting applicant must prove both that (1) his counsel failed
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to perform an essential duty, and (2) he suffered prejudice as a result of his
counsel’s failure); State v. Straw, 709 N.W.2d 128, 136 (Iowa 2006) (noting that
to prove the prejudice prong of an ineffective-assistance-of-counsel claim in the
context of a guilty plea, the applicant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial); see also Hill v. Lockhart, 474 U.S. 52, 60
(1985) (stating the applicant “alleged no special circumstances that might support
the conclusion that he placed particular emphasis on his parole eligibility in
deciding whether or not to plead guilty” and therefore concluding the applicant
did not satisfy the prejudice prong of his ineffective-assistance-of-counsel claim).
Accordingly, his claim of ineffective assistance on this ground fails. See State v.
Polly, 657 N.W.2d 462, 465 (Iowa 2003) (noting failure to prove either element by
a preponderance of the evidence is fatal to a claim of ineffective assistance of
counsel).
In any event, it appears the underlying credit issue is not properly before
us. Borrego’s challenge to day-to-day credit should first be raised in an
administrative proceeding. See Iowa Code § 822.2(f); see also State v. Millsap,
No. 08-1181, 2009 WL 2170246, at *1 n.1 (Iowa Ct. App. July 22, 2009) (“Millsap
is challenging the calculation of credit to be applied to his sentence, which may
be challenged in an administrative law action.”). Moreover, according to the
State, “[T]he Department of Corrections record in this case shows that the
Dubuque County Sheriff has issued an affidavit of credit for time served and that
the Department of Corrections has awarded the appropriate credit.”
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Unfortunately, the affidavit was not made part of the record, but clearly it would
be fleshed out during an administrative proceeding on the issue.
For these reasons, we affirm the district court’s ruling dismissing Borrego’s
application for postconviction relief.
AFFIRMED.