State of Iowa v. Troy T.C. Tolefree ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1247
Filed June 10, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TROY T.C. TOLEFREE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette
Boehlje, Judge.
Troy Tolefree appeals his guilty plea and sentence to possession of a
controlled substance. AFFIRMED.
David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles
City, for appellant.
Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant
Attorney General, Carlyle D. Dalen, County Attorney, and Nichole Benes,
Assistant County Attorney, for appellee.
Considered by Potterfield, P.J., Bower, J. and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
BOWER, J.
Troy Tolefree appeals his guilty plea and sentence for possession of a
controlled substance, claiming the district court abused its discretion by failing to
make further inquiry into a written notation concerning his dissatisfaction with his
attorney. Since Tolefree did not file a motion in arrest of judgment, we find
Tolefree has failed to preserve error on his claim. We affirm Tolefree’s sentence.
On December 23, 2013, the State charged Tolefree with two counts of
possession of marijuana, a schedule I controlled substance, first offense,
pursuant to Iowa Code section 124.401(5) (2013). Tolefree and the State
entered into a plea agreement in which he agreed to plead guilty to one count of
possession of marijuana in exchange for the State dismissing the second count.
The guilty plea included the following language concerning Tolefree’s relationship
with counsel:
17. I have told my attorney all facts and circumstance known
to me about the charge made against me in this case. I believe my
attorney is fully informed on all such matters.
18. I believe my attorney has done everything possible to
counsel and assist me; I am satisfied with the advice and help
given me.
Tolefree initialed next to paragraphs 17 and 18. However, below paragraph 17,
Tolefree wrote: “I do not feel my attorney informed me;” and below paragraph 18
he wrote: “No, I do not feel my attorney has done everything possible to counsel
and assist me.” The guilty plea also included a waiver of the right to file a motion
in arrest of judgment.
3
The district court accepted the written guilty plea on July 14, 2014, and
entered judgment and sentence without a hearing. Concerning Tolefree’s written
statements about his attorney, the court reasoned:
The Court notes that the Defendant ‘complains’ of his attorney, yet
has signed the guilty plea which provides the information which is
necessary. Additionally, Counsel expended significant amounts of
time during the case. It would appear the Defendant is looking to
blame someone else for his choices rather than accept
responsibility for his criminal behavior.
Tolefree now appeals this sentence.
Tolefree claims as his guilty plea indicates a misunderstanding or a
violation of his rights, the court should have conducted an in court colloquy about
the nature of his complaints concerning his attorney. However, Tolefree did not
file a motion in arrest of judgment. “A defendant’s failure to challenge the
adequacy of a guilty plea proceeding by motion in arrest of judgment shall
preclude the defendant’s right to assert such challenge on appeal.” Iowa R.
Crim. P. 2.24(3)(a); State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). Tolefree
claims he preserved error since his claim implicates his constitutional right to
counsel, but Tolefree specifically notes his claim is not one of ineffective
assistance of counsel.1 See Ortiz, 789 N.W.2d at 764 (noting ineffective counsel
claims are an exception to our error preservation requirements, even if a party
has signed a plea agreement waiving the right to file a motion in arrest of
judgment). Tolefree does not raise any other constitutional claims in his brief—
instead he focuses on the “adequacy” of the plea proceeding. Therefore, we find
1
On page seven of his brief Tolefree stated: “The issue before the court is not whether
Tolefree’s attorney was ineffective in her performance, but whether the District Court
should have accepted a guilty plea knowing the performance was being questioned.”
4
Tolefree has failed to preserve error on this claim, and we affirm the district
court’s judgment and sentence.
AFFIRMED.