State of Iowa v. John B. Devore Jr. ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1967
Filed February 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHN B. DEVORE JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Cynthia Moisan,
District Associate Judge.
John B. Devore Jr. appeals his conviction, following a guilty plea, to
operating while intoxicated, third offense. AFFIRMED.
John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant
Attorney General, John P. Sarcone, County Attorney, and Jordana A. Roling,
Assistant County Attorney, for appellee.
Considered by Danilson, C.J., Potterfield, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MILLER, S.J.
John B. Devore Jr. appeals his conviction, following a guilty plea, to
operating while intoxicated (OWI), third offense, in violation of Iowa Code section
321J.2 (2013). He asserts defense counsel rendered ineffective assistance. We
affirm Devore’s conviction and preserve his ineffective-assistance claim for a
possible postconviction proceeding.
On July 26, 2013, Devore was driving when stopped by a police officer for
a traffic violation. The odor of an alcoholic beverage on Devore’s breath, and
Devore’s demeanor, speech, and eye conditions, caused the officer to suspect
Devore was intoxicated. The officer administered several field sobriety tests as
well as a preliminary breath test (PBT), the results of which further convinced the
officer that Devore was intoxicated. The officer arrested Devore for OWI. A
DataMaster breath test indicated an alcohol concentration of 0.088.
Devore was charged with OWI, third offense. The trial information
alleged, as relevant to the issue in this appeal, that he
did operate a motor vehicle while under the influence of an
alcoholic beverage or other drug, or a combination of such
substances, or while having eight hundredths (.08) or more alcohol
concentration or while any amount of controlled substances in the
person . . . .
Devore pled guilty to OWI, third offense, by stating that he “operated a motor
vehicle with a B.A.C. 0.088” and had “2 prior OWI’s from 11/9/2007 & 12-3-10.”
He was convicted and sentenced. Devore timely appeals.
We review claims of ineffective assistance de novo. State v. Bergmann,
600 N.W.2d 311, 313 (Iowa 1999). We presume that representation by counsel
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is competent, and a defendant has the burden to prove by a preponderance of
the evidence that counsel was ineffective. Jasper v. State, 477 N.W.2d 852, 855
(Iowa 1991).
A claimant alleging ineffective assistance of counsel must
prove (1) counsel failed to perform an essential duty and (2)
prejudice resulted. To establish prejudice, a claimant must
demonstrate there is a reasonable probability that, but for the
counsel’s unprofessional errors, the result of the proceeding would
have been different. In the context of a guilty plea, an applicant for
postconviction relief must prove a reasonable probability that, but
for counsel’s alleged errors he [or she] would not have pled guilty
and would have insisted on going to trial. The probability of a
different result must be sufficient to undermine confidence in the
outcome. We will address on direct appeal claims of ineffective
assistance of counsel only if we determine the development of an
additional factual record would not be helpful and these elements
[of an ineffective-assistance claim] can be decided as a matter of
law.
State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009) (first alteration in original)
(citations and quotation marks omitted).
The Iowa Administrative Code provides, in relevant part, that “[a]ll devices
[used to test a subject’s breath alcohol concentration] must be certified to be in
proper working order within a period of one year immediately preceding use
according to procedures specified for that device.” Iowa Admin. Code r. 661-
157.2(2). The police officer tested Devore’s breath on July 26, 2013. The record
before us on appeal indicates that the DataMaster used to test his breath was
last certified to be in proper working order on June 26, 2012, thirteen months
before Devore’s breath was tested.
Devore asserts defense counsel rendered ineffective assistance by failing
to file a motion to suppress the results of the DataMaster breath test and allowing
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him to plead guilty. He argues that such a motion would have succeeded as the
results of the test would not have been admissible, because the certification was
outdated, and he “wouldn’t have had to plead guilty.”
“It is well established that a defendant’s guilty plea waives all defenses
and objections which are not intrinsic to the plea.” Carroll, 767 N.W.2d at 641.
However, because “[a] defendant waives a variety of constitutional rights by
pleading guilty to a criminal offense . . . it is fundamental that a plea of guilty is
valid only if it is given voluntarily, knowingly, and intelligently.” State v. Meron,
675 N.W.2d 537, 542 (Iowa 2004). The State asserts that Devore has not
presented an ineffective-assistance claim, as his claim “does not relate to the
voluntariness of his [guilty] plea.” Although not expressly stated, implicit in
Devore’s claim of ineffective assistance is an assertion that defense counsel did
not know, or knew but did not inform Devore, that the DataMaster certification
was no longer valid. Although this assertion arguably may not implicate the
voluntariness of his guilty plea, it does implicate the issue of whether the plea
was knowingly and intelligently given. See, e.g., Carroll, 767 N.W.2d at 642
(citing Zacek v. Brewer, 241 N.W.2d 41, 48-49 (Iowa 1976) for the proposition
that a defendant may, after entry of a guilty plea, attack the voluntary and
intelligent character of the plea by showing the advice received from counsel was
not within the range of competence demanded of attorneys in criminal cases). In
Carroll, the court found the record inadequate to determine whether defense
counsel should have filed a motion to suppress evidence derived from a
warrantless search and preserved a claim of ineffective assistance for a possible
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postconviction proceeding. Id. at 645-46. Based on the reasoning and holding in
Carroll, we reject the State’s assertion that Devore has not presented an
ineffective-assistance claim.
The State urges, on the merits, that Devore has not proved his claim of
ineffective assistance, rendering his guilty plea invalid, as (1) if defense counsel
had challenged certification of the DataMaster the State might have been able to
show a proper certification existed, and (2) there existed alternative evidence to
support a guilty plea, the smell of alcohol on Devore’s breath, his mumbled
speech and watery eyes, and unsuccessful performance of field sobriety tests.
This evidence, of course, relates only to the “under the influence” alternative of
OWI, and not to the “eight hundredths (0.08) or more alcohol concentration”
alternative to which Devore pled guilty.
The development of an additional factual record would be helpful, and is
necessary, to decide whether defense counsel rendered ineffective assistance as
asserted by Devore. We cannot determine on the existing record several
relevant facts, including but not necessarily limited to the following: whether
defense counsel was aware the DataMaster certification was outdated, and if so,
whether counsel informed Devore of that fact; whether a later valid certification of
the DataMaster was in existence, and if so, whether defense counsel, Devore,
both of them, and/or the prosecuting attorney, were aware of that fact; whether
there were discussions between Devore and defense counsel regarding the
strength of the “under the influence” evidence; and whether there was any
agreement that Devore would plead guilty under that alternative if not under the
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“eight hundredths 0.08 or more alcohol concentration” alternative. In summary,
we conclude the record in this direct appeal is inadequate to address Devore’s
claim of ineffective assistance. We therefore affirm his conviction and preserve
his ineffective-assistance claim for a possible postconviction proceeding.
AFFIRMED.