State of Iowa v. James Allen Jensen ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 12-0458
Filed May 29, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES ALLEN JENSEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,
Judge.
James Jensen appeals, asserting ineffective assistance of trial counsel
affected his restitution order. APPEAL DISMISSED.
Tomas J. Rodriguez, Orland Park, Illinois, for appellant.
Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney
General, Michael J. Walton, County Attorney, and Joe Grubisich, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ. Tabor, J., takes no
part.
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VOGEL, P.J.
James Jensen appeals, asserting ineffective assistance of trial counsel
affected his restitution order. Jensen claims his trial counsel should have
deposed two State witnesses prior to his entering a guilty plea, and should have
limited the factual basis in the guilty plea so as not to include one charge that
was dismissed, but later was considered in determining the restitution. Because
Jensen did not timely appeal from his conviction and sentence, our supreme
court, by order, limited Jensen’s appeal to issues challenging the restitution
order. Because he disregarded that order, we dismiss Jensen’s appeal.
On July 6, 2011, Jensen was charged with third degree burglary of an
unoccupied vehicle, in violation of Iowa Code sections 713.1 and 713.6A(2)
(2011), and second degree theft, in violation of Iowa Code sections 714.1(1) and
714.2. On November 16, 2011, Jensen entered into a global plea agreement
relating to these charges as well as four other criminal charges, pleading guilty to
the third degree burglary charge. With regard to the burglary plea, Jensen
admitted he “broke into a motor vehicle (unoccupied) and stole stereo
equipment.” Although the theft charge was dismissed, the memorandum of the
plea agreement stated: “Defendant to pay victim restitution on all counts.” The
court acknowledged this term at the plea hearing. Jensen was sentenced on
December 22, 2011. A contested restitution hearing was held on February 1,
2012, in which the district court ordered Jensen to pay $750 in restitution to the
victim.
Jensen did not file a timely direct appeal challenging his plea, conviction,
and sentence. Consequently, in an order dated March 14, 2013, the supreme
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court struck the amended proof brief and limited the issues Jensen could address
on appeal to the restitution order. Specifically, the supreme court’s order stated,
“[T]he defendant shall serve and shall file a second amended appellant’s proof
brief. Such a brief shall only raise restitution issues that challenge the ruling from
which the appeal is taken.”
In his second amended brief, Jensen claims trial counsel was ineffective
for failing to depose two State witnesses prior to entering his guilty plea. Jensen
argues that, had these witnesses been deposed, they would have testified
Jensen did not steal any property from the victim’s vehicle, which would have led
to a more favorable ruling in the restitution hearing. Jensen also claims the
factual basis to which he admitted in the guilty plea was too broad, because it
eliminated the likelihood of avoiding restitution due to the dismissed theft charge.
These arguments address trial counsel’s alleged failures, framing the
issues as ineffective-assistance claims. Jensen can only raise ineffective-
assistance-of-trial-counsel claims on direct appeal when the direct appeal is
timely. See generally State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).
Jensen’s arguments do not attack the restitution order directly, nor do they
reference restitution counsel’s performance. Thus, Jensen does not appeal from
the restitution order. Rather, Jensen’s claims raise issues related to his plea and
conviction, an appeal already determined to be untimely, and therefore outside
the scope of the order issued by the supreme court. Consequently, we dismiss
Jensen’s appeal.
APPEAL DISMISSED.