State of Iowa v. Erwin Shaquan King Jr. ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 3-1132 / 12-1332
Filed February 5, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ERWIN SHAQUAN KING JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
Defendant appeals the judgment against him, based on his guilty pleas, to
two counts of theft in the first degree. CONVICTIONS AFFIRMED;
SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,
Assistant Appellate Defender.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Michael J. Walton, County Attorney, and Amy Devine, Assistant County
Attorney, for appellee.
Considered by Danilson, C.J., Vaitheswaran, J., and Miller, S.J.*
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
MILLER, S.J.
Erwin King appeals his convictions, based on his guilty pleas, to two
counts of first-degree theft. He raises claims of ineffective assistance of counsel,
the court’s denial of his motion in arrest of judgment, the amount of restitution
ordered for court-appointed attorney fees, and prosecutorial misconduct. Two of
his claims of ineffective assistance of counsel, regarding the mandatory minimum
sentence and failure to defend, to investigate, and to be an advocate, are
preserved for possible postconviction proceedings. The remainder of his claims
of ineffective assistance are without merit. The district court properly denied his
motion in arrest of judgment. His claim of prosecutorial misconduct has not been
preserved for our review. We affirm King’s convictions to two counts of first-
degree theft. We vacate that part of the sentencing order concerning
reimbursement of attorney fees and remand for a new order determining the
proper amount for his court-appointed attorney fees, which may not exceed
$1800. The other parts of the sentencing order are affirmed.
I. Background Facts & Proceedings
Erwin King was charged with two counts of second-degree robbery as an
habitual offender. King gave notice of an alibi defense. The jury trial
commenced on April 30, 2012, and continued on May 1, 2012.
While the jury was deliberating on the afternoon of May 1, 2012, King
entered into a plea agreement with the State in which he agreed to plead guilty to
two counts of first-degree theft as an habitual offender and the State agreed to
dismiss the two charges of second-degree robbery. The State also agreed not to
3
resist concurrent sentences on the two theft charges.1 The district court engaged
in a plea colloquy with King and accepted his guilty pleas to two counts of first-
degree theft, in violation of Iowa Code section 714.2(1) (2011), class “C” felonies.
The court then discharged the jury.
King filed a motion in arrest of judgment alleging that while he was
entering guilty pleas the jury had acquitted him of the charges of second-degree
robbery. The district court determined no verdict on the second-degree robbery
charges had been rendered under Iowa Rule of Criminal Procedure 2.22(5)
because the jury’s decision had not been read in open court and there was no
polling of the jurors. The court denied the motion in arrest of judgment.
The court sentenced King to no more than fifteen years in prison on each
count of first-degree theft, to be served consecutively. King appeals his
convictions and sentences.
II. Ineffective Assistance
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, a defendant must show (1) the attorney failed to perform
an essential duty, and (2) prejudice resulted to the extent it denied the defendant
a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “In determining
whether an attorney failed in performance of an essential duty, we avoid second-
guessing reasonable trial strategy.” Everett v. State, 789 N.W.2d 151, 158 (Iowa
1
The State also agreed not to resist the sentences in the present case running
concurrently to a sentence to be served as a result of a parole violation. This part of the
plea agreement has not been challenged on appeal.
4
2010). In order to show prejudice in guilty plea proceedings, a defendant is
required to show a reasonable probability that, but for counsel’s error, he would
not have pleaded guilty and would have insisted on going to trial. See State v.
Straw, 709 N.W.2d 128, 138 (Iowa 2006).
A. King contends he received ineffective assistance because his
defense counsel did not object when the court refused to be bound by the plea
agreement at sentencing. He asserts that under the plea agreement he should
have been given concurrent sentences rather than consecutive sentences. He
asserts counsel should have argued that because the court determined it was not
bound by the plea agreement, King should have been permitted to withdraw his
plea.
At the plea proceeding, the court set forth the terms of the plea agreement
as follows:
[T]he State and the defense have agreed upon a plea agreement,
which indicates the defendant will plead guilty to an Amended and
Substituted Trial Information adding Counts 3 and 4, Theft in the
First Degree, and he’ll plead to those as an habitual offender. The
State will dismiss Counts 1 and 2 at the time of sentencing, which,
again, is Robbery in the Second Degree in two counts. The State
recommends incarceration as an habitual offender. The State will
not resist Counts 3 and 4 running concurrently to each other.
When asked if this was his understanding of the plea agreement, King answered
affirmatively.
The court also stated,
Pleading guilty as an habitual offender provides a penalty of
confinement not to exceed 15 years on each count. That means
the Court could impose a sentence of 30 years. Do you understand
that?
5
I understand what the plea agreement is, and the State
doesn’t resist concurrent terms. I’m just telling you what the
maximum penalty is.
Again, King answered affirmatively. The court further asked King, “Have there
been any predictions made or promises made by anyone concerning what the
sentence will be if you plead guilty?” and he answered, “No, sir.”
At the sentencing hearing the court noted that under the terms of the plea
agreement the State would not resist concurrent sentences.2 The court asserted
it was not bound by the State’s position. The court determined King should serve
consecutive sentences.
We conclude the record does not support King’s claim the plea agreement
provided he would receive concurrent sentences and the court breached the
terms of the agreement. King agreed on the record with the court’s recitation of
the plea agreement and indicated he understood he could receive up to thirty
years in prison on the two charges. King also stated no promises had been
made to him about sentencing. We conclude King has failed to show he
received ineffective assistance on this issue. See State v. Brothern, 832 N.W.2d
187, 192 (Iowa 2013) (noting counsel should not be determined incompetent for
failing to pursue a meritless issue).
B. King makes a related claim that he received ineffective assistance
because defense counsel did not object when during the sentencing hearing the
prosecutor did not specifically assert the State was not resisting concurrent
2
The sentencing judge was quite familiar with the case and the terms of the guilty
pleas, being the same judge who had presided at the two days of trial and at the guilty
plea proceeding.
6
sentences. The prosecutor recommended incarceration but did not make any
statement concerning consecutive or concurrent sentences.
“[W]hen a plea rests in any significant degree on a promise or agreement
of the prosecutor, so that it can be said to be part of the inducement or
consideration [for the plea], such promise must be fulfilled.” State v. Horness,
600 N.W.2d 294, 298 (Iowa 1999). When the State agrees to recommend a
particular sentence the prosecutor must commend the recommended sentences
to the court or otherwise inform the court the State supported the suggested
sentences. Id. at 300. If the State agrees to be silent, however, the prosecutor
must not recommend or suggest a particular sentence. State v. Carrillo, 597
N.W.2d 497, 500 (Iowa 1999).
We conclude the prosecutor’s silence on the issue of concurrent or
consecutive sentences is the same as not resisting concurrent sentences. The
record does not support King’s assertion the prosecutor breached the plea
agreement. For this reason, there was no basis for an objection by defense
counsel, and King has failed to show he received ineffective assistance due to
counsel’s failure to object. See Brothern, 832 N.W.2d at 192.
C. King claims he received ineffective assistance because defense
counsel did not object on the ground there was an insufficient factual basis for his
guilty plea to one of the charges of first-degree theft. The amended trial
information alleged King had committed theft in the first degree under the
alternative of theft from the person of another. See Iowa Code § 714.2(1). He
asserts the minutes of evidence and attached police reports regarding a theft
7
from Anna Handsaker on October 21, 2011, stated her purse was taken from her
house after a person had thrown her to the ground in her garage. He argues
there was not a sufficient factual basis to show Handsaker’s purse was taken
from her person or from her immediate vicinity. See State v. Washington, 308
N.W.2d 422, 423 (Iowa 1981) (noting theft from a person “means from her
immediate presence and possession of or from her immediate charge and
custody”).
Under Iowa Rule of Criminal Procedure 2.8(2)(b), a factual basis for a plea
should be stated on the record. State v. Finney, 834 N.W.2d 46, 61 (Iowa 2013).
“On a claim that a plea bargain is invalid because of a lack of accuracy on the
factual-basis issue, the entire record before the district court may be examined.”
Id. at 62. A factual basis may be provided by statements made by a defendant at
a guilty plea hearing. State v. Velez, 829 N.W.2d 572, 578 (Iowa 2013) (noting
we may examine the statements made by the defendant and the prosecutor at a
guilty plea proceeding to determine whether a factual basis has been
established).
Here, during the plea colloquy, King was asked whether he had taken
property from the person of Handsaker, and he answered, “Right.” He also
stated he had taken property from Handsaker, did not have permission to take it,
and intended to keep the property. We conclude King’s statement on the record
provides an adequate factual basis for his guilty plea to first-degree theft.3 We
3
The State additionally asserts the minutes of evidence provide a factual basis to show
a theft “from the person of another.” See Iowa Code § 714.2(1). The minutes state
Handsaker had gone on an errand and the following occurred:
8
conclude he has failed to show he received ineffective assistance on his claim
regarding a factual basis for his guilty plea.
D. Under rule 2.8(2)(b)(2), a court should inform a defendant of the
mandatory minimum punishment for an offense. King asserts the district court
did not inform him of the three-year mandatory minimum sentence found in
section 902.8 for an habitual offender convicted of a class “C” or “D” felony. He
contends he received ineffective assistance because his defense counsel did not
object to the court’s failure to inform him of the mandatory minimum sentence.
The State acknowledges the court did not inform King of the three-year
mandatory minimum sentence and defense counsel did not bring this problem to
the court’s attention.4 In order to show ineffective assistance of counsel,
however, King is required to show a reasonable probability that, but for counsel’s
error, he would not have pleaded guilty and would have insisted on going to trial.
See Straw, 709 N.W.2d at 138. “In only rare cases will the defendant be able to
muster enough evidence to prove prejudice without a postconviction relief
Once she arrived home she went into the garage, and then began
unloading groceries inside her house. When she went back out to the
garage a [ ] male approached her demanding money. She told him her
purse was in the house. At that time, the suspect grabbed her by the
back of the shirt and flung her to the ground. The suspect then went into
the house, grabbed her purse, and fled from the scene.
Because King acknowledged on the record he had taken property from the person of
Handsaker, we do not address whether the minutes of evidence themselves provide a
sufficient factual basis to show theft from her immediate presence and possession or
from her immediate charge and custody. See Washington, 308 N.W.2d at 423.
4
In the defendant’s version of events in the pre-sentence investigation (PSI) report King
states there is a three-year mandatory minimum for his sentence. It is not clear,
however, whether King knew of the three-year mandatory minimum sentence at the time
he entered his guilty plea.
9
hearing.” Id. We conclude this issue should be preserved for a possible
postconviction proceeding.
E. King contends that due to cumulative errors by defense counsel we
should determine he received ineffective assistance. We may look to the
cumulative effect of counsel’s errors to determine whether a defendant has
satisfied the prejudice prong of the test for ineffective assistance. State v. Clay,
824 N.W.2d 488, 500 (Iowa 2012). King has not shown multiple failures by
defense counsel to perform an essential duty. Therefore, he has not shown a
cumulative prejudicial effect due to errors by defense counsel. We conclude
King has not shown he received ineffective assistance based on cumulative
error.
III. Motion in Arrest of Judgment
King contends the district court abused its discretion by denying his
motion in arrest of judgment. He asserts that based on his acquittal by the jury
on the charges of second-degree robbery he should have been permitted to
withdraw his guilty pleas. He claims he was acquitted at the time the jury voted
to find him not guilty and the district court improperly determined the jury had not
rendered a verdict because it had not been formally returned in open court and
the jury was not polled.
We review a district court’s decision on a motion in arrest of judgment for
an abuse of discretion. State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008). “An
abuse of discretion will only be found where the trial court’s discretion was
10
exercised on clearly untenable or unreasonable grounds.” Id. A court’s decision
is untenable when it is based on an erroneous application of the law. Id.Rule 2.22(5) provides:
The jury, agreeing upon a verdict unanimously, shall bring
the verdict into court, where it shall be read to them, and inquiry
made if it is their verdict. A party may then require a poll asking
each juror if it is the juror’s verdict. If any juror expresses
disagreement on such poll or inquiry, the jury shall be sent out for
further deliberation; otherwise, the verdict is complete and the jury
shall be discharged. When the verdict is given and is such as the
court may receive, the clerk shall enter it in full upon the record.
At the beginning of the plea proceedings the court noted the jury was
deliberating at that time, but King had decided to enter guilty pleas to two
charges of first-degree theft as an habitual offender.5 The plea proceedings
concluded prior to any indication the jury had reached a verdict. 6 In addressing
the motion in arrest of judgment, the district court determined the verdict on the
charges of second-degree robbery had never been entered. The court stated it
“called in the jury and indicated that the defendant had pled guilty and therefore
there was no need to enter the verdict, in that the plea of guilty had been entered
prior to the verdict being rendered in open court.”
5
The plea proceedings began at 4:42 p.m. on May 1, 2012. The court noted the jury
was deliberating at that time. The plea concluded at 4:53 p.m. The court called the jury
into the courtroom and discharged them at 4:57 p.m. There is an instruction in the
record temporarily releasing the jurors at 4:30 p.m. on May 1, 2012, and asking them to
continue deliberations the next day, but it is unknown whether this instruction was ever
given. It is clear from the plea proceeding transcript the jury was still present in the
courthouse until 4:57 p.m.
6
At the sentencing hearing the court noted the court attendant had put her head in the
door during the plea proceedings, but the circumstances were unclear. As the court
stated, “It could have been a jury question for all I knew.” The transcript of the plea
proceedings do not give any indication that this incident occurred.
11
Under rule 2.22(5) the verdict is complete after it is read in court, the jury
is asked if that is its verdict, and if any party requests, each juror is asked if that
is the juror’s verdict. As the court correctly noted, none of these steps were
taken. After King entered a plea of guilty the court called the jurors into the
courtroom and discharged them.
In the case of State v. Bell, 322 N.W.2d 93, 94 (Iowa 1982), a jury found
the defendant guilty of second-degree murder. When the jury was polled in the
courtroom, however, one of the jurors stated she disagreed with the verdict, and
the court granted the defendant’s motion for a mistrial. Bell, 322 N.W.2d at 94.
Prior to retrial, the defendant argued the jury had acquitted him of first-degree
murder and he could not be retried on that charge. Id. The supreme court
determined, “Because the polling showed the jury did not agree on the verdict
and the jury was discharged on defendant’s motion for mistrial, the jury did not
decide the case.” Id. at 95. The court also stated, “there was no verdict.
Without a verdict there was no acquittal.” Id.In this case, the jury did not enter a verdict acquitting King of second-
degree robbery because he pled guilty to first-degree theft and the jury was
discharged before the verdict could be completed—that is, before the jury’s
verdict was read in court, the jury asked it that was its verdict, and if any party
had requested, the individual jurors asked it that was the juror’s verdict. 7 The
district court correctly found no verdict had been entered on the charges of
7
King relies upon case law from other jurisdictions to support his argument, but we find
these cases inapplicable based on the language of rule 2.22(5) specifically stating when
a verdict is complete in Iowa.
12
second-degree robbery, and therefore, King was not acquitted of second-degree
robbery. See id. We conclude the district court did not abuse its discretion by
denying the motion in arrest of judgment.
IV. Attorney Fees
At the sentencing hearing, the court stated King would be required to pay
court-appointed attorney fees not to exceed $3500. The sentencing order did not
set an amount for attorney fees but stated King would be required to pay attorney
fees pursuant to section 815.9. King asserts that under Iowa Administrative
Code rule 493-12.6(1), the fee limitation set for a class “C” felony was $1800.
The fee limitations for public defenders and court-appointed attorneys are the
same. See State v. Dudley, 766 N.W.2d 606, 622 (Iowa 2009).
The State agrees the amount King should be required to pay in restitution
for court-appointed attorney fees should not exceed $1800.8 Where a sentence
is severable and the valid part is distinct from the invalid part, the valid part need
not be disturbed. State v. Krivolavy, 258 N.W.2d 157, 158 (Iowa 1977). We
vacate that part of the sentencing order concerning reimbursement of attorney
fees and remand for a new order determining the proper amount for his court-
appointed attorney fees, which may not exceed $1800. The other parts of the
sentencing order are affirmed.
8
The statute concerning fees for public defenders was amended in 2012. 2012 Iowa
Acts ch. 1063, § 12. This provision became effective July 1, 2012. See Iowa Code §
3.7(1). The parties agreed the amended provisions do not apply to this case, where the
offenses occurred in October 2011.
13
V. Pro Se Issues
A. In a pro se brief, King claims he should be able to withdraw his
guilty pleas due to prosecutorial misconduct. A defendant may not obtain relief
based on a claim of prosecutorial misconduct without moving for a mistrial at the
time of the alleged misconduct. State v. Krogmann, 804 N.W.2d 518, 526 (Iowa
2011); see also State v. Duncan, 710 N.W.2d 34, 45 (Iowa 2006) (noting on an
issue of prosecutorial misconduct, “[b]ecause no such objection was made to this
testimony, the claimed error was not preserved”). King did not raise the issue of
prosecutorial misconduct before the district court. His claims on this issue have
not been preserved for our review, and we do not address them. “When a party
fails to alert the district court to its contentions, that party cannot thereafter rely
on those contentions to seek a reversal on appeal.” State v. Halliburton, 539
N.W.2d 339, 342 (Iowa 1995).
B. King claims he received ineffective assistance because of defense
counsel’s failure to defend, to investigate, and to be an advocate. In particular,
he claims defense counsel improperly encouraged him to plead guilty to two
counts of first-degree theft while the jury was simultaneously finding him not
guilty of two counts of second-degree robbery.
We determine the record in this direct appeal is not sufficient for us to
address King’s pro se claims of ineffective assistance of counsel. We conclude
the issue should be preserved a possible postconviction proceeding. See State
v. Reyes, 744 N.W.2d 95, 103-04 (Iowa 2008) (noting issue should be preserved
14
for postconviction relief proceedings when the record was not sufficiently
developed to permit disposition of the issue on direct appeal).
VI. Disposition
We affirm King’s convictions, based on his guilty pleas, to two counts of
first-degree theft. Two of his claims of ineffective assistance of counsel,
regarding the mandatory minimum sentence and failure to defend, to investigate,
and to be an advocate, are preserved for a possible postconviction proceeding.
The remainder of his claims of ineffective assistance are without merit. The
district court properly denied his motion in arrest of judgment. His claim of
prosecutorial misconduct has not been preserved for our review. We vacate that
part of the sentencing order concerning reimbursement of attorney fees and
remand for a new order determining the proper amount for his court-appointed
attorney fees, which may not exceed $1800. The other parts of the sentencing
order are affirmed.
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,
VACATED IN PART, AND REMANDED.
Danilson, C.J., concurs; Vaitheswaran, J., concurs specially.
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VAITHESWARAN, J. (concurring specially)
I specially concur. The majority states, “the prosecutor’s silence on the
issue of concurrent or consecutive sentences is the same as not resisting
concurrent sentences.” I disagree with this statement. I believe that if a
prosecutor agrees not to resist concurrent sentences, the prosecutor should tell
the judge that before sentence is pronounced, whether or not the plea agreement
is written and whether or not the judge already knows its terms. In my view,
anything less is a violation of “the spirit of the agreement.” Horness, 600 N.W.2d
at 298.
At sentencing, the prosecutor stated she was recommending incarceration
as an habitual offender as well as restitution. She omitted reference to her
agreement not to resist the imposition of concurrent, as opposed to consecutive,
sentences. This was a crucial part of the plea agreement, and it should have
been disclosed by her prior to imposition of sentence.
I nonetheless concur in the result because the district court expressed an
awareness of this portion of the plea agreement.