State of Iowa v. Chad Michael Vice ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1068
Filed April 29, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHAD MICHAEL VICE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (North) County, Michael J.
Schilling (guilty plea) and Mark E. Kruse (sentencing hearings), Judges.
Chad Vice appeals from his guilty plea. AFFIRMED.
William (Bill) Monroe, Burlington, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and May and Greer, JJ.
2
MAY, Judge.
Chad Vice pled guilty to a felony drug charge. During the plea colloquy, the
district court did not inform Vice that his sentence would include a $10 DARE
surcharge and a $125 law enforcement initiative surcharge. See Iowa Code
§§ 911.2(1), .3(1)(a) (2018). Because of this oversight, Vice claims his plea was
not made voluntarily and intelligently. See Iowa R. Crim. P. 2.8(2)(b). So Vice
asks this court to vacate his plea.1
But the plea judge warned Vice that if he failed to file a timely motion in
arrest of judgment, he would lose his right to challenge the plea on appeal. See
Iowa R. Crim. P. 2.8(2)(d). Even so, Vice did not file a motion in arrest of
judgment.2 So Vice waived any claim of error in the plea colloquy. See Iowa R.
1 “We ordinarily review challenges to guilty pleas for correction of errors at law.”
State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).
We recognize Iowa Code section 814.6 was recently amended to prohibit
most appeals from guilty pleas. See 2019 Iowa Acts ch. 140, § 28. In State v.
Macke, however, our supreme court held this amendment “appl[ies] only
prospectively and do[es] not apply to cases pending on July 1, 2019.” 933 N.W.2d
226, 235 (Iowa 2019). Because this appeal was pending on July 1, 2019, the
amendment “do[es] not apply” to this case. See id.2 And we do not believe his failure should be excused. We note the following
procedural history. The court accepted Vice’s plea on March 22, 2019. The same
day, the court set sentencing for May 10. On May 3, though, a warrant issued for
violation of the conditions of Vice’s pretrial release. After Vice was arrested on the
warrant, the court continued Vice’s sentencing date to June 7.
On May 30, Vice received new counsel (his second) due to a conflict of
interest with his initial counsel. Then, on June 4, Vice’s second attorney moved to
withdraw and to continue sentencing. The court granted the motion, appointed
new counsel (Vice’s third), and continued sentencing two weeks to June 21.
Eleven days later—and just three days prior to the June 21 sentencing—
Vice’s third attorney moved for a third continuance so counsel could order and
review the plea transcript before filing a motion in arrest of judgment. The district
court denied the motion, noting “[t]his sentencing hearing has already been
continued twice.” And we note that, by the time Vice’s third counsel filed this
motion (on June 18), the deadline for filing a motion in arrest of judgment had
already passed. See Iowa R. Crim. P. 2.24(3)(b) (requiring a motion in arrest of
3
Crim. P. 2.24(3)(a) (“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 a challenge on appeal.”).
As a fallback position, Vice claims his counsel was ineffective3 in failing to
ensure Vice was informed of the surcharges. To prevail on this claim, Vice would
have to prove not only that (1) his counsel “failed to perform an essential duty,” but
also (2) he was prejudiced because “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.” State v. Straw, 709 N.W.2d 128, 133, 138 (Iowa 2006). The State
concedes the first prong but disputes Vice would have “insisted on going to trial”
over $135 in surcharges. And although Vice’s appellate brief claims “he would not
have pled guilty” if he had known of these “additional penalties,” the record
contains no supporting evidence. See Kirchner v. State, 756 N.W.2d 202, 206
(Iowa 2008) (declining to accept postconviction-relief applicant’s unsupported,
judgment be filed no “later than five days before” the date set for pronouncing
judgment). The district court did not abuse its discretion by denying a third
continuance. See State v. Artzer, 609 N.W.2d 526, 529–31 (Iowa 2000) (reviewing
denial of continuance motion for an abuse of discretion). And to the extent Vice
claims his due process rights were violated because counsel did not have access
to the plea hearing transcripts, we disagree. Cf. In re T.S., 868 N.W.2d 425, 433
(Iowa Ct. App. 2015) (concluding the unavailability of a transcript of a prior
proceeding does not inherently violate due process).
3 We review ineffective-assistance claims de novo. State v. Harrison, 914 N.W.2d
178, 188 (Iowa 2018).
We recognize section 814.7 was recently amended to provide in pertinent
part: “An ineffective assistance of counsel claim in a criminal case shall be
determined by filing an application for postconviction relief” and “shall not be
decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch.
140, § 31. But because this appeal was pending on July 1, 2019, we may consider
Vice’s ineffective-assistance claim on direct appeal if the record is sufficient. See
Macke, 933 N.W.2d at 228.
4
“self-serving statement that he would have accepted the plea deal had he known”
additional information).
So we conclude the record is not sufficiently developed for us to resolve
Vice’s ineffective-assistance claim. We preserve his claim for postconviction-relief
proceedings. See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018).4
AFFIRMED.
4 As a last resort, Vice invites us to adopt the plain-error rule doctrine and apply it
to his claim. We decline. Our supreme court has repeatedly refused to adopt the
plain-error doctrine. See, e.g., State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016)
(noting the supreme court has “repeatedly declined ‘to abandon our preservation
of error rules in favor of a discretionary plain error rule’” (citation omitted)).