State of Iowa v. Brock Anthony Wing ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0876
Filed May 13, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BROCK ANTHONY WING,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,
Judge.
Brock Wing appeals his convictions after pleading guilty to interference with
official acts using a firearm and possession of a controlled substance, second
offense. AFFIRMED.
Nicholas Einwalter, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered Bower, C.J., and Doyle and Schumacher, JJ.
2
DOYLE, Judge.
Brock Wing appeals his convictions after pleading guilty to interference with
official acts using a firearm and possession of a controlled substance, second
offense.1 He contends his trial counsel was ineffective in failing to file a motion in
arrest of judgment because his plea was not knowing and voluntary based on his
erroneous belief that he was eligible for a deferred judgment.2 See State v.
Weitzel, 905 N.W.2d 397, 401 (Iowa 2017) (stating a defendant’s failure to file a
motion in arrest of judgment waives right to challenge guilty plea on direct appeal
unless it results from ineffective assistance of counsel). We review his claim de
novo. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).
To succeed on a claim of ineffective assistance of counsel, Wing must show
counsel breached a duty and prejudice resulted. See State v. Graves, 668 N.W.2d
860, 869 (Iowa 2003). Counsel breached an essential duty by failing to file a
motion in arrest of judgment if Wing’s plea was not knowing and voluntary. See
State v. Straw, 709 N.W.2d 128, 134 (Iowa 2006). To prove prejudice, Wing must
show a reasonable probability that he would not have entered a plea and would
have insisted on going to trial had counsel performed adequately. See id. at 138.
1 In a common assertion, Wing states error was preserved by timely filing a notice
of appeal. As we have stated time and time again (more than fifty times since our
published opinion of State v. Lange, 831 N.W.2d 844, 846-47 (Iowa Ct. App.
2013)), the filing of a notice of appeal does not preserve error for our review. See
Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals
in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (2006)
(“However error is preserved, it is not preserved by filing a notice of appeal. While
this is a common statement in briefs, it is erroneous, for the notice of appeal has
nothing to do with error preservation.”).
2 Recent amendments to Iowa Code chapter 814 (2020) that limit a defendant’s
right to appeal do not apply to cases pending on July 1, 2019. See State v. Macke,
933 N.W.2d 226, 235 (Iowa 2019).
3
Wing alleges he pled guilty after his first counsel improperly advised that
Wing was eligible for a deferred judgment. It was not until after the court accepted
his plea and Wing obtained new counsel that the parties learned he was ineligible.
Wing’s new counsel did not move in arrest of judgment based on prior counsel’s
misinformation, nor did counsel make a record at the sentencing hearing.
If a defendant enters a plea based on misinformation regarding the
possibility of deferred judgment, the plea is not knowing or voluntary. See Meier
v. State, 337 N.W.2d 204, 207 (Iowa 1983). But there is no record indicating what
counsel told Wing about the possibility of a deferred judgment or how it influenced
Wing’s decision to plead guilty. As is often the case, the record is insufficient to
allow us to resolve Wing’s claim on direct appeal. See State v. Petty, 925 N.W.2d
190, 196 (Iowa 2019). We preserve the issue for postconviction relief to allow full
development of the record. See id.
AFFIRMED.