State of Iowa v. Judith Renae Utter

IN THE SUPREME COURT OF IOWA
No. 09–1411
Filed September 16, 2011
STATE OF IOWA,
Appellee,
vs.
JUDITH RENAE UTTER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Jones County, Douglas S.
Russell, Judge.
A defendant seeks further review of a court of appeals decision
preserving her ineffective-assistance-of-counsel claim for postconviction
relief proceedings. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED
WITH INSTRUCTIONS.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant
Attorney General, Phillip W. Parsons, County Attorney, and Connie S.
Ricklefs and Emily A. Stork, Assistant County Attorneys, for appellee.
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WIGGINS, Justice.
A defendant claims she did not enter her guilty plea voluntarily
and intelligently; therefore, she requests that we vacate her plea. The
court of appeals analyzed the issue and preserved her claim for a
postconviction relief proceeding. On further review, we determined that
we could address the issue, vacate her plea, and remand the case for
further proceedings. On remand, the court shall dismiss the information
pursuant to Iowa Rule of Criminal Procedure 2.33(2)(a).
I. Background Facts and Proceedings.
On April 3, 2009, Monticello police dispatched an officer to the
residence of Judith Renae Utter, after receiving a report of a disturbance.
Upon arriving, the officer observed an underage drinking party in
progress. The officer spoke to several of the party’s attendants and
learned Utter had allegedly purchased and supplied alcohol to the group.
On April 10 the officer issued Utter a citation and complaint for providing
alcoholic beverages to a person under the legal age in violation of Iowa
Code section 123.47 (2009). 1 Utter signed the citation and complaint,
gave a $300 unsecured appearance bond, and agreed to report to the
Jones County courthouse on May 6. The citation and complaint were
filed on April 22.
On May 6 Utter appeared in court and pled not guilty to the charge
of supplying alcohol to a person under the legal age. The court set
June 10 as the date for a bench trial. On June 10 Utter and the State
appeared for trial. The court entered an order stating, “Parties appear for
trial. This matter is charged as a serious misdemeanor. Trial is
cancelled. Defendant was arraigned for an initial appearance on an
1For
purposes of Iowa Code section 123.47, under the “legal age” means persons
under the age of twenty-one. Iowa Code § 123.3(19) (2009).
3
indictable offense.” The court then set a preliminary hearing for June 24
and released Utter on her own recognizance.
On June 12 the State filed a trial information and minutes of
testimony formally charging Utter with the crime of supplying alcohol to
a person under the legal age. The trial information stated, “The said
defendant on or about the 3rd day of April, 2009, in Jones County, Iowa
did knowingly or intentionally purchase and supply alcohol to
individuals under the legal age.” The minutes named two minors and
included the statement, “Utter purchased and supplied alcohol to the
group of individuals under the legal age.” (Emphasis added.)
Subsequently, the court ordered Utter to appear for an
arraignment on June 26. On June 16 the court approved Utter’s
application for the appointment of counsel and appointed a public
defender as her counsel. On June 26 Utter pled not guilty to the charge
against her and demanded a speedy trial pursuant to Iowa Rule of
Criminal Procedure 2.33(2)(b).
The court originally set the jury trial for July 27. However, at the
pretrial conference the court reset the trial for August 24. On August 14
Utter withdrew her previous plea of not guilty and pled guilty. Utter
indicated that she had reached a plea agreement with the State in which
she would pay a $500 fine in monthly installments of $50 in exchange
for pleading guilty. She also waived her right to file a motion in arrest of
judgment and requested the court impose its sentence immediately. The
court approved Utter’s written waiver of rights and plea of guilty.
Accordingly, the court imposed the $500 fine and added a thirty-two
percent surcharge and a $270.64 restitution payment, which Utter was
to pay in monthly installments of $50.
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Utter appealed, arguing her trial counsel provided ineffective
assistance by failing to file a motion to dismiss the charge based on the
State’s violation of Iowa’s speedy indictment rule. We transferred the
case to the court of appeals. The court of appeals affirmed the district
court’s judgment and preserved Utter’s ineffective-assistance-of-counsel
claim for possible postconviction relief proceedings. The court found
Utter’s trial counsel breached an essential duty by failing to file a motion
to dismiss based upon the State’s violation of the speedy indictment rule,
but could not determine if prejudice resulted due to the inadequacy of
the record on direct appeal. Utter filed an application for further review,
which we granted.
II. Issue.
We must decide whether trial counsel provided ineffective
assistance by allowing Utter to plead guilty despite the fact that the State
failed to issue a speedy indictment pursuant to Iowa Rule of Criminal
Procedure 2.33(2)(a).
III. Scope of Review.
We generally review a defendant’s challenge to a guilty plea for
correction of errors at law. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa
2010). However, because Utter claims her guilty plea resulted from her
trial counsel’s ineffective assistance, a constitutional claim, our review is
de novo. Id.; see also State v. Vance, 790 N.W.2d 775, 785 (Iowa 2010)
(“Ineffective-assistance-of-counsel claims have their basis in the Sixth
Amendment to the United States Constitution.”). We normally preserve
ineffective-assistance-of-counsel claims for postconviction relief
proceedings. State v. Palmer, 791 N.W.2d 840, 850 (Iowa 2010).
Nonetheless, we will consider the merits of these claims on direct appeal
5
as long as the record is adequate. Id. We believe the record is adequate
in this case.
IV. Discussion and Analysis.
A. Generally. A defendant’s plea of guilty is a serious act that he
or she must do voluntarily, knowingly, and intelligently with an
awareness of the relevant circumstances and consequences. Hill v.
Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203, 208–09
(1985); Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1468–
69, 25 L. Ed. 2d 747, 756 (1970); State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). Whether a defendant’s guilty plea was intelligently made
depends, in part, on whether the defendant was properly advised by
competent counsel. Brady, 397 U.S. at 756, 90 S. Ct. at 1473, 25
L. Ed. 2d at 760–61. “It is well established that a defendant’s guilty plea
waives all defenses and objections which are not intrinsic to the plea.”
State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). This means
[w]hen a criminal defendant has solemnly admitted in open
court that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may only
attack the voluntary and intelligent character of the guilty
plea . . . .
Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36
L. Ed. 2d 235, 243 (1973).
One way a defendant can intrinsically challenge the voluntary and
intelligent nature of his or her guilty plea is to prove “the advice he [or
she] received from counsel in connection with the plea was not within the
range of competence demanded of attorneys in criminal cases.” Carroll,
767 N.W.2d at 642; accord Lockhart, 474 U.S. at 56–57, 106 S. Ct. at
369, 88 L. Ed. 2d at 208–09; Tollett, 411 U.S. at 266–67, 93 S. Ct. at
6
1608, 36 L. Ed. 2d at 243; Zacek v. Brewer, 241 N.W.2d 41, 50 (Iowa
1976). In Carroll, we recognized that all categories of ineffective-
assistance-of-counsel claims can potentially survive a guilty plea.
Carroll, 767 N.W.2d at 644. We stated,
Only through a case-by-case analysis will a court be able to
determine whether counsel in a particular case breached a
duty in advance of a guilty plea, and whether any such
breach rendered the defendant’s plea unintelligent or
involuntary.
Id.
On appeal, Utter claims her trial counsel failed to perform an
essential duty by failing to file a motion to dismiss based on the State’s
violation of the speedy indictment rule. She claims her trial counsel’s
failure worked to her actual and substantial disadvantage because the
court would have dismissed the charge against her based upon the
State’s speedy indictment violation. Inherent in Utter’s argument is the
claim that her trial counsel’s failure to file a motion to dismiss caused
her to improvidently plead guilty to a charge that the State would have
otherwise been barred from pursuing had her counsel performed
effectively.
Accordingly, we must determine whether Utter’s trial counsel
breached an essential duty prior to her guilty plea and whether this
breach rendered her plea unintelligent or involuntary. Id. As with all
ineffective-assistance-of-counsel claims, Utter must establish her
counsel failed to perform an essential duty and prejudice resulted from
such failure. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Carroll, 767 N.W.2d at 644.
Utter must prove both elements by a preponderance of the evidence.
Straw, 709 N.W.2d at 133.
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B. Failure to Perform an Essential Duty. Utter must prove her
trial counsel “made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” in
order to establish her counsel failed to perform an essential duty.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We
begin with the presumption that counsel performed competently and
measure counsel’s performance objectively, “by determining whether
counsel’s assistance was reasonable, under prevailing professional
norms, considering all the circumstances.” Vance, 790 N.W.2d at 785
(quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)) (internal
quotation marks omitted). Because Utter’s trial counsel has no duty to
pursue a meritless issue, we must first consider whether the State
violated the speedy indictment rule. Carroll, 767 N.W.2d at 645.
Iowa’s speedy indictment rule ensures the enforcement of the
United States and Iowa Constitutions’ speedy trial guarantees, which
assure the prompt administration of justice while allowing an accused to
timely prepare and present his or her defense. State v. Wing, 791 N.W.2d
243, 246–47 (Iowa 2010). Iowa’s speedy indictment rule provides:
It is the public policy of the state of Iowa that criminal
prosecutions be concluded at the earliest possible time
consistent with a fair trial to both parties. . . .
a. When an adult is arrested for the commission of a
public offense . . . and an indictment is not found against
the defendant within 45 days, the court must order the
prosecution to be dismissed, unless good cause to the
contrary is shown or the defendant waives the defendant’s
right thereto.
Iowa R. Crim. P. 2.33(2)(a).
Under this rule, the forty-five-day period begins to run when the
accused is “arrested for the commission of a public offense.” Id. Iowa
Code section 805.1(4) provides, “The issuance of a citation in lieu of
8
arrest shall be deemed an arrest for the purpose of the speedy indictment
requirements of rule of criminal procedure 2.33(2)(a), Iowa court rules.”
Iowa Code § 805.1(4). On April 10, 2009, the officer issued Utter a
citation and complaint for supplying alcohol to a person under the legal
age. Therefore, the forty-five-day window in which the State could indict
Utter for this crime began to run on April 11. See Iowa Code § 4.1(34)
(recognizing, in computing time, the first day is excluded).
Beginning on April 11, the State had forty-five days to indict Utter
for supplying alcohol to a person under the legal age. This forty-five-day
window for indictment closed on May 25. The State did not indict Utter
until June 12, eighteen days later, when it filed its trial information. See
Iowa R. Crim. P. 2.5(5) (“The term ‘indictment’ embraces the trial
information . . . .”); accord State v. Rains, 574 N.W.2d 904, 910 (Iowa
1998); State v. Dennison, 571 N.W.2d 492, 494 (Iowa 1997); see also
State v. Schuessler, 561 N.W.2d 40, 41–42 (Iowa 1997) (recognizing the
term “found” in rule 2.33(2)(a) means approved by the court and filed).
Thus, absent a showing by the State that it had good cause for the delay
or that Utter waived her right to a speedy indictment, the State violated
the speedy indictment rule.
Utter did not waive, but rather demanded, her right to a speedy
trial. The State does not claim it had good cause for failing to indict
Utter within the forty-five days mandated by rule 2.33(2)(a).
Consequently, we find Utter’s underlying claim has merit because the
State violated the speedy indictment rule. The failure of the State to
comply with rule 2.33(2)(a) requires absolute dismissal of the charge and
prohibits the State from reindicting Utter on the same offense. State v.
Abrahamson, 746 N.W.2d 270, 273 (Iowa 2008).
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Next, we must consider whether Utter’s trial counsel failed to
perform an essential duty by failing to file a motion to dismiss the charge
against her due to the State’s violation of Iowa’s speedy indictment rule.
In measuring counsel’s performance, we have relied on the Iowa Rules of
Professional Conduct. Vance, 790 N.W.2d at 786. Rule 32:1.1 requires
an attorney to represent his or her clients competently. Iowa R. Prof’l
Conduct 32:1.1. Competent representation includes “inquiry into and
analysis of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent
practitioners. It also includes adequate preparation.” Id. cmt. [5]. In
criminal matters, a competent practitioner must be aware of and
vigilantly protect his or her client’s speedy trial rights. See State v.
Schoelerman, 315 N.W.2d 67, 71–72 (Iowa 1982) (“A normally competent
attorney who undertakes to represent a criminal defendant should either
be familiar with the basic provisions of the criminal code, or should make
an effort to acquaint himself with those provisions which may be
applicable . . . .”); see also State v. Clary, 596 N.E.2d 554, 558 (Ohio Ct.
App. 1991) (“Assuredly, the responsibilities of counsel extend to
protecting the client’s speedy trial rights.”).
Thus, to provide reasonably competent representation when a
criminal defendant asserts his or her speedy trial rights, counsel must
ensure that the State abides by the time restrictions established in Iowa
Rule of Criminal Procedure 2.33. Counsel’s failure to do so amounts to a
failure to perform an essential duty. Cf. State v. Bearse, 748 N.W.2d
211, 217 (Iowa 2008) (holding an attorney failed to perform an essential
duty by not objecting to a breached plea agreement); Meier v. State, 337
N.W.2d 204, 207 (Iowa 1983) (holding an attorney’s performance fell
below the range of normal competency because he gave the defendant
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inaccurate legal advice, which the defendant relied on in waiving trial
and pleading guilty). Accordingly, we hold Utter’s trial counsel failed to
perform an essential duty by failing to file a motion to dismiss based on
the State’s violation of the speedy indictment rule and, thereafter,
permitting Utter to plead guilty after the speedy indictment time expired.
C. Resulting Prejudice. To prove prejudice resulted from trial
counsel’s failure to perform an essential duty, an accused must establish
“a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. To do so, the
accused “need only show that the probability of a different result is
sufficient to undermine confidence in the outcome.” Palmer, 791 N.W.2d
at 850 (quoting State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003))
(internal quotation marks omitted). This means, to prove prejudice,
Utter must establish that “but for counsel’s breach of duty, [she] would
not have pled guilty and would have elected instead to stand trial.”
Carroll, 767 N.W.2d at 644.
The State claims the record is inadequate to decide this issue
because it is unclear whether trial counsel’s failure to file a motion to
dismiss was based upon “some off-the-record agreement” with the State
or, instead, was a defense strategy. Utter claims her trial counsel’s
failure to file a motion to dismiss prejudiced her because there was a
reasonable probability that the court would have dismissed the trial
information based on the State’s violation of the speedy indictment rule.
She further claims she did not voluntarily and intelligently plead guilty
because her counsel did not advise her the court would have to dismiss
the information under rule 2.33(2)(a).
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The remedy for a violation of the speedy indictment rule is an
absolute dismissal of the charge with prejudice and a complete bar from
reindicting the defendant again on the same offense and lesser-included
offenses thereof. Dennison, 571 N.W.2d at 494; see also Abrahamson,
746 N.W.2d at 273 (requiring dismissal for violation of speedy trial right).
However, the State may still bring charges involving other offenses,
which arise from the same incident or episode as the previously charged
offense. State v. Lies, 566 N.W.2d 507, 508–09 (Iowa 1997); State v.
Sunclades, 305 N.W.2d 491, 494 (Iowa 1981). For purposes of the
speedy indictment rule, two offenses are the same if they “are in
substance the same, or of the same nature, or same species, so that the
evidence which proves one would prove the other.” State v. Moritz, 293
N.W.2d 235, 239 (Iowa 1980) (quoting State v. Stewart, 223 N.W.2d 250,
251 (Iowa 1974)) (internal quotation marks omitted). But see
Abrahamson, 746 N.W.2d at 275–76 (applying a different test where the
two charges were not based on different statutes but, instead,
constituted two alternative ways of committing the same offense under a
single statute).
We have established the State violated the speedy indictment rule.
Therefore, had Utter’s trial counsel properly filed a motion to dismiss, the
court would have dismissed the trial information, and the State would
have been absolutely barred from prosecuting Utter for supplying alcohol
to persons under the legal age in violation of Iowa Code section 123.47.
The only way trial counsel’s failure to file a motion to dismiss could have
possibly constituted a tactical or strategic decision would have been if
counsel had reached an agreement with the State, such that the State
would have forgone charging Utter with additional offenses arising from
the same incident in exchange for Utter’s waiver of the State’s failure to
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comply with the speedy indictment rule and guilty plea. See, e.g., State
v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010) (recognizing claims of
ineffective assistance involving strategic decisions must be examined in
light of all circumstances).
The State argues that Utter may have pled guilty and waived her
speedy indictment rights in exchange for the State not filing additional
charges against her pertaining to the other minors who were drinking at
the party. The State then claims that we should preserve this issue for
an ineffective-assistance-of-counsel claim. We agree that the State had
the right to charge Utter with separate violations of section 123.47 for
each minor who drank alcohol at the party. See, e.g., State v. Gilliland,
252 Iowa 664, 668, 108 N.W.2d 74, 76 (1961) (holding a 1958 statute
prohibiting the service of beer to a minor allowed the State to charge the
defendant with separate crimes for each minor served). Under the
unique facts of this case, however, when Utter pled guilty on August 14,
the State was precluded from bringing those additional charges.
The information as filed by the State on June 12 did not charge
Utter with separate crimes for each minor drinking at the party. The first
page of the information stated that the State based Utter’s violation of
section 123.47 on the facts that she “did knowingly or intentionally
purchase and supply alcohol to individuals under the legal age.”
(Emphasis added.) The minutes attached to the information stated the
witnesses would testify that multiple minors were observed drinking
alcohol provided by Utter. The State charged Utter with one violation of
section 123.47 for supplying alcohol to the group of minors at the party,
rather than separate violations for supplying alcohol to each minor. This
was an acceptable way of charging Utter. See State v. Duncan, 312
N.W.2d 519, 523 (Iowa 1981) (holding the State could charge the
13
defendant with one count of burglary for breaking into a marina and a
boat because “prosecutors have long been allowed to allege facts in the
alternative to meet the contingencies of proof”).
The State could have established a violation of section 123.47 by
proving Utter knowingly or intentionally purchased and supplied alcohol
to any individual attending the party who was under the legal age. That
single charge was subject to dismissal under rule 2.33(2)(a) on the day
Utter pled guilty. If the court dismissed the information under rule
2.33(2)(a), the State would have been precluded from bringing the same
charges again. Because the State chose to charge Utter with one offense
for all individuals drinking at the party, it could not charge her later
under section 123.47 for a specific individual drinking at the party.
Therefore, Utter would not have had a reason to plead guilty in exchange
for not filing additional charges. Moreover, if Utter knew the court would
have had to dismiss the information and that the State could not
recharge, it is axiomatic that she would not have pled guilty.
Therefore, we find Utter would not have pled guilty if she had
known the court was required to dismiss the information under rule
2.33(2)(a) and the State could not charge her with any other violation of
section 123.47 arising out of the underage drinking party at her home.
Consequently, she did not enter into the plea voluntarily or intelligently.
Thus, a reasonable probability exists that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.
V. Disposition.
Utter did not enter her guilty plea voluntarily or intelligently;
therefore, we vacate her plea and remand the case for further
14
proceedings. On remand, the court shall dismiss the information
pursuant to rule 2.33(2)(a).
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED WITH
INSTRUCTIONS.
All justices concur except Mansfield, J., who takes no part.