State of Iowa v. Justin J. Zobel

IN THE COURT OF APPEALS OF IOWA
No. 16-0333
Filed October 12, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JUSTIN J. ZOBEL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
Justin Zobel appeals the judgment and sentence entered following his
guilty plea. AFFIRMED.
Nicholas T. Larson of Larson Law Office, PLLC, Osage, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
DOYLE, Judge.
Justin Zobel appeals the judgment and sentence entered following his
guilty plea. He alleges he received ineffective assistance from his trial counsel.
Because Zobel failed to show counsel breached a duty that resulted in prejudice,
his claims fail, and we affirm.
I. Background Facts and Proceedings.
The State charged Zobel with operating a motor vehicle without the
owner’s consent. Later, the State filed a statement of pecuniary damages
indicating the owner of the vehicle sustained $500 in pecuniary damages. A
copy of the statement of pecuniary damages was sent to Zobel’s attorney.
Zobel agreed to plead guilty as charged in exchange for the State’s
agreement to recommend he “be sentenced to serve [ninety] days in jail, to run
concurrent with the sentence in [a separate case], that the minimum $625 fine be
waived or suspended, and that [he] pay any applicable court costs, fees, and/or
surcharges.” Inexplicably, the written plea form stated: “Restitution is (not)
requested.” After entering the written guilty plea, the district court entered its
judgment and sentence in accordance with the plea agreement. However, the
court also ordered Zobel to “pay, for the benefit of the victim, restitution in the
amount as submitted by the county attorney within [thirty] days,” but it allowed
Zobel to “request a hearing on the amount of restitution.”
Two days after entering his plea, Zobel wrote a letter to the court
complaining about his counsel’s representation, asking his counsel to withdraw,
and requesting a change of counsel. The court interpreted the letter as a request
to withdraw the guilty plea and denied Zobel’s request.
3
The State then submitted a motion to amend the sentence to require
Zobel pay $500 in restitution—the amount noted in the statement of pecuniary
damages. The court granted the motion and entered a restitution order requiring
Zobel to pay the victim $500 in restitution. The order also stated that Zobel had
thirty days to contest the restitution amount.
Two weeks after the sentence was amended to include restitution, Zobel’s
trial counsel filed a notice of appeal on Zobel’s behalf and moved to withdraw as
counsel. The court granted the motion that day and appointed the state
appellate defender’s office to represent Zobel on appeal. Two days later, the
appellate defender requested appointment of private counsel because the
appellate defender’s office could not handle the appeal due to its caseload.
Seventeen days after entry of the restitution order, the court appointed private
counsel to represent Zobel on appeal. Zobel did not contest the restitution
amount in the district court and does not challenge the amount on appeal.
II. Ineffective Assistance of Counsel.
On appeal, Zobel claims he was not informed prior to signing the written
plea of guilty that the State was seeking any form of restitution. He contends “it
appears” he was unaware that as a consequence of his guilty plea he would be
ordered to pay restitution because his written plea agreement stated: “Restitution
is (not) requested.” He argues this deficiency rendered his guilty plea unknowing
and involuntary, in violation of his due process rights under the state and federal
constitutions. Zobel failed to file a motion in arrest of judgment challenging the
guilty plea and thereby waived any challenge to the adequacy of his plea. See
Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a
4
guilty plea proceeding by motion in arrest of judgment shall preclude the
defendant’s right to assert such challenge on appeal.”). However, he alleges his
trial counsel was ineffective in failing to file a motion in arrest of judgment. See
State v. Straw, 709 N.W.2d 128, 132-33 (Iowa 2006) (noting that where the
failure to file a motion in arrest of judgment resulted from ineffective assistance of
counsel, the normal rules of error preservation do not apply). Because his claims
implicate violations of his constitutional rights, our review is de novo. See State
v. Utter, 803 N.W.2d 647, 651 (Iowa 2011).
In order to succeed on his ineffective-assistance claim, a defendant must
show counsel breached an essential duty and prejudice resulted. See State v.
Hallock, 765 N.W.2d 598, 602 (Iowa Ct. App. 2009). To prove prejudice in the
guilty-plea context, Zobel must show that but for counsel’s error, he would not
have entered the plea and would have instead insisted on going to trial. See id.
at 606. If he fails to prove either the breach or prejudice requirements, his
ineffective-assistance claim fails. See State v. Clay, 824 N.W.2d 488, 495 (Iowa
2012). Zobel falls short on this burden of proof.
A. Counsel’s failure to file a motion in arrest of judgment.
Zobel argues that restitution is a consequence of pleading guilty that the
court was required to inform him of in order to comport with due process
requirements when accepting his guilty plea. Because the written guilty plea
does not state that restitution was requested—in fact it states just the opposite—
he claims he was not fully informed of the consequences of his plea and,
5
therefore, his counsel breached an essential duty in failing to file a motion in
arrest of judgment.1
Iowa Rule of Criminal Procedure 2.8(2)(b) codifies the due process
requirements for a guilty plea. See State v. Loye, 670 N.W.2d 141, 151 (Iowa
2003). It states that in order to determine a plea is made voluntarily and
intelligently, the court must inform a defendant of “[t]he mandatory minimum
punishment, if any, and the maximum possible punishment provided by the
statute defining the offense to which the plea is offered.” Iowa R. Crim. P.
2.8(2)(b)(2). The “mandatory minimum punishment” and the “maximum possible
punishment” are “direct consequences of the plea.” State v. Fisher, 877 N.W.2d
676, 685 (Iowa 2016).
Clearly, restitution is mandatory in cases where there is a plea of guilty.
See Iowa Code § 910.2 (2015); State v. Hagen, 840 N.W.2d 140, 149 (Iowa
2013). But is restitution, in the form of payment of pecuniary damages to a
victim, punishment? We think not. “Payment of money under a court order,
standing alone, does not make it punishment.” State v. Brady, 442 N.W.2d 57,
59 (Iowa 1989) (holding court costs are not punishment). One component of
restitution concerns “payment of pecuniary damages to a victim in an amount
and in the manner provided by the offender’s plan of restitution.” Hagen, 840
N.W.2d at 149 (quoting Iowa Code § 910.1(4)).2 This component of restitution is
1
Unlike Meier, where trial counsel gave erroneous advice to the defendant regarding the
law on the amount of time he would be required to serve, Zobel makes no claim here
that he was misadvised by his counsel concerning the requirement of restitution as a
part of the plea advice. See State v. Meier, 337 N.W.2d 204, 206 (Iowa 1983).
2
A second component of restitution, not at issue in this appeal, includes fines, penalties,
and surcharges. Hagen, 840 N.W.2d at 149.
6
compensatory and “nonpunitive.” See Fisher, 877 N.W.2d at 686 (citing Brady,
422 N.W.2d at 59); accord Hagen, 840 N.W.2d at 149 (distinguishing restitution
in the form of pecuniary damages paid to the victim from the penalty component
of restitution). But our inquiry does not end here.
We must then ask if restitution, in the form of payment of pecuniary
damages to a victim, is a “direct consequence of a plea.” Again, we think not. A
“direct consequence” of a plea “represents a definite, immediate and largely
automatic effect on the range of the defendant’s punishment.” Hallock, 765
N.W.2d at 605 (citation omitted). Although restitution is mandatory under Iowa
Code section 910.2, imposition of Zobel’s restitution obligation was not definite,
immediate, or largely automatic when the court accepted his guilty plea. Even
though the State had previously filed a statement of pecuniary damages in the
amount of $500, the sentencing order instructed the county attorney to submit a
restitution amount within thirty days of the judgment and sentencing order.
Furthermore, the sentencing order provided that Zobel “may request a hearing on
the amount of restitution.” Because the State had not yet submitted an amount
and Zobel had an opportunity to challenge the submitted amount at a hearing,
the amount of restitution could not have been definite at the time the plea was
accepted. For the same reasons, restitution was not immediate or automatic at
the time the plea was accepted. Some two weeks after entry of the judgment
and sentence, the State filed a motion to amend his sentence to include
restitution. It noted “[v]ictim restitution ha[d] not yet been ordered in this case”
and requested restitution in the amount of $500.
7
In summary, restitution was not definite, immediate, or automatic, and
therefore, Zobel’s restitution was not a “direct consequence” of his pleading
guilty. See State v. Naujoks, No. 00-0385, 2000 WL 1724033, at *3 (Iowa Ct.
App. Nov. 20, 2000) (“Because payments to the crime victim assistance
reimbursement program do not have an ‘immediate and largely automatic effect
on the range of the defendant’s punishment,’ we conclude these payments are
not a direct consequence of the plea and the court had no obligation to advise
[the defendant] of the consequence during the plea colloquy.”). Accordingly, the
court had no duty under rule 2.8(2)(b) to inform Zobel that the State was seeking
restitution.3 Zobel failed to establish his counsel breached an essential duty
because his counsel had no duty to make a motion in arrest of judgment. 4 See
State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (stating an attorney has no
duty to make a meritless motion).
B. Counsel’s failure to request a hearing on restitution.
Zobel also asserts his counsel was ineffective in failing to request a
hearing on restitution. Two days after the original sentencing order was filed,
Zobel specifically asked the court to excuse his counsel from representing him
further. His counsel filed a request to withdraw—granted the same day—and a
notice of appeal, which were both filed during the thirty-day time period the
restitution order gave Zobel to contest the restitution award.
3
Expressing no view as to whether restitution in the form of payment of court costs is a
“direct consequence” of a plea, our supreme court has suggested that “courts in guilty
plea proceedings fully inform defendants of the impact of the restitution provisions of
Iowa Code chapter 910.” Brady, 442 N.W.2d at 59.
4
Although we need not address the prejudice prong of the ineffective-assistance
analysis, we note Zobel makes no claim that, but for his counsel’s alleged error, he
would have not pled guilty and would have insisted on going to trial had he been
informed of the restitution request. See Hallock, 765 N.W.2d at 606.
8
However, the failure of Zobel’s counsel to request a hearing on restitution
did not foreclose Zobel’s ability to challenge the restitution order. “A defendant
challenging a restitution order entered as part of the original sentence has two
options, to file a petition in district court under section 910.7,[5] or to file a direct
appeal.” State v. Lessner, 626 N.W.2d 869, 871 (Iowa Ct. App. 2001). Zobel
does not challenge the restitution order on appeal. He may still initiate a civil
lawsuit under section 910.7 challenging the restitution order.6 See id. Because
no prejudice occurred, Zobel cannot show his counsel was ineffective.
Accordingly, we affirm his judgment and sentence.
AFFIRMED.
5
Iowa Code section 910.7(1) provides a defendant “may petition the court on any matter
related to the plan or restitution or restitution plan of payment” at “any time during the
period of probation, parole, or incarceration.”
6
“To be considered as part of the criminal proceedings a defendant’s petition under
section 910.7 must be filed within thirty days after entry of the challenged order.”
Lessner, 626 N.W.2d at 871. The restitution order was entered February 8, 2016. New
counsel was appointed for Zobel on February 22. The thirty-day deadline, to file a
section 910.7 petition to be considered as a part of the criminal proceedings ran on
March 9, 2016.