State v. Dunne

IN THE COURT OF APPEALS OF IOWA
No. 16-2050
Filed January 10, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ADRIAN MICHAEL HOWARD DUNNE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, Mary Ann
Brown, Judge.
A defendant convicted of first-degree theft challenges the performance of
his plea counsel. AFFIRMED.
Anne K. Wilson of Anne K. Wilson Law Office, P.L.L.C., Hiawatha, for
appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Tabor and Bower, JJ.
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TABOR, Judge.
Adrian Dunne received a deferred judgment after pleading guilty to theft in
the first degree. Then he violated the terms of his probation, resulting in the
imposition of judgment and sentence. On appeal, he argues his attorney provided
ineffective assistance by failing to file a motion in arrest of judgment to challenge
both the factual basis for the guilty plea and the court’s failure to inform him of the
consequences should he fail to comply with the terms of the deferred judgment.1
Finding no breach of duty, we affirm.
I. Facts and Prior Proceedings
In October 2015, Dunne entered an in-law’s garage and stole a Polaris
Razor all-terrain vehicle (ATV). He intended to sell the ATV for roughly $700,
though it was worth more than $10,000. As a result, Dunne was charged with first-
degree theft, in violation of Iowa Code sections 714.1(1) and 714.2(1) (2015), and
third-degree burglary, in violation of Iowa Code section 713.6A.
Dunne eventually reached a bargain with the State in which he agreed to
enter a guilty plea to first-degree theft in return for the State dismissing the burglary
count and recommending a deferred judgment. At the plea hearing, the district
court reviewed the elements of first-degree theft and verified the factual basis for
each element.
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Dunne also claims his guilty plea was not knowing, voluntary, and intelligent because
the district court failed to inform him of the consequences of pleading guilty and receiving
a deferred judgment. Because Dunne did not file a motion in arrest of judgment, this issue
is not preserved for our review. See Iowa R. Crim. P. 2.24(3)(a). In addition, Dunne
asserts in his reply brief that the district court should have suspended the proceedings to
evaluate Dunne’s competency after learning of his drug use and mental-health issues.
We cannot consider an issue raised for the first time in a reply brief. See Polk Cty. v.
Davis, 525 N.W.2d 434, 435 (Iowa Ct. App. 1994).
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The court also explained once Dunne pleaded guilty he could be sentenced
to the maximum penalty allowed, and Dunne said he understood. The court went
on to explain that maximum penalties included ten years in prison and up to a
$10,000 fine, and Dunne said he understood. After reviewing this information, the
court confirmed Dunne still wanted to plead guilty. The court accepted his guilty
plea and informed Dunne any challenge to the plea must be advanced through a
motion in arrest of judgment.
At the February 29, 2016 sentencing, the court granted Dunne a deferred
judgment. The court also imposed a five-year probationary term and ordered
Dunne to pay a civil penalty and restitution and to reside in a residential facility for
one year or until Dunne achieved maximum benefits. In May 2016, a probation
officer filed a report of violation, alleging Dunne failed to return to the residential
facility after attending an Alcoholic Anonymous meeting. As a result, the court
entered judgment in November 2016 and sentenced Dunne to an indeterminate
term of ten years in prison and a $1000 fine. Dunne now appeals.
II. Scope and Standard of Review
Generally, a defendant must challenge a defect in the guilty-plea
proceeding through a motion in arrest of judgment. See Iowa R. Crim. P.
2.24(3)(a). When counsel fails to file such a motion, a defendant may attack the
plea on appeal through a claim of ineffective assistance. State v. Perkins, 875
N.W.2d 190, 192 (Iowa Ct. App. 2015). Because ineffective-assistance-of-counsel
claims are rooted in the Sixth Amendment, we review them de novo. State v.
Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). We will resolve ineffective-
assistance claims on direct appeal only when the record is sufficient to do so; if the
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record is lacking, we will preserve the claim for postconviction proceedings. See
id. To prevail, Dunne must show by a preponderance of the evidence that (1)
counsel failed to perform an essential duty and (2) prejudice resulted. See id. If
Dunne is unable to prove either element, then he cannot prevail. See id.
III. Analysis of Dunne’s Ineffective-Assistance Claims
A. Factual Basis for Guilty Plea
We first address Dunne’s claim that counsel breached a duty by not filing a
motion in arrest of judgment to challenge the factual basis supporting his plea for
first-degree theft. Iowa Rule of Criminal Procedure 2.8(2)(b) requires a court to
establish a factual basis for an offense before accepting a guilty plea. To satisfy
this requirement, the court must identify facts consistent with the elements of the
crime and may consider the defendant’s statements. See Perkins, 875 N.W.2d at
193. A person commits theft when he “[t]akes possession or control of the property
of another, or property in the possession of another, with the intent to deprive the
other thereof.” Iowa Code § 714.1(1). A person commits theft in the first degree
if the property is worth more than $10,000. Id. § 714.2(1).
At the plea hearing, Dunne admitted taking an ATV from an in-law’s garage
without the owner’s permission. Dunne also admitted he did not intend to return
the ATV, which was worth more than $10,000. In addition to Dunne’s admissions
during the plea hearing, minutes of evidence show Dunne’s uncle intended to
testify that Dunne took him for a ride on the stolen ATV, Dunne wore a sweatshirt
with distinctive markings, which was later recovered from the ATV, and Dunne said
he had plans to sell the ATV. Because this record was adequate to show a factual
basis for first-degree theft, counsel was not ineffective for failing to file a motion in
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arrest of judgment. See State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011)
(noting counsel cannot be faulted for declining to pursue a meritless claim).
B. Information on Consequences of Deferred Judgment
Dunne also argues counsel was ineffective in failing to challenge the guilty
plea on the basis “the court did not inform [him] on the record of the consequences
if he failed to meet the terms and conditions of the deferred judgment.” He now
contends had he been “properly advised of the terms and conditions of the
deferred judgment, he would not have agreed to the guilty plea as presented, or at
least would not have violated the terms of his probation, and therefore the outcome
of the proceeding would have been different.”
We again find counsel breached no duty. The plea colloquy detailed the
potential consequences of Dunne’s guilty plea. Dunne received the necessary
information and confirmed his intent to plead guilty. Dunne also confirmed that he
understood under the plea agreement that the State would recommend a deferred
judgment. Dunne understood the sentencing court had discretion whether to grant
the deferred judgment and, if it did not, he faced a maximum penalty of ten years
in prison. The district court was not required to explain as a part of the plea
colloquy how Dunne needed to comply with the terms of his probation to gain the
benefit of the deferred judgment. See generally Iowa R. Crim. P. 2.8(2)(b)
(outlining essential elements of plea colloquy). Plea counsel had no obligation to
object to the plea proceeding on this basis.
Dunne is unable to show any deficiency in counsel’s handling of the guilty
plea. Accordingly, we decline to disturb his conviction.
AFFIRMED.