No. 4-053 / 03-0902Court of Appeals of Iowa.
Filed March 10, 2004
Appeal from the Iowa District Court for Black Hawk County, K.D. Briner, Judge.
Duane Evans appeals from the district court’s denial of his application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
MILLER, J.
Duane Evans appeals from the district court’s denial of his application for postconviction relief contending both trial counsel in the underlying criminal prosecution and his postconviction counsel were ineffective. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
In May 2000, Evans plead guilty to sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(c)(4) (1999). The district court found the plea was supported by a factual basis and accepted the guilty plea. The court sentenced him on the same date to a ten-year period of incarceration but suspended the sentence and placed Evans on probation. Evans did not file a direct appeal from this conviction.
Evans’s probation was revoked in March 2002 and the original sentence imposed. Evans filed a pro se application for postconviction relief. The State moved to dismiss the application. Postconviction counsel was subsequently appointed and filed an amended application. The only allegation in the pro se application was that trial counsel was ineffective for failing to thoroughly investigate. The amended application again alleged the failure to investigate claim and also claimed Evans’s plea was not voluntary because his trial counsel coerced him to plead guilty and he was afraid to go to trial because his attorney had not adequately investigated and prepared for trial. A hearing was held on the State’s motion to dismiss and the court partially granted the motion, limiting the issue for postconviction hearing to whether Evans’s guilty plea was voluntary.
The trial court held a hearing on this limited remaining issue, and denied Evans’s application for postconviction relief. The court found the plea to be knowing, intelligent, and voluntary and found Evans’s claims to be without merit. Evans now appeals from the court’s denial of his application, alleging his trial and postconviction relief counsel were both ineffective. More specifically, he contends his trial counsel in the underlying criminal proceeding was ineffective in allowing him to plead guilty without a factual basis and thereafter failing to file a notice of appeal to attack the guilty plea on that ground,[1] and his postconviction relief counsel’s failure to claim that his trial counsel was ineffective on those grounds constitutes ineffective assistance of postconviction relief counsel.
II. SCOPE AND STANDARD OF REVIEW.
We typically review postconviction relief proceedings on claimed error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts claims of a constitutional nature, our review is de novo. Id. Thus, we review claims of ineffective assistance of counsel de novo. Id.
In addition, we give weight to the lower court’s findings concerning witness credibility. Id. When a defendant claims that trial counsel was ineffective for permitting him to plead guilty to a charge not supported by a factual basis, our review is also de novo. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
III. MERITS.
Evans did not file a direct appeal. Generally a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding unless the applicant can demonstrate a sufficient cause or reason for not previously raising the claim Ledezma, 626 N.W.2d at 141; Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). The applicant must also prove he or she was actually prejudiced by the alleged error. Id. To prove prejudice the applicant must show that the alleged error actually and substantially disadvantaged him or her. Ledezma, 626 N.W.2d at 141.
Ineffective assistance of appellate counsel may constitute a sufficient reason for raising the issue of ineffective assistance of trial counsel for the first time in a postconviction proceeding. Berryhill, 603 N.W.2d at 245; Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991). There was no appellate counsel here because Evans did not pursue a direct appeal. We believe, however, that just as ineffective assistance of appellate counsel can constitute a sufficient reason for not raising an issue or claim on direct appeal, ineffective assistance of trial counsel should also qualify as sufficient reason for failing to file a direct appeal and thus preserve the issue for a postconviction proceeding. We conclude that under the facts of this case Evans’s failure to file a direct appeal does not in and of itself preclude him from pursuing this claim of ineffective assistance of trial counsel.
Evans claims on appeal his postconviction counsel was ineffective for failing to assert in his application that his trial counsel was ineffective for allowing him to plead guilty and failing to file a notice of direct appeal. To prove postconviction counsel’s deficient performance resulted in prejudice, Evans must show an ineffective assistance of trial counsel claim would have prevailed had it been raised on direct appeal. See generally Ledezma, 626 N.W.2d 134 at 141 (stating that to prove appellate counsel’s performance resulted in prejudice applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal). Thus, if we find Evans cannot establish a sufficient ineffective assistance claim against his trial counsel, we need not address his ineffective assistance of postconviction counsel claim. See id. at 145.
To prevail on his ineffective assistance of counsel claim, Evans must show that his trial counsel failed in an essential duty and prejudice resulted from that failure. DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002). Evans contends his trial counsel was ineffective for permitting him to plead guilty without a factual basis and for failing to file a notice of appeal so the guilty plea could be attacked.
Before a court may accept a guilty plea, the record must show a factual basis for the plea. Iowa R. Crim. P. 2.8(2)(b). If a defendant enters a plea of guilty to a crime and the record fails to disclose a factual basis, defense counsel has failed to provide effective assistance. Keene, 630 N.W.2d at 581. Prejudice is inherent under these circumstances. Id. We determine whether a factual basis exists for the plea by considering the entire record before the district court at the guilty plea hearing, including any statements made by the defendant, facts related by the prosecutor, and the minutes of testimony. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
To establish a factual basis for Evans’s guilty plea to sexual abuse in the third degree, the State had to establish that Evans committed a “sex act” with a person who was fourteen or fifteen and was five or more years younger than him. See Iowa Code §709.4(2)(c)(4) (1999); see also id. § 702.17 (definition of “sex act”). Evans’s sole contention underlying his claims of ineffective assistance of trial and postconviction counsel is that the record failed to establish the commission of a “sex act.” Based on our review of the record, we disagree.
The minutes of testimony contain a statement from the victim, S.J. In it she states that Evans was “asking me if I was a virgin” and was “dropping hints of having sex with me.” She states she asked Evans if he had a condom, he didn’t, he went to the store, and she believes “he bought his condoms there.” She states she and Evans entered the bedroom, and both got undressed and were naked. In her statement she describes two acts of sexual intercourse with Evans, including feeling him “enter her,” that it hurt, and that there “was a lot of pain when [Evans] was having sex with me.” Furthermore, she positively identified Evans as the man she had sex with. The minutes also contain a corroborating statement from the victim’s friend, N.N.N.N. stated that she heard the victim and Evans discussing whether S.J. was a virgin and heard Evans tell S.J. that if she wanted to have sex he would have sex with her. N.N. also stated that S.J. gave Evans money to buy a condom and he left to get the condoms. While he was gone N.N. says she tried to talk S.J. out of having sex with Evans but S.J. insisted, and when Evans returned he and S.J. went to the bedroom for about fifteen or twenty minutes. N.N. also identified Evans in a photo line-up.
In addition, after the court described the elements of third-degree sexual abuse to Evans at the guilty plea hearing, including that the State would have to prove that Evans had committed a sex act with a person who was fourteen or fifteen years of age, Evans admitted that he committed the offense. Therefore, we conclude a factual basis existed in the record to establish that Evans committed a “sex act” and supports Evans’s guilty plea to sexual abuse in the third degree. In so concluding we note that the trial court is not required to extract a confession from a defendant, but instead must only be satisfied that the facts support the crime. Keene, 630 N.W.2d at 581. The record supports the trial court’s conclusion that the facts do so in this case.
Accordingly, trial counsel did not breach an essential duty in allowing Evans to plead guilty. Furthermore, counsel could not have been ineffective for failing to challenge the guilty plea in a direct appeal on this meritless basis. Counsel is not ineffective for failing to raise meritless issues or to make questionable or meritless objections. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999); State v. Smothers, 590 N.W.2d 721, 724 (Iowa 1999); State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998). Evans’s ineffective assistance claim is without merit.
IV. CONCLUSION.
We conclude a factual basis existed to establish that Evans committed a sex act and support his plea of guilty to the charge of sexual abuse in the third degree. Trial counsel was not ineffective for permitting Evans to plead guilty or for not filing a direct appeal on this meritless claim. Because we have determined Evans’s trial counsel was not ineffective, we need not address his claim that postconviction counsel was ineffective because that claim was not preserved. See Ledezma, 626 N.W.2d at 141-42.
AFFIRMED.