STATE v. ROOT, 690 N.W.2d 701 (Iowa App. 2004)

No. 4-600 / 03-1941.Court of Appeals of Iowa.
September 29, 2004.

Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.

Richard Root appeals from the judgments and sentences entered by the district court following his guilty pleas to several offenses. CONVICTIONS AFFIRMED; SENTENCES VACATED AND CASEREMANDED FOR RESENTENCING.

Kent Simmons, Davenport, for appellant.

Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, William E. Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.

MAHAN, P.J.

Richard Root appeals from the judgments and sentences entered by the district court following his guilty pleas to three counts of criminal trespass resulting in property damage in violation of Iowa Code sections 716.7(2) and 716.8 (2003), one count of stalking in violation of Iowa Code sections 708.11(2) and 708.11(3), and two counts of harassment in violation of Iowa Code section 708.7(4). Specifically, he contends the district court abused its sentencing discretion. He further avers his trial counsel was ineffective in handling his guilty pleas. We affirm his convictions, vacate the sentences, and remand for resentencing.

I. Background Facts Proceedings.

On July 24, 2003, Root was charged by trial information with three counts of second-degree burglary, one count of stalking in violation of a protective order, and two counts of harassment. The charges arose out of a series of disturbances involving Root’s girlfriend. Root filed a written plea of guilty on October 7, 2003. Pursuant to the agreement, Root pled guilty to the reduced charges of three counts of criminal trespass resulting in property damage, one reduced count of stalking, and two reduced counts of harassment.

On November 6, 2003, the district court sentenced Root to one year of imprisonment in the county jail for each of the criminal trespass charges and to thirty days in jail for the two harassment charges. The court ordered the sentences to be served concurrently. In addition, the court imposed two years of probation for the stalking charge and ordered Root to pay $2600 in fines. Root appeals.

II. Sentencing Discretion.

We review the district court’s sentence for the correction of errors at law.

Iowa R. App. P. 6.4. A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as consideration of impermissible facts. State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). Sentencing decisions of the district court are cloaked with a strong presumption in their favor, and an abuse of discretion will not be found unless the defendant shows such discretion was exercised for reasons clearly untenable or to an extent clearly unreasonable. Id.

Root claims the district court abused its sentencing discretion because it (1) considered the victim’s favorable statement subsequent to the sentencing proceeding; (2) relied only on the perceived seriousness of Root’s crime when determining the sentence; (3) considered his unprosecuted offenses when imposing the sentence; (4) considered how many hours the police had worked on his case when imposing the sentence; and (5) sentenced him based on a predetermined, personal sentencing bias. We will consider the issues raised by Root’s last three arguments first.

The district court made the following statements throughout the opening of the sentencing proceedings, which Root points to in support of his claim:

THE COURT: Okay. Mr. Root, you’re starting out in a hole in this case. It’s a big hole. My intent today is to send you to prison. I’m going to give you the opportunity to talk yourself out of that. You better be real persuasive, because there’s a series of incidents that indicate a course of conduct to me in reviewing the Minutes of Testimony that are almost eerie in the sense of being scary. So it’s your opportunity at this point in time to tell me why I shouldn’t send you to prison.
ROOT: Okay. Should I stand up?
THE COURT: No.
ROOT: Okay. Your Honor, I’m here to take responsibility for what I’ve done. I made a mistake. Like you said. I was taking an over-the-counter steroid.
THE COURT: That’s a cop-out. I don’t care to hear that. I never care to hear that. You’re responsible for your conduct.
ROOT: Okay.
THE COURT: Period. Don’t sit here and tell me that that’s a result of some over-the-counter steroid.
. . . .
THE COURT: Not a real good job of talking your way out of this.
. . . .
THE COURT: I assume you have read the Minutes of Testimony. There are hundreds of hours that the police department has spent with the crimes that you’ve committed.
. . . .
THE COURT: Oh, golly. Maybe you should have gone to trial, then. Maybe what I ought to do at this point in time is allow you to withdraw the plea agreement and go to trial on these things. I mean, frankly, I am not one bit sympathetic to you. Not at all. I mean, your conduct here, the State could easily prove the burglaries here. They cut you a big deal.
ROOT: Like I said, I have read the reports, Your Honor, but there are some things in there that didn’t happen that they said took place.
THE COURT: Maybe you ought to take your shot at a trial in this and prove those things didn’t happen. They have fingerprints all over the place.
ROOT: I’m not arguing that, Your Honor. I’m not arguing about the crimes they said I committed, but there are things in there that was said between Mindy [the victim] and the police officers that was just taken out of context. I’m not here arguing the fact of what I’ve done, Your Honor. That’s why I’m here. I’m here to take responsibility for that.

After thoroughly reviewing the record, we determine the district court appeared to exhibit and express a predetermined sentencing bias in this case. We specifically call attention to the fact the court commenced the sentencing proceedings by stating he was going to send Root to prison unless Root was able to talk his way out of it. The problem with these statements is they were made before the court considered or discussed any of the relevant sentencing factors and reflect a fixed, predetermined sentencing posture. This predetermined posture appears to have precluded the exercise of the court’s discretion in rendering judgment. See State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). In addition, the court made mention of the number of hours the police had expended on Root’s case. While this statement normally would not be problematic, we do have concerns with this statement in this case, particularly in light of the other comments made by the district court throughout the sentencing proceeding.

Root further asserts the district court improperly considered his unprosecuted burglary offenses. We agree. The State argues such reference is appropriate because Root admitted to committing the offenses. See Gonzalez, 582 N.W.2d at 516 (a court may consider an unproven offense if the defendant admits it). However, the problem in this case is the court referred to the burglary offenses before Root admitted to committing them. Indeed, it was the court’s initial reference to these offenses that precipitated Root’s admissions. There is, at the very least, an appearance in this case that the defendant was forced to talk the district court out of a predetermined sentence. We conclude the district court abused its sentencing discretion, considered impermissible facts, and the matter should be remanded for resentencing. This disposition makes it unnecessary to discuss the merits of the other claims raised by Root challenging his sentence.

III. Ineffective Assistance.

Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313
(Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) because of counsel’s error, the defendant was prejudiced. State v. Biddle, 652 N.W.2d 191, 203
(Iowa 2002). In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).

Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record in this case is adequate to decide this issue.

Root’s first claim of ineffective assistance of counsel is the alleged failure of counsel to file a motion in arrest of judgment based on the absence of an in-court colloquy. Iowa Rule of Criminal Procedure 2.8(2)(b) provides for the acceptance of guilty pleas by the district court, which includes the requirement of an in-court colloquy. However, rule 2.8(2)(b)(5) provides an exception. “The court may, in its discretion and with the approval of the defendant, waive the above procedures in a plea of guilty to a serious or aggravated misdemeanor.” Iowa R. Crim. P. 2.8(2)(b)(5). Root pled guilty to three counts of criminal trespass with damage, a serious misdemeanor; one count of stalking, an aggravated misdemeanor; and two counts of harassment, a simple misdemeanor. Root argues that because he was charged in the trial information with felony offenses, the court was required to conduct an in-court colloquy. This argument is without merit. While an in-court colloquy is required in cases involving pleas of guilty to felony offenses, in cases involving pleas of guilty to serious or aggravated misdemeanors, the requirements for the court to personally address a defendant to cover the necessary areas of inquiry listed in rule 2.8(2)(b) can be satisfied by supplementing the in-court colloquy with a written plea of guilty. State v. Meron, 675 N.W.2d 537, 540
(Iowa 2004); State v. Kirchoff, 452 N.W.2d 801, 805 (Iowa 1990). The plain language of the rule prescribes that whether or not an in-court colloquy is required depends on the status of the offense being pled to, not the status of the offense the defendant was initially charged with. See Iowa R. Crim. P. 2.8(2)(b). Because an in-court colloquy was not required under rule 2.8(2)(b), counsel did not breach an essential duty by failing to file a motion in arrest of judgment based on the absence of such a colloquy. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (determining counsel is not ineffective for failing to raise a meritless issue).

Root next asserts that even if he was not entitled to an in-court colloquy, counsel rendered ineffective assistance by not requiring an express waiver of such colloquy. Rule 2.8(2)(b) does not, as Root asserts, require that the defendant expressly waive an in-court colloquy. Patten v. State, 553 N.W.2d 336, 337 (Iowa Ct.App. 1996). Root’s written plea of guilty scrupulously set forth all the rights and procedures he was waiving. Once the court received Root’s signed guilty plea, it was within the court’s discretion to waive the guilty plea procedures. See id. We previously rejected this very argument in Patten, where we stated, “[T]he court was not required to make an express, on-the-record finding that [the defendant] approved of a waiver and that the court was exercising its discretion to allow a waiver. To impose such a requirement would undermine the purpose of allowing such waivers.” Id. Because the court did not err in the manner alleged, this claim of ineffective assistance is also without merit.

Root raises three other claims of ineffective assistance of counsel based on counsel’s failure to (1) limit the record for the purpose of establishing a factual basis for the guilty plea; (2) ensure the plea agreement contained a limit on the punishment Root could receive; and (3) present the victim’s testimony at the sentencing hearing. With respect to Root’s remaining three claims, we address the prejudice prong first. State v. Nebinger, 412 N.W.2d 180, 192 (Iowa Ct.App. 1987). In order to satisfy the “prejudice” prong, Root must show there is “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

We conclude Root has failed to prove there is a reasonable probability that but for counsel’s error, he would not have pleaded guilty and would have insisted on going trial. Root argues in his brief that if counsel had not erred in the manner alleged, he may have received a less severe sentence. However, this assertion is insufficient to demonstrate prejudice. Root does not assert he would have insisted on going to trial. Even if he did make such an assertion, a conclusory claim of prejudice is insufficient to demonstrate the type of prejudice required to establish ineffective assistance of counsel. See State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). Further, given Root’s favorable plea agreement, which reduced four felony counts to misdemeanor charges, and the amount of evidence the State had against him, it is unlikely he would have changed his decision to enter a plea of guilty. Because Root cannot demonstrate he was prejudiced by trial counsel’s conduct, his remaining claims of ineffective assistance of counsel must fail.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND CASE REMANDED FORRESENTENCING.