No. 6-128 / 05-0554Court of Appeals of Iowa.
Filed March 29, 2006
Appeal from the Iowa District Court for Howard County, John Bauercamper (guilty plea) and Margaret Lingreen (sentencing), Judges.
Francis Sindelar appeals following his guilty plea, judgment, and sentence for possession of marijuana with intent to deliver and failure to affix a drug tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, and Joseph M. Haskovec, County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
ZIMMER, P.J.
Francis Sindelar appeals following his guilty plea, judgment, and sentence for possession of marijuana with intent to deliver and failure to affix a drug tax stamp in violation of Iowa Code sections 124.401(1)(d) and 453B.12 (2003). Sindelar contends trial counsel was ineffective for failing to object to the court’s refusal to accept a guilty plea to only one count pursuant to a plea agreement. We affirm Sindelar’s convictions and preserve this claim for possible postconviction relief proceedings.
I. Background Facts and Proceedings
The State charged Sindelar with two crimes, Count I, possession of marijuana with intent to deliver, and Count II, failure to affix a drug tax stamp. On the morning of February 11, 2004, the parties appeared in court for a jury trial. Prior to jury selection, they informed the court they had reached a plea agreement. Under the terms of the proposed agreement, Sindelar would plead guilty to Count I, receive a deferred judgment, and be placed on probation. The agreement further provided that Count II would be dismissed.
The trial judge agreed to be bound by the plea agreement and began asking Sindelar the questions necessary to establish he was entering an informed and voluntary plea. Sindelar confirmed he understood the terms of the proposed agreement; however, during his discussions with the court, he indicated he was too nervous to make up his mind regarding his guilty plea. As a result, the court declined to accept the guilty plea and suggested that defense counsel discuss with Sindelar whether he wished to make an Alford plea.[1]
Following a short recess, defense counsel advised the court Sindelar wished to make an Alford plea. However, after the plea proceedings resumed, Sindelar informed the court he did not believe it was in his best interest to accept the plea agreement which he had been offered. The court then terminated the plea proceedings. Jury selection resumed, and a jury was selected to hear the case.
Just before trial was to commence, Sindelar’s attorney again informed the court his client wished to enter a guilty plea pursuant to a plea agreement with the county attorney. At this point, the court informed the parties it would allow Sindelar “to plead guilty anytime as long as he wants to plead guilty straight up to both charges without the benefit of any plea bargain.” After consulting with his attorney, Sindelar entered a guilty plea to both counts. The State agreed to recommend a deferred judgment at sentencing. The trial court made clear that any agreement between Sindelar and the county attorney would not bind the sentencing court and indicated he would not be involved in sentencing Sindelar.
On April 25, 2005, another judge sentenced Sindelar to concurrent five-year sentences and a $750 fine, but suspended the sentences and fine and placed him on probation. Sindelar now appeals, contending his trial counsel was ineffective.
II. Scope of Review
Generally, we review a challenge to the entry of a guilty plea for the correction of errors at law. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). However, when the challenge arises in the context of an ineffective assistance claim, our standard of review is de novo. State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004).
III. Discussion
Sindelar claims his trial counsel breached an essential duty by failing to object to the court’s refusal to accept the parties’ plea agreement that provided he plead guilty only to Count I. For Sindelar to prevail on his ineffective assistance claim on direct appeal, he must establish as a matter of law that counsel failed to perform an essential duty and prejudice ensued. State v. Martinez, 679 N.W.2d 620, 625 (Iowa 2004). Because Sindelar claims ineffective assistance with respect to a guilty plea, he must prove that, but for counsel’s breach, there is a reasonable probability he would have insisted on going to trial. State v. Tate, ___ N.W.2d ___ (Iowa 2006).
Generally, when a defendant raises claims of ineffective assistance of counsel on direct appeal, we preserve the claims for postconviction proceedings. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). If we find it necessary to more fully develop a factual record, we will preserve Sindelar’s ineffective assistance claim for a possible postconviction relief action State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004).
In this case, we believe the record on direct appeal is insufficient to rule on the merits of Sindelar’s ineffective assistance claim. The appellate record does not reveal the terms of the plea agreement proposed after the jury was selected.[2] Furthermore, the transcript of the guilty plea proceeding reveals an off-the-record conversation between Sindelar and his trial counsel immediately before Sindelar entered the guilty pleas that the court accepted. This information could have a direct bearing on our consideration of Sindelar’s ineffective assistance claim. Therefore, we affirm Sindelar’s convictions, and we preserve his ineffective assistance claim for possible postconviction relief proceedings.
AFFIRMED.