IN THE COURT OF APPEALS OF IOWA
No. 20-0391 Filed November 3, 2021
ANTHONY TIBERIUS FERRE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Warren County, Brad McCall, Judge.
Anthony Ferre appeals the district court’s ruling on his application for
postconviction relief. AFFIRMED AS MODIFIED AND REMANDED.
Raya D. Dimitrova of the Carr Law Firm P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J. and Tabor and Ahlers, JJ. 2
AHLERS, Judge.
Anthony Ferre was initially charged with sexual abuse in the third degree
and lascivious acts with a minor. At the time he was arrested on those charges,
Ferre’s cell phone was seized and retained by law enforcement. Ferre posted bail
a few weeks later and was released from jail.
While he was out of custody, law enforcement obtained a search warrant
and extracted data from Ferre’s cell phone, which included photos of minor
children engaged in sex acts. Based on the information extracted from his phone
and other unrelated sources, a new criminal case was opened and complaints
were filed charging Ferre with three counts of sexual exploitation of a minor, three
counts of forgery, three counts of tampering with records, and three counts of
identity theft. A warrant for Ferre’s arrest was issued accordingly, and the warrant
was executed.
Upon his second arrest, Ferre was in possession of another cell phone.
Law enforcement seized this phone as well and extracted data from it, revealing
six more photos of nude minor children, resulting in six additional charges for
sexual exploitation of a minor.
Within one month of his second arrest, at Ferre’s insistence, Ferre’s
attorney made an offer to the State for Ferre to plead guilty to all twenty charges
in both cases and agree the sentences would be ordered to be served
consecutively.1 In return, the sentences would be suspended and Ferre would be
1 Agreeing to run the sentences consecutively was an agreement to an indeterminate term of incarceration not to exceed forty-seven years, as he pleaded guilty to one class “C” felony (ten years), one serious misdemeanor (one year), 3
placed on probation. The State accepted the offer, and Ferre pleaded guilty
pursuant to the agreement. Ferre received the sentence for which he bargained—
an indeterminate term not to exceed forty-seven years, with the sentence
suspended and Ferre placed on probation for five years. Less than one year after
being sentenced, Ferre violated probation, had his probation revoked, and was
sent to prison to serve the original sentence.
A few months after being sent to prison, Ferre initiated this postconviction-
relief (PCR) action. After multiple amendments to his PCR application, Ferre’s
claims were all based on allegations of ineffective assistance of counsel. The case
proceeded to trial. The district court rejected all but one of Ferre’s claims. The
claim accepted by the district court was the claim that Ferre’s counsel was
ineffective for allowing him to plead guilty to five of the sexual-exploitation-of-a-
minor charges, as there was no factual basis for the charges. Based on its finding,
the district court vacated the judgment and sentences for those five charges and
ordered further proceedings on them. The district court left the judgment and
sentences for the remaining fifteen charges intact. Ferre appeals.
I. Standard of Review
PCR proceedings are usually reviewed for corrections of errors at law.
Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). However, when an application
for PCR alleges constitutional violations—such as ineffective assistance of
counsel—the claims are reviewed de novo. Ledezma v. State, 626 N.W.2d 134,
141 (Iowa 2001).
and eighteen aggravated misdemeanors (two years on each charge for a total of thirty-six years). 4
II. Discussion of the Issues.
Ferre raises three issues. First, he asserts the district court provided the
wrong remedy with regard to the five charges for which there was no factual basis.
He contends the proper remedy was to invalidate the entire plea agreement, which
requires vacating the judgment and sentence and setting aside the guilty plea for
all twenty charges, with all charges set for further proceedings. Second, he asserts
the district court erred by failing to find Ferre’s counsel ineffective for failing to seek
to suppress the evidence extracted from the first cell phone. He claims the search
warrant permitting the extraction had expired and was therefore void. Third, he
asserts the district court erred by failing to find his counsel ineffective for failing to
seek to suppress the evidence extracted from the second cell phone. He claims
there was no search warrant and no warrant exception that permitted such
extraction.
A. Proper Remedy.
Neither party challenges the district court’s finding that counsel was
ineffective for permitting Ferre to plead guilty without a factual basis to five of the
nine sexual-exploitation-of-a-minor charges. However, both parties contend the
district court granted the wrong remedy. Ferre contends the only proper remedy
was to invalidate the plea agreement in its entirety, vacate the judgments and
sentences on all charges, set aside the guilty pleas on all charges, and order
further proceedings on all charges. The State contends the proper remedy is to
allow the State to choose between two options. One option would be to vacate the
five charges for which there was no factual basis and order resentencing on the
remaining fifteen charges. The second option would be the option cited by Ferre. 5
In support of his position, Ferre cites State v. Allen, 708 N.W.2d 361 (Iowa
2006), and cases that follow it.2 The State relies on State v. Ceretti, 871 N.W.2d
88 (Iowa 2015), and Noble v. Iowa Dist. Ct., 919 N.W.2d 625 (Iowa Ct. App. 2018),
to support its position.3
The cases relied upon by the parties appear to form related, but separate,
threads within the fabric of our case law on the topic of remedy when pieces of a
plea agreement are discarded. Allen and its progeny address the specific scenario
we have here—plea counsel fails to challenge a plea for lack of factual basis as
part of a plea bargain. 708 N.W.2d at 365–69. In that scenario, Allen holds that
the remedy is to invalidate the entire plea bargain and proceed accordingly. Id. at
369.
In contrast, the cases relied upon by the State involve a different scenario—
setting aside a sentence as illegal when an attempt is made to punish for both a
homicide and attempted murder. In Ceretti, the supreme court recognized the
alternative remedies available in this scenario. 871 N.W.2d at 97. It rejected the
remedy of reversing the conviction and remanding for resentencing to eliminate
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IN THE COURT OF APPEALS OF IOWA
No. 20-0391 Filed November 3, 2021
ANTHONY TIBERIUS FERRE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Warren County, Brad McCall, Judge.
Anthony Ferre appeals the district court’s ruling on his application for
postconviction relief. AFFIRMED AS MODIFIED AND REMANDED.
Raya D. Dimitrova of the Carr Law Firm P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J. and Tabor and Ahlers, JJ. 2
AHLERS, Judge.
Anthony Ferre was initially charged with sexual abuse in the third degree
and lascivious acts with a minor. At the time he was arrested on those charges,
Ferre’s cell phone was seized and retained by law enforcement. Ferre posted bail
a few weeks later and was released from jail.
While he was out of custody, law enforcement obtained a search warrant
and extracted data from Ferre’s cell phone, which included photos of minor
children engaged in sex acts. Based on the information extracted from his phone
and other unrelated sources, a new criminal case was opened and complaints
were filed charging Ferre with three counts of sexual exploitation of a minor, three
counts of forgery, three counts of tampering with records, and three counts of
identity theft. A warrant for Ferre’s arrest was issued accordingly, and the warrant
was executed.
Upon his second arrest, Ferre was in possession of another cell phone.
Law enforcement seized this phone as well and extracted data from it, revealing
six more photos of nude minor children, resulting in six additional charges for
sexual exploitation of a minor.
Within one month of his second arrest, at Ferre’s insistence, Ferre’s
attorney made an offer to the State for Ferre to plead guilty to all twenty charges
in both cases and agree the sentences would be ordered to be served
consecutively.1 In return, the sentences would be suspended and Ferre would be
1 Agreeing to run the sentences consecutively was an agreement to an indeterminate term of incarceration not to exceed forty-seven years, as he pleaded guilty to one class “C” felony (ten years), one serious misdemeanor (one year), 3
placed on probation. The State accepted the offer, and Ferre pleaded guilty
pursuant to the agreement. Ferre received the sentence for which he bargained—
an indeterminate term not to exceed forty-seven years, with the sentence
suspended and Ferre placed on probation for five years. Less than one year after
being sentenced, Ferre violated probation, had his probation revoked, and was
sent to prison to serve the original sentence.
A few months after being sent to prison, Ferre initiated this postconviction-
relief (PCR) action. After multiple amendments to his PCR application, Ferre’s
claims were all based on allegations of ineffective assistance of counsel. The case
proceeded to trial. The district court rejected all but one of Ferre’s claims. The
claim accepted by the district court was the claim that Ferre’s counsel was
ineffective for allowing him to plead guilty to five of the sexual-exploitation-of-a-
minor charges, as there was no factual basis for the charges. Based on its finding,
the district court vacated the judgment and sentences for those five charges and
ordered further proceedings on them. The district court left the judgment and
sentences for the remaining fifteen charges intact. Ferre appeals.
I. Standard of Review
PCR proceedings are usually reviewed for corrections of errors at law.
Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). However, when an application
for PCR alleges constitutional violations—such as ineffective assistance of
counsel—the claims are reviewed de novo. Ledezma v. State, 626 N.W.2d 134,
141 (Iowa 2001).
and eighteen aggravated misdemeanors (two years on each charge for a total of thirty-six years). 4
II. Discussion of the Issues.
Ferre raises three issues. First, he asserts the district court provided the
wrong remedy with regard to the five charges for which there was no factual basis.
He contends the proper remedy was to invalidate the entire plea agreement, which
requires vacating the judgment and sentence and setting aside the guilty plea for
all twenty charges, with all charges set for further proceedings. Second, he asserts
the district court erred by failing to find Ferre’s counsel ineffective for failing to seek
to suppress the evidence extracted from the first cell phone. He claims the search
warrant permitting the extraction had expired and was therefore void. Third, he
asserts the district court erred by failing to find his counsel ineffective for failing to
seek to suppress the evidence extracted from the second cell phone. He claims
there was no search warrant and no warrant exception that permitted such
extraction.
A. Proper Remedy.
Neither party challenges the district court’s finding that counsel was
ineffective for permitting Ferre to plead guilty without a factual basis to five of the
nine sexual-exploitation-of-a-minor charges. However, both parties contend the
district court granted the wrong remedy. Ferre contends the only proper remedy
was to invalidate the plea agreement in its entirety, vacate the judgments and
sentences on all charges, set aside the guilty pleas on all charges, and order
further proceedings on all charges. The State contends the proper remedy is to
allow the State to choose between two options. One option would be to vacate the
five charges for which there was no factual basis and order resentencing on the
remaining fifteen charges. The second option would be the option cited by Ferre. 5
In support of his position, Ferre cites State v. Allen, 708 N.W.2d 361 (Iowa
2006), and cases that follow it.2 The State relies on State v. Ceretti, 871 N.W.2d
88 (Iowa 2015), and Noble v. Iowa Dist. Ct., 919 N.W.2d 625 (Iowa Ct. App. 2018),
to support its position.3
The cases relied upon by the parties appear to form related, but separate,
threads within the fabric of our case law on the topic of remedy when pieces of a
plea agreement are discarded. Allen and its progeny address the specific scenario
we have here—plea counsel fails to challenge a plea for lack of factual basis as
part of a plea bargain. 708 N.W.2d at 365–69. In that scenario, Allen holds that
the remedy is to invalidate the entire plea bargain and proceed accordingly. Id. at
369.
In contrast, the cases relied upon by the State involve a different scenario—
setting aside a sentence as illegal when an attempt is made to punish for both a
homicide and attempted murder. In Ceretti, the supreme court recognized the
alternative remedies available in this scenario. 871 N.W.2d at 97. It rejected the
remedy of reversing the conviction and remanding for resentencing to eliminate
the offending portion of the sentence, choosing instead to follow Allen and select
the remedy of vacating all convictions and the entire plea agreement with a remand
to the district court. Id. Choosing this remedy prevents a defendant from
2 Cases that have followed Allen include Dockery v. State, No. 17-1226, 2018 WL 6123021, at *4 (Iowa Ct. App. Nov. 21, 2018); State v. Olson, No. 15-2114, 2017 WL 362597, at *2 (Iowa Ct. App. Jan. 25, 2017); and State v. Blanchard, No. 13- 0342, 2013 WL 6405373, at *2–3 (Iowa Ct. App. Dec. 5, 2013). 3 Ceretti also cites Allen favorably. See 871 N.W.2d at 97. 6
“transform[ing] what was a favorable plea bargain in the district court to an even
better deal on appeal.” Id.
Three years after Ceretti, our court addressed the same issue and
recognized the two potential remedies identified in Ceretti. Noble, 919 N.W.2d at
633. After identifying the two remedies and the pitfalls of both, the court added a
new wrinkle, which was to allow the prosecutor to choose between the two options.
Id. at 633–34.
We recognize the attractiveness of the “prosecutor gets to choose the
option” approach of Noble, and we would follow that approach if we were faced
with the same situation (i.e., an illegal sentence due to dual punishment for
attempted murder and a homicide based on the same conduct with the same
victim). We would also consider adopting this approach in the situation at hand if
we were writing on a blank slate. However, we are not writing on a blank slate,
and we are duty-bound to follow controlling supreme court precedent. See State
v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). Allen proclaims a clear rule:
“The proper remedy when counsel fails to perform an essential duty by not
challenging a plea for lack of a factual basis when the plea is a result of a plea
bargain is to invalidate the entire plea bargain . . . and remand the case to the
district court.” 708 N.W.2d at 369. That is exactly the situation we have here.
Neither Ceretti nor Noble, nor any other case cited by the State, suggests Allen
has been overruled, and both Ceretti and Noble involve a scenario that does not
exist here. As the situation that forms the foundation for the holding in Allen is the
situation we have in this case, we are obligated to follow Allen’s direction rather
than the “prosecutor’s choice” option of Noble. Therefore, we affirm the district 7
court’s decision to vacate the convictions and sentences for the five charges for
which there was no factual basis. However, we modify the remedy by directing
that the entire plea agreement is invalidated and the case is remanded to the
district court. In invalidating the plea agreement, we vacate the convictions and
sentences on all charges, set aside the guilty pleas on all charges, and remand to
the district court for further proceedings on all charges. Consistent with the
directives of Allen, on remand, the State may proceed as though the plea
agreement did not exist. Id. Further, on remand, “the State may reinstate any
charges dismissed in contemplation of a valid plea bargain, if it so desires, and file
any additional charges supportable by the available evidence.” Id.
B. Other Claims of Ineffective Assistance of Counsel
As suggested by Ferre, we need not address the other claims of ineffective-
assistance-of-counsel he raises on appeal. The resolution outlined above results
in putting the parties back in the same position they were in before they reached
their plea agreement and Ferre entered his guilty pleas, so there is no need to
address whether prior counsel was otherwise ineffective in letting Ferre enter guilty
pleas.
III. Conclusion.
We affirm the district court’s ruling as modified, vacate the convictions and
sentences on all charges, set aside the guilty pleas on all charges, and remand for
further proceedings consistent with the directives in this opinion.
AFFIRMED AS MODIFIED AND REMANDED.