IN THE COURT OF APPEALS OF IOWA
No. 20-1433 Filed January 12, 2022
JEFFREY DANIEL KRONE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane F.
Hoffmeyer, Judge.
An applicant challenges the denial of postconviction relief. REVERSED
AND REMANDED.
Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Greer and Badding, JJ. 2
TABOR, Presiding Judge.
Jeffrey Krone appeals the denial of his application for postconviction relief.
His conviction followed submission of a written guilty plea to possession of
methamphetamine. On appeal, he contends the district court erred by not reaching
the merits of his claim that plea counsel was ineffective. According to Krone,
effective counsel would have moved in arrest of judgment because the plea
agreement was not disclosed on the record.
The State now agrees the court wrongly decided Krone waived his
ineffective-assistance claim. But it insists the court “did briefly reject” the
substance of that claim. In the alternative, the State argues Krone cannot show
plea counsel’s performance prejudiced him.
As both parties recognize, the district court should have reached the merits
of Krone’s claim. Because we do not read the postconviction ruling as doing so,
even briefly, we remand for that to happen. See McKnight v. State, 356 N.W.2d
532, 536 (Iowa 1984) (declining to resolve substantive issues presented in
application because district court did not reach the merits).
I. Facts and Prior Proceedings
In August 2017, a Sioux City police officer arrested Krone after finding a
baggie containing .4 grams of methamphetamine on the floorboard of the Ford
Explorer he was driving. The State charged Krone with possessing a controlled
substance, in violation of Iowa Code section 124.401(5) (2017).
Four months later, Krone’s attorney, Heidi Rouse, negotiated a plea deal.
Krone told Rouse that he would accept a deferred judgment in exchange for his 3
guilty plea. According to Rouse, on either December 5 or December 8, Krone
signed a written guilty plea and waiver-of-rights form.1
On December 8, Rouse contacted the prosecutor asking for a deferred
judgment on Krone’s behalf. Prosecutor Athena Ladeas responded that she would
“check on it.” But when Ladeas discovered that Krone received a deferred
judgment in 2011, she refused Rouse’s request. At 8:55 a.m. on December 12,
Ladeas sent this email: “He used one prior to this case so I’m not offering the
second one. He can certainly argue for it.”
At the postconviction hearing, attorney Rouse testified that she relayed the
prosecutor’s position to her client. Her notes from that conversation showed that
Krone agreed to submit the plea form and “request open sentencing.” In other
words, Krone would plead guilty and could “argue to the court for what the outcome
should be, including he could argue for a deferred judgment.” In his postconviction
testimony, Krone denied consenting to a plea deal that did not involve the
prosecution’s recommendation of a deferred judgment. At 10:17 a.m. on
December 12, Rouse filed the pre-signed waiver of rights and guilty plea. The
court accepted the guilty plea that same day and set sentencing for January 2018.
On the day of sentencing, Rouse and Ladeas had an informal meeting with
Judge Todd Henlsey in chambers. Krone was not present. Prosecutor Ladeas
originally had offered to recommend five days in jail, or ten days on electronic
monitoring. But during the conversation, she agreed to reduce jail time to three
days with seven days electronic monitoring. Judge Hensley told the attorneys he
1Krone testified at the postconviction hearing that he did not sign the form. He asserted Rouse copied his signature from another document. 4
was not inclined to grant a deferred judgment. Rouse recalled that the judge was
open to argument but, “unless we had something other than what was in the file,
that Mr. Krone would be likely looking at more than the three days jail time.” Rouse
then told her client that he could still request a deferred judgment, but she “did not
believe going in and arguing for a deferred would result in him getting the deferred
at that point and that [she] had gotten the new offer from the prosecutor.” So Krone
left without attending the sentencing hearing.
In a written ruling, the court imposed judgment and sentenced Krone to 180
days in jail, all but three suspended and ten days of electronic monitoring. Krone
filed a direct appeal from judgment and sentence.
In February 2020, our court affirmed his conviction but remanded for
resentencing because we could not tell whether the district court properly
exercised its discretion. State v. Krone, No. 18-0139, 2020 WL 821935, at *5 (Iowa
Ct. App. Feb. 19, 2020) (“The record is devoid of any details of a plea agreement.”).
We cited State v. Thacker, in which our supreme court vacated a sentence
because it was unclear if the district court was giving effect to the parties’ plea
agreement or independently exercising its discretion. 862 N.W.2d 402, 410 (Iowa
2015). Plus, we preserved Krone’s claims of ineffective assistance of plea counsel
for a possible postconviction-relief action.
Krone represented himself at the resentencing hearing in April 2020. The
district court denied his request to withdraw his guilty plea. Then the court
sentenced Krone to two days in jail with credit for time served.
Meanwhile, in September 2018, Krone applied for postconviction relief. The
district court stayed the action until the direct appeal ended. Then in May 2020, 5
Krone amended his petition, alleging plea counsel was ineffective for not moving
in arrest of judgment when the guilty plea failed to disclose the plea agreement.
In November 2020, the district court denied relief. In doing so, the court
rejected Krone’s claim that his attorney forged his signature. “The court finds and
concludes Krone did sign a written plea of guilty as asserted by defense attorney
Rouse.” Beyond that credibility finding, the court decided Krone could not pursue
his claim of ineffective assistance of plea counsel in the postconviction case
because he failed “to raise claims related to the validity of his guilty plea during his
pro se representation” on direct appeal and at resentencing.
Despite bypassing Krone’s attack on the legitimacy of his plea, the court
was critical of plea counsel’s process of having Krone sign the plea form before
securing an agreement from the prosecution:
[T]he court would be less than remiss to say the signing of a written plea of guilty which references a plea agreement without an agreed upon plea agreement is not best practice. With an appropriate factual record, a court could conclude the signing of the written plea of guilty was not knowingly, voluntarily, or intelligently made. In this case, a disputed phone call is the sole affirmation a plea agreement (open sentence) existed.
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IN THE COURT OF APPEALS OF IOWA
No. 20-1433 Filed January 12, 2022
JEFFREY DANIEL KRONE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane F.
Hoffmeyer, Judge.
An applicant challenges the denial of postconviction relief. REVERSED
AND REMANDED.
Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Greer and Badding, JJ. 2
TABOR, Presiding Judge.
Jeffrey Krone appeals the denial of his application for postconviction relief.
His conviction followed submission of a written guilty plea to possession of
methamphetamine. On appeal, he contends the district court erred by not reaching
the merits of his claim that plea counsel was ineffective. According to Krone,
effective counsel would have moved in arrest of judgment because the plea
agreement was not disclosed on the record.
The State now agrees the court wrongly decided Krone waived his
ineffective-assistance claim. But it insists the court “did briefly reject” the
substance of that claim. In the alternative, the State argues Krone cannot show
plea counsel’s performance prejudiced him.
As both parties recognize, the district court should have reached the merits
of Krone’s claim. Because we do not read the postconviction ruling as doing so,
even briefly, we remand for that to happen. See McKnight v. State, 356 N.W.2d
532, 536 (Iowa 1984) (declining to resolve substantive issues presented in
application because district court did not reach the merits).
I. Facts and Prior Proceedings
In August 2017, a Sioux City police officer arrested Krone after finding a
baggie containing .4 grams of methamphetamine on the floorboard of the Ford
Explorer he was driving. The State charged Krone with possessing a controlled
substance, in violation of Iowa Code section 124.401(5) (2017).
Four months later, Krone’s attorney, Heidi Rouse, negotiated a plea deal.
Krone told Rouse that he would accept a deferred judgment in exchange for his 3
guilty plea. According to Rouse, on either December 5 or December 8, Krone
signed a written guilty plea and waiver-of-rights form.1
On December 8, Rouse contacted the prosecutor asking for a deferred
judgment on Krone’s behalf. Prosecutor Athena Ladeas responded that she would
“check on it.” But when Ladeas discovered that Krone received a deferred
judgment in 2011, she refused Rouse’s request. At 8:55 a.m. on December 12,
Ladeas sent this email: “He used one prior to this case so I’m not offering the
second one. He can certainly argue for it.”
At the postconviction hearing, attorney Rouse testified that she relayed the
prosecutor’s position to her client. Her notes from that conversation showed that
Krone agreed to submit the plea form and “request open sentencing.” In other
words, Krone would plead guilty and could “argue to the court for what the outcome
should be, including he could argue for a deferred judgment.” In his postconviction
testimony, Krone denied consenting to a plea deal that did not involve the
prosecution’s recommendation of a deferred judgment. At 10:17 a.m. on
December 12, Rouse filed the pre-signed waiver of rights and guilty plea. The
court accepted the guilty plea that same day and set sentencing for January 2018.
On the day of sentencing, Rouse and Ladeas had an informal meeting with
Judge Todd Henlsey in chambers. Krone was not present. Prosecutor Ladeas
originally had offered to recommend five days in jail, or ten days on electronic
monitoring. But during the conversation, she agreed to reduce jail time to three
days with seven days electronic monitoring. Judge Hensley told the attorneys he
1Krone testified at the postconviction hearing that he did not sign the form. He asserted Rouse copied his signature from another document. 4
was not inclined to grant a deferred judgment. Rouse recalled that the judge was
open to argument but, “unless we had something other than what was in the file,
that Mr. Krone would be likely looking at more than the three days jail time.” Rouse
then told her client that he could still request a deferred judgment, but she “did not
believe going in and arguing for a deferred would result in him getting the deferred
at that point and that [she] had gotten the new offer from the prosecutor.” So Krone
left without attending the sentencing hearing.
In a written ruling, the court imposed judgment and sentenced Krone to 180
days in jail, all but three suspended and ten days of electronic monitoring. Krone
filed a direct appeal from judgment and sentence.
In February 2020, our court affirmed his conviction but remanded for
resentencing because we could not tell whether the district court properly
exercised its discretion. State v. Krone, No. 18-0139, 2020 WL 821935, at *5 (Iowa
Ct. App. Feb. 19, 2020) (“The record is devoid of any details of a plea agreement.”).
We cited State v. Thacker, in which our supreme court vacated a sentence
because it was unclear if the district court was giving effect to the parties’ plea
agreement or independently exercising its discretion. 862 N.W.2d 402, 410 (Iowa
2015). Plus, we preserved Krone’s claims of ineffective assistance of plea counsel
for a possible postconviction-relief action.
Krone represented himself at the resentencing hearing in April 2020. The
district court denied his request to withdraw his guilty plea. Then the court
sentenced Krone to two days in jail with credit for time served.
Meanwhile, in September 2018, Krone applied for postconviction relief. The
district court stayed the action until the direct appeal ended. Then in May 2020, 5
Krone amended his petition, alleging plea counsel was ineffective for not moving
in arrest of judgment when the guilty plea failed to disclose the plea agreement.
In November 2020, the district court denied relief. In doing so, the court
rejected Krone’s claim that his attorney forged his signature. “The court finds and
concludes Krone did sign a written plea of guilty as asserted by defense attorney
Rouse.” Beyond that credibility finding, the court decided Krone could not pursue
his claim of ineffective assistance of plea counsel in the postconviction case
because he failed “to raise claims related to the validity of his guilty plea during his
pro se representation” on direct appeal and at resentencing.
Despite bypassing Krone’s attack on the legitimacy of his plea, the court
was critical of plea counsel’s process of having Krone sign the plea form before
securing an agreement from the prosecution:
[T]he court would be less than remiss to say the signing of a written plea of guilty which references a plea agreement without an agreed upon plea agreement is not best practice. With an appropriate factual record, a court could conclude the signing of the written plea of guilty was not knowingly, voluntarily, or intelligently made. In this case, a disputed phone call is the sole affirmation a plea agreement (open sentence) existed.
The court also questioned counsel’s advice to Krone that he did not need
to appear at sentencing to argue for a deferred judgment.
What transpired at the Law Enforcement Center without a court appearance under the circumstances creates concerns. Was a purported statement by District Associate Judge Hensley presented to [Krone] as conclusive when the judge made clear a hearing could be held if the defendant so desired? The signing of a written plea of guilty without a plea agreement as a matter of convenience is a bad practice.
Krone now appeals, alleging the court erred in denying him relief without reaching
the merits of his ineffective-assistance-of-counsel claim. 6
II. Scope and Standards of Review
We typically review postconviction-relief proceedings for correction of legal
error. Ruiz v. State, 912 N.W.2d 435, 439 (Iowa 2018). But when the applicant
alleges ineffective assistance of counsel, we switch to de novo review. Id.
III. Analysis
To prevail on his claim of ineffective assistance, Krone must prove attorney
Rouse performed deficiently and prejudice resulted. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). We measure counsel’s performance
against the standard of a reasonably competent practitioner. State v. Clay, 824
N.W.2d 488, 495 (Iowa 2012). On the prejudice prong, because Krone pleaded
guilty, he must show that but for Rouse’s omission he would have insisted on going
to trial. See State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009).
Starting with the performance prong, Krone points to two rules of criminal
procedure requiring the plea-taking court to explore the influence of plea
negotiations on the defendant’s decision to plead guilty. Iowa Rule of Criminal
Procedure 2.8(2)(c) requires court “inquir[y] as to whether the defendant’s
willingness to plead guilty results from prior discussions between the attorney for
the state and the defendant or the defendant’s attorney.” Rule 2.10(2), in turn,
“require[s] the disclosure of the [plea] agreement in open court at the time the plea
is offered.” Iowa R. Crim. P. 2.10(2).
Krone contends the document that his attorney submitted to the court—“an
undated, written plea that contained multiple vague references to a plea agreement
that may or may not exist”—did not comply with these rules. He argues Rouse
was ineffective for failing to challenge that noncompliance by moving in arrest of 7
judgment. But the district court did not address that argument, opting instead to
deny relief on waiver grounds.
Out of the gate, the State concedes that the district court erred in deciding
Krone waived his challenge to counsel’s handling of the guilty plea during direct
appeal and at resentencing. The State acknowledges: “although Krone filed a pro
se supplemental appellate brief, he was represented by counsel on direct appeal—
contrary to the postconviction court’s observation—and the Court of Appeals
specifically preserved his ineffective assistance claims for postconviction
proceedings.” The State continues: “Moreover, as the resentencing court correctly
recognized, its only task was to resentence [Krone] in light of the Court of Appeals
decision finding a Thacker sentencing violation.”
Yet the State contends the district court “ultimately ruled—albeit
succinctly—on the substance of Krone’s claim when it accepted the credible
testimony of defense counsel Heidi Rouse, which was in direct contradiction to
Krone’s claims that he did not intend to plead guilty.”
We read the court’s credibility determination more narrowly. True, the court
rejected Krone’s assertion that his attorney forged his signature on the plea form.
But it did not reach Krone’s underlying claim that Rouse was ineffective for not
moving in arrest of judgment.
Expecting that we might disagree, the State argues that “because there was
no valid basis to arrest judgment, [Rouse] was not ineffective.” It adds, “even if the
court concludes that the trial court should have inquired about any plea agreement
in open court and counsel should have challenged that failure, Krone still cannot
show resulting prejudice.” In reply, Krone points to his testimony that “had he 8
known that the State was not in agreement with a deferred judgment, he would
have gone to trial.” He notes that even if he lost at trial, he still could have
requested a deferred judgment at sentencing.
While we appreciate the parties’ spirited arguments, we decline to reach the
substance of Krone’s ineffective-assistance claim when the district court has not
yet ruled on the merits. See McKnight, 356 N.W.2d at 536; see also Hoosman v.
State, No. 14-1870, 2016 WL 1704013, at *2 (Iowa Ct. App. Apr. 27, 2016) (“We
decline the State’s invitation to address the merits of Hoosman’s claims for the first
time on appeal. The district court is in a better position to make the necessary
credibility assessments, having heard the evidence first hand.”). Instead, we
reverse the postconviction order and remand for a ruling on the merits from the
record already created. We do not retain jurisdiction.
REVERSED AND REMANDED.