State of Iowa v. Charity Ann Albright

• Court: Court of Appeals of Iowa
• Decided: June 24, 2015
• Docket: 13-1759
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 13-1759 Filed June 24, 2015

STATE OF IOWA, Plaintiff-Appellee,

vs.

CHARITY ANN ALBRIGHT, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Henry County, John M. Wright,

Judge.

The defendant challenges her conviction and sentence. AFFIRMED.

Jeffrey M. Lipman of Lipman Law Firm, P.C., Clive, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Heather Ann

Mapes, Assistant Attorneys General, Darin Stater, County Attorney, and Edward

G. Harvey, Assistant County Attorney, for appellee.

Considered by Danilson, C.J., and Tabor and McDonald, JJ. 2

MCDONALD, J.

Defendant Charity Albright was charged by amended trial information with

conspiracy to manufacture methamphetamine, in violation of Iowa Code section

124.401(1)(b)(7) (2013), and possession of pseudoephedrine with the intent that

it be used to manufacture a controlled substance, in violation of Iowa Code

section 124.401(4)(b). Pursuant to a plea agreement, Albright pleaded guilty to

the latter charge, and the State agreed to recommend a suspended sentence for

the offense while Albright was free to ask for a deferred judgment. The district

court sentenced Albright to an indeterminate term of incarceration not to exceed

five years but suspended the sentence. The district court imposed as a term and

condition of probation that Albright complete in-patient substance abuse

treatment in a halfway house. On appeal, Albright contends the sentence is

illegal because she was not afforded the opportunity to withdraw her guilty plea

when the district court required her to complete the in-patient program at the

halfway house rather than the substance abuse program Albright desired. She

contends this was a violation of Iowa Rule of Criminal Procedure 2.10.

To the extent Albright casts her claim as a challenge to an illegal

sentence, the claim is without merit. First, it appears from the record before this

court the sentence is actually in accord with the plea agreement. The plea

agreement called for the State to recommend a suspended sentence, which it

did. The district court imposed a suspended sentence. There is nothing of

record establishing the parties agreed the defendant would be required to

complete a particular substance abuse treatment program. Second, the 3

sentence is not illegal. The district court convicted Albright of the offense to

which she pleaded guilty, sentenced her in accord with all relevant statutes, and

did not consider any impermissible factors in imposing said sentence. See State

v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002) (stating the decision to impose a

sentence within statutory limits is cloaked with a strong presumption in its favor

and will be affirmed absent clear evidence in the record of consideration of

impermissible factors).

To the extent Albright’s claim is actually a challenge to the plea

proceeding, her claim fails on two grounds. First, Albright failed to preserve error

on the issue because she failed to file a motion in arrest of judgment after being

informed during the plea proceeding of the necessity of doing so and the

consequences for failing to do the same. See Iowa R. Crim. P. 2.24(3)(a); State

v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). Second, the claim fails on the merits.

During the plea colloquy, the district court advised Albright that it would not be

bound by the plea agreement and that it could impose any sentence allowed by

law, even contrary to the parties’ recommendation and request. The district court

then specifically asked Albright if she nonetheless wished to plead guilty, and

Albright answered in the affirmative. This is all Iowa Rule of Criminal Procedure

2.10(4) requires. It does not provide, as the defendant contends, an absolute

right to withdraw her plea at a later sentencing hearing. See Iowa R. Crim. P.

2.10(4) (“If the defendant persists in the guilty plea and it is accepted by the

court, the defendant shall not have the right subsequently to withdraw the plea 4

except upon a showing that withdrawal is necessary to correct a manifest

injustice.”). There is no showing of manifest injustice here.

The defendant’s conviction and sentence are affirmed without further

opinion. See Iowa Ct. R. 21.26(1)(a), (c), (e).

AFFIRMED.