State of Iowa v. David Miles Galvin

• Court: Court of Appeals of Iowa
• Decided: August 4, 2021
• Docket: 20-0026
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0026 Filed August 4, 2021

STATE OF IOWA, Plaintiff-Appellee,

vs.

DAVID MILES GALVIN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Tamra Roberts, Judge.

A defendant appeals his conviction for possession of methamphetamine

with intent to deliver. APPEAL DISMISSED.

Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.

Considered by Doyle, P.J., and Tabor and Greer, JJ. 2

TABOR, Judge.

David Galvin appeals his conviction following a guilty plea to possession of

methamphetamine with intent to deliver. He contends the plea colloquy was

defective because the district court failed to inquire into the terms of the plea

agreement. We cannot reach his contention.

Galvin and the State filed a memorandum of plea agreement. As to

sentencing, the memorandum states “The State will recommend supervised

probation, with the sentences to be run concurrent with each other. [Galvin] will

obtain a substance-abuse evaluation and follow through with any recommended

treatment.” The agreement also set out “special conditions,” including this one:

“[Galvin] understands that upon entry of a deferred judgment pursuant to section

907.3, [he] shall be assessed a civil penalty . . . .” In that sentence, the words

“deferred judgment” were underlined in blue ink. A few lines below, Galvin and his

counsel signed in blue ink, while the prosecutor signed in black ink. This,

according to Galvin, “indicated it was [his] intention to request a deferred

judgment.”

At the plea hearing, the district court recited the State’s sentencing

recommendation and the substance-abuse condition from the memorandum. The

court then asked Galvin if that was his understanding of the plea agreement.

Galvin said yes. The court also asked counsel if the defense requested “a deferred

docket search.” Counsel said yes. The court accepted the plea and ordered a

presentence investigation (PSI) report.

Before sentencing, the court filed an order showing it received the PSI. The

court noted that Galvin and his counsel also received the PSI and that “they know 3

of no reason that sentence should not be imposed.” At the sentencing hearing,

counsel agreed Galvin had a chance to review the PSI and had no additions or

corrections. The first page of the PSI reflected: “[Galvin] appears ineligible to

receive a deferred judgment due to his felony conviction . . . . He is also ineligible

due to the controlled substance in this case being methamphetamine.” When

asked for the defense recommendation, counsel said, “We concur with the State

and the PSI preparer in this matter” and “ask the court to consider suspending the

sentence.” The court sentenced Galvin to a ten-year suspended sentence and

three years of probation. Galvin now appeals.

Galvin contends the court erred in failing to ask about the terms of the plea

agreement as required by Iowa Rule of Criminal Procedure 2.8(2)(c). Galvin

asserts that he intended to request a deferred judgment. But the PSI preparer

determined that Galvin was ineligible for a deferred judgment. Because the court

made no inquiry, it never informed Galvin that a deferred judgment was off the

table. Galvin argues his plea was thus unknowing and involuntary.

The State insists we cannot consider that argument because of recently

enacted statutory provisions. Iowa Code sections 814.6 and 814.7 (2020) limit

Galvin’s ability to appeal as a matter of right following his guilty plea and require

any claims of ineffective assistance of counsel be decided in postconviction-relief

proceedings rather than on direct appeal. See State v. Treptow, 960 N.W.2d 98,

102 (Iowa 2021). Section 814.6 does not permit an appeal following a guilty plea,

other than a class “A” felony, without “good cause.” State v. Damme, 944 N.W.2d

98, 103–04 (Iowa 2020) (placing burden of establishing good cause on defendant). 4

Good cause means “a legally sufficient reason.” Id. at 105. For example,

allegations of sentencing error constitute good cause. State v. Boldon, 954

N.W.2d 62, 69 (Iowa 2021) (reiterating “[a] sentencing error invariably arises after

the court has accepted the guilty plea. This timing provides a legally sufficient

reason to appeal notwithstanding the guilty plea.” (alteration in original) (quoting

Damme, 944 N.W.2d at 105)); see also State v. Thompson, 951 N.W.2d 1, 2 (Iowa

2020) (extending Damme ruling to appeals from orders revoking deferred

judgments). Because Galvin challenges the plea proceeding, and not his

sentence, he must offer another “legally sufficient reason” for us to consider his

claim.

Galvin argues good cause exists because the court did not comply with the

rules of criminal procedure at the plea proceeding and, thus, his plea was

unknowing and involuntary. The parties submitted briefs before the supreme court

decided State v. Tucker, 959 N.W.2d 140 (Iowa 2021). Tucker invited the court to

“expand the concept of good cause and hold that a claim that a plea is not

intelligently or voluntarily made constitutes good cause to appeal as a matter of

right.” Tucker, 959 N.W.2d at 153. The supreme court held Tucker lacked a

“legally sufficient reason” to challenge the guilty plea because it could not “provide

relief on direct appeal.” Id. The court reasoned: “His failure to file a motion in

arrest of judgment precludes appellate relief.” Id. (citing Iowa R. Crim. P.

2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a guilty plea

proceeding by motion in arrest of judgment shall preclude the defendant’s right to

assert such challenge on appeal.”)). Galvin admits that he failed to file a motion in

arrest of judgment, which precludes our consideration of his claim. 5

Yet two exceptions to this rule exist: (1) when the district court fails to advise

the defendant of the consequences of not filing a motion in arrest of judgment; or

(2) when the failure to file such motion stems from ineffective assistance of

counsel. Tucker, 959 N.W.2d at 153. Galvin does not assert that the district court

fell short in its advisory, and the plea record shows the court gave the necessary

warning. Galvin also insists he is not raising an ineffective-assistance-of-counsel

claim, though he mentions in passing that counsel’s only failure was not filing the

motion. Even if he were raising an ineffective-assistance-of-counsel claim, the

legislative amendment removes our authority to consider that issue on direct

appeal. Iowa Code § 814.7 (“An ineffective assistance of counsel claim in a

criminal case shall be determined by filing an application for postconviction

relief . . . and the claim shall not be decided on direct appeal from the criminal

proceedings.”).

Because Galvin has not established good cause, we cannot hear the

challenge and thus dismiss the appeal.

APPEAL DISMISSED.