IN THE COURT OF APPEALS OF IOWA
No. 15-2194 Filed January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
DERRICK GLENN SMITH JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
The defendant challenges his convictions and sentences. CONVICTIONS
AFFIRMED, SENTENCE VACATED, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2
MCDONALD, Judge.
The State charged defendant Derrick Smith Jr. with two counts of
attempted murder, two counts of willful injury causing serious injury, and two
counts of intimidation with a dangerous weapon. The charges arose out of a
shooting on the east side of Des Moines on the morning of June 8, 2015. Smith
was driving his girlfriend’s sport utility vehicle. His passenger and codefendant,
Jamon Allen Jr. fired a handgun from the passenger side of the vehicle at Michi
Palmer and Willie Taylor, striking and seriously injuring both of them. One of the
errant bullets struck the residence of Johnetta Daye. Taylor and Palmer were
visiting Daye. Danielle Looney, who was sleeping at Daye’s residence at the
time of the shooting, awoke to the gunfire. The matter came on for trial in
October 2015. On the third day of trial, Smith and Allen pleaded guilty by way of
Alford v. North Carolina, 400 U.S. 25, 37 (1970), to two counts of willful injury
causing serious bodily injury, in violation of Iowa Code section 708.4(1) (2015),
and intimidation with a dangerous weapon, in violation of Iowa Code section
708.6. The State agreed to dismiss the remaining counts. Smith now challenges
his convictions and his sentences.
I.
Smith asserts three claims of ineffective assistance of counsel under the
Sixth and Fourteenth Amendments to the United States Constitution and article I,
section 10 of the Iowa Constitution. Smith makes a generic assertion Iowa
courts conduct a more stringent review of claims arising under the Iowa
Constitution, but Smith provides no substantive guidance regarding the more
stringent standard to be applied and no citation to any legal authority providing 3
any substantive guidance regarding the more stringent standard to be applied. In
the absence of any substantive guidance or authority, we decline to apply a
different standard to Smith’s Iowa claims. See State v. Edouard, 854 N.W.2d
421, 452 (Iowa 2014) (Appel, J., concurring specially) (“Where a party raises
issues under the Iowa Constitution and the Federal Constitution, but does not
suggest a different standard be applied under the Iowa Constitution, we generally
apply the federal standard.”), overruled on other grounds by Alcala v. Marriott
Int’l, Inc., 880 N.W.2d 699, 708 (Iowa 2016); State v. Bohl, No. 15-1546, 2016
WL 4543957, at *2 (Iowa Ct. App. Aug. 31, 2016) (“The right question, is not
whether a state’s guarantee is the same as or broader than its federal
counterpart as interpreted by the Supreme Court. The right question is what the
state’s guarantee means and how it applies to the case at hand.”).
To establish a claim of ineffective assistance of counsel, Smith must
demonstrate “(1) his trial counsel failed to perform an essential duty, and (2) this
failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
To establish counsel failed to perform an essential duty, Smith must establish
“the attorney performed below the standard demanded of a reasonably
competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). The
attorney’s performance is measured against “prevailing professional norms,” and
it is presumed the attorney performed competently. Id. “A claim of ineffective
assistance is more likely to prevail when counsel lacked diligence as opposed to
the exercise of judgment.” State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). To
establish prejudice, the defendant must show trial counsel’s allegedly deficient
performance caused a complete “breakdown in the adversary process” such that 4
the defendant’s conviction is unreliable. Strickland v. Washington, 466 U.S. 668,
687 (1984). This requires a showing “there is a ‘reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998) (citation omitted).
In the context of a guilty plea, “to satisfy the prejudice requirement, the defendant
must show that there is a reasonable probability that, but for counsel’s errors, he
or she would not have pleaded guilty and would have insisted on going to trial.”
Straw, 709 N.W.2d at 138.
Smith’s first claim is his guilty plea was not voluntarily and intelligently
made because the district court failed to inform him of the nature of the charges
to which he was pleading guilty. Specifically, Smith claims the district court failed
to inform Smith of each and every element of the charges and his counsel was
deficient in allowing the plea to go forward. As a general rule, a defendant’s
guilty plea waives all defenses and objections to a criminal proceeding except
those intrinsic to the plea. See Wise v. State, 708 N.W.2d 66, 70 (Iowa 2006).
The defendant’s waiver includes claims of ineffective assistance of counsel
except those bearing on the knowing and voluntary nature of the plea. See State
v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000). This is because “[f]undamental due
process requires a guilty plea be voluntary and intelligent.” State v. Speed, 573
N.W.2d 594, 597 (Iowa 1998) (citation omitted). Counsel thus breaches an
essential duty resulting in prejudice when a defendant’s guilty plea is not
voluntarily and intelligently made. See Meeker v. State, No. 12-2292, 2014 WL
955988, at *2 (Iowa Ct. App. Mar. 12, 2014). 5
To ensure the defendant’s guilty plea is voluntarily and intelligently made,
the district court must inform the defendant of his constitutional rights, the nature
of the charges, and the penal consequences of the guilty plea. See Iowa R.
Crim. P. 2.8(2)(b). With respect to the specific challenge here, the district court
should explain each of the elements of the offense or offenses to which the
defendant is pleading guilty. See Brainard v. State, 222 N.W.2d 711, 714 (Iowa
1974). Although strict compliance is ideal, substantial compliance is acceptable.
See State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). Substantial compliance
depends on the particular facts and circumstances of the case. See State v.
Victor, 310 N.W.2d 201, 204 (Iowa 1981). “Lack of explanation of the elements
of an offense is not reversible error if, under all the circumstances, it is apparent
the accused understood the charge.” Id.
We conclude the district court substantially complied with Rule 2.8 and the
defendant understood the nature of the charges. First, the names of the offenses
themselves are sufficiently self-explanatory to inform the defendant of the nature
of the charges. See id.; State v. Sanders, No. 03-1734, 2004 WL 2169748, at *3
(Iowa Ct. App. Sept. 29, 2004) (concluding the “name of the crime itself” can
satisfy the requirement the defendant understand the nature of the charge).
Second, prior to trial, the district court held several pretrial conferences in the
presence of the defendant, including an extensive pretrial conference regarding
the plea offers made to the defendant. The nature of the charges and the penal
consequences for the same were discussed extensively. Third, at the beginning
of trial, in the presence of the defendant, the prosecutor read the trial information
setting forth the elements of the offenses. See State v. Cook, No. 00-1560, 2001 6
WL 804063, at *2 (Iowa Ct. App. July 18, 2001) (“Where the trial information
charges the offense in language containing the elements, no additional
explanation may be required.”). Fourth, the defendant sat through three days of
trial, including the State’s opening statement in which the elements of the
offenses and the relevant evidence were again discussed. Fifth, the defendant’s
counsel stated he explained to the defendant the nature of the charges and the
minutes of testimony. Sixth, the defendant admitted his counsel explained to him
the minutes of testimony. See State v. Readus, No. 03-0642, 2004 WL 239928,
at *1 (Iowa Ct. App. Feb. 11, 2004) (holding there was substantial compliance
where the defendant read the trial information and minutes of testimony). The
minutes “explicitly described in simple and easy-to-understand terms how the
crime was committed.” State v. Oberbreckling, 235 N.W.2d 121, 122 (Iowa
1975). Seventh, the defendant also agreed there would be sufficient evidence
for a jury to return a guilty verdict. Under the circumstances, as in Oberbreckling,
“[i]t cannot be seriously contended defendant did not understand the nature of
the crime.” Id.; see State v. Catlett, No. 14-0500, 2015 WL 408071, at *3 (Iowa
Ct. App. Jan. 28, 2015) (holding defendant understand the nature of the charges
where the “names of the offenses alone are descriptive enough” and the
defendant agreed “the minutes of evidence for each charge were accurate”).
Smith’s second and third claims are related. Smith contends his guilty
plea to intimidation with a deadly weapon was not supported by a factual basis in
the record. Specifically, he challenges the factual basis for the element the
defendant placed “occupants or people” in reasonable apprehension of serious 7
injury.1 See Iowa Code § 708.6; State v. Ross, 845 N.W.2d 692, 699 (Iowa
2014). Smith also contends his plea was not voluntary and intelligent because of
the lack of a factual basis. The supreme court has explained the distinction
between the two claims:
The first strand, rooted in the right to effective assistance of counsel under the Sixth Amendment, requires competent advice. It is a responsibility of defense counsel to ensure that a client does not plead guilty to a charge for which there is no objective factual basis. It follows that no advice to plead guilty would be considered competent absent a showing of a factual basis to support the crimes to which the accused has elected to plead guilty. Where counsel falls short, a Sixth Amendment violation is present. The determination of whether there is a factual basis in the record to support the charge to which the defendant seeks to plead guilty is an objective inquiry that has nothing to do with the state of mind of the accused, but everything to do with the state of the record evidence. The second strand, based on the Due Process Clauses of the Fifth and Fourteenth Amendments, requires the trial court to determine the defendant made a knowing and intelligent choice to waive constitutional rights, including the right to a jury trial, the right to protection against self-incrimination, the right to confront witnesses, and the right to plead guilty to the underlying crime. Even overwhelming objective evidence of guilt that amply satisfies the factual-basis requirement of Rule 11 will not save a conviction when the subjective requirements of due process have not been met. When a Fifth Amendment due process voluntariness claim based on a lack of factual basis is asserted, federal courts look on the record developed at the plea colloquy for evidence of the subjective state of mind of the defendant. Reference to the minutes of testimony is irrelevant for the purposes of the voluntariness inquiry if the record does not show that the minutes were reviewed and accepted as true on the record by the defendant.
State v. Finney, 834 N.W.2d 46, 55 (Iowa 2013) (citations omitted).
We first address the objective inquiry. A court must ensure a guilty plea is
supported by a factual basis in the record. See Iowa R. Crim. P. 2.8(2)(b). This
1 Here, the count to which Smith pled guilty was charged under the “building . . . occupied by another person” alternative. See Iowa Code § 708.6. 8
is true for Alford pleas as well. See State v. Schminkey, 597 N.W.2d 785, 788
(Iowa 1999). Counsel breaches an essential duty by allowing a defendant to
plead guilty where a factual basis does not exist, and prejudice is inherent. See
id.
The record evidence shows there was a factual basis for Smith’s guilty
plea to intimidation with a dangerous weapon. The homeowner, Daye, testified
she experienced the shots as loud pops but she was not sufficiently startled to
undertake more than a cursory investigation before going back to sleep. In
contrast, her guest, Danielle Looney, testified she “jumped up” in response to the
gunfire. Smith relies on State v. Rivas, No. 03-0511, 2004 WL 57660, at *4 (Iowa
Ct. App. Jan. 14, 2004), but that case is distinguishable. In that case, a witness,
like Daye, “had no idea a gun was being fired or that he was potentially in
danger.” Rivas, 2004 WL 57660, at *4. However, here, Looney was startled by
the gunfire, which she recognized as gunfire, and was concerned for her safety.
Looney’s testimony was sufficient to support a factual basis for this charge. Cf.
id. at *3 (finding other witness’s testimony he was awakened by a noise he
believed to be thunder, learned it was gunfire, and was “scared” as a result
sufficient to satisfy element).
We next address the subjective inquiry, and we conclude Smith’s claim his
plea was not voluntary and intelligent also fails. During the plea colloquy, Smith
stated the minutes of testimony were explained to him. Smith was present when
Daye and Looney testified regarding their reaction to the gunfire. Smith also
acknowledged to the district court his guilty plea was voluntary and based on the 9
evidence presented at trial and the additional evidence that would have been
presented based on the minutes of testimony:
THE COURT: Based upon the advice you received from your attorney, seeing all the information that the State has presented so far at trial and will present at trial, is it your own decision, your voluntary decision to plead guilty? DEFENDANT SMITH: Yes, sir.
Under the circumstances, we cannot conclude the defendant is entitled to relief
on this claim or his other claims challenging his convictions. See, e.g., State v.
Williamson, No. 15-0303, 2016 WL 4384484, at *2 (Iowa Ct. App. Aug. 17, 2016)
(holding facts in record and admissions in guilty plea were sufficient to establish
the defendant had a subjective understanding of the charge); Taylor v. Hill, No.
3:10-cv-00105-AC, 2012 WL 7070447, at *7 (D. Or. Nov. 28, 2012) (stating there
was no credible evidence “it would have been beneficial to reject the mid-trial
plea offer and proceed with a trial he was clearly losing”).
II.
Smith contends his sentence is illegal. An illegal sentence may be
corrected at any time and is not subject to normal rules of error preservation.
See State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009). Challenges to the
legality of a sentence are reviewed for errors at law. See State v. Sisk, 577
N.W.2d 414, 416 (Iowa 1998).
As a result of Smith’s guilty plea, the State dismissed the three remaining
counts in the trial information. Smith was ordered to “pay restitution if restitution
is due on any of the dismissed counts/cases” and “pay court costs on any
dismissed counts/cases.” The general rule is “that only such fees and costs
attributable to the charge on which a criminal defendant is convicted should be 10
recoverable under a restitution” unless the plea agreement provides to the
contrary. State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991) (holding “the
provisions of Iowa Code section 815.13 and section 910.2 clearly require, where
the plea agreement is silent regarding the payment of fees and costs, that only
such fees and costs attributable to the charge on which a criminal defendant is
convicted should be recoverable under a restitution plan”). Here, the plea
agreement was not of record. The assessment of costs for the dismissed
charges was in violation of Petrie. See id.; State v. Black, No. 14-0886, 2016 WL
3010497, at *2 (Iowa Ct. App. May 25, 2016).
Although the assessment of costs for dismissed charges violates Petrie, it
does not appear to violate the relevant statute. The Petrie court relied on Iowa
Code sections 815.13 and 910.2. Iowa Code section 815.13 relates to the
allocation of costs for criminal cases arising under county and municipal
ordinances. See Iowa Code § 815.13 (providing “fees and costs” recoverable
from the defendant are “witness fees and mileage in trials of criminal actions
prosecuted by the county or city under county or city ordinance”). Section 815.13
is inapplicable here. See State v. Klindt, 542 N.W.2d 553, 555 (Iowa 1996)
(explaining statute was enacted when the state assumed financial responsibility
from the counties for financing the court system); State v. Foth, No. 14-1250,
2016 WL 719044, at *6 n.6 (Iowa Ct. App. Feb. 24, 2016) (explaining section
815.3 applies only “when the county or city prosecutes a case”). Iowa Code
section 910.2 provides: “In all criminal cases in which there is a plea of guilty,
verdict of guilty, or special verdict upon which a judgment of conviction is
rendered, the sentencing court shall order that restitution be made by each 11
offender . . . to the clerk of court for . . . court costs.” (Emphasis added.) There
is nothing in the language of the controlling statute that requires the allocation of
court costs on a charge-specific basis. To the contrary, the plain language of the
statute provides the “sentencing court shall order” costs for “cases.” The word
“case” refers to a criminal proceeding and not the individual counts within a
multicount trial information. See State v. Foy, No. 10-1549, 2011 WL 2695308,
at *4 (Iowa Ct. App. July 13, 2011) (“The term ‘case’ is defined as ‘all charges or
allegations arising from the same transaction or occurrence or contained in the
same trial information or indictment in a criminal proceeding.’” (citing Iowa Admin.
Code r. 493-7.1)); State v. Muyingo, 200 P.3d 601, 605 (Or. Ct. App. 2009) (“A
‘case’ is a legal proceeding that may have multiple components (i.e., a criminal
case may involve multiple charges, a civil case may have both claims and
counterclaims) but those components are grouped together and proceed under
the same case number.”). There is nothing in the statutes that requires or even
allows the district court to allocate the costs as Petrie requires. To the contrary,
the district court can assess costs for the entire “case” where there is a
multicount trial information so long as there was a “judgment of conviction . . .
rendered” on any count in the trial information. Iowa Code § 910.2.
In addition to being contrary to the text of the relevant statutes, Petrie is
internally inconsistent. Sentencing is wholly a creature of statute. The district
court can only impose a sentence authorized by statute. See State v. Manser,
626 N.W.2d 872, 875 (Iowa Ct. App. 2001) (noting the court’s power to punish a
defendant only extends as far as the Iowa Code authorizes). The Petrie court
held the relevant statute did not allow the district court to assess against the 12
defendant costs associated with dismissed charges in a multicount trial
information. The Petrie court went on to hold, however, the parties could agree
to an assessment of costs for dismissed charges in the plea agreement. See
Petrie, 478 N.W.2d at 622 (“We stress that nothing in this opinion prevents the
parties to a plea agreement from making a provision covering the payment of
costs and fees.”). It is well established the parties cannot agree upon a
statutorily unauthorized, or illegal, sentence. See State v. Copenhaver, 844
N.W.2d 442, 447 (Iowa 2014) (“An illegal sentence is a sentence that is not
permitted by statute.”); State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000)
(“Neither party may rely on a plea agreement to uphold an illegal sentence.”). It
cannot be true that the statute does not allow for the assessment of costs related
to dismissed charges but the parties can agree to a sentence in which costs
related to dismissed charges are assessed. If the statute does not authorize the
assessment of costs for dismissed charges in a multicount trial information, then
the provision in the sentencing order embodying the plea agreement is void. See
State v. Ohnmacht, 342 N.W.2d 838, 842 (Iowa 1983) (stating “[a] sentence not
permitted by statute is void”).
Finally, allowing for the assessment of costs for dismissed charges in a
multicount trial information would improve the administration of justice without
material detriment to the criminal defendant. Petrie has proved to be an
administrative burden without material benefit. In many cases, it is well-nigh
impossible to determine which costs are associated with any particular count.
See, e.g., Commonwealth v. Soudani, 165 A.2d 709, 711 (“We fail to perceive
how the costs of prosecution in the instant case may be divided or apportioned 13
between the first and second counts of the indictment.”). In addition, in many
(perhaps most) cases, the costs are indivisible. As this court explained in a
recent case:
The fact that some counts were dismissed does not automatically establish that a part of the assessed court costs are attributable to the dismissed counts. Here, the record shows just the opposite. The combined general docket report prepared by the district clerk of court on December 10, 2015, two days after Johnson filed his notice of appeal, shows a total of $210 in court costs accrued as of that date. These costs would have been the same even had the State not charged Johnson with the counts later dismissed. Moreover, the record shows none of the assessed charges are clearly attributable or discrete to the dismissed counts. We therefore conclude the total court costs are clearly attributable to the counts to which Johnson pled guilty and, therefore, fully assessable to him.
State v. Johnson, No. 15-2101, 2016 WL 4802916, at *2 (Iowa Ct. App. Sept. 14,
2016). Further, Petrie provides no guidance on who is to determine the
attribution of costs and the method of allocation. It is an inefficient use of judicial
and administrative resources to vacate the defendant’s conviction and remand
this matter only to have the district court enter the same sentence because the
plea agreement is made of record, enter effectively the same sentence because
all of the costs are deemed relevant to all of the counts and are indivisible, or
enter an order based on an arbitrary allocation of costs with little relationship to
the actual costs of securing a conviction.
Nonetheless, this court is not at liberty to overrule supreme court
precedent. See State v. Beck, 854 N.W.2d 56, 64 (Iowa 2014). We thus must
vacate the defendant’s sentence. 14
III.
For the foregoing reasons, we affirm the defendant’s convictions. We
vacate the defendant’s sentence and remand this matter for the entry of a new
sentencing order in accord with Petrie.
CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED.