IN THE COURT OF APPEALS OF IOWA
No. 15-2031 Filed October 26, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
DUSTIN ALLEN HEUER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Hardin County, James C. Ellefson
(plea) and John J. Haney (sentencing), Judge.
A defendant appeals his conviction and claims his counsel was ineffective.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ. 2
VOGEL, Presiding Judge.
Dustin Heuer appeals his conviction for sexual abuse in the second
degree, in violation of Iowa Code sections 709.1(1) and 709.3(1)(b) (2015).
Heuer claims he was not competent to enter a plea and his counsel was
ineffective in not challenging his guilty plea. We affirm.
I. Background Facts and Proceedings
Heuer has intellectual limitations. He lives in his own apartment but
sometimes stays with his guardian. He also receives assistance in his daily
activities from case worker, Enoch Higbee. On June 25, 2015, Heuer was
spending time at Higbee’s house while two young children were present. Heuer
is sexually aroused by the smell of feces. While Heuer was alone with the
children, he massaged one of the children’s anuses, became aroused, and
masturbated in front of the children. Heuer told Higbee about the incident, and
Higbee called law enforcement.
On July 2, 2015, the State charged Heuer with sexual abuse in the second
degree. On August 31, 2015, Heuer pled guilty to the charge as part of a plea
agreement with the State. During the plea hearing, the district court engaged in
a colloquy and discussed the consequences of the guilty plea with Heuer.
Heuer’s counsel also described his investigation of possible defenses Heuer
could raise and his investigation of Heuer’s mental health, which included an
evaluation by Dr. Art Konar, a licensed psychologist. Dr. Konar found “Heuer
had borderline intellectual functioning, that he was either just above or just below
the mental retardation point but that he understands all the facts and could name
his medications, the folks involved in this case, and what was involved legally.” 3
Additionally, the court asked counsel if he had any doubts about Heuer’s
competency, to which counsel responded that Heuer “clearly” understood the
pertinent facts and penalties.
On October 14, 2015, Heuer, through new counsel, filed a motion in arrest
of judgment, claiming his plea was entered under duress or coercion. On
October 23, 2015, Heuer filed a motion to dismiss his motion in arrest of
judgment and requested a sentencing hearing. At the hearing, the court
discussed the motion in arrest of judgment with Heuer and confirmed that Heuer
wished to dismiss it and proceed with sentencing. The court also confirmed with
new counsel that he had discussed the issue with Heuer and that counsel
believed Heuer understood the consequences of his choice. After this colloquy,
the court granted the motion to dismiss the motion in arrest of judgment and
proceeded with sentencing. Heuer appeals.
II. Standard of Review
Generally, we review challenges to the entry of a guilty plea for correction
of errors at law. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006). We review
whether a defendant was competent de novo. State v. Lyman, 776 N.W.2d 865,
871 (Iowa 2010), overruled on other grounds by Alcala v. Marriot Int’l, Inc., 880
N.W.2d 699, 708 (Iowa 2016). When a defendant challenges a guilty plea in the
context of a claim of ineffective assistance of counsel, our review is de novo.
Tate, 710 N.W.2d at 239. 4
III. Entry of Guilty Plea
Heuer claims the district court violated his due process rights by accepting
his guilty plea without holding a competency hearing. The State argues Heuer
failed to preserve error regarding the entry of his guilty plea because he withdrew
his motion in arrest of judgment. Additionally, the State asserts there was no
basis to question Heuer’s competence when accepting his guilty plea.
Generally, we will not review the validity of a guilty plea in the absence of
a motion in arrest of judgment. State v. Lucas, 323 N.W.2d 228, 230 (Iowa
1982). The district court made this rule clear to Heuer when accepting his plea.
Heuer demonstrated his understanding of this rule when he filed a motion in
arrest of judgment. Yet, at the hearing on Heuer’s motion, Heuer indicated he
wished to withdrawal his motion in arrest of judgment, leave his guilty plea in
place, and proceed with sentencing. The district court again reviewed the
importance of a motion in arrest of judgment, and Heuer indicated he understood
and still wished to withdraw his motion. Consequently, error has not been
preserved, and we refuse to address the voluntariness of Heuer’s guilty plea.
See id. at 230.
However, when a defendant claims they were denied due process
because the district court failed to order a competency hearing sua sponte, “[t]he
defendant does not directly challenge the voluntariness of the plea, but claims
that due process mandates a competency hearing.” Id. at 232. In this context,
we allow an exception to our normal error preservation rules. Id. (“It is
fundamental that if the defendant was incompetent he was in no position to
preserve error, request a section 812.3 hearing, or avoid a waiver of his motion in 5
arrest of judgment.”). Therefore, we will proceed to a determination of whether
the district court violated Heuer’s due process rights by not ordering a
competency hearing. In determining whether due process requires a
competency hearing, we consider: (1) the defendant’s irrational behavior, (2) the
defendant’s demeanor in court, and (3) prior medical opinions on competence.
Id. “The critical question is ‘whether [the defendant] has sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding—
and whether he has a rational as well as factual understanding of the
proceedings against him.’” Id. (quoting Dusky v. United States, 362 U.S. 402,
402 (1960)).
Heuer points to his intellectual limitations, that he has a guardian, and that
he was taking antipsychotic medication as reasons the court should have
ordered a competency hearing. The State counters with Heuer’s educational
accomplishments, his living status, his recall and explanation of the facts of the
crime, his behavior during the plea and sentencing hearings, and the opinion of a
licensed psychologist procured by Heuer’s counsel as support for the district
court’s decision not to order a competency hearing. We agree with the State.
Our review of the record finds Heuer did not exhibit any irrational behavior and
his demeanor during the hearings, while understandably somber, was
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IN THE COURT OF APPEALS OF IOWA
No. 15-2031 Filed October 26, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
DUSTIN ALLEN HEUER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Hardin County, James C. Ellefson
(plea) and John J. Haney (sentencing), Judge.
A defendant appeals his conviction and claims his counsel was ineffective.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ. 2
VOGEL, Presiding Judge.
Dustin Heuer appeals his conviction for sexual abuse in the second
degree, in violation of Iowa Code sections 709.1(1) and 709.3(1)(b) (2015).
Heuer claims he was not competent to enter a plea and his counsel was
ineffective in not challenging his guilty plea. We affirm.
I. Background Facts and Proceedings
Heuer has intellectual limitations. He lives in his own apartment but
sometimes stays with his guardian. He also receives assistance in his daily
activities from case worker, Enoch Higbee. On June 25, 2015, Heuer was
spending time at Higbee’s house while two young children were present. Heuer
is sexually aroused by the smell of feces. While Heuer was alone with the
children, he massaged one of the children’s anuses, became aroused, and
masturbated in front of the children. Heuer told Higbee about the incident, and
Higbee called law enforcement.
On July 2, 2015, the State charged Heuer with sexual abuse in the second
degree. On August 31, 2015, Heuer pled guilty to the charge as part of a plea
agreement with the State. During the plea hearing, the district court engaged in
a colloquy and discussed the consequences of the guilty plea with Heuer.
Heuer’s counsel also described his investigation of possible defenses Heuer
could raise and his investigation of Heuer’s mental health, which included an
evaluation by Dr. Art Konar, a licensed psychologist. Dr. Konar found “Heuer
had borderline intellectual functioning, that he was either just above or just below
the mental retardation point but that he understands all the facts and could name
his medications, the folks involved in this case, and what was involved legally.” 3
Additionally, the court asked counsel if he had any doubts about Heuer’s
competency, to which counsel responded that Heuer “clearly” understood the
pertinent facts and penalties.
On October 14, 2015, Heuer, through new counsel, filed a motion in arrest
of judgment, claiming his plea was entered under duress or coercion. On
October 23, 2015, Heuer filed a motion to dismiss his motion in arrest of
judgment and requested a sentencing hearing. At the hearing, the court
discussed the motion in arrest of judgment with Heuer and confirmed that Heuer
wished to dismiss it and proceed with sentencing. The court also confirmed with
new counsel that he had discussed the issue with Heuer and that counsel
believed Heuer understood the consequences of his choice. After this colloquy,
the court granted the motion to dismiss the motion in arrest of judgment and
proceeded with sentencing. Heuer appeals.
II. Standard of Review
Generally, we review challenges to the entry of a guilty plea for correction
of errors at law. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006). We review
whether a defendant was competent de novo. State v. Lyman, 776 N.W.2d 865,
871 (Iowa 2010), overruled on other grounds by Alcala v. Marriot Int’l, Inc., 880
N.W.2d 699, 708 (Iowa 2016). When a defendant challenges a guilty plea in the
context of a claim of ineffective assistance of counsel, our review is de novo.
Tate, 710 N.W.2d at 239. 4
III. Entry of Guilty Plea
Heuer claims the district court violated his due process rights by accepting
his guilty plea without holding a competency hearing. The State argues Heuer
failed to preserve error regarding the entry of his guilty plea because he withdrew
his motion in arrest of judgment. Additionally, the State asserts there was no
basis to question Heuer’s competence when accepting his guilty plea.
Generally, we will not review the validity of a guilty plea in the absence of
a motion in arrest of judgment. State v. Lucas, 323 N.W.2d 228, 230 (Iowa
1982). The district court made this rule clear to Heuer when accepting his plea.
Heuer demonstrated his understanding of this rule when he filed a motion in
arrest of judgment. Yet, at the hearing on Heuer’s motion, Heuer indicated he
wished to withdrawal his motion in arrest of judgment, leave his guilty plea in
place, and proceed with sentencing. The district court again reviewed the
importance of a motion in arrest of judgment, and Heuer indicated he understood
and still wished to withdraw his motion. Consequently, error has not been
preserved, and we refuse to address the voluntariness of Heuer’s guilty plea.
See id. at 230.
However, when a defendant claims they were denied due process
because the district court failed to order a competency hearing sua sponte, “[t]he
defendant does not directly challenge the voluntariness of the plea, but claims
that due process mandates a competency hearing.” Id. at 232. In this context,
we allow an exception to our normal error preservation rules. Id. (“It is
fundamental that if the defendant was incompetent he was in no position to
preserve error, request a section 812.3 hearing, or avoid a waiver of his motion in 5
arrest of judgment.”). Therefore, we will proceed to a determination of whether
the district court violated Heuer’s due process rights by not ordering a
competency hearing. In determining whether due process requires a
competency hearing, we consider: (1) the defendant’s irrational behavior, (2) the
defendant’s demeanor in court, and (3) prior medical opinions on competence.
Id. “The critical question is ‘whether [the defendant] has sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding—
and whether he has a rational as well as factual understanding of the
proceedings against him.’” Id. (quoting Dusky v. United States, 362 U.S. 402,
402 (1960)).
Heuer points to his intellectual limitations, that he has a guardian, and that
he was taking antipsychotic medication as reasons the court should have
ordered a competency hearing. The State counters with Heuer’s educational
accomplishments, his living status, his recall and explanation of the facts of the
crime, his behavior during the plea and sentencing hearings, and the opinion of a
licensed psychologist procured by Heuer’s counsel as support for the district
court’s decision not to order a competency hearing. We agree with the State.
Our review of the record finds Heuer did not exhibit any irrational behavior and
his demeanor during the hearings, while understandably somber, was
cooperative and appropriately-responsive to the court’s questions. Further,
Heuer’s counsel indicated he considered the issue but believed Heuer
understood the facts and consequences of the incident. Counsel’s conclusion
was partially based on the opinion of a licensed psychologist who examined
Heuer and concluded Heuer “understands all the facts and could name his 6
medications, the folks involved in this case, and what was involved legally.”
Based on these facts, and both Heuer’s and counsel’s indication that their
relationship was functional and productive, we conclude the district court did not
err in accepting Heuer’s guilty plea without ordering a competency hearing.
IV. Ineffective Assistance of Counsel
Heuer claims his counsel was ineffective in: (1) allowing him to enter a
guilty plea while Heuer was incompetent and (2) moving to withdraw Heuer’s
motion in arrest of judgment. The State argues Heuer’s counsel did not breach
an essential duty in either respect. “Ordinarily, we do not decide ineffective-
assistance-of-counsel claims on direct appeal. . . . However, we depart from this
preference in cases where the record is adequate to evaluate the appellant’s
claim.” Tate, 710 N.W.2d at 240.
Counsel is ineffective when counsel’s performance, measured against
objective standards, falls below professional norms. State v. Clay, 824 N.W.2d
488, 494–95 (Iowa 2012). “In order to succeed on a claim of ineffective
assistance of counsel, a defendant must prove: (1) counsel failed to perform an
essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185,
195 (Iowa 2008).
Whether counsel failed to perform an essential duty is measured against
the objective standard of a reasonably competent practitioner. Id. at 195–96.
We begin with the presumption that counsel performed their duties competently,
and “this court ‘avoid[s] second-guessing and hindsight.’” Id. at 196 (alteration in
original) (quoting Ledezma v. State, 626 N.W.2d 134,142 (Iowa 2001)). Further,
we analyze the claim based on the totality of the circumstances. Id. Strategic 7
decisions made based on thorough investigation and reasonable professional
judgments are “virtually unchallengeable.” Ledezma, 626 N.W.2d at 143 (quoting
Strickland v. Washington, 466 U.S. 668, 690–91 (1984)).
A. Entry of Guilty Plea
Heuer argues his counsel was ineffective in allowing him to enter a guilty
plea because he was incompetent. For many of the same reasons discussing
Heuer’s competence above, we conclude counsel did not breach an essential
duty by allowing Heuer to plead guilty. Based on our review of the record, we
already determined there was no indication Heuer was not competent. Further,
Heuer’s counsel considered the possibility of a defense based on Heuer’s
intellectual limitations and had an evaluation completed. Based on that
evaluation and his interactions with Heuer, counsel concluded Heuer was
competent and a guilty plea was a good option for Heuer. Based on the totality
of the circumstances, we conclude counsel investigated the issue and made a
reasonable strategic decision in pursuing a possible guilty plea. Therefore, we
conclude counsel did not fail to perform an essential duty.
B. Withdrawal of Motion in Arrest of Judgment
Heuer next claims his counsel was ineffective in filing a motion to withdraw
Heuer’s motion in arrest of judgment based on duress and coercion. At the
hearing, the district court questioned Heuer about his motion in arrest of
judgment, explained the purpose and importance of a motion in arrest of
judgment again, and probed Heuer’s desire to allow his guilty plea to stand.
Heuer indicated repeatedly that he had discussed the issues with counsel and
wished to proceed. Counsel indicated that he discussed the issues with Heuer 8
thoroughly and concluded that the basis of the motion in arrest of judgment—
duress or coercion—was not present. We conclude counsel researched the
issue, discussed it with his client, and made a reasonable strategic decision.
Therefore, we conclude counsel did not fail to perform an essential duty.
Because we conclude counsel did not breach an essential duty in either of
the respects Heuer claims, we reject Heuer’s ineffective-assistance-of-counsel
claim.
V. Conclusion
Because we conclude the trial court did not err in accepting Heuer’s guilty
plea and because we conclude Heuer’s counsel was not ineffective, we affirm
Heuer’s conviction.