State of Iowa v. Felix Gomez

• Court: Court of Appeals of Iowa
• Decided: July 6, 2017
• Docket: 16-1387
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1387 Filed July 6, 2017

STATE OF IOWA, Plaintiff-Appellee,

vs.

FELIX GOMEZ, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly

(guilty plea) and Carla T. Schemmel (sentencing), Judges.

A defendant appeals two felony convictions. AFFIRMED.

Karmen R. Anderson of The Law Office of Karmen Anderson, Des

Moines, for appellant.

Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

TABOR, Judge.

Worried about losing his parental rights while he served time in prison,

Felix Gomez filed a motion in arrest of judgment asking to withdraw his guilty

pleas to two felonies. The district court found no legal basis for the motion and

denied his request. On appeal, Gomez asks us to reverse the district court and

allow him to withdraw his pleas. Because Gomez’s concerns about his parental

rights are collateral to the plea process, we find no abuse of discretion in the

district court’s denial of his motion in arrest of judgment.

The State charged Gomez with second-offense failure to comply with the

sex offender registry, a class “D” felony, in violation of Iowa Code section

692A.111 (2016), and third-offense domestic abuse assault, a class “D” felony, in

violation of sections 708.1(2) and 708.2A(4). On June 22, 2016, Gomez pleaded

guilty to the two felony offenses in exchange for the State dismissing

misdemeanor charges of driving while barred and interference with official acts.

The plea agreement included a recommendation for consecutive sentences.

Gomez also was advised the domestic-abuse conviction carried a one-year

mandatory minimum before he was eligible for parole.

On July 19, 2016, Gomez filed a motion in arrest of judgment. 1 The

motion stated:

The Defendant now wishes to be allowed to withdraw his former plea of guilty on the grounds that he believes the plea of guilty entered in these cases will adversely affect him in pending and future DHS matters and this was not something he had taken into consideration at the time of the plea.

1 The motion asserted Gomez was acting “pro se but with the assistance of counsel” in seeking to withdraw his guilty pleas. 3

At a hearing on August 2, 2016, Gomez expanded on his motivation to file

the motion in arrest of judgment, telling the court his wife—who was the victim in

the assault conviction—gave birth to their daughter just a day earlier and Gomez

was concerned the “one-year mandatory” would result in him losing his parental

rights. The district court denied the motion in arrest of judgment and proceeded

to sentencing, telling Gomez: “[T]o attack your plea there has to be a legal

reason. And while you have given me emotional reasons, they are not legal

reasons.” The court then imposed consecutive sentences, for an indeterminate

ten-year term, in accord with the plea agreement.

On appeal, Gomez challenges the district court’s denial of his motion in

arrest of judgment and generally contends he received ineffective assistance

from his plea counsel. On his first claim, we review the district court’s denial of a

motion in arrest of judgment and a motion to withdraw a plea for abuse of

discretion. See State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008). On the

second claim, if Gomez had adequately pinpointed an alleged instance of

ineffective assistance of plea counsel, our review would be de novo. See State

v. Nall, 894 N.W.2d 514, 517 (Iowa 2017). The burden rests with Gomez to

establish his attorney failed to perform an essential duty and prejudice resulted

from such failure. See State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011).

We turn first to the denial of Gomez’s motion in arrest of judgment. 2

Gomez does not dispute the district court “painstakingly followed” Iowa Rule of

Criminal Procedure 2.8(2)(b) before accepting his guilty pleas. But he contends

2 “A motion in arrest of judgment is an application by the defendant that no judgment be rendered on a finding, plea, or verdict of guilty. Such motion shall be granted when upon the whole record no legal judgment can be pronounced.” Iowa R. Crim. P. 2.24(3)(a). 4

the impact of his incarceration on his ability to maintain his parental rights was a

“term of the plea agreement that would have affected his willingness to enter the

plea and the term was not disclosed to him.” More specifically, he claims:

“Subsequent to the plea, Gomez learned that during his one-year mandatory

incarceration, the Iowa Department of Corrections would not allow Department of

Human Services (DHS) reasonable efforts visitation with his offspring.”3

The district court did not abuse its discretion in denying the motion in

arrest of judgment. Gomez fails to identify any real flaw in the plea proceedings.

The district court properly advised Gomez regarding the direct consequences of

his guilty pleas; the negative impact of incarceration on Gomez’s prospects for

maintaining his parental rights was a collateral consequence. See Saadiq v.

State, 387 N.W.2d 315, 325 (Iowa 1986) (reiterating distinction between direct

and collateral consequences of a guilty plea). We have recognized “a parent’s

imprisonment may create difficulties in providing reunification services” for the

DHS. See In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000). But such

potential difficulties do not render Gomez’s plea agreement unenforceable.

Gomez points to no evidence showing he was misled or coerced into pleading

guilty. See State v. Speed, 573 N.W.2d 594, 597 (Iowa 1998) (upholding denial

of motion in arrest of judgment because record supported court’s finding that plea

was voluntary). 3 Gomez fails to cite any support in the record for this factual allegation. At the August 2 hearing, Gomez and his counsel discussed whether he would have immediate access to classes on parenting and domestic abuse while in prison but did not mention visitation with his daughter. The assistant county attorney told the district court: “Just because he has a mandatory time that he has to serve, doesn’t mean he can’t apply for . . . programming. That is not part of this particular plea agreement. I’m not trying to keep him from seeing any children.” Before imposing sentence, the district court explained it did not oversee prison programming. 5

We next turn to Gomez’s generic claim of ineffective assistance of

counsel. Nowhere in his appellant’s brief does he identify how his plea counsel

breached a material duty or how Gomez was prejudiced. “When complaining

about the adequacy of an attorney’s representation, it is not enough to simply

claim that counsel should have done a better job.” Dunbar v. State, 515 N.W.2d

12, 15 (Iowa 1994). A defendant must “state the specific ways in which counsel’s

performance was inadequate and identify how competent representation

probably would have changed the outcome.” Id. Gomez does not frame his

complaint with enough specificity for us to resolve it on direct appeal. Under

Iowa Code section 814.7, Gomez may seek determination of a claim of

ineffective assistance of counsel by filing an application for postconviction relief.

AFFIRMED.