State of Iowa v. James Allen Jensen

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 12-0458 Filed May 29, 2014

STATE OF IOWA, Plaintiff-Appellee,

vs.

JAMES ALLEN JENSEN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.

James Jensen appeals, asserting ineffective assistance of trial counsel

affected his restitution order. APPEAL DISMISSED.

Tomas J. Rodriguez, Orland Park, Illinois, for appellant.

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

General, Michael J. Walton, County Attorney, and Joe Grubisich, Assistant

County Attorney, for appellee.

Considered by Vogel, P.J., and Doyle and Mullins, JJ. Tabor, J., takes no

part. 2

VOGEL, P.J.

James Jensen appeals, asserting ineffective assistance of trial counsel

affected his restitution order. Jensen claims his trial counsel should have

deposed two State witnesses prior to his entering a guilty plea, and should have

limited the factual basis in the guilty plea so as not to include one charge that

was dismissed, but later was considered in determining the restitution. Because

Jensen did not timely appeal from his conviction and sentence, our supreme

court, by order, limited Jensen’s appeal to issues challenging the restitution

order. Because he disregarded that order, we dismiss Jensen’s appeal.

On July 6, 2011, Jensen was charged with third degree burglary of an

unoccupied vehicle, in violation of Iowa Code sections 713.1 and 713.6A(2)

(2011), and second degree theft, in violation of Iowa Code sections 714.1(1) and

714.2. On November 16, 2011, Jensen entered into a global plea agreement

relating to these charges as well as four other criminal charges, pleading guilty to

the third degree burglary charge. With regard to the burglary plea, Jensen

admitted he “broke into a motor vehicle (unoccupied) and stole stereo

equipment.” Although the theft charge was dismissed, the memorandum of the

plea agreement stated: “Defendant to pay victim restitution on all counts.” The

court acknowledged this term at the plea hearing. Jensen was sentenced on

December 22, 2011. A contested restitution hearing was held on February 1,

2012, in which the district court ordered Jensen to pay $750 in restitution to the

victim.

Jensen did not file a timely direct appeal challenging his plea, conviction,

and sentence. Consequently, in an order dated March 14, 2013, the supreme 3

court struck the amended proof brief and limited the issues Jensen could address

on appeal to the restitution order. Specifically, the supreme court’s order stated,

“[T]he defendant shall serve and shall file a second amended appellant’s proof

brief. Such a brief shall only raise restitution issues that challenge the ruling from

which the appeal is taken.”

In his second amended brief, Jensen claims trial counsel was ineffective

for failing to depose two State witnesses prior to entering his guilty plea. Jensen

argues that, had these witnesses been deposed, they would have testified

Jensen did not steal any property from the victim’s vehicle, which would have led

to a more favorable ruling in the restitution hearing. Jensen also claims the

factual basis to which he admitted in the guilty plea was too broad, because it

eliminated the likelihood of avoiding restitution due to the dismissed theft charge.

These arguments address trial counsel’s alleged failures, framing the

issues as ineffective-assistance claims. Jensen can only raise ineffective-

assistance-of-trial-counsel claims on direct appeal when the direct appeal is

timely. See generally State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

Jensen’s arguments do not attack the restitution order directly, nor do they

reference restitution counsel’s performance. Thus, Jensen does not appeal from

the restitution order. Rather, Jensen’s claims raise issues related to his plea and

conviction, an appeal already determined to be untimely, and therefore outside

the scope of the order issued by the supreme court. Consequently, we dismiss

Jensen’s appeal.

APPEAL DISMISSED.