IN THE COURT OF APPEALS OF IOWA
No. 14-0741 Filed June 10, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
JASON MICHAEL ZEAL, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Michael S.
Schubatt, Judge.
Jason Zeal appeals from the judgment and sentence entered following his
guilty plea to manufacturing methamphetamine. AFFIRMED.
Colista K. Anglese of Hammer, Simon & Jensen, P.J., Dubuque, for
appellant.
Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney
General, Ralph Potter, County Attorney, and Timothy Gallagher, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., Doyle, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
PER CURIAM.
Jason Zeal appeals from the judgment and sentence entered following his
guilty plea to manufacturing methamphetamine, a class “C” felony. He contends
the court abused its discretion in denying his request to withdraw his guilty plea
and his motion in arrest of judgment. In the alternative, he contends his trial
counsel was ineffective in failing to file a timely motion in arrest of judgment.
Finding no merit to his claims, we affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
In 2013, Zeal was arrested and charged with manufacturing
methamphetamine, with enhancement. The parties reached an agreement
whereby Zeal would plead guilty to the charge, without enhancement; the State
would recommend nothing more onerous than a ten-year suspended sentence
plus the minimum fine; and Zeal had the right to request a deferred judgment.
Zeal pled guilty to the unenhanced charge on July 15, 2013. At the plea
hearing, the court asked Zeal if he had been made any promises as to what
would happen if he pleaded guilty, and Zeal responded, “No, Your Honor.” The
court then explained the rights Zeal was waiving, the maximum penalties for the
crime, and the elements of the crime with which he was charged. The court
asked Zeal if he still wished “to go forward with the plea,” and he responded,
“Yes, I do.” The court accepted Zeal’s guilty plea.
A presentence investigation report was prepared on October 8, 2013, in
advance of the sentencing hearing scheduled for October 14, 2013. Although it
noted Zeal “appears eligible for a deferred judgment,” the report declined to 3
recommend one “due to the serious nature of the offense, as well as [Zeal]’s lack
of accountability for the offense.”
On October 11, 2013, Zeal filed a “motion to withdraw guilty plea,” alleging
that his guilty plea was not voluntarily and intelligently entered and requesting his
plea be withdrawn. He also sought “all other relief the Court deems proper and
just.” The State resisted, alleging the motion was actually a motion in arrest of
judgment, and because it was not filed within forty-five days of his guilty plea, it
was untimely. Due to a conflict of interest, Zeal’s counsel withdrew, and new
counsel was appointed.
At the hearing on the motion to withdraw his guilty plea, Zeal testified that
he erroneously believed he could withdraw his guilty plea at any time before
sentencing. He claimed he pled guilty because his attorney told him it was the
only way he could have the conditions for release reduced and get out of jail. He
further alleged his attorney told him that when asked if anyone had made any
promise as to what would happen if he pleaded guilty, he needed to answer “no.”
Zeal testified his girlfriend had “told on multiple people” and cited his fear for her
safety as another reason for having entered a guilty plea. He testified that yet
another reason he wanted to withdraw his guilty plea was he had now learned
that his plea of guilty might cause him to lose his plumbing license.
The State wished to call Zeal’s former attorney to testify at the hearing.
The court recessed the hearing. However at the continuation of the hearing, the
attorney would not testify as to what he had told Zeal unless Zeal waived his
attorney-client privilege on the record. Without the attorney’s testimony, the court 4
was limited in its review of Zeal’s claims regarding what he had been informed of
by prior counsel and whether his plea of guilty was a voluntary and intelligent
plea. Zeal declined to make an on-the-record waiver of attorney-client privilege,
and the court again continued the hearing to research the privilege issue.
At the second continuation of the hearing, Zeal again declined to waive his
privilege. The court informed him that if it ruled against his motion, Zeal would
not be allowed to waive privilege and have the testimony considered at a later
time, stating:
I want the record to be very clear that when the evidentiary hearing closes on Defendant’s motion, and I issue my ruling, if it is adverse to Defendant, I am not going to entertain a motion to reopen this record so as to allow Mr. Hiatt’s testimony. I don’t know what Mr. Hiatt will say if he testifies. What I am telling Defendant, and I want to be very clear, is that given my ruling, Defendant does not get the benefit of seeing how the Court rules and then getting another bite at calling Mr. Hiatt as a witness. Defendant either has Mr. Hiatt testify now or not at all in connection with this proceeding.
Zeal again declined to waive his privilege.
The district court denied Zeal’s motion at the close of the second
continuation of the hearing. As a motion in arrest of judgment, the court found
the motion was untimely. It then denied the motion to withdraw guilty plea,
finding Zeal was not credible because the testimony he gave at the hearing
contradicted the statements he made when he pled guilty, showing “that he will
say what he thinks he needs to say in order to get what he wants given the
situation.” It found Zeal’s statement at the plea hearing that he was not promised
anything in exchange for his plea was truthful. It found no merit in the other
issues Zeal raised. 5
The court sentenced Zeal to an indeterminate term of incarceration, not to
exceed ten years. It suspended the sentence and placed Zeal on five years of
probation. Zeal was also fined $1000, and ordered to pay a surcharge and other
court costs.
Zeal filed a timely notice of appeal, challenging the court’s ruling on his
motion to withdraw his guilty plea.
II. SCOPE OF REVIEW.
We review motions in arrest of judgment and motions to withdraw a plea
for abuse of discretion. State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008). An
abuse of discretion occurs when the trial court exercises its discretion on clearly
untenable or unreasonable grounds. Id. A ruling is untenable when the law is
erroneously applied. Id.
III. MOTION TO WITHDRAW.
Iowa Rule of Criminal Procedure 2.8(2)(1) states that “[a]t any time before
judgment, the court may permit a guilty plea to be withdrawn and substituted.”
We uphold the court’s refusal to allow withdrawal “where a defendant, with full
knowledge of the charge against him and of his rights and the consequences of a
plea of guilty, enters such a plea understandably and without fear or persuasion.”
State v. Speed, 573 N.W.2d 594, 596 (Iowa 1998) (internal quotation marks
omitted). In other words, if Zeal’s plea was knowing and voluntary, we will affirm
the denial of his motion to withdrawal.
“To ensure that a plea is knowingly and voluntarily made, trial courts must
follow the colloquy set forth in Iowa Rule of Criminal Procedure 8(2)(b).” Id. at 6
597 (internal quotation marks omitted). This includes informing the defendant of
the nature of the charge, the mandatory minimum punishment and maximum
possible punishment, the effect a conviction or deferral of judgment or sentence
may have on the defendant’s immigration status, the constitutional rights afforded
at trial, and the defendant’s waiver of the right to a trial by pleading guilty. Iowa
R. Crim. P. 2.8(2)(b). There is no claim the district court failed to comply with the
requirements of the rule. However, the defendant is entitled to rely on
statements made by the court regardless of whether they are required under rule
2.8(2)(b). Stovall v. State, 340 N.W.2d 265, 267 (Iowa 1983). If the court makes
a misstatement that is part of the inducement for a defendant’s decision to plead
guilty that is not corrected and the defendant enters a guilty plea accordingly, the
plea is not intelligently and voluntarily made. Id.
Zeal first argues the court misstated the time in which he could withdraw
his guilty plea. Zeal claims he believed he could withdraw his guilty plea at any
time before sentencing. He argues his confusion over his ability to withdraw his
plea shows he did not fully understand the consequences of his plea.
The court made the following statement during the plea hearing:
Lastly, if you change your mind for any reason while we’re talking about your rights, you decide that you don’t want to enter this plea agreement, you don’t have to tell me why. Just tell me that you don’t want to go forward with the plea agreement and we’ll stop and I will reset the case for trial, okay?
The statement made by the court clearly limits the time in which he could change
his mind to “while we’re talking about your rights.” No misstatement was made.
Although Zeal claims he interpreted this statement to mean he could withdraw his 7
plea at any time, the district court found his testimony at the hearing on his
motion to withdraw was not credible. Giving this finding the deference it is due,
we conclude Zeal failed to show the court abused its discretion in denying his
motion on his ground.
Zeal also argues he would not have pled guilty if he had known it would
cause him to lose his license as a plumber. To ensure a defendant’s due
process rights are protected, the court must ensure the defendant understands
the direct consequences of pleading guilty. State v. Carney, 584 N.W.2d 907,
908 (Iowa 1998). A direct consequence “represents a definite, immediate and
largely automatic effect on the range of defendant’s punishment.” Id. The loss of
his professional license is not a direct result of Zeal’s guilty plea, nor is it
punishment. Because it is not a direct consequence of his plea, the court had no
duty to inform Zeal of the possibility he would lose his license as a plumber by
pleading guilty. See State v. Hallock, 765 N.W.2d 598, 605 (Iowa 2009) (“The
court does not have a duty, however, to inform a defendant of all indirect and
collateral consequences of a guilty plea.”).
IV. MOTION IN ARREST OF JUDGMENT.
Zeal also contends the court abused its discretion in denying his motion in
arrest of judgment. Because the court denied the motion after finding it was
untimely, he contends, in the alternative, that his counsel was ineffective in failing
to file a timely motion in arrest of judgment. See State v. Bearse, 748 N.W.2d
211, 218 (Iowa 2008) (noting failure to file a motion in arrest of judgment does
not bar a challenge to a guilty plea if the failure resulted from ineffective 8
assistance of counsel). As no motion in arrest of judgment was timely filed,1 we
address Zeal’s contention as a claim of ineffective assistance of counsel.
Zeal alleges the court abused its discretion in denying his motion in arrest
of judgment because his guilty plea was not voluntary. He claims he entered his
guilty plea only to get out of jail because he feared he would be harmed in jail
and he feared for his girlfriend’s safety. He further alleges his counsel told him
how to answer questions during the plea colloquy, which prevented him from
informing the court of his fears.
Zeal is unable to show any ground upon which the court would grant his
motion in arrest of judgment. While Zeal claims he pled guilty under duress due
to fear of harm coming to him or his girlfriend if he remained in jail, there is no
evidence any alleged threat of harm was made by anyone acting on behalf of the
State. A threat by a private individual does not constitute a violation of his due
process rights. See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489
U.S. 189, 195-97 (1989) (“[A] State’s failure to protect an individual against
private violence simply does not constitute a violation of Due Process.”).
Furthermore, Zeal refused to waive his attorney-client privilege at the hearing on
his motion to withdraw, and the district court found his uncorroborated testimony
regarding what prior counsel had told him lacked credibility. Because no other
evidence supports his claims, there is no basis upon which his motion in arrest of
judgment could be granted. Defense counsel thus cannot have breached a duty
1 See Iowa Rule of Criminal Procedure 2.24(3)(6) (stating such a motion must be filed within forty-five days after a plea of guilty, and not later than five days before the date set for pronouncing judgment). 9
and rendered ineffective assistance by not filing such a motion. See State v.
Carroll, 767 N.W.2d 638, 644 (Iowa 2009) (stating that when “relief is requested
as a consequence of alleged ineffective assistance of counsel, the party claiming
his counsel provided ineffective assistance in advance of the entry of a guilty
plea must prove counsel breached a duty and prejudice resulted”); State v.
Griffin, 691 N.W.2d 734, 737 (Iowa 2005) (holding counsel has no duty to raise
an issue that has no merit). Accordingly, we affirm.
AFFIRMED. 10
MILLER, S.J. (concurs specially)
I concur in the result and write separately only to state my belief that our
appellate review of a district court ruling denying a motion in arrest of judgment
should be for correction of errors at law, rather than for an abuse of discretion.
In 2008 our Iowa Supreme Court dealt with the question of whether a
defendant who waived the right to file a motion in arrest of judgment at his initial
sentencing could, before a later resentencing, file a motion in arrest of judgment.
See State v. Smith, 753 N.W.2d 562, 563 (Iowa 2008). The court stated that
“[w]e review a district court’s grant or denial of a motion in arrest of judgment for
an abuse of discretion.” Id. at 564. In so stating, the court cited State v. Myers,
653 N.W.2d 574, 581 (Iowa 2002). Id. Myers did state that “[w]e review denial of
a motion in arrest of judgment for abuse of discretion.” Meyers, 653 N.W.2d at
581. For that proposition Myers cited State v. Speed, 573 N.W.2d 594, 598
(Iowa 1998). Id.
Speed did involve review of denial of a motion in arrest of judgment. See
Speed, 573 N.W.2d at 595. However, the court stated that “[w]e review a trial
court’s decision to grant or deny a request to withdraw a guilty plea for abuse of
discretion,” and in doing so cited State v. Blum, 560 N.W.2d 7, 9 (Iowa 1997). Id.
at 596 (emphasis added). Blum did in fact involve issues concerning a motion to
withdraw a guilty plea, and not a motion in arrest of judgment. See Blum, 560
N.W.2d at 8-9 (noting “Blum moved to withdraw his guilty plea” before holding
that “[i]t lies within the trial court’s sound discretion whether to grant or deny a
withdrawal of a guilty plea”). Further, other cases cited and discussed by the 11
court in Speed involve motions to withdraw a guilty plea, which is reviewed for an
abuse of discretion, rather than motions in arrest of judgment. See Speed, 573
N.W.2d at 596 (citing State v. Mattly, 513 N.W.2d 739, 741 (Iowa 1994) and
State v. Ramirez, 400 N.W.2d 586, 588 (Iowa 1987)).
It thus appears that recent cases stating that our review of grant or denial
of a motion in arrest of judgment is for an abuse of discretion can be traced back
to cases that involve motions to withdraw a guilty plea or, in Speed, a case that
discussed and applied the standards for review of a motion to withdraw a guilty
plea to a case involving a motion in arrest of judgment. The two motions are,
however, very different motions. See State v. Belieu, 314 N.W.2d 382, 383 (Iowa
1982) (noting “a motion to withdraw a guilty plea and motion in arrest of judgment
are different motions”); see also Iowa Rs. Crim. P. 2.8(2)(a) (“At any time before
judgment, the court may permit a guilty plea to be withdrawn and a not guilty plea
substituted.” (emphasis added)), 2.24(3)(a) (“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.” (emphasis added)).
“Generally, the word ‘may,’ when used in a statute, is permissive only and
operates to confer discretion unless the contrary is clearly indicated by the
context.” Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182, 187 (Iowa
1997) (quoting Wolf v. Lutheran Mut. Life Ins. Co., 18 N.W.2d 804, 808 (Iowa
1945)); see also State v. Machovec, 17 N.W.2d 843, 846 (Iowa 1945) (stating, in
interpreting the phrase “the court may permit the plea of guilty to be withdrawn,” 12
as it appeared in section 13803 of the 1939 Code of Iowa, that “a[s] a general
rule, the word ‘may’ when used in a statute is permissive only and operates to
confer discretion”). An abuse of discretion standard of review recognizes that a
decision “is a judgment call on the part of the trial court.” State v. Rodriquez, 636
N.W.2d 234, 240 (Iowa 2001).
Very differently, the word “shall” in a statute ordinarily indicates the
imposition of a mandatory duty. See State v. Bearse, 748 N.W.2d 211, 218
(Iowa 2008) (citing Iowa Code section [4.1(30)(a)] for its requirement that unless
otherwise specifically provided by the legislature, “shall” imposes a duty); State v.
Klawonn, 609 N.W.2d 515, 521-22 (Iowa 2000) (noting that while “may” can
mean “shall” where the context indicates such intent, “shall” does not mean
“may,” as made clear by the legislature in section 4.1(30)(a)); State v. Luckett,
387 N.W.2d 298, 301 (Iowa 1986) (citing, with approval, 1A Sutherland, Statutes
and Statutory Construction § 25.04, at 445 (Sands 4th ed. 1985) for its statement
that “[u]nless the context otherwise indicates the use of the word ‘shall’ indicates
a mandatory intent”).
“Iowa court rules have the force and effect of laws, and therefore ‘we
interpret rules in the same manner we interpret statutes.’” State v. Mootz, 808
N.W.2d 207, 221 (Iowa 2012) (quoting City of Sioux City v. Freese, 611 N.W.2d
777, 779 (Iowa 2000)). Accordingly, under authorities cited above, the phrase
“may permit a guilty plea to be withdrawn” in rule 2.8(2)(a) must ordinarily be
interpreted as permissive, operating to confer discretion. A trial court’s decision 13
as to whether to grant a motion to withdraw a guilty plea is thus properly
reviewable under an abuse of discretion standard.2
However, under other authorities cited above, the language of rule
2.24(3)(a) stating that “[a] motion in arrest of judgment . . . shall be granted”
appears to impose a duty on the trial court to grant the motion when “upon the
whole record no legal judgment can be pronounced.” Otherwise stated, when
the circumstance specified in the rule exists, granting the motion is mandatory,
and the trial court has no judgment call to make, no discretion to do otherwise
than grant the motion.
Where, as in the case of a motion in arrest of judgment, the trial court may
have no discretion but to grant the motion, I believe that our review of a denial of
such a motion should not be for abuse of discretion but instead should be for
legal error. This view is supported by language from an earlier case, ordinarily
used when reviewing for correction of error. See State v. Hellickson, 162 N.W.2d
390, 394 (Iowa 1968) (stating, in reviewing denial of a motion in arrest of
judgment, that “our task on this appeal is to determine only whether there is
substantial evidence supporting the findings and conclusion reached by the trial
court”). It also appears supported, by analogy, by the scope of review in another
situation involving potentially mandatory action by the trial court. Cf. O’Brien v.
Mullapudi, 405 N.W.2d 815, 817 (Iowa 1987) (stating, in reviewing denial of
possible mandatory reinstatement of a case dismissed for want of prosecution,
2 An abuse of discretion is simply a standard of review that is a subcategory of our scope of review for correction of errors at law. See State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006) (stating that “any abuse of discretion necessarily results in legal error”). 14
that “[a] review of a mandatory reinstatement determination is . . . as in a law
proceeding”); Ray v. Merle Hay Mall, Inc., 621 N.W.2d 696, 699 (Iowa Ct. App.
2000) (“We review a denial of mandatory reinstatement for errors at law.”).
In summary, if writing on a clean slate, I would hold that the scope of our
review of a denial of a motion in arrest of judgment is for correction of errors at
law. Our supreme court’s relatively recent authority is, however, that review is for
abuse of discretion. If that scope of review is to be modified, it is up to that court
to say so. See State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957) (“If our previous
holdings are to be overruled, we should ordinarily prefer to do it ourselves.”).