State of Iowa v. Jose Luis Avalos-Covarrubias

• Court: Court of Appeals of Iowa
• Decided: July 22, 2015
• Docket: 14-0187
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0187 Filed July 22, 2015

STATE OF IOWA, Plaintiff-Appellee,

vs.

JOSE LUIS AVALOS-COVARRUBIAS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Douglas S.

Russell, Judge.

Jose Avalos-Covarrubias appeals from his conviction for domestic abuse

assault following a guilty plea. AFFIRMED.

Mark C. Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Janet Lyness, County Attorney, and Kristin L. Parks, Assistant County

Attorney, for appellee.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2

POTTERFIELD, J.

Jose Avalos-Covarrubias appeals from his conviction for domestic abuse

assault following a guilty plea. Avalos pled guilty to the domestic abuse assault

charge, and the State, pursuant to a plea agreement, dismissed two other

charges. In its colloquy, the district court informed Avalos, “As a Class ‘D’ felony,

[the charged offense] is punishable by imprisonment of up to five years.” Avalos

pled guilty. The court informed Avalos that any challenge to the plea needed to

be raised in a motion in arrest of judgment.

At sentencing, Avalos expressed for the first time to and through his

attorney that he wished to withdraw his plea. No motion in arrest of judgment

had been filed. The district court continued sentencing and appointed new

counsel. Avalos’s new counsel filed a motion in arrest of judgment, claiming

Avalos’s original counsel “informed Defendant he would not be sentenced to

prison and would receive probation.” Thus, Avalos claimed, his plea was not

knowing and voluntary. Avalos’s new counsel had filed the motion in arrest of

judgment prior to reviewing the transcripts of the plea colloquy. After he did so,

he filed a motion to dismiss (i.e. withdraw) the previous motion in arrest of

judgment because it was meritless. The district court acknowledged counsel’s

request to dismiss the motion in arrest of judgment in open court and on the

record at the sentencing hearing. Avalos did not comment at that time or during

his allocution about the motion in arrest of judgment or its withdrawal.

Avalos now claims on direct appeal his second counsel rendered

ineffective assistance because counsel failed to object to the district court’s

failure to confirm with Avalos his wish to dismiss the motion in arrest of 3

judgment.1 We review ineffective-assistance claims de novo. State v. Clay, 824

N.W.2d 488, 494 (Iowa 2012). The record is adequate to resolve this issue on

direct appeal. See id. Avalos must show (1) his second counsel failed to

perform an essential duty and (2) the failure resulted in prejudice. See id. at 495.

If he cannot prove either prong, his claim fails. See id. Counsel has no duty to

raise an issue that has no merit. State v. Fountain, 786 N.W. 260, 263 (Iowa

2010).

Avalos cites no authority for his proposition that the district court was

required to confirm with him personally—not through his attorney—that he

wished to dismiss his motion in arrest of judgment. He argues we should hold

the district court to such a requirement by analogy to other unrelated

requirements: Avalos’s right to address the court at sentencing, the requirement

that the court engage in a colloquy before accepting a guilty plea, and a

defendant’s right to be present at all important stages of trial proceedings against

him. See Iowa Rs. Crim. P. 2.8(2)(b), 2.23(3)(d), 2.27(1). However, Avalos’s

citation to these procedural requirements does not persuade us there is an

additional tacit procedural requirement such as the one he asserts in this case.

The district court was not required to ask Avalos directly his thoughts on

the motion to dismiss the prior motion in arrest of judgment. His second counsel

was therefore under no duty to raise an objection.

AFFIRMED.

1 Avalos notably does not claim that his first counsel rendered ineffective assistance by misrepresenting his potential sentence, nor does he claim his second counsel rendered ineffective assistance in moving to dismiss the motion in arrest of judgment without his consent.