State of Iowa v. Kenneth Wayne Baysdon

• Court: Court of Appeals of Iowa
• Decided: November 3, 2021
• Docket: 19-2145
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-2145 Filed November 3, 2021

STATE OF IOWA, Plaintiff-Appellee,

vs.

KENNETH WAYNE BAYSDON, Defendant-Appellant. ______________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, Tod Deck, Judge.

Defendant appeals his conviction for assault with intent to commit sexual abuse.

APPEAL DISMISSED.

Judy L. Freking of July L. Freking, P.C., Le Mars, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., Greer, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2021). 2

CARR, Senior Judge.

Kenneth Baysdon appeals his conviction for assault with intent to commit sexual

abuse. Baysdon did not file a motion in arrest of judgment and has not presented

evidence that he fits within an exception to the requirement to file such a motion prior to

challenging his guilty plea. We dismiss his appeal.

On July 3, 2019, Baysdon was charged with sexual abuse in the third degree, a

class “C” felony. On September 26, he signed a written guilty plea to assault with intent

to commit sexual abuse, in violation of Iowa Code section 709.11(3) (2019), an

aggravated misdemeanor. In the written plea, Baysdon agreed to:

Incarceration for a period of two (2) years in prison, with credit for time previously served. Pursuant to Code of Iowa § 903B.2, the defendant will be subject to an additional special sentence of ten (10) years to be served as if on parole following the completion of the two (2) year sentence above.

The court accepted Baysdon’s guilty plea, finding the plea was made voluntarily

and intelligently. The court sentenced Baysdon to a term of imprisonment not to exceed

two years, suspended, and placed him on probation. Baysdon was additionally given a

special sentence under section 903B.2 for a period of ten years. Baysdon now appeals.

Baysdon claims the written plea agreement did not adequately inform him of the

special sentence. He states his plea was not voluntary because the written plea did not

comply with Iowa Rule of Criminal Procedure 2.8(2)(b), as it misstated the maximum

penalty by failing to inform him of the ten-year special sentence. He also claims the court

should have no discretion under the rule to waive an in-court colloquy regarding special

sentences. 3

Iowa Rule of Criminal Procedure 2.24(3)(a) provides, “A defendant’s failure to

challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall

preclude the defendant’s right to assert such challenge on appeal.” Baysdon did not file

a motion in arrest of judgment, which precludes his ability to challenge the guilty plea

proceedings.

There is an exception when a defendant is not adequately advised of the

consequences of failing to file a motion in arrest of judgment. State v. Treptow, 960

N.W.2d 98, 109 (Iowa 2021). The written plea informs Baysdon he was required to file a

motion in arrest of judgment in order to contest the guilty plea. The plea states, “By having

sentence imposed today [thereby waiving his right to file a motion in arrest of judgment],

I will never be able to challenge this plea of guilty, and I will be giving up my right to directly

appeal my guilty plea. I waive this right.” We conclude Baysdon “was adequately advised

of the necessity of filing in a motion in arrest of judgment to challenge his guilty plea and

the consequences of failing to do so.” See id. at 109–10. Baysdon was advised of his

right to file a motion in arrest of judgment and the failure to file a motion would preclude

his ability to challenge his guilty plea on appeal. He waived the right to file a motion in

arrest of judgment and requested immediate sentencing.

There is also an exception to the requirement to file a motion in arrest of judgment

when the failure to file the motion is due to ineffective assistance of counsel. Id. at 109.

Baysdon makes a passing reference to ineffective assistance of counsel but does not

present an argument on this issue in his brief on appeal. His failure to make an argument 4

on this issue waives the issue.1 See Iowa R. App. P. 6.903(2)(g)(3); State v. Taylor, No.

20-1062, 2021 WL 3894185, at *1 n.3 (Iowa Ct. App. Sept. 1, 2021) (noting the random

mention of an issue is not sufficient to raise the issue on appeal).

Baysdon additionally claims that because his guilty plea was not knowing and

voluntary, the resulting sentence is illegal, and he is not required to file a motion in arrest

of judgment. He points out that an illegal sentence can be challenged at any time. See

Iowa R. Crim. P. 2.24(5)(a); Sahinovic v. State, 940 N.W.2d 357, 360 (Iowa 2020). An

illegal sentence is “one not authorized by statute.” Tindell v. State, 629 N.W.2d 357, 359

(Iowa 2001). There is a distinction between an illegal sentence and a sentence illegally

imposed. Id. Only illegal sentences may be challenged at any time. Id. Baysdon does

not claim there was no statutory authority for his sentence; he claims his sentence was

illegally imposed, as a consequence of a claimed invalid guilty plea. Therefore, his

challenge is not one that may be raised at any time.

We determine Baysdon’s claims challenging his guilty plea may not be considered

because he has not filed a motion in arrest of judgment and has not presented evidence

that he fits within an exception to the requirement to file such a motion prior to challenging

his guilty plea. We must dismiss his appeal for want of authority to consider it.

1 We also note Iowa Code section 814.7 (Supp. 2019) provides that an ineffective- assistance claim “shall not be decided on direct appeal from the criminal proceedings.” These claims may only be considered in postconviction-relief proceedings. Iowa Code § 814.7; State v. Tucker, 959 N.W.2d 140, 151 (Iowa 2021).