State of Iowa v. Larry Dean Roberts

• Court: Court of Appeals of Iowa
• Decided: October 28, 2015
• Docket: 14-1173
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1173 Filed October 28, 2015

STATE OF IOWA, Plaintiff-Appellee,

vs.

LARRY DEAN ROBERTS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Lucy J. Gamon

(plea) and Annette J. Scieszinski (sentencing), Judges.

Larry Dean Roberts appeals his conviction for domestic assault, claiming

his counsel was ineffective. AFFIRMED.

Mark C. Smith, State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Kyle P. Hanson,

Assistant Attorneys General, and Rebecca L. Petig, County Attorney, for

appellee.

Considered by Tabor, P.J., and Bower and McDonald, JJ. 2

BOWER, Judge.

Pursuant to a plea agreement, Larry Dean Roberts pleaded guilty to

domestic abuse assault by impeding the normal breathing of another by applying

pressure to the throat or neck and causing bodily injury. See Iowa Code

§ 708.2A(1), (5) (2013) (class “D” felony). Roberts now appeals, claiming

defense counsel was ineffective. We preserve his claim for possible

postconviction proceedings.

In December 2013 Roberts assaulted his wife, Lora Roberts. Following

plea negotiations, Roberts admitted he committed domestic abuse assault

against his wife, attempted to strangle his wife by applying pressure to her neck,

and caused a bodily injury. The court accepted his plea. At the June 2014

sentencing hearing, both the prosecutor and defense counsel recommended a

suspended sentence. Nevertheless, the court sentenced Roberts to five years in

prison and ordered the other two counts dismissed pursuant to the plea

agreement.

Roberts now claims plea counsel was ineffective and breached a duty by

not insisting “on the concurrence of the court to the agreement as a condition of

the agreement.” Roberts also claims he was prejudiced because he would have

received a different sentence if counsel had performed adequately. We review

Roberts’s claims of ineffective assistance of counsel de novo. See Ennenga v.

State, 812 N.W.2d 696, 701 (Iowa 2012).

Roberts claims the record is adequate for this court to resolve his

challenge on direct appeal. To establish his claim of ineffective assistance of 3

counsel, Roberts must show (1) plea counsel failed to perform an essential duty

and (2) prejudice resulted. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa

2008). The State responds the record is incomplete, lacking at a minimum

evidence regarding (1) plea counsel’s efforts to negotiate a plea agreement, (2)

whether plea counsel’s efforts included seeking a plea agreement conditioned on

the district court’s concurrence, and (3) whether the prosecutor offered and

would have agreed to a conditioned plea.

“This case illustrates why we rarely address ineffective-assistance claims

on direct appeal and instead preserve such claims for postconviction relief.”

State v. Ondayog, 722 N.W.2d 778, 785 (Iowa 2006). As a reviewing court, we

must examine the record to analyze whether a reasonably competent attorney

would have negotiated Roberts’s plea agreement. See State v. DeCamp, 622

N.W.2d 290, 296 (Iowa 2001) (“Ineffective assistance of counsel claims

presented on direct appeal are typically preserved for postconviction-relief

proceedings to allow for a full development of the facts surrounding the conduct

of counsel.”). Because the record does not contain the facts and circumstances

surrounding defense counsel’s plea negotiations, we preserve Roberts’s claim for

a possible postconviction action. See State v. Coil, 264 N.W.2d 293, 296 (Iowa

1978) (“Even a lawyer is entitled to his day in court, especially when his

professional reputation is impugned.”).

AFFIRMED.