IN THE COURT OF APPEALS OF IOWA
No. 13-1398 Filed May 29, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
MICHAEL GLEN RILEY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
A defendant appeals his conviction following his guilty plea, alleging his
attorney provided ineffective assistance by failing to file a motion to suppress.
AFFIRMED.
Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.
Michael G. Riley, Des Moines, pro se appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, John Sarcone, County Attorney, and Andrea M. Petrovich, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ. 2
MULLINS, J.
Michael Riley appeals his conviction following his guilty plea to possession
of a controlled substance, second offense, in violation of Iowa Code section
124.401(5) (2013). He contends his plea was not knowingly and voluntarily
entered because his attorney rendered ineffective assistance in failing to file a
motion to suppress the evidence against him. He claims had his attorney filed
the motion, all evidence against him would have been suppressed, and as a
result, he would not have had to plead guilty. Because we conclude a motion to
suppress would not have been granted if it had been filed, we find Riley’s
ineffective-assistance-of-counsel claims fails. We therefore affirm his conviction.
I. Background Facts and Proceedings.
According to the minutes of testimony filed in this case, Officer Noble with
the Des Moines Police Department was dispatched on a report of a “suspicious
person.” Upon arriving on the scene, Officer Noble met with two individuals who
pointed out a man with no shirt on and stated the man “seemed to be tweaked
out and acting funny.” Officer Noble approached the man, who was later
identified as Riley, and asked him what he was doing. Riley was unable to hold
still while speaking with the officer, and Officer Noble had trouble understanding
everything Riley was trying to say. Officer Noble believed Riley “was under the
influence of a narcotic” based on his “training and years of experience.”
When the officer inquired whether Riley had recently used any drugs,
Riley responded that he had only had a beer. The officer asked if Riley had
anything illegal on him, and after a brief pause, Riley responded, “No.” Officer 3
Noble then asked if Riley had any weapons on him, and Riley admitted to having
a pocket knife. Officer Noble instructed Riley to place his hands on his head so
that Officer Noble could check to make sure he did not have any weapons.
Before Officer Noble could check Riley’s pockets, Riley put his right hand into his
jeans pocket. Officer Noble removed the hand from the pocket and instructed
Riley to place his hand back on his head. Officer Noble was able to see a spoon
and a piece of paper in Riley’s right front pocket.
Riley would not hold still. Riley tried again to take his hands off his head,
so Officer Noble instructed him multiple times to place his hands behind his back.
Riley complied momentarily but then Riley pulled his left arm away, breaking the
officer’s hold. Riley failed to comply with further instructions to place his hands
behind his back, and Riley spun toward Officer Noble with his right shoulder.
Officer Noble responded by grabbing Riley and taking him to the ground. After
being held on the ground, Riley finally complied with the officer’s commands to
place his hands behind his back, and the officer was able to place handcuffs on
Riley.
A search of Riley’s person was performed, and Officer Noble discovered a
spoon with residue and a syringe in the front right pocket. He also found a folded
up piece of paper with a crystallized substance that tested positive for
methamphetamine.
Riley was charged with possession of a controlled substance, third
offense. Under a separate case number, Riley was also charged with
interference with official acts and possession of drug paraphernalia. He agreed 4
to a plea offer from the State to plead guilty to the lesser offense of possession of
a controlled substance, second offense, and the State agreed to dismiss the
other two charges. The parties agreed to the imposition of a two-year sentence,
which would be consecutive to a parole violation sentence. Riley entered a
written guilty plea, waiving his right to be present and requesting immediate
sentencing. He admitted he possessed methamphetamine in Polk County and
had previously been convicted of possessing a controlled substance. The court
accepted the written guilty plea and sentenced him in accordance with the plea
agreement.
Riley now appeals claiming ineffective assistance of counsel.
II. Scope and Standard of Review.
We review ineffective-assistance-of-counsel claims de novo because such
claims are based on a defendant’s constitutional right to an attorney. State v.
Utter, 803 N.W.2d 647, 651 (Iowa 2011). While we normally preserve such
claims for postconviction-relief proceedings, we will consider the merits of a claim
on direct appeal so long as the record is adequate to address the claim. Id. We
believe the record in this case is adequate to address Riley’s claim.
III. Ineffective Assistance—Motion to Suppress.
To prove counsel was ineffective, Riley must show counsel failed to
perform an essential duty and he suffered prejudice as a result. See State v.
Carroll, 767 N.W.2d 638, 641 (Iowa 2009). Both elements must be proved by a
preponderance of the evidence, and the claim fails if either element is not
proved. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). When the claim is 5
asserted in the context of a guilty plea, to establish prejudice, a claimant must
show there is a reasonable probability that, but for counsel’s errors, he would not
have pled guilty but would have insisted on going to trial. Carroll, 767 N.W.2d at
641.
While a guilty plea waives all defenses and objections not intrinsic to a
plea, our supreme court has permitted a defendant to “challenge the validity of
[the] guilty plea by proving the advice he received from counsel in connection
with the plea was not within the range of competence demanded of attorneys in
criminal cases.” Id. at 642. There are now no categories of ineffective-
assistance-of-counsel claims that cannot, as a matter of law, survive a guilty
plea, though courts must now analyze each individual case to determine whether
counsel breached a duty in advance of a guilty plea and whether the breach
rendered the plea unintelligent and involuntary. Id. at 644.
Riley claims counsel breached a duty by failing to file a motion to suppress
the evidence seized as a result of his encounter with Officer Noble. Because
counsel does not have a duty to raise a meritless issue, the resolution of Riley’s
ineffective-assistance claim requires us to determine whether Officer Noble
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IN THE COURT OF APPEALS OF IOWA
No. 13-1398 Filed May 29, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
MICHAEL GLEN RILEY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
A defendant appeals his conviction following his guilty plea, alleging his
attorney provided ineffective assistance by failing to file a motion to suppress.
AFFIRMED.
Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.
Michael G. Riley, Des Moines, pro se appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, John Sarcone, County Attorney, and Andrea M. Petrovich, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ. 2
MULLINS, J.
Michael Riley appeals his conviction following his guilty plea to possession
of a controlled substance, second offense, in violation of Iowa Code section
124.401(5) (2013). He contends his plea was not knowingly and voluntarily
entered because his attorney rendered ineffective assistance in failing to file a
motion to suppress the evidence against him. He claims had his attorney filed
the motion, all evidence against him would have been suppressed, and as a
result, he would not have had to plead guilty. Because we conclude a motion to
suppress would not have been granted if it had been filed, we find Riley’s
ineffective-assistance-of-counsel claims fails. We therefore affirm his conviction.
I. Background Facts and Proceedings.
According to the minutes of testimony filed in this case, Officer Noble with
the Des Moines Police Department was dispatched on a report of a “suspicious
person.” Upon arriving on the scene, Officer Noble met with two individuals who
pointed out a man with no shirt on and stated the man “seemed to be tweaked
out and acting funny.” Officer Noble approached the man, who was later
identified as Riley, and asked him what he was doing. Riley was unable to hold
still while speaking with the officer, and Officer Noble had trouble understanding
everything Riley was trying to say. Officer Noble believed Riley “was under the
influence of a narcotic” based on his “training and years of experience.”
When the officer inquired whether Riley had recently used any drugs,
Riley responded that he had only had a beer. The officer asked if Riley had
anything illegal on him, and after a brief pause, Riley responded, “No.” Officer 3
Noble then asked if Riley had any weapons on him, and Riley admitted to having
a pocket knife. Officer Noble instructed Riley to place his hands on his head so
that Officer Noble could check to make sure he did not have any weapons.
Before Officer Noble could check Riley’s pockets, Riley put his right hand into his
jeans pocket. Officer Noble removed the hand from the pocket and instructed
Riley to place his hand back on his head. Officer Noble was able to see a spoon
and a piece of paper in Riley’s right front pocket.
Riley would not hold still. Riley tried again to take his hands off his head,
so Officer Noble instructed him multiple times to place his hands behind his back.
Riley complied momentarily but then Riley pulled his left arm away, breaking the
officer’s hold. Riley failed to comply with further instructions to place his hands
behind his back, and Riley spun toward Officer Noble with his right shoulder.
Officer Noble responded by grabbing Riley and taking him to the ground. After
being held on the ground, Riley finally complied with the officer’s commands to
place his hands behind his back, and the officer was able to place handcuffs on
Riley.
A search of Riley’s person was performed, and Officer Noble discovered a
spoon with residue and a syringe in the front right pocket. He also found a folded
up piece of paper with a crystallized substance that tested positive for
methamphetamine.
Riley was charged with possession of a controlled substance, third
offense. Under a separate case number, Riley was also charged with
interference with official acts and possession of drug paraphernalia. He agreed 4
to a plea offer from the State to plead guilty to the lesser offense of possession of
a controlled substance, second offense, and the State agreed to dismiss the
other two charges. The parties agreed to the imposition of a two-year sentence,
which would be consecutive to a parole violation sentence. Riley entered a
written guilty plea, waiving his right to be present and requesting immediate
sentencing. He admitted he possessed methamphetamine in Polk County and
had previously been convicted of possessing a controlled substance. The court
accepted the written guilty plea and sentenced him in accordance with the plea
agreement.
Riley now appeals claiming ineffective assistance of counsel.
II. Scope and Standard of Review.
We review ineffective-assistance-of-counsel claims de novo because such
claims are based on a defendant’s constitutional right to an attorney. State v.
Utter, 803 N.W.2d 647, 651 (Iowa 2011). While we normally preserve such
claims for postconviction-relief proceedings, we will consider the merits of a claim
on direct appeal so long as the record is adequate to address the claim. Id. We
believe the record in this case is adequate to address Riley’s claim.
III. Ineffective Assistance—Motion to Suppress.
To prove counsel was ineffective, Riley must show counsel failed to
perform an essential duty and he suffered prejudice as a result. See State v.
Carroll, 767 N.W.2d 638, 641 (Iowa 2009). Both elements must be proved by a
preponderance of the evidence, and the claim fails if either element is not
proved. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). When the claim is 5
asserted in the context of a guilty plea, to establish prejudice, a claimant must
show there is a reasonable probability that, but for counsel’s errors, he would not
have pled guilty but would have insisted on going to trial. Carroll, 767 N.W.2d at
641.
While a guilty plea waives all defenses and objections not intrinsic to a
plea, our supreme court has permitted a defendant to “challenge the validity of
[the] guilty plea by proving the advice he received from counsel in connection
with the plea was not within the range of competence demanded of attorneys in
criminal cases.” Id. at 642. There are now no categories of ineffective-
assistance-of-counsel claims that cannot, as a matter of law, survive a guilty
plea, though courts must now analyze each individual case to determine whether
counsel breached a duty in advance of a guilty plea and whether the breach
rendered the plea unintelligent and involuntary. Id. at 644.
Riley claims counsel breached a duty by failing to file a motion to suppress
the evidence seized as a result of his encounter with Officer Noble. Because
counsel does not have a duty to raise a meritless issue, the resolution of Riley’s
ineffective-assistance claim requires us to determine whether Officer Noble
violated Riley’s constitutional rights against unreasonable searches and seizures.
See id. at 645.
Searches conducted without a warrant are per se unreasonable unless an
exception to the warrant requirement applies. State v. Kinkead, 570 N.W.2d 97,
100 (Iowa 1997). One of the well-established exceptions is a Terry1 stop, where
1 See Terry v. Ohio, 392 U.S. 1, 30–31 (1968). 6
an officer is allowed to “stop an individual . . . for investigatory purposes based
on a reasonable suspicion, supported by specific and articulable facts, that a
criminal act has occurred or is occurring.” Id. The reasonable suspicion inquiry
is based on an objective standard: “whether the facts available to the officer at
the time of the stop would lead a reasonable person to believe that the action
taken by the officer was appropriate.” Id. The officer “must be able to point to
‘specific and articulable facts, which taken together with rational inferences from
those facts, reasonably warrant that intrusion.’” State v. Kreps, 650 N.W.2d 636,
641 (Iowa 2002) (citation omitted). The evidence justifying the stop need not rise
to the level of probable cause; the “officer may make an investigatory stop with
‘considerably less than proof of wrongdoing by a preponderance of the
evidence.’” Id. at 642 (citation omitted).
Riley does not challenge Officer Noble’s initial contact with him, stating it
was “consensual in nature.” He claims however, that Officer Noble’s commands
and physical actions resulted in an encounter that was no longer consensual,
and Officer Noble needed specific and articulable facts to justify further detention.
We conclude Officer Noble had such specific and articulable facts in this case to
justify the Terry stop. Witnesses at the scene told the officer upon his arrival that
Riley “seemed to be tweaked out and [was] acting funny.” When answering
questions by the officer, Riley was unable to hold still, and the officer had trouble
understanding what Riley was trying to say. Based upon his discussion with
Riley, Officer Noble believed Riley was under the influence of some narcotic
based on his training and experience. Officer Noble inquired of Riley whether he 7
used any narcotics or had anything illegal in his possession. Riley paused before
answering no to the later question.
The officer also inquired whether Riley had any weapons, and Riley
admitted to having a pocket knife. Riley contends on appeal that the fact he
volunteered the information regarding his possession of the knife somehow
should have prevented the officer from conducting a Terry pat down for weapons.
We conclude just the opposite. Officer Noble believed Riley was under the
influence of a narcotic, he was acting erratically, and he admitted to having a
knife in his possession. Officer Noble was justified in conducting a pat-down
search in order to secure the knife, and any other weapon Riley may have in his
possession, for the officer’s safety and the safety of the surrounding public. It
was when the officer attempted to conduct the pat-down that Riley failed to
comply with instructions and actively resisted the officer’s attempts. “The right to
make an investigatory stop ‘necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it.’” State v. Dewitt, 811
N.W.2d 460, 468 (Iowa 2012). “Generally, physical force to detain a suspect is
reasonable when the suspect refuses to stop when ordered to do so.” Id. at 473.
Riley repeatedly refused to comply with the officer’s directions to keep his hands
out of his pocket, and Officer Noble acted reasonably in ensuring compliance
through the use of reasonable force.
Riley claims when Officer Noble wrestled him to the ground and placed
him in handcuffs a “de facto arrest” occurred requiring Officer Noble to have
probable cause that Riley had committed a public offense. We disagree. 8
Wrestling Riley to the ground and the use of the handcuffs was necessary in this
situation for Officer Noble to conduct the pat-down search. It did not amount to
an arrest requiring probable cause. See id. (concluding the officers’ seizing the
defendant’s arm, tackling the defendant to the ground, and handcuffing the
defendant was a reasonable Terry seizure).
Because we find the seizure and pat-down of Riley was a reasonable
Terry stop and frisk and that the officer acted reasonably, Riley’s attorney was
not ineffective in failing to file a motion to suppress before Riley entered his guilty
plea. Riley’s claim fails, and his conviction is affirmed.