State of Iowa v. Ricky Edward Kirk Jr.

• Court: Court of Appeals of Iowa
• Decided: January 13, 2016
• Docket: 15-0242
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0242 Filed January 13, 2016

STATE OF IOWA, Plaintiff-Appellee,

vs.

RICKY EDWARD KIRK JR., Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Joel W. Barrows

(plea) and Henry W. Latham II (sentencing), Judges.

The defendant challenges his convictions and sentences for possession of

a controlled substance and interference with official acts. AFFIRMED.

Mark J. Neary of Neary Law Office, Muscatine, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik and Kelli Huser,

Assistant Attorneys General, for appellee.

Considered by Danilson, C.J., and Mullins and McDonald, JJ. 2

MCDONALD, Judge.

The defendant Ricky Kirk Jr., was charged by trial information with

possession of a controlled substance with intent to deliver and interference with

official acts resulting in serious injury, in violation of Iowa Code sections

124.401(1)(d), 124.204(4)(m), 703.1, and 719.1(1) (2013), respectively. He

pleaded guilty to possession of a controlled substance (third offense) and

pleaded guilty by way of written guilty plea to “Interference with Official Acts

Resulting in a Serious Injury, an aggravated misdemeanor.” Kirk was sentenced

to a term of incarceration not to exceed five years for the possession charge and

two years on the interference charge, said sentences to be served concurrent

with each other.

Kirk challenges his guilty pleas. Kirk first contends his plea to possession

of a controlled substance (third offense) was impermissible because the offense

is not a lesser-included offense of possession of a controlled substance with

intent to deliver. Kirk next challenges the factual basis supporting his guilty plea

to interference with official acts resulting in serious injury. Specifically, he

contends there is not a factual basis to support the element of serious injury.

Finally, Kirk contends his plea was unknowing because of several procedural

irregularities.

We conclude the defendant failed to preserve error on any of his claims.

“Generally, a defendant must file a motion in arrest of judgment to preserve a

challenge to a guilty plea on appeal.” State v. Meron, 675 N.W .2d 537, 540

(Iowa 2004); see Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s failure to challenge 3

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.”). Kirk did not

file a motion in arrest of judgment. Kirk does not contend that any exception to

the general rule is applicable here. Nor does Kirk assert a claim of ineffective

assistance of counsel, which would allow review of his claim within that rubric. In

Kirk’s statement regarding error preservation, he states: “Defendant/Appellant

filed his appeal of this matter in a timely manner. Iowa Rule App. P. 6.101(1).

(Notice of Appeal).” While attorneys frequently state that filing notice of appeal

preserves error, it is an incorrect statement of law. See Thomas A. Mayes &

Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa:

Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (Fall 2006) (“However

error is preserved, it is not preserved by filing a notice of appeal. While this is a

common statement in briefs, it is erroneous, for the notice of appeal has nothing

to do with error preservation.”).

AFFIRMED.