State of Iowa v. Stuart Michael Vanmersbergen

• Court: Court of Appeals of Iowa
• Decided: October 9, 2019
• Docket: 19-0232
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-0232 Filed October 9, 2019

STATE OF IOWA, Plaintiff-Appellee,

vs.

STUART MICHAEL VANMERSBERGEN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, James D.

Birkenholz, District Associate Judge.

Stuart Vanmersbergen appeals his guilty plea to operating while

intoxicated, second offense, and operating while barred. AFFIRMED.

Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.

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

GREER, Judge.

Stuart Vanmersbergen appeals from his conviction by guilty plea to

operating while intoxicated, second offense, and operating while barred. Through

an ineffective-assistance-of-counsel claim, he argues he did not understand the

plea offer before submitting his plea. Because the record is inadequate to address

his ineffective-assistance claim on direct appeal, we preserve it for any later

postconviction-relief action. We affirm his conviction and sentence.

I. Background Facts and Proceedings.

On October 1, 2018, Vanmersbergen, with the assistance of counsel,

entered a written guilty plea. In that plea, he pleaded guilty to one count of

operating while intoxicated, second offense, in violation of Iowa Code section

321J.2 (2018) and one count of operating a motor vehicle while barred in violation

of Iowa Code sections 321.560 and .561. The plea agreement recommended a

two-year sentence with all but seven days suspended, fines, and four years of

supervised probation. But the plea agreement noted, “The Court has the discretion

to accept or reject any plea agreement made between the State of Iowa and me.”

As part of his written plea, Vanmersbergen signed and dated three separate

provisions acknowledging and waiving several rights, including waivers of his

rights to: (1) “directly appeal [his] guilty plea,” (2) file a motion in arrest of judgment,

and (3) allocution. He also signed and dated an acknowledgement of appeal

rights. Presented with the guilty plea, the court accepted it the same day and set

the case for sentencing on November 26.

On January 25, 2019, during an unreported sentencing hearing, the court

sentenced Vanmersbergen to two years in prison on each count, with the 3

sentences to run concurrently, as well as an $1875 fine and applicable surcharge

and costs, including court-appointed attorney fees. The court ordered that

Vanmersbergen undergo screening for placement in a continuum of programming

for supervision and treatment of offenders convicted under Iowa Code chapter

321J. He now appeals.

II. Standard of Review.

We review ineffective-assistance-of-counsel claims de novo. State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006).

III. Analysis.

Before July 1, 2019, criminal defendants could raise ineffective-assistance-

of-counsel claims on direct appeal if they had “reasonable grounds to believe that

the record is adequate to address the claim on direct appeal.” Iowa Code

§ 814.7(2) (2018); Straw, 709 N.W.2d at 133. Effective July 1, 2019, the legislature

prohibited an appellate court from addressing an ineffective-assistance-of-counsel

claim on direct appeal. 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code

§ 814.7 (2019)). The Iowa Supreme Court determined this statutory amendment

applies prospectively only. See State v. Macke, ___ N.W.2d ___, ___, No. 18-

0839, 2019 WL 4382985, at *7 (Iowa 2019) (“We conclude the absence of

retroactivity language in sections 814.6 and 814.7 means those provisions apply

only prospectively and do not apply to cases pending on July 1, 2019.”). For that

reason, the statutory amendment does not affect this case. That said, we must

decide whether the record is adequate to address Vanmersbergen’s claim on

direct appeal. 4

Vanmersbergen asserts his guilty plea was not knowingly, voluntarily, and

intelligently entered because he received ineffective assistance of counsel. He

complains that he felt pressured to accept the plea and did not realize he might go

to prison. See State v. Boone, 298 N.W.2d 335, 337 (Iowa 1980) (holding that

before accepting a guilty plea, the district court must ensure that the defendant

understands the consequences of the plea).

The appeal record sheds little light on Vanmersbergen’s decision to plead

guilty. The judgment entry relayed the district court’s sentencing concern that it

was Vanmersbergen’s lifetime fourth OWI and he was minimizing his substance-

abuse issues. Complicating the matter and garnering the special attention of the

court, Vanmersbergen failed to appear for sentencing twice leading to the issuance

of two warrants for his arrest. While the State had recommended suspended

sentences, as the written plea takes note, there is no guarantee that the court will

accept any plea proposals. Because there is no record of a plea hearing and the

sentencing hearing was unreported, this record is not adequate to address

Vanmersbergen’s claim of ineffective assistance of counsel on direct appeal. See

State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer is entitled to his

[or her] day in court, especially when his [or her] professional reputation is

impugned.”).

IV. Disposition.

For all of the above stated reasons, we preserve Vanmersbergen’s

ineffective-assistance-of-counsel claim for any later postconviction-relief action

and affirm his guilty plea and sentence.

AFFIRMED.