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Todd Wesley Fridolfson v. State of Iowa

March 13, 2013

TODD WESLEY FRIDOLFSON, APPLICANT-APPELLANT,
v.
STATE OF IOWA, RESPONDENT-APPELLEE.



Appeal from the Iowa District Court for Pocahontas County, Kirk L. Wilke, Judge.

The opinion of the court was delivered by: Doyle, J.

Todd Fridolfson appeals following the denial of his application for post-conviction relief. AFFIRMED.

Heard by Vogel, P.J., and Potterfield and Doyle, JJ.

Todd Fridolfson appeals following the denial of his application for post-conviction relief. He contends the State failed to make the sentencing recommendation as agreed in the parties' plea agreement, and his various attorneys were ineffective in failing to previously raise that issue. He also contends the district court imposed an illegal sentence. We affirm.

I. Background Facts and Proceedings.

On November 16, 2009, Todd Fridolfson was charged by trial information with operating while intoxicated (OWI), third offense, as a habitual offender. As to the habitual offender enhancement, the trial information stated that Fridolfson had "at least twice before been convicted of a felony in a court of the State of Georgia of the United States." Attached to the trial information were minutes of testimony which stated, among other things, that Georgia representatives*fn1 would testify that Fridolfson was convicted and sentenced in Georgia for the crimes of (1) driving under the influence and homicide by vehicle first-degree, a felony, which occurred on October 16, 1987; (2) driving under the influence and habitual violator, a felony, which occurred on April 9, 1993; (3) driving under the influence, which occurred on February 7, 2008; and (4) driving under the influence, which occurred on July 11, 2008. The first additional minutes of testimony lists the April 9, 1993, February 7, 2008, and July 11, 2008 Georgia offenses.

At some point, the State and Fridolfson entered into a plea agreement. A plea hearing was held on March 16, 2010. There, the State's prosecutor informed the court:

[T]he plea agreement is that [Fridolfson] will plead guilty to both [c]ounts I and II and that the State's recommendation will be probation and will recommend the minimum [thirty] days for the amount of time [Fridolfson] is to serve and that he be sentenced the full term of the [fifteen] years, but then that would be suspended and he be placed on probation. Minimum fine, and this would be contingent on between now and sentencing, that [Fridolfson] did not consume or possess any alcoholic beverages or illegal drugs, did not commit any violations of the law between now and the time of sentencing and conditioned that [Fridolfson] does not fail to cooperate with the [p]resentence [i]nvestigation by the [p]robation [p]arole [o]fficer and also conditioned that he shows up for his sentencing at the time and date and place that we set for sentencing today.

Fridolfson advised the court that the prosecutor correctly stated the terms of their agreement.

The court then conducted a colloquy with Fridolfson. The court advised Fridolfson the State had alleged he was convicted of two felonies prior to November 9, 2009. The court explained the first felony alleged by the State was that Fridolfson was "convicted of the crime of homicide by vehicle, first-degree, and the offense occurred on October 16 of 1987, in . . . Camden County, Georgia . . . ." The court asked Fridolfson if he was in fact convicted of this crime, and Fridolfson responded: "Yes, sir." Fridolfson admitted he received a sentence on that conviction of fifteen years, and he was required to serve it or a portion of the sentence. There was some confusion as to what the correct case number was in that case because the October 16, 1987 incident spawned two criminal charges. In addition to the homicide by vehicle conviction, Fridolfson was also convicted of driving under the influence. Fridolfson indicated that one of the case numbers, either 1987CR75 or 1987CR7503, was his conviction for homicide by vehicle.

The court then questioned Fridolfson about the second felony, driving under the influence and habitual violator that was alleged to have occurred on April 9, 1993. The court asked Fridolfson, concerning the other alleged felony, whether he was "convicted, sir, in Criminal No. 1993CR504 in Camden County Superior Court, Camden County, Georgia, of driving under the influence as a habitual violator." Fridolfson responded: "Yes, sir." Fridolfson stated that conviction was a felony and that his sentence for that conviction was for five years.

Thereafter, there was some confusion on Fridolfson's part. Fridolfson attempted to explain that his habitual violator felony occurred sometime prior to October 1987, but the charge had somehow got lost, shuffled up and they lost it and when I got the vehicle homicide charge I went and I did some time and they brought me out of Georgia Dept. of Corrections and brought that charge up while I was still incarcerated, they found it, so they wanted to go ahead and get it done with so that's when they brought it up.

Fridolfson claimed April 9, 1993, was the sentencing date, not the occurrence date, for the habitual violator conviction. However, Fridolfson's attorney noted his papers indicated the disposition date of that conviction was February 28, 1994, and Fridolfson later indicated he received a five-year consecutive sentence on his habitual violator charge and that charge was in 1993. Fridolfson admitted that both felony convictions were prior to November 9, 2009.

Thereafter, the court accepted Fridolfson's guilty plea, finding Fridolfson voluntarily entered into his guilty plea, he fully understood his rights and the consequences of his plea, and a factual basis existed for his guilty plea. After the court set a date for sentencing, the court discussed the issue of bail with the parties. The court stated:

I gather from reading the file that there was a hearing set for March 1st that you did not appear for and the judge at that time forfeited bail and set a hearing on whether judgment would be entered on that bail for March 30th. It's now my understanding that the State . . . wishes to . . . vacate that order of forfeiture.

The prosecutor responded: "Yes, Your Honor, and also I believe [Fridolfson] knows if he doesn't show up, it's almost certain that the court would not go by any recommendation I might have or that I can change my recommendation, so [he's] got a high incentive to show up."

A sentencing hearing was held on April 12, 2010. After the State was asked what the State's recommendation in the case was, the prosecutor stated:

First of all, Your Honor, there's two clarifications on the plea taking that I want to be entered of record. At the plea taking for the prior crimes in 1987, we said the date was October 16, 1987[,] [a]nd later . . . discovered that was the date of sentencing, so the actual date of the crime was . . . January 13, 1987. All the other particulars, including the case numbers, coincide correctly.

The two crimes were driving under the influence and homicide by vehicle, first-degree, a felony. That's the first clarification.

Second clarification is the day after plea taking, my mind did not recall whether or not we point-blank said that my recommendation would not be binding on the court during the negotiations for the plea taking that day. I knew that it had, so I called [Fridolfson's attorney, who was at the plea hearing,] and he said, yes, [Fridolfson] did know that any recommendation was not binding on the court. So I just wanted to make sure we have record on this now, rather than having it come up later with the question.

The State recommends probation and [Fridolfson] be sentenced to the director for the [fifteen] years with probation and be ordered to serve the minimum.

Thereafter, the following exchange occurred:

THE COURT: Mr. Fridolfson, were you advised at the time you entered your plea of guilty that you could be sentenced up ...


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