Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee, Judge.
A defendant appeals his conviction for two counts of possession of a controlled substance.
Eric D. Puryear and Eric S. Mail of Puryear Law, P.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, and John C. Werden Jr., County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
The defendant, Dean Loew, appeals his conviction for two counts of possession of a controlled substance (second offense) in violation of Iowa Code section 124.401(5) (2011). He argues trial counsel was ineffective in failing to file a motion in arrest of judgment, allowing him to involuntarily plead guilty, and failing to cross-examine the four corners of the application for the search warrant and failing to object to its adequacy under Iowa Code section 808.3. Because we find Loew knowingly and intelligently pleaded guilty, we deny the claims related to his guilty plea. We also find the magistrate complied with Iowa Code section 808.3 in explaining why it found the informant was reliable. However, we find the record is insufficient to determine whether trial counsel sufficiently cross-examined the officer regarding the credibility of the informant, and we preserve that issue for possible postconviction relief.
I. Background Facts and Proceedings
Loew was arrested and charged by trial information on August 19, 2011, with one count of possessing methamphetamine and one count of possessing marijuana—both second offenses—after a search warrant was executed at his residence. After a November 2, 2011 contested hearing on a motion to suppress specifically regarding the identity and credibility of the confidential informant who provided information for the warrant, the district court denied Loew's motion. Loew filed another motion to suppress on April 23, 2012, arguing the City of Carroll officer who applied for the warrant exceeded his jurisdiction because Loew's home was in Carroll County but outside of the City of Carroll. This motion was also overruled. On August 3, 2012, a pretrial conference was held to discuss multiple motions in limine. After the denial of many of Loew's motions, the court took a recess. Upon reconvening, the parties notified the court they had reached a plea agreement and Loew wanted to change his plea to guilty.
Loew submitted two written pleas of guilty, one for each count, and after a colloquy with the court ensuring the pleas were knowing and voluntary, the district court accepted the pleas. Lowe first informed the court he wished to be sentenced immediately and waive the fifteen-day waiting period and his right to file a motion in arrest of judgment. However, after a discussion with his attorney, he decided not to waive the waiting period and his right to move in arrest of judgment
On August 27, the court sentenced Loew in accordance with the plea agreement: an indeterminate term not to exceed two years in prison for each count, the terms to run consecutive, with all but two days suspended. On August 30, Loew's attorney filed a motion to appoint the State Appellate Defender as appellate counsel stating, "That immediately before the sentencing hearing convened, the Defendant expressed to the undersigned to appeal all aspects of the instant case." Loew appeals.
II. Standard of Review and Ineffective Assistance Principles
We review ineffective-assistance-of-counsel claims de novo. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).
Generally, failing to file a motion in arrest of judgment bars a direct appeal of a conviction. Iowa R. Crim. P. 2.24(3)(a). This failure will not bar a challenge to a guilty plea if the failure to file a motion in arrest of judgment resulted from ineffective ...