Appeal from the Iowa District Court for Johnson County, Douglas S. Russell, Judge.
Applicant appeals the district court decision denying his request for postconviction relief from his conviction for assault with intent to commit sexual abuse.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant Attorney General, Janet M. Lyness, County Attorney, and Andrew B. Chappell, Assistant County Attorney, for appellee.
Considered by Doyle, P.J., Mullins, J., and Sackett, S.J. [*]
I. Background Facts & Proceedings
On July 6, 2006, Ronald Erving was charged with assault with intent to commit sexual abuse, in violation of Iowa Code section 709.11 (2005), an aggravated misdemeanor. He entered a guilty plea to the charge on August 3, 2006, but then filed a motion in arrest of judgment, claiming that at the time he entered the plea he was not aware that he would be subject to a special sentence under section 903B.2. The court permitted him to withdraw his plea.
Erving and his defense counsel prepared to go to trial. In a deposition of the victim they learned she had been bruised in the assault. The prosecutor indicated that she intended to amend the trial information to charge Erving with a class "D" felony, unless Erving pleaded guilty to the aggravated misdemeanor, in which case the State would recommend he would be sentenced to the time he had already served. Erving decided to plead guilty to the aggravated misdemeanor charge rather than potentially face five years in prison for the class "D" felony.
Erving signed a written guilty plea, which was filed with the court on August 18, 2006. The written plea contained the statement:
I understand that I have the right to be present and personally inform the Court of my plea and to speak for myself regarding sentencing, as is my right under Iowa Rule of Criminal Procedure 2.8(2)(b), and I hereby waive my right to be present at sentencing.
The judgment and sentence was filed on September 11, 2006. Erving was sentenced to forty-five days in jail, with credit given for forty-five days already served. He was required to register as a sex offender, and was given a ten-year special sentence pursuant to section 903B.2.
Erving filed an application for postconviction relief on September 11, 2009, claiming he received ineffective assistance of counsel. He claimed he did not expressly waive his right to be present during the guilty plea proceeding, or his right to an in-person colloquy. The district court denied Erving's application for postconviction relief. The court found, "Filing of the written guilty plea indicates the approval of the Applicant as to waiver of the in-person guilty [plea] procedures of the Rules of Criminal Procedure." The court also found Erving had not shown he was prejudiced by counsel's ...