Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.
A defendant appeals from his convictions for third-degree sexual abuse and lascivious acts with a child contending trial counsel was ineffective.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Jennifer Miller, County Attorney, and Paul Crawford, Assistant County Attorney, for appellee.
Considered by Potterfield, P.J., and Mullins and Bower, JJ.
The defendant, Phillip Lee Carter, appeals from his conviction after pleading guilty to two counts of sexual abuse in the third degree and one count of lascivious acts with a child. Carter contends his trial counsel was ineffective when he failed to advise him before pleading guilty that he could be civilly committed as a sexually violent predator pursuant to Iowa Code section 229A (2011). We affirm.
I. Background Facts and Proceedings.
The State charged Carter by trial information on June 13, 2012. At a later date the State amended and substituted the trial information to allege a total of twenty-three counts: nine counts of sexual abuse in the third degree, two counts of sexual abuse in the second degree, nine counts of lascivious acts with a child, two counts of lascivious conduct with a minor, and one count of indecent contact with a child. If convicted on all twenty-three counts, Carter could have received a sentence of over 300 years in prison.
Carter and the State reached a plea agreement, and on July 31, 2012, the district court convened for the plea hearing. Carter pleaded guilty to two counts of sexual abuse in the third degree and one count of lascivious acts with a child, in violation of Iowa Code sections 709.1, 709.3, 709.4 and 709.8, and the parties agreed to a sentence of twenty-five years in prison. The plea colloquy did not include an inquiry into whether Carter was aware of the possibility of civil commitment following the discharge of his sentence.
On August 13, 2012, Carter's trial counsel filed a motion in arrest of judgment, alleging that the plea hearing was inadequate because (1) "The defendant did not fully understand and appreciate the legal consequences of a guilty plea, " and (2) "The defendant did not adequately understand the penal consequences of his plea." The court set the motion for hearing on September 10, 2012. At the hearing, the following exchange occurred:
THE COURT: Yeah. Okay. [Defense Counsel], anything further?
[DEFENSE COUNSEL]: Yes. I guess I probably should respond to the accusations of my client. I would say he was fully informed of what his—what was coming down the pike as far as whether it was a forcible felony, whether he knew the elements. We had a lengthy discussion of the—those types of elements, and we went back and forth that—under a consent issue based on age alone would rise the level of the offense from a sex third, which is 10 years, no mandatory minimum to a 25-year, mandatory 17 and a half years, so he was—he was well aware of that and at the time wisely chose to take the sex third. Just for the record—for later on, just ...