Appeal from the Iowa District Court for Madison County, John D. Lloyd, Judge.
Defendant appeals from the judgment and sentence imposed following his guilty plea.
Mark C. Smith, State Appellate Defender, and David Arthur Adams and Martha J. Lucey, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, and Julie A. Forsyth, County Attorney, for appellee.
Considered by Potterfield, P.J., and Mullins and Bower, JJ.
Drew Lipovac appeals from the judgment and sentence imposed following his guilty plea to sexual exploitation by a school employee. He contends his attorney was ineffective in not filing a motion in arrest of judgment to challenge the factual basis for the plea. He also contends the court abused its discretion in sentencing by considering an improper factor. We affirm.
I. Background Facts and Proceedings
In early 2012 Lipovac, a third-grade teacher, was charged with one felony and two aggravated misdemeanor counts of sexual exploitation by a school employee, based on events involving two high-school students that occurred during two parties in 2011. Pursuant to a written plea agreement, Lipovac entered a guilty plea to one aggravated misdemeanor count. After questioning Lipovac to establish a factual basis, the court accepted the plea. The plea agreement provided the State would dismiss the other two counts, the State would recommend a suspended two-year prison sentence, and Lipovac was free to argue for a deferred judgment.
At sentencing, the State recommended a suspended two-year prison sentence. The presentence investigation also recommended a suspended two-year prison sentence with two years of probation. Lipovac, during allocution, and his attorney both argued for a deferred judgment. Lipovac's father testified in support of a deferred judgment. The court also received dozens of letters describing Lipovac's character and work history. The court then ruled:
Mr. Lipovac, having considered all of those factors and having considered the statements of counsel here this morning, as well as your own statements, and the statements of the one witness that was presented, the court finds that it is appropriate and I do find you guilty of the charge of sexual exploitation by a school employee . . . as an aggravated misdemeanor. Pursuant to Iowa Code sections 902.3 and 902.9  [you are] committed to the custody of the director of the department of corrections for a period of not more than two years. I'm going to follow the recommendation of the presentence investigator in suspending that sentence and placing you on a two-year term of probation . . . .
After setting forth other details of the sentence and probation, the court stated:
For the record, I have considered the possibility of deferring this sentence, but I don't feel that that's appropriate in this case. I read through the letters of recommendation that were attached to the presentence investigation, and there were quite a number of them. As your father indicated when he testified, the opinion of the people who wrote those letters is pretty consistent. The people who have had contact with you down through the years all seem to think rather highly of you. And that could cut both ways. As I considered it, read those letters and looked at the charge and the nature of the crime you committed, I became very concerned about how intelligent and capable you are of manipulating the people around you so that you appear to be something other than what you are, and my concern is that if I were to defer this sentence so that you do not have this conviction on your record, eventually, assuming that you will successfully complete your probation—and I do assume that—it might be that much easier for you to work your way back into the situation where you could commit these types of crimes again.
You seem to be very, very capable of convincing those around you that you're a person to be trusted, whereas the facts would seem to indicate that you are not. So that's why I've ...