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Foster v. State

Court of Appeal of Iowa

November 6, 2013

MARK FOSTER, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, Judge.

A postconviction relief applicant appeals denial of his application.

Susan R. Stockdale, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Margaret Popp Reyes, Assistant County Attorney, for appellee.

Considered by Potterfield, P.J., and Mullins and Bower, JJ.


Mark Foster appeals the denial of his application for postconviction relief arguing his trial attorney was ineffective for failing to ensure the court established a factual basis for the plea, and for coercing Foster into taking the plea. Foster also alleges trial counsel was ineffective for failing to ensure he understood the nature of the charges and postconviction counsel was ineffective for failing to raise the issue before the postconviction court. Because the record does not support each claim, trial counsel and postconviction counsel were not ineffective. We affirm the denial of postconviction relief.

I. Background Facts and Proceedings.

On July 18, 2008, two men, Jeff Harriman and Terry Vance, were drinking beer behind the No Frills Redemption Center in Council Bluffs. Charles Armstrong, another man, approached them and began fighting with Harriman over statements Harriman had made about Armstrong's girlfriend. As the men were fighting, Armstrong picked up a wooden board and hit Harriman in the head and back. Both men then sat down, with Harriman bleeding from the nose. After a short break, they began fighting again. This time, Harriman held Armstrong on the ground and tried to gouge Armstrong's eyes with his thumbs. After this, Armstrong said, "I give up, " and he and Harriman separated. Harriman lay down on the ground nearby, bleeding heavily. About an hour later, the applicant, Mark Foster, and Herbert Garrett approached Armstrong and observed his injuries from the fight. Foster asked Armstrong if he wanted Foster to "take care of" Harriman or "kick Harriman's ass." Armstrong said yes. Foster then kicked

Harriman in the head about a dozen times. While Foster was kicking Harriman in the head, Garrett began punching Harriman in the ribs and stomach. Once they were done, Armstrong straddled Harriman on the ground and punched him in the head repeatedly. Harriman was unconscious and bleeding heavily from the head. Armstrong then took out a knife and sliced the bridge of Harriman's nose. Armstrong, Foster, and Garrett then left the area.

After this, Vance went to get help. Meanwhile, another witness had found Harriman, who was alone, covered in blood and flies. Harriman was unresponsive, but still breathing. The witness called 911, and Harriman was taken to the hospital where he died due to blunt force injuries to his head and chest. The State charged Armstrong, Foster, and Garrett with first-degree murder. Later, a jury convicted Armstrong of second-degree murder. Garrett pled guilty to lesser charges and was listed as a witness against Foster. On December 8, 2008, Foster pled guilty to attempted murder, in violation of Iowa Code section 707.11 (2007), and willful injury causing serious injury, in violation of Iowa Code section 708.4(1), a class C felony.

The evidence at the postconviction trial established that on December 5, 2008, a Friday, Foster and his trial counsel received a plea offer from the State. The trial was scheduled for the following Tuesday. Their testimony differs as to what happened next. Trial counsel testified that on Friday Foster gave indications he was willing to accept the plea agreement but that trial counsel advised Foster to consider it over the weekend. Trial counsel informed Foster he would notify the State that Foster would likely accept. On the morning of December 8, 2008, the following Monday, Foster informed trial counsel that he would not accept the plea agreement and would go to trial. Trial counsel testified that he told Foster, "[T]hat's fine, I'll have to let the county attorney know, " in case the State wanted to request a continuance. On Monday afternoon, Foster was brought to a hearing at the courthouse. At that point Foster informed trial counsel he would accept the plea agreement. Trial counsel testified the plea hearing and sentencing went forward that afternoon.

Foster, however, testified that as of Friday, December 5, he was not inclined toward accepting the plea offer. On December 8, he informed trial counsel he did not wish to take the plea. Foster testified that trial counsel "became very upset and extremely mad, " and informed Foster that he had already spoken to the prosecutor and arranged for the plea so that Foster had to take it. Foster stated at the postconviction trial, "Yeah, he was pressing me, he said, well, you don't take this plea, they're going to get you with murder one. . . . I was just seriously pressured into taking it."

At the plea hearing the court inquired into Foster's waiver of trial rights and whether he had the opportunity to read the minutes of testimony and discuss the options with his trial counsel. The court also examined the voluntariness of the plea; informed Foster of his rights of appeal; and recounted the offenses to which Foster agreed to plead guilty and their penalties. The court accepted Foster's plea and, with Foster's waiver of a presentence investigation report, sentenced Foster to a period not to exceed twenty-five years for attempted murder, and a period not to exceed ten years for willful injury.

Following the guilty plea, there were no post-plea motions and no direct appeal. Foster filed a pro se application for postconviction relief on October 30, 2009. Court-appointed postconviction counsel then filed an amended and recast application on May 9, 2012, alleging multiple grounds for ineffective assistance of counsel. The court held the postconviction-relief hearing on May 24, 2012. Trial counsel and Foster testified. On ...

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