This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.
Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge. Defendant appeals the judgment against him, based on his guilty pleas, to two counts of theft in the first degree.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold, Assistant Appellate Defender.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Michael J. Walton, County Attorney, and Amy Devine, Assistant County Attorney, for appellee.
Considered by Danilson, C.J., Vaitheswaran, J., and Miller, S.J.[*] Danilson, C.J., concurs; Vaitheswaran, J., concurs specially.
Erwin King appeals his convictions, based on his guilty pleas, to two counts of first-degree theft. He raises claims of ineffective assistance of counsel, the court's denial of his motion in arrest of judgment, the amount of restitution ordered for court-appointed attorney fees, and prosecutorial misconduct. Two of his claims of ineffective assistance of counsel, regarding the mandatory minimum sentence and failure to defend, to investigate, and to be an advocate, are preserved for possible postconviction proceedings. The remainder of his claims of ineffective assistance are without merit. The district court properly denied his motion in arrest of judgment. His claim of prosecutorial misconduct has not been preserved for our review. We affirm King's convictions to two counts of first-degree theft. We vacate that part of the sentencing order concerning reimbursement of attorney fees and remand for a new order determining the proper amount for his court-appointed attorney fees, which may not exceed $1800. The other parts of the sentencing order are affirmed.
I. Background Facts & Proceedings
Erwin King was charged with two counts of second-degree robbery as an habitual offender. King gave notice of an alibi defense. The jury trial commenced on April 30, 2012, and continued on May 1, 2012.
While the jury was deliberating on the afternoon of May 1, 2012, King entered into a plea agreement with the State in which he agreed to plead guilty to two counts of first-degree theft as an habitual offender and the State agreed to dismiss the two charges of second-degree robbery. The State also agreed not to resist concurrent sentences on the two theft charges. The district court engaged in a plea colloquy with King and accepted his guilty pleas to two counts of first-degree theft, in violation of Iowa Code section 714.2(1) (2011), class " C" felonies. The court then discharged the jury.
King filed a motion in arrest of judgment alleging that while he was entering guilty pleas the jury had acquitted him of the charges of second-degree robbery. The district court determined no verdict on the second-degree robbery charges had been rendered under Iowa Rule of Criminal Procedure 2.22(5) because the jury's decision had not been read in open court and there was no polling of the jurors. The court denied the motion in arrest of judgment.
The court sentenced King to no more than fifteen years in prison on each count of first-degree theft, to be served consecutively. King appeals his convictions and sentences.
II. Ineffective Assistance
We review claims of ineffective assistance of counsel de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied the defendant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). " In determining whether an attorney failed in performance of an essential duty, we avoid second-guessing reasonable trial strategy." Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). In order to show prejudice in guilty plea proceedings, a defendant is required to show a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial. See State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).
King contends he received ineffective assistance because his defense counsel did not object when the court refused to be bound by the plea agreement at sentencing. He asserts that under the plea agreement he should have been given concurrent sentences rather than consecutive sentences. He asserts counsel should have argued that because the court determined it was not bound by the plea agreement, King should have been permitted to withdraw his plea.
At the plea proceeding, the court set forth the terms of the plea agreement as follows:
[T]he State and the defense have agreed upon a plea agreement, which indicates the defendant will plead guilty to an Amended and Substituted Trial Information adding Counts 3 and 4, Theft in the First Degree, and he'll plead to those as an habitual offender. The State will dismiss Counts 1 and 2 at the time of sentencing, which, again, is Robbery in the Second Degree in two counts. The State recommends ...