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State v. Vonhofsteder

Court of Appeals of Iowa

April 19, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
WILHELM VONHOFSTEDER, Defendant-Appellant.

         Appeal from the Iowa District Court for Plymouth County, Steven J. Andreasen (plea) and Edward A. Jacobson (sentencing), Judges.

         The defendant appeals following his pleas of guilty to one count of lascivious acts with a child and three counts of sexual exploitation of a minor.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.

          DANILSON, Chief Judge.

         On November 2, 2015, Wilhelm VonHofsteder was charged in a twelve-count trial information with third-degree sexual abuse, indecent contact with a child, assault with intent to commit sexual abuse, exhibition of obscene material to a minor, and eight counts of sexual exploitation of a minor (possession of a visual medium depicting a minor child engaged in a prohibited sexual act). Pursuant to a plea agreement, VonHofsteder agreed to plead guilty to an amended charge of lascivious acts with a child (count 1) and three counts of sexual exploitation of a minor (counts 5, 6, 7). The parties agreed that the sentences would be run consecutively for a period of eleven years but each party could make its own recommendation on whether the sentences should be imposed or suspended.

         At a plea hearing, the prosecutor went over the terms of the written plea agreement and those terms were confirmed by the defendant and defense counsel, including that written pleas concerning the three sexual exploitation counts would be filed. VonHofsteder pled guilty to the charge of lascivious acts with a child. The court specifically found VonHofsteder's plea to the amended charge of lascivious acts with a child was made "voluntarily and intelligently and has a factual basis." Following that guilty plea hearing, VonHofsteder submitted his written guilty pleas to three counts of sexual exploitation of a minor. A sentencing hearing was held, and the district court imposed consecutive sentences for a period not to exceed eleven years in prison. VonHofsteder now appeals.

         Generally, "[a] defendant's failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall preclude the defendant's right to assert such challenge on appeal." Iowa R. Crim. P. 2.24(3)(a); see also State v. Fisher, 877 N.W.2d 676, 680-81 (Iowa 2016) (noting a written plea or waiver of a motion in arrest of judgment can foreclose an appeal when it complies with rule 2.8(2)(d)). However, "he is not precluded from challenging the validity of his plea under a claim of ineffective assistance of counsel." State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).

         On appeal, VonHofsteder contends plea counsel provided ineffective assistance in failing to ensure the district court complied with Iowa Rule of Criminal Procedure 2.8(2)(b) in respect to his written pleas. He contends there is nothing in the record indicating the district court discharged its duty to ensure VonHofsteder's written pleas were made voluntarily and had factual bases.

We review claims of ineffective assistance of counsel de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). To succeed on an ineffective-assistance-of-counsel claim, a defendant must show by a preponderance of the evidence that: "(1) counsel failed to perform an essential duty; and (2) prejudice resulted." State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). "We can affirm on appeal if either element is absent." State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998).

Rodriguez, 804 N.W.2d at 848.

         VonHofsteder asserts counsel should have filed a motion to arrest judgment because the record lacks an indication the district court exercised its discretion to waive the plea colloquy or that the court discharged its duty to ensure his plea was made voluntarily and intelligently and has a factual basis.

         Our rules of criminal procedure state a district court "shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis." Iowa R. Crim. P. 2.8(2)(b) (emphasis added). "Before accepting a plea of guilty, the court must address the defendant personally in open court . . . ." Id. If the offense is an aggravated or serious misdemeanor, the court, with the defendant's consent, may waive the personal in-court colloquy required by the rule. Iowa R. Crim. P. 2.8(2)(b)(5); State v. Meron, 675 N.W.2d 537, 543 (Iowa 2004). "The waiver language of rule 2.8(2)(b) only means the ...


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