from the Iowa District Court for Polk County, William P.
Kelly (guilty plea) and Carla T. Schemmel (sentencing),
defendant appeals two felony convictions.
R. Anderson of The Law Office of Karmen Anderson, Des Moines,
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
about losing his parental rights while he served time in
prison, Felix Gomez filed a motion in arrest of judgment
asking to withdraw his guilty pleas to two felonies. The
district court found no legal basis for the motion and denied
his request. On appeal, Gomez asks us to reverse the district
court and allow him to withdraw his pleas. Because
Gomez's concerns about his parental rights are collateral
to the plea process, we find no abuse of discretion in the
district court's denial of his motion in arrest of
State charged Gomez with second-offense failure to comply
with the sex offender registry, a class "D" felony,
in violation of Iowa Code section 692A.111 (2016), and
third-offense domestic abuse assault, a class "D"
felony, in violation of sections 708.1(2) and 708.2A(4). On
June 22, 2016, Gomez pleaded guilty to the two felony
offenses in exchange for the State dismissing misdemeanor
charges of driving while barred and interference with
official acts. The plea agreement included a recommendation
for consecutive sentences. Gomez also was advised the
domestic-abuse conviction carried a one-year mandatory
minimum before he was eligible for parole.
19, 2016, Gomez filed a motion in arrest of
judgment. The motion stated:
The Defendant now wishes to be allowed to withdraw his former
plea of guilty on the grounds that he believes the plea of
guilty entered in these cases will adversely affect him in
pending and future DHS matters and this was not something he
had taken into consideration at the time of the plea.
hearing on August 2, 2016, Gomez expanded on his motivation
to file the motion in arrest of judgment, telling the court
his wife-who was the victim in the assault conviction-gave
birth to their daughter just a day earlier and Gomez was
concerned the "one-year mandatory" would result in
him losing his parental rights. The district court denied the
motion in arrest of judgment and proceeded to sentencing,
telling Gomez: "[T]o attack your plea there has to be a
legal reason. And while you have given me emotional reasons,
they are not legal reasons." The court then imposed
consecutive sentences, for an indeterminate ten-year term, in
accord with the plea agreement.
appeal, Gomez challenges the district court's denial of
his motion in arrest of judgment and generally contends he
received ineffective assistance from his plea counsel. On his
first claim, we review the district court's denial of a
motion in arrest of judgment and a motion to withdraw a plea
for abuse of discretion. See State v. Smith, 753
N.W.2d 562, 564 (Iowa 2008). On the second claim, if Gomez
had adequately pinpointed an alleged instance of ineffective
assistance of plea counsel, our review would be de novo.
See State v. Nall, 894 N.W.2d 514, 517 (Iowa 2017).
The burden rests with Gomez to establish his attorney failed
to perform an essential duty and prejudice resulted from such
failure. See State v. Utter, 803 N.W.2d 647, 652
first to the denial of Gomez's motion in arrest of
judgment.Gomez does not dispute the district court
"painstakingly followed" Iowa Rule of Criminal
Procedure 2.8(2)(b) before accepting his guilty pleas. But he
contends the impact of his incarceration on his ability to
maintain his parental rights was a "term of the plea
agreement that would have affected his willingness to enter
the plea and the term was not disclosed to him." More
specifically, he claims: "Subsequent to the plea, Gomez
learned that during his one-year mandatory incarceration, the
Iowa Department of Corrections would not allow Department of
Human Services (DHS) reasonable efforts visitation with his
district court did not abuse its discretion in denying the
motion in arrest of judgment. Gomez fails to identify any
real flaw in the plea proceedings. The district court
properly advised Gomez regarding the direct consequences of
his guilty pleas; the negative impact of incarceration on
Gomez's prospects for maintaining his parental rights was
a collateral consequence. See Saadiq v. State, 387
N.W.2d 315, 325 (Iowa 1986) (reiterating distinction between
direct and collateral consequences of a guilty plea). We have
recognized "a parent's imprisonment may create
difficulties in providing reunification services" for
the DHS. See In re S.J., 620 N.W.2d 522, 525 (Iowa
Ct. App. 2000). But such potential difficulties do not render
Gomez's plea agreement unenforceable. Gomez points to no
evidence showing he was ...