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State v. McKinney

Court of Appeals of Iowa

July 19, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
DENNIS McKINNEY, Defendant-Appellant.

         Appeal from the Iowa District Court for Linn County, Thomas L. Koehler (plea), Ian K. Thornhill (motion to set aside plea), and Lars G. Anderson (sentencing), Judges.

         Dennis McKinney appeals from the judgement and sentence entered following his plea of guilty to extortion. CONVICTION VACATED AND REMANDED.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          DANILSON, Chief Judge.

         Dennis McKinney appeals from the judgement and sentence entered following his plea of guilty to extortion, a class "D" felony, in violation of Iowa Code section 711.4 (2016). We vacate the conviction and sentence, and remand for further proceedings on the ground that McKinney's plea was not voluntarily and knowingly entered.

         On May 26, 2016, Dennis McKinney entered a guilty plea to the offense of extortion, acknowledging that on March 9, 2016, he threatened to inflict serious injury on a person with the intent to obtain money and did not reasonably believe he had a right to make the threats against the person. McKinney agreed the minutes of evidence were accurate. Pursuant to a plea agreement, the State agreed to dismiss a charge of second-degree robbery[1] and allow McKinney to be released pending sentencing; however, the release was subject to the condition that if McKinney had any pretrial release violations, arrests for other offenses, or confirmed reports of harassment of the victim or family members pending sentencing, the State would be free to request any legal sentence that might be imposed. The court found a factual basis existed for the plea and the plea was voluntarily and intelligently entered. The court ordered a presentence investigation (PSI) and set sentencing for July 26, 2016. The court also informed McKinney,

[I]f you intend to contest or challenge the proceedings which just occurred here this morning, you would have to do so by what we call a motion in arrest of judgment.

         A motion in arrest of judgment must be filed within [forty-five] days of this date and no less than five days prior to sentencing. Therefore, you would have to comply with those time limitations to be successful with reference.

         McKinney moved to continue sentencing, which the court granted and rescheduled for September 13, 2016.[2]

         On August 15, a warrant was issued for McKinney's arrest for violating the terms of his release. On August 27, McKinney was in custody and his release was revoked.

         On September 6, McKinney filed a motion for arrest of judgment, asserting he "took advantage of a plea offer, " that "upon reconsideration . . . he now reasserts his innocence, " and he "believes his guilty plea was not voluntarily or intelligently entered." The State resisted the motion as untimely and without merit. After an October 3 hearing, the district court denied the motion, writing in part:

[McKinney] alleges no defects in the plea hearing, has presented no evidence that his plea of guilty was involuntary, and does not allege the State violated the terms of the plea agreement. [McKinney] appears to have simply changed his mind after receiving at least part of the benefit for which he bargained, that is, being released from custody once he had entered his guilty plea. [McKinney's] motion in arrest of judgment is untimely[3] and meritless and should be denied on ...

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