Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Winchester

Court of Appeals of Iowa

August 2, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
BRIAN WINCHESTER, Defendant-Appellant.

         Appeal from the Iowa District Court for Harrison County, James S. Heckerman (guilty plea) and Jeffrey L. Larson (sentencing), Judges.

         Brian Winchester appeals his judgment and sentence for sexual abuse in the third degree, to which he pled guilty.

          Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          MULLINS, Judge.

         Brian Winchester appeals his conviction, judgment, and sentence for sexual abuse in the third degree, to which he pled guilty on September 19, 2016. On October 13, 2016, Winchester filed a motion in arrest of judgment, which the district court denied as untimely. Winchester appeals, claiming his counsel provided ineffective assistance because his plea was not knowing or voluntary and his counsel should have objected to certain victim-impact statements. Our review is de novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

         "Normally, ineffective-assistance-of-counsel claims are considered in postconviction relief proceedings." State v. Vance, 790 N.W.2d 775, 785 (Iowa 2010). When the record is sufficient to address an ineffective-assistance-of-counsel claim, we resolve the claim on direct appeal. Id.

         Winchester claims his plea was not knowing and voluntary because of purported inconsistencies in the record. He also complains he was not informed he was pleading to a forcible felony for which a suspended sentence is not an option. There is no indication in the record he was informed he was pleading to a forcible felony. The transcript of the sentencing hearing leaves the impression the parties thought a suspended sentence was an option. A defendant is required to be informed of the maximum and minimum penalties of an offense. See Iowa R. Crim. Pro. 2.8(2)(b)(2). If he was not informed that the charge to which he pled guilty was not eligible for a suspended sentence, then the plea may not have been intelligently made. We cannot resolve this issue on the record before us, so we preserve it for possible postconviction relief. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

          With regard to the plea proceeding itself, Winchester claims there were inconsistences as to which count of the trial information he was pleading, notes there are some inconsistencies as to which year the sexual abuse occurred, [1] and contends the court stated and he provided a factual basis for elements of a crime that are derived from more than one code section.

         During the guilty plea, the court stated Winchester was pleading guilty to count II of the trial information. Winchester in fact pled guilty "to the charge of sexual abuse in the third degree, " consistent with count II of the trial information, which provides Winchester is accused of "sexual abuse in the [thi]rd degree in violation of Iowa Code [s]ection 709.4(2)(b)[ (2011)], a class C [f]elony." Winchester's written guilty plea stated: "I hereby plead guilty to the charge of sexual abuse in the third degree in violation of the Code of Iowa [s]ections 709.1 [and] 709.4(2)(b)." Similarly, the order entered following the guilty plea states Winchester pled guilty to "Count II: Sexual Abuse in the [Third] Degree in violation of Iowa Code [s]ection[s] 709.1 and 709.4(2)(b)." There are no identified inconsistencies with regard to the applicable code section at the plea proceeding itself. Thus, Winchester has failed to show his trial counsel breached an essential duty. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015) (noting a claimant must show "trial counsel failed to perform an essential duty" that "resulted in prejudice").

         The only factual inconsistency with regard to the guilty plea is that-when providing the factual basis at the hearing and in his written guilty plea-Winchester admitted the offense occurred in 2012, while the trial information for count II states the offense occurred in 2011. But the time at which the crime was committed is not an essential element of the crime. See State v. Griffin, 386 N.W.2d 529, 532 (Iowa Ct. App. 1986) (finding, where the relevant statute does not make a particular time period a material element of the offense, "the exact time of the act is not material"); see also Iowa Code § 709.4 (defining sexual abuse in the third degree as performing a sex act "under any of the following circumstances, " all relating to age, mental capacity, or family relationship but none relating to a date or time); State v. Schneider, No. 14-1113, 2015 WL 2394127, at *8 (Iowa Ct. App. May 20, 2015) (discussing cases addressing the time-frame issue). Winchester does not dispute that an offense committed in 2012-as opposed to 2011-would also otherwise satisfy the elements of section 709.4(2)(b).[2] Nor has he claimed he would not have pled guilty had his counsel identified this error at the plea hearing; accordingly, Winchester has also failed to prove prejudice. See State v. Utter, 803 N.W.2d 647, 654 (Iowa 2011) ("[T]o prove prejudice, [the applicant] must establish that 'but for counsel's breach of duty, [he] would not have pled guilty and would have elected instead to stand trial.'" (citation omitted)).

         Regarding Winchester's element claim, the district court informed him at the plea hearing that the applicable charge required the State to prove he "performed a sex act" on a victim that "was [twelve] or [thirteen] years old" while he was "four or more years older than her" and he and the victim were not cohabitating as husband and wife, which Winchester claims blurs the requirements of section 709.4(2)(b) and section 709.4(2)(c)(4). Section 709.4 provides, in relevant part:

A person commits sexual abuse in the third degree when the person performs a sex act under any of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.