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State v. Franck

Court of Appeals of Iowa

September 13, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MELISSA SUE FRANCK, Defendant-Appellant.

         Appeal from the Iowa District Court for Linn County, Casey D. Jones, District Associate Judge.

         Melissa Franck appeals her sentence following her guilty plea to false reports and harassment, claiming her trial counsel was ineffective and the sentencing court abused its discretion. AFFIRMED.

          Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

          Vaitheswaran, P.J., and Doyle and Bower, JJ.

          DOYLE, Judge.

         Melissa Franck appeals her sentence following her guilty plea to false reports and harassment. She claims her trial counsel was ineffective and the sentencing court abused its discretion. Upon our review, her ineffective- assistance-of-counsel claims fail for lack of proving the requisite prejudice. We also find no abuse of discretion by the sentencing court. We therefore affirm.

         Franck called the Cedar Rapids Police Department and reported that her boyfriend's ex-girlfriend was intoxicated at home and a danger to a child in the home. Police were dispatched to the woman's home and found Franck's report to be unfounded. By trial information, the State charged Franck with false reports to public safety entities, in violation of Iowa Code section 718.6(1) (2016), a serious misdemeanor, and third-degree harassment, in violation of sections 708.7(1)(a)(4) and .7(4), a simple misdemeanor.

         Franck eventually filed a waiver of rights and plea of guilty to the charges. The written plea waived reporting of the proceedings. Franck and her attorney appeared before the district court at the plea hearing. The court accepted Franck's guilty plea and scheduled a sentencing hearing for a later date. The plea hearing was not reported.

         Franck appeared with her attorney at the sentencing hearing. The court asked whether either party wished to have the hearing reported. Neither did. The court heard arguments from the parties. The prosecutor recommended ninety days in jail, with all but seven suspended, and one year of unsupervised probation. Franck requested less jail time. The court adjudged Franck guilty of the crimes charged and sentenced her to 365 days in jail on the false reports charge, with 275 days suspended. She was sentenced to thirty days on the harassment charge, to run concurrently with her false reports sentence. Again, like the plea hearing, the sentencing hearing was not reported.

         Franck appealed. To create a record for appeal, Franck filed a statement of proceedings pursuant to Iowa Rule of Appellate Procedure 6.806.[1] The court also filed a responsive rule 6.806 statement. The rule provides a mechanism to create a record of a hearing or trial for which a transcript is not available. See Iowa R. App. P. 6.806. The rule is not a tool to admit evidence into the record that was not previously a part of the record before the district court, nor is it intended to cover events occurring outside a hearing or trial. See id. Franck's statement of proceedings goes way beyond what occurred at the sentencing hearing. In deciding this appeal, we do not consider those portions of Franck's rule 6.806 statement that are outside of what could have been transcribed at the sentencing hearing.

         Franck asserts her trial counsel was ineffective in several respects. We review ineffective-assistance-of-counsel claims de novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). In order to prove a claim of ineffective assistance, a defendant must prove trial counsel failed to perform a duty and prejudice resulted. See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). Unless the defendant proves both prongs, the ineffective-assistance claim fails. See Clay, 824 N.W.2d at 495. We ordinarily preserve such claims for postconviction-relief proceedings but will resolve them on direct appeal when the record is adequate.See id. at 494. In the context of a guilty plea, a defendant shows prejudice by proving that, but for counsel's breach, there is a reasonable probability the defendant "would not have pled guilty and would have insisted on going to trial." State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

         Franck asserts "a plea agreement purportedly had been offered by the State in which Franck would have been sentenced to a term of incarceration of 90 days with all but 7 of those days suspended with 1 year of unsupervised probation." She maintains her trial counsel never conveyed this offer to her. Franck asserts her trial counsel failed to "fully disclose plea negotiations with the State and to discuss the potential ramifications with Franck should they not successfully argue for a lesser sentence." Franck claims her counsel failed "to fully inform Franck that the Court has the authority to sentence Franck to the maximum sentences allowed by law." The record properly before us is devoid of any factual basis for these claims.[2] Franck also complains her attorney failed to insist "that the sentencing hearing be reported so that a full and fair recitation of the proceedings would be saved for purposes of appeal should they be unsuccessful in their arguments at the time of sentencing."

         Ordinarily we would preserve these claims for possible postconviction-relief proceedings to develop a proper record and also give trial counsel an opportunity to defend himself. But we can decide the matter on the prejudice prong. Though Franck argues her trial counsel breached an essential duty, she makes no claim that, but for her counsel's alleged errors, she would have insisted on going to trial rather than plead guilty. Instead, she affirmatively states had her attorney "performed differently, [she] would have accepted the plea agreement and been sentenced to a much less ...


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