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State v. Howard Dunne

Court of Appeals of Iowa

January 10, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
ADRIAN MICHAEL HOWARD DUNNE, Defendant-Appellant.

         Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge.

         A defendant convicted of first-degree theft challenges the performance of his plea counsel.

          Anne K. Wilson of Anne K. Wilson Law Office, P.L.L.C., Hiawatha, for appellant.

          Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Tabor and Bower, JJ.

          TABOR, JUDGE.

         Adrian Dunne received a deferred judgment after pleading guilty to theft in the first degree. Then he violated the terms of his probation, resulting in the imposition of judgment and sentence. On appeal, he argues his attorney provided ineffective assistance by failing to file a motion in arrest of judgment to challenge both the factual basis for the guilty plea and the court's failure to inform him of the consequences should he fail to comply with the terms of the deferred judgment.[1]Finding no breach of duty, we affirm.

         I. Facts and Prior Proceedings

         In October 2015, Dunne entered an in-law's garage and stole a Polaris Razor all-terrain vehicle (ATV). He intended to sell the ATV for roughly $700, though it was worth more than $10, 000. As a result, Dunne was charged with first-degree theft, in violation of Iowa Code sections 714.1(1) and 714.2(1) (2015), and third-degree burglary, in violation of Iowa Code section 713.6A.

         Dunne eventually reached a bargain with the State in which he agreed to enter a guilty plea to first-degree theft in return for the State dismissing the burglary count and recommending a deferred judgment. At the plea hearing, the district court reviewed the elements of first-degree theft and verified the factual basis for each element.

         The court also explained once Dunne pleaded guilty he could be sentenced to the maximum penalty allowed, and Dunne said he understood. The court went on to explain that maximum penalties included ten years in prison and up to a $10, 000 fine, and Dunne said he understood. After reviewing this information, the court confirmed Dunne still wanted to plead guilty. The court accepted his guilty plea and informed Dunne any challenge to the plea must be advanced through a motion in arrest of judgment.

         At the February 29, 2016 sentencing, the court granted Dunne a deferred judgment. The court also imposed a five-year probationary term and ordered Dunne to pay a civil penalty and restitution and to reside in a residential facility for one year or until Dunne achieved maximum benefits. In May 2016, a probation officer filed a report of violation, alleging Dunne failed to return to the residential facility after attending an Alcoholic Anonymous meeting. As a result, the court entered judgment in November 2016 and sentenced Dunne to an indeterminate term of ten years in prison and a $1000 fine. Dunne now appeals.

         II. Scope and Standard of Review

         Generally, a defendant must challenge a defect in the guilty-plea proceeding through a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a). When counsel fails to file such a motion, a defendant may attack the plea on appeal through a claim of ineffective assistance. State v. Perkins, 875 N.W.2d 190, 192 (Iowa Ct. App. 2015). Because ineffective-assistance-of-counsel claims are rooted in the Sixth Amendment, we review them de novo. State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). We will resolve ineffective-assistance claims on direct appeal only when the record is sufficient to do so; if the record is lacking, we will preserve the claim for postconviction proceedings. See id. To prevail, Dunne must show by ...


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