from the Iowa District Court for Lee (South) County, Mary Ann
defendant convicted of first-degree theft challenges the
performance of his plea counsel.
K. Wilson of Anne K. Wilson Law Office, P.L.L.C., Hiawatha,
J. Miller, Attorney General, and Kelli A. Huser, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Tabor and Bower, JJ.
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.Finding no breach of duty, we affirm.
Facts and Prior Proceedings
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.
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.
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.
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.
Scope and Standard of Review
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