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State v. Vandermark

Court of Appeals of Iowa

March 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
SHARON K. VANDERMARK, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, David N. May (plea), and Jeanie K. Vaudt (sentencing), Judges.

         Sharon Vandermark appeals after pleading guilty to possession of a controlled substance as a habitual offender.

          Agnes G. Warutere of Warutere Law Office, Clive, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

          Considered by Doyle, P.J., and Tabor and McDonald, JJ.

          DOYLE, PRESIDING JUDGE.

         Sharon Vandermark appeals after pleading guilty to possession of a controlled substance as a habitual offender. She challenges her guilty plea, arguing her trial counsel was ineffective in failing to seek the plea court judge's recusal. She also challenges the sentence imposed on her conviction, alleging it is grossly disproportionate.

         I. Guilty Plea.

         Vandermark's ineffective-assistance claim concerns the alleged appearance of a conflict of interest by the judge who accepted her guilty plea. At the commencement of the plea hearing, the plea judge indicated he and Vandermark had a mutual acquaintance, who was present in the courtroom. Neither the prosecutor nor defense counsel had any objection to proceeding forward with the plea hearing.[1] Vandermark's plea was accepted, a presentence investigation was ordered, and sentencing was set for a later date. Vandermark's acquaintance was also present at the scheduled sentencing hearing. At the commencement of that hearing, the plea judge took a recess to consult with counsel. After doing so, and out of an abundance of caution, the plea judge recused himself from the sentencing proceeding. Sentencing was continued and assigned to a different judge.

         Vandermark alleges the plea judge should have recused himself from the plea proceeding. Vandermark never challenged the alleged judicial conflict of interest below nor filed a motion in arrest of judgment, which normally precludes a defendant from asserting a challenge to a guilty plea on direct appeal. See Iowa R. Crim. P. 2.24(3)(a). However, Vandermark avoids this deficiency by instead raising her claim as one of ineffective assistance of counsel. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011) ("Ineffective-assistance claims are an exception to our normal rules of error preservation."). She contends that, because her trial counsel was aware of the potential conflict before Vandermark entered her guilty plea, her counsel was ineffective in failing to seek the judge's recusal from the plea proceeding. "Such claims are generally preserved for postconviction proceedings unless there is a satisfactory record upon which to draw a conclusion." Id.

         In order to succeed on her ineffective-assistance-of-counsel claim, Vandermark must show her counsel failed to perform an essential duty, which resulted in prejudice. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). To meet the prejudice showing, there must be a probability of a different result sufficient to undermine confidence in the outcome. See id. Because Vandermark pled guilty to the possession charge, she must prove a reasonable probability that, but for counsel's breach of duty, she would not have pled guilty but instead would have insisted on going to trial. See id.

         Vandermark makes no allegation that but for her counsel's alleged breach of duty, she would not have pled guilty and would have insisted on going to trial. She makes no suggestion that the results of the plea hearing would have been any different had either the plea judge refused to recuse himself, or recused himself and a different judge presided. She does not argue that the plea judge failed to comply with Iowa Rule of Criminal Procedure 2.8(2)(b) in taking the plea. She does not assert her plea was involuntary or unknowing in any way. She does not argue the plea lacked a factual basis. She makes no argument that the plea judge should not have accepted the plea. She makes no argument she was prejudiced in any way. In order to sidestep these shortcomings, Vandemark claims that counsel's failure to seek the judge's recusal constitutes a structural error, denying her of her right to a fair trial.

         Structural errors are errors that affect the framework within which a trial proceeds. See Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011). Structural errors obviate the need to show prejudice. Id. Our supreme court has recognized that structural error occurs when:

(1) counsel is completely denied, actually or constructively, at a crucial stage of the proceeding; (2) where counsel does not place the prosecution's case against meaningful adversarial testing; or (3) where surrounding circumstances justify a presumption of ineffectiveness, such as where counsel has ...

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