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State v. Freitag

Court of Appeals of Iowa

April 4, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
NICHOLAS DEAN FREITAG, Defendant-Appellant.

          Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman Salic, District Associate Judge.

         Nicholas Freitag appeals his convictions following his guilty pleas to possession of firearm or offensive weapon by a felon and domestic abuse assault.

          F. David Eastman of Eastman Law Office, Clear Lake, for appellant.

          Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, JUDGE.

         Nicholas Freitag appeals his convictions following his guilty pleas to possession of a firearm or offensive weapon by a felon and domestic abuse assault. He claims his trial counsel rendered ineffective assistance for (1) pressuring him to withdraw a motion in arrest of judgment, (2) failing to inform the trial court the plea colloquy was insufficient, specifically concerning the requirement to complete batterer's education, and (3) not challenging the State's alleged failure to abide by its obligations under the plea agreement.

         I. Background Facts and Prior Proceedings

         On or about February 28, 2017, Freitag was in a physical altercation with his girlfriend, A.A., during which he picked up a firearm, pointed it at her, and physically assaulted her. On March 10, Freitag was charged by trial information with being a felon in possession of a firearm or offensive weapon as a habitual offender (count one), domestic abuse assault while displaying a dangerous weapon (count two), and domestic abuse assault impeding breathing or circulation of blood causing bodily injury as a habitual offender (count three).

         On April 12, Freitag filed a written plea of guilty that recited the plea agreement. In exchange for Freitag's guilty plea, the State agreed to amend count one to dismiss the habitual-offender allegation, reduce count two to a simple misdemeanor, and dismiss count three. The State further agreed it would concur with the presentence investigation report's recommendations for count one, and for count two would recommend two days of jail time, to run concurrently with any sentence of incarceration imposed on count one. Freitag agreed he would be required to complete the domestic-abuse program and pay associated court costs, fees, and restitution. There is no mention of the no-contact order between Freitag and A.A. in the guilty plea. The written guilty plea recited Freitag understood the State's recommendation would not be binding on the court, the court could sentence him up to the maximum allowed by law, and the court would not accept his plea unless it was satisfied he was guilty and had sufficient knowledge of his rights.

         The court held a hearing the same day, conducted a guilty plea colloquy, and accepted Freitag's plea of guilty. At the plea hearing, the court stated the following regarding the terms of the plea agreement:

THE COURT: It appears there's a plea agreement in which the habitual felony offender enhancement for this offence would be omitted and that the state will make a recommendation consistent with that made by the presentence investigator. Also, that you pay court costs and fees and surcharges. Also, that Count II, the Domestic Abuse Assault charge, would be amended to a simple misdemeanor with a recommendation of two days in jail concurrent with Count I; no fine but the hundred dollar domestic abuse assault surcharge; completion of the Iowa Domestic Abuse Program; court costs, restitution and fees; and that Count III be dismissed. Is that your understanding of the plea agreement?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that's not binding on the Court and the Court could impose any sentence up to the maximum ...

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