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State v. Kudron

Court of Appeals of Iowa

June 6, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
DAN JOSEPH KUDRON, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.

         Dan Kudron appeals his judgment and sentence for conspiracy to deliver a controlled substance and failure to possess a tax stamp.

          Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

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

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         Dan Kudron entered an Alford plea[1] to conspiracy to deliver a controlled substance and failure to possess a tax stamp. See Iowa Code §§ 124.401(1)(c)(6), 453B.3, 453B.12 (2016). The district court adjudged Kudron guilty and imposed sentence. The sentence included a D.A.R.E. surcharge for "each applicable offense."

         I. Kudron contends the court was not authorized to impose the surcharge on the drug tax stamp violation. The State agrees "the defendant's drug tax stamp conviction is not a qualifying offense for the district court to impose the [D.A.R.E surcharge]" but argues Kudron failed to show he received the surcharge "for his drug tax stamp conviction."

         Iowa Code section 911.2 authorizes imposition of the D.A.R.E. surcharge for offenses "provided in chapter 321J or chapter 124." The conspiracy conviction fell under chapter 124, but the drug tax stamp conviction fell under chapter 453B.3. The assertion that the D.A.R.E. surcharge is unauthorized for a drug tax stamp violation is well taken. See Iowa R. Crim. P. 2.24(5)(a) ("The court may correct an illegal sentence at any time.").

         Although the district court applied the surcharge to "each applicable charge, " which might indicate the surcharge was not applied to the drug tax stamp conviction, the prosecutor stated the surcharge would apply to that conviction. Assuming without deciding the surcharge was applied to both offenses, we affirm the imposition of the D.A.R.E. surcharge on the conspiracy count but vacate the surcharge on the tax stamp count and remand for resentencing.

         II. In a pro se brief, Kudron argues (A) the State "never provided any substantive evidence that conceivably proved that [he] ever even committed a crime in the first place, " and "Counsel failed to perform [an] essential duty" in failing to file a motion to dismiss based on "the absolute and utter lack of any evidence against" him; (B) the court "refused to hold a hearing [on his motion to withdraw counsel], therefore forcing [him] into a false Alford plea"; (C) he informed the court he had a claim in the Iowa Supreme Court that would have directly affected his district court case, yet the court still took the plea in violation of his Sixth Amendment rights; (D) he "was severely and brutally assaulted by a federal holdover and had threats to his safety and life, " which the State exploited to coerce a plea; (E) "the State failed to maintain dominion over the evidence of this case, " and in particular, "carelessly handled" a firearm; and (F) counsel "[d]id not clearly nor accurately inform [him] of weakness of [the State's] case."

         A. "It is well established that a defendant's guilty plea waives all defenses and objections which are not intrinsic to the plea." State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). This principle is subject to a significant asterisk. Recently, the Iowa Supreme Court held, "[C]onvicted defendants can attack their pleas when claiming actual innocence even if the attack is extrinsic to the pleas." Schmidt v. State, 909 N.W.2d 778, 789 (Iowa 2018). The court later reiterated, "[F]reestanding claims of actual innocence permitted by the Iowa Constitution are available to applicants even though they pled guilty." Id. at 795. The court "overrule[d] our cases that do not allow defendants to attack their pleas based on extrinsic grounds when they claim actual innocence." Id. at 790. Although the vehicle for raising the claim in Schmidt was a postconviction relief action, the court stated this was not the only vehicle available to a defendant. Id. at 798 ("We emphasize sections 822(1)(a) and (d) are not the exclusive vehicles to bring freestanding actual-innocence claims because applicants may file such claims independently of chapter 822."). The court did not "decide or specify other vehicles applicants may use to bring their freestanding actual-innocence claims as independent actions." Id.

         Kudron's first claim-asserting an absence of evidence he committed the crime-could be construed as a freestanding claim of actual innocence. If it is that, Schmidt affords Kudron the opportunity to raise the claim in a separate action.[2] At this stage, we simply have a bare allegation unsupported by evidence or affidavits. Without more, and assuming without deciding a defendant may utilize the vehicle of a direct appeal from a guilty plea to raise a claim of actual innocence, we decline to address the claim on the merits.

         Kudron's assertion that counsel should have filed a motion to dismiss essentially raises the same claim under an ineffective-assistance-of-counsel rubric. The record is inadequate to address this claim. ...


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