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State v. Powell

Court of Appeals of Iowa

August 15, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
ROBERT POWELL JR., Defendant-Appellant.

          Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter (plea & sentencing) and Michael J. Shubatt (motion to withdraw), Judges.

         Robert Powell Jr. appeals the judgments and sentences entered following his guilty plea.

          Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE

         Robert Powell Jr. appeals the judgments and sentences entered following his guilty plea, alleging his trial counsel was ineffective. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009) (noting that although a guilty plea waives all defenses that are not intrinsic to the plea, a defendant may "challenge the validity of his guilty plea by proving the advice he received from counsel in connection with the plea was not within the range of competence demanded of attorneys in criminal cases"). We review ineffective-assistance claims de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). To succeed on an ineffective-assistance claim, a defendant must show counsel failed to perform an essential duty and this failure resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Straw, 709 N.W.2d at 133.

         Powell was facing multiple charges in four criminal cases when he reached a plea agreement with the State.[1] Powell agreed to plead guilty to charges of domestic abuse assault impending air flow causing bodily injury and domestic abuse assault causing bodily injury as a second offender in case number FECR120371, child endangerment and domestic abuse assault as a second offender in case number AGCR120456, assault in case number SMCR120621, and a probation revocation. In exchange, the State agreed to dismiss a charge of domestic abuse assault causing bodily injury as a second offender in case number FECR120371 and a charge of second-degree harassment in case number SMCR120621. The State also agreed to recommend suspended sentences on the convictions in case numbers FECR120371 and AGCR120456, thirty days in jail on the assault conviction in case number SMCR120621, and one year at a residential treatment facility in relation to Powell's probation revocation. Central to this appeal, paragraph ten of the agreement states: "Should the Defendant receive any additional law violations before sentencing, these plea negotiations will be null and void."[2]

         The court accepted Powell's guilty plea and scheduled a sentencing hearing. However, before sentencing, Powell violated a no-contact order and the conditions of his pretrial release. The court found Powell to be in contempt and sentenced him to 120 days in jail.

         Prior to sentencing, Powell filed a pro se motion to withdraw his guilty plea, arguing he did not understand the terms of the plea agreement and his counsel coerced him to enter into it. The court appointed Powell new counsel. Following a hearing on the motion, the court entered an order stating: "Since the parties presented no evidence, the Court has no factual basis to support [Powell]'s request. Accordingly, the motion to withdraw plea is denied." Noting that Powell's motion appeared to attack the validity of his plea, the court also addressed it as a motion in arrest of judgment, but it found Powell failed to demonstrate that his plea was invalid and denied the motion.

         At sentencing, the prosecutor informed the court that the State was "exercising its right to ask that a recommendation be null and void" based on the contempt finding. The prosecutor recommended the court send Powell to prison and not to a residential treatment facility. The court declined and instead sentenced Powell to consecutive prison terms totaling eleven years, suspended the sentences, and ordered Powell to reside at a residential treatment facility for one year-just as the State had originally recommended in the plea agreement.

         On appeal, Powell alleges his replacement trial counsel was ineffective in failing to argue at the hearing on the motion to withdraw his plea that his violation of the no-contact order voided the plea agreement. He asks that we vacate his convictions, judgments, and sentences and remand the case to allow him to withdraw his plea to return him to the position he would have been in before entering his guilty plea.[3]

         Powell argues application of paragraph ten of the memorandum nullifies his agreement with the State, thus "alleviating both parties of their duties under the contract." (Emphasis ours). He points out the paragraph ten "null and void" language differed from the paragraph seven language, which provides: "The State is not bound to this agreement if the Defendant fails to appear for sentencing as ordered." Powell posits that "[i]f the parties intended that only the State was released from its obligations under the agreement if Powell incurred a law violation, the language of [paragraph ten] and [paragraph seven] would have been identical." At first blush, the argument is attractive and makes sense. But, as so often is the case in the law, words do not always mean what they appear to say.

         The parties have not provided us with any case law, nor has our own independent research dredged up any Iowa appellate case interpreting a "null and void" guilty plea agreement provision like the one at issue here. So, for the reasons that follow, we use ...


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