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State v. Hoffman

Court of Appeals of Iowa

October 10, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
NANCY KAY ELIZABETH HOFFMAN, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.

         A woman appeals her conviction and sentence for operating while under the influence, second offense, following her guilty plea and the revocation of her probation and deferred judgment.

          Micki M. Meier of Meier Law Firm, Davenport, for appellant.

          Thomas J. Miller, Attorney General, and Kevin Cmelik and Thomas E. Bakke, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          DANILSON, CHIEF JUDGE.

         Nancy Hoffman appeals her conviction and sentence following her guilty plea to operating while under the influence, second offense (OWI 2nd offense). Her appeal was consolidated with her appeal of the revocation of her probation and deferred judgment from a prior conviction. Hoffman asserts the court erred in accepting her guilty plea, in sentencing her, and in finding a probation violation had occurred. Hoffman also asserts her trial counsel was ineffective in allowing her to plead guilty to OWI 2nd offense without a factual basis and because her plea was not given knowingly, voluntarily, or intelligently.

         Because there was a factual basis for Hoffman's guilty plea to OWI 2nd offense, counsel was not ineffective in that regard. Because Hoffman stipulated she violated the terms of probation, the court did not err in revoking her probation and deferred judgment. We affirm Hoffman's conviction, revocation, and sentences. Because the record is inadequate to address Hoffman's other ineffective-assistance-of-counsel claims, we preserve those claims for potential postconviction-relief proceedings.

         I. Background Facts and Proceedings

         In May 2016, Hoffman was charged with several felonies related to the distribution of marijuana. Pursuant to a plea agreement, Hoffman pled guilty to conspiracy to commit a non-forcible felony, received a deferred judgment, and was placed on probation on October 7, 2016.

         Twenty-two days later, Hoffman was arrested for suspected OWI after she was involved in a car accident. A passenger in the car told officers Hoffman had been the driver of the vehicle, and witnesses reported the driver of the vehicle fled on foot after the accident. Officers found Hoffman in a nearby park-lying facedown on the ground in some bushes. Hoffman was taken to the jail and agreed to perform standard field sobriety tests. She failed all of them. She submitted a breath sample and it revealed her blood alcohol concentration was .135. Throughout her interaction with police, Hoffman denied being the driver of the car. The State charged Hoffman with OWI 2nd offense on December 6, 2016.

         Hoffman's probation officer reported Hoffman was arrested on January 12, 2017, for driving while revoked. The State filed an application to revoke Hoffman's probation on January 13, 2017. Hoffman's probation officer filed an addendum to the original probation-violation report on August 28, 2017, and reported Hoffman was arrested in April 2017 for driving while revoked and having no registration. The probation officer also reported Hoffman was ticketed for driving while barred in May and she tested positive for drug use in June and August.

         On September 7, 2017, Hoffman and the State signed a plea agreement in the OWI, second offense, case. Hoffman was represented by attorney Rebecca Ruggero. According to the agreement memorandum, Hoffman agreed to plead guilty, and the State would recommend her sentence be served concurrently with the disposition or sentence in her conspiracy case. On the same day, the court accepted Hoffman's written guilty plea. Paragraph two of the guilty plea form reads, "By pleading guilty, I am asking the court to accept my guilty plea. I am admitting there is a factual basis for the charge(s), and I admit at the time and place charged in the Trial Information I [blank lines]." Handwritten above paragraph two is, "I agree that a jury could likely find me guilty." Handwritten and crossed out in the space provided below paragraph two is the word "operated," then the following is written: "operating a motor vehicle while under the influence and that I was convicted of[.]" Paragraph 3 of the form reads, "Additionally, I accept the minutes of testimony as substantially true as to the elements of these charges with the exclusion of the following statements: [blank lines]." Handwritten in the space provided below paragraph 3 is, "OWI in 2009" and "Don't recall what happened in Illinois."[1]

         Paragraph 10 of the guilty plea form reads: "If I claim there are any irregularities or errors in these plea proceedings, I must file a motion in arrest of judgment . . . . [f]ailure to do so will preclude my right to assert any defects in this plea in any appeal." The form also reads near the bottom:

No one has made any promises or inducements to make me plead guilty, nor has anyone threatened me to cause me to plead guilty. My decision to plead guilty is voluntary and intelligently made. I am not under the influence of any drug, medication or alcohol that would hurt my ability to make decisions.

         Three paragraphs near the end of the form are marked with an "X"-one waiving Hoffman's right to be personally present and participate in an in-court plea colloquy and her right to have a verbatim record of the guilty plea proceedings, and one waiving her right to be present and address the court at sentencing and her right to verbatim record of sentencing. The final marked paragraph states:

I am waiving my right to file a motion in arrest of judgment as described in #10 above, my right to wait [fifteen] days for my sentencing and I wish to be sentenced today. I know of no legal cause why judgment should not be entered and there are no pending motions.

         Hoffman signed the guilty plea form. The court accepted the guilty plea, but set sentencing for September 21, 2017, to correspond with the ...


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