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State v. Macke

Court of Appeals of Iowa

March 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
ERIN MACKE, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.

         Erin Macke appeals the judgement and sentence entered following her plea to four counts of child endangerment. AFFIRMED.

          Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

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

          DOYLE, Judge.

         Erin Macke appeals her convictions and sentences for four counts of child endangerment. She contends that the State breached the parties' plea agreement and her attorney was ineffective in failing to object to the breach. Macke also urges this court to adopt the plain-error doctrine. Because the record is insufficient to resolve Macke's ineffective-assistance-of-counsel claim on the merits, we affirm her convictions and preserve the issue of ineffective assistance of counsel for potential postconviction-relief proceedings.

         I. Background Facts and Proceedings.

         The State charged Macke with four counts of child endangerment, in violation of Iowa Code section 726.6(1)(a) (2017), and one count of transfer of a pistol or revolver to a person under twenty-one, first offense, in violation of Iowa Code section 724.22(2). Macke filed a "Petition to Plead Guilty (Alford)."[1] The petition states: "The plea agreement is Alford plea to Counts 1-4 of TI; joint Recommendation of Deferred Judgment and Probation. State will dismiss Ct 5." (Underlining in original). Macke and her attorney both signed the petition. Although the prosecutor did not sign the petition, nothing in the record shows the State objected to the petition's statement that the recommendation of deferred judgement would be joint.

         At the plea hearing, Macke's attorney described the plea agreement to the court as follows:

          [DEFENSE COUNSEL]: . . . Your Honor, a substantial [benefit] is being received by Ms. Macke in this case. That

substantial benefit being dismissal of . . . Count V, the gun charge, in this case, as well as the . . . joint recommendation of a deferred judgment to the charges.
THE COURT: And regarding the likelihood of conviction?
[DEFENSE COUNSEL]: Your Honor, in regards to the likelihood of conviction, and based on the information provided in the trial information, we believe that, if tried, there is a substantial risk of conviction, at least to the four counts of child endangerment, should a jury hear that case. In addition, Your Honor, as an option of not trying to take the children through this avenue, we have also decided to ask the Court to accept a guilty plea.
THE COURT: So that is one of the benefits as well as the dropping of the fifth count.
[DEFENSE COUNSEL]: Correct, Your Honor.
THE COURT: The Court has now reviewed the minutes of testimony, and I do find that it's substantially likely that if this matter went to trial before a jury that the defendant would be found guilty of the four counts of child endangerment. I accept the plea pursuant to North Carolina vs. Alford. . . . The discussion between your counsel and the State's attorney was regarding whether the Court would order a presentence investigation report. ...

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