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State v. Cherry

Court of Appeals of Iowa

May 1, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
DANA ROBERT CHERRY, Defendant-Appellant.

          Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.

         A defendant appeals his conviction for driving while barred. AFFIRMED.

          Nathan A. Olson of Branstad & Olson Law Office, Des Moines, for appellant.

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

          Considered by Vogel, C.J., and Mullins and Bower, JJ.

          BOWER, JUDGE.

         Dana Cherry appeals his conviction for driving while barred. He claims the district court erred in failing to rule on his motion in arrest of judgment prior to sentencing and his counsel was ineffective for failing to ensure the court addressed the motion prior to sentencing. Cherry also claims the district court abused its discretion by failing to consider the sentence he recommended outside the plea agreement. We find Cherry's motion in arrest of judgment was untimely, preserve the ineffective-assistance claim, and find the sentencing claim is moot. We affirm.

         I. Background Facts & Proceedings

         The afternoon of October 8, 2017, a law enforcement officer witnessed a broken windshield on a vehicle driven by Cherry. The officer initiated a traffic stop. During the stop, Cherry admitted he did not have a driver's license, and the officer discovered Cherry's license had been barred as a habitual offender the month before for a period of two years. Cherry was charged with driving while barred, an aggravated misdemeanor.

         On the date of his arraignment, November 17, Cherry did not appear, and the court issued a warrant for his arrest. Following an arrest in late January 2018, Cherry was arraigned on February 1. On March 29, Cherry entered a written plea of guilty pursuant to a plea agreement. Part of the agreement was a negotiated sentence of thirty days in jail, minimum fine and court costs, surcharge, and fees. As part of the written plea, Cherry waived his right to a plea colloquy with the court. In its order accepting his plea, also on March 29, the court set his sentencing for May 3, which was continued to May 4 at Cherry's request.

         On May 4, Cherry did not appear for sentencing. The court again issued a warrant for his arrest. He was arrested in Polk County on May 21. On June 1, the court ordered sentencing for June 8. The court also ordered the hearing to include a motion to withdraw filed by Cherry's attorney. Also on June 1, Cherry filed a motion in arrest of judgment, stating his plea was not entered intelligently and he did not have an understanding of the consequences of his guilty plea. At sentencing, the State acknowledged Cherry had spent the past eighteen days in jail and asked for the remainder of the sentence to be served immediately. Cherry requested he be permitted to serve the remaining twelve days on weekends to allow him to work during the week.

         The court denied Cherry's motion in arrest of judgment and motion for new counsel. The court entered judgment against Cherry for driving while barred. The court imposed the plea agreement's sentence of thirty days with credit for time already served. Cherry appeals

         II. Standard of Review

         "We review challenges to denials of motions in arrest of judgment for an abuse of discretion." State v. Petty, N.W.2d, (Iowa 2019). "We will only find an abuse of discretion if the trial court exercised its discretion on clearly untenable or unreasonable grounds." Id. Ineffective-assistance-of-counsel claims are reviewed de novo. State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). "We review sentencing decisions for an abuse of discretion when ...


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