from the Iowa District Court for Dallas County, Randy V.
defendant appeals his conviction for driving while barred.
A. Olson of Branstad & Olson Law Office, Des Moines, for
J. Miller, Attorney General, and Zachary Miller, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., and Mullins and Bower, JJ.
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.
Background Facts & Proceedings
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
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.
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.
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
Standard of Review
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 ...