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Nucaro v. State

Court of Appeals of Iowa

December 18, 2019

FRANK JOHN NUCARO, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

         Frank Nucaro appeals the denial of his application for postconviction relief. AFFIRMED.

          Nicholas Einwalter, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.

          BOWER, CHIEF JUDGE.

         Frank John Nucaro appeals the denial of his application for postconviction relief (PCR). He claims the postconviction court erred in finding his trial counsel did not provide ineffective assistance and his probation revocation hearing violated his procedural due process rights. We find Nucaro waived any notice requirement and he failed to establish ineffective assistance of counsel. We affirm.

         I. Background Facts & Proceedings

         On September 8, 2016, Nucaro pleaded guilty to seven criminal offenses arising from six separate criminal cases.[1] The court sentenced Nucaro to consecutive sentences for a total of eighteen years of incarceration, but the court suspended all the sentences and placed him on probation at a residential facility.

         Nucaro's probation officer filed a report of probation violation on December 13, stating Nucaro had left the residential facility program, failed to complete required programming, and failed to make payments on his court costs and fees. On December 30, Nucaro stipulated to violating his probation by absenting himself from the residential treatment program. The court ordered Nucaro to report to his probation officer by January 4, 2017, to reside at a residential facility as scheduled by the probation officer, and pay all case-related financial obligations. Nucaro states he tried to report to his probation officer on January 4 and 5 and called several times, but never connected with the officer.

         A second violation report was filed on February 9, 2017. This violation report specified Nucaro had not made any payments on his court-ordered fines and costs, a home visit by the probation officer on January 11 revealed Nucaro did not live at the address provided, and Nucaro failed to complete residential treatment or to enroll in a domestic abuse program.

         On April 4, Nucaro was charged with an additional criminal offense. The court addressed both the new charge and Nucaro's probation violation at a May 10 hearing. In its July 13, 2018 ruling, the postconviction court summarized the underlying proceedings as follows:

At that hearing, an agreement was reached that Nucaro would plead guilty to the [operating a motor vehicle without owner's consent (OMVOC)] charge, and that he would agree to have his probation revoked and be sentenced to a total of [ten] years ([two] felonies consecutive to each other, with the other charges concurrent). At the time this agreement was reached, the new OMVOC charge had not been made a part of the written report of violations filed by Nucaro's probation officer. Likewise, no written stipulation was executed specifying which terms of Nucaro's probation were agreed had been violated. During the hearing that ensued, the terms of the global resolution were dictated into the record by the prosecutor. When offered his right of allocution on all matters, Nucaro addressed the court as follows:
Well, Your Honor, I have to be honest because I'm a pastor, and I screwed up. I had [thirteen] years, nine months clean. I was a pastor for seven years. I went through a rough divorce, and my kids haven't spoken to me in a couple of years. ...

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