State of Iowa v. Kenneth Wayne Baysdon ( 2021 )


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  •                          IN THE COURT OF APPEALS OF IOWA
    No. 19-2145
    Filed November 3, 2021
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    KENNETH WAYNE BAYSDON,
    Defendant-Appellant.
    ______________________________________________________________________
    Appeal from the Iowa District Court for Plymouth County, Tod Deck, Judge.
    Defendant appeals his conviction for assault with intent to commit sexual abuse.
    APPEAL DISMISSED.
    Judy L. Freking of July L. Freking, P.C., Le Mars, for appellant.
    Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
    General, for appellee.
    Considered by Tabor, P.J., Greer, J., and Carr, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2021).
    2
    CARR, Senior Judge.
    Kenneth Baysdon appeals his conviction for assault with intent to commit sexual
    abuse. Baysdon did not file a motion in arrest of judgment and has not presented
    evidence that he fits within an exception to the requirement to file such a motion prior to
    challenging his guilty plea. We dismiss his appeal.
    On July 3, 2019, Baysdon was charged with sexual abuse in the third degree, a
    class “C” felony. On September 26, he signed a written guilty plea to assault with intent
    to commit sexual abuse, in violation of Iowa Code section 709.11(3) (2019), an
    aggravated misdemeanor. In the written plea, Baysdon agreed to:
    Incarceration for a period of two (2) years in prison, with credit for
    time previously served. Pursuant to Code of Iowa § 903B.2, the defendant
    will be subject to an additional special sentence of ten (10) years to be
    served as if on parole following the completion of the two (2) year sentence
    above.
    The court accepted Baysdon’s guilty plea, finding the plea was made voluntarily
    and intelligently. The court sentenced Baysdon to a term of imprisonment not to exceed
    two years, suspended, and placed him on probation. Baysdon was additionally given a
    special sentence under section 903B.2 for a period of ten years. Baysdon now appeals.
    Baysdon claims the written plea agreement did not adequately inform him of the
    special sentence. He states his plea was not voluntary because the written plea did not
    comply with Iowa Rule of Criminal Procedure 2.8(2)(b), as it misstated the maximum
    penalty by failing to inform him of the ten-year special sentence. He also claims the court
    should have no discretion under the rule to waive an in-court colloquy regarding special
    sentences.
    3
    Iowa Rule of Criminal Procedure 2.24(3)(a) provides, “A defendant’s failure to
    challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall
    preclude the defendant’s right to assert such challenge on appeal.” Baysdon did not file
    a motion in arrest of judgment, which precludes his ability to challenge the guilty plea
    proceedings.
    There is an exception when a defendant is not adequately advised of the
    consequences of failing to file a motion in arrest of judgment. State v. Treptow, 
    960 N.W.2d 98
    , 109 (Iowa 2021). The written plea informs Baysdon he was required to file a
    motion in arrest of judgment in order to contest the guilty plea. The plea states, “By having
    sentence imposed today [thereby waiving his right to file a motion in arrest of judgment],
    I will never be able to challenge this plea of guilty, and I will be giving up my right to directly
    appeal my guilty plea. I waive this right.” We conclude Baysdon “was adequately advised
    of the necessity of filing in a motion in arrest of judgment to challenge his guilty plea and
    the consequences of failing to do so.” See 
    id.
     at 109–10. Baysdon was advised of his
    right to file a motion in arrest of judgment and the failure to file a motion would preclude
    his ability to challenge his guilty plea on appeal. He waived the right to file a motion in
    arrest of judgment and requested immediate sentencing.
    There is also an exception to the requirement to file a motion in arrest of judgment
    when the failure to file the motion is due to ineffective assistance of counsel. 
    Id. at 109
    .
    Baysdon makes a passing reference to ineffective assistance of counsel but does not
    present an argument on this issue in his brief on appeal. His failure to make an argument
    4
    on this issue waives the issue.1 See Iowa R. App. P. 6.903(2)(g)(3); State v. Taylor, No.
    20-1062, 
    2021 WL 3894185
    , at *1 n.3 (Iowa Ct. App. Sept. 1, 2021) (noting the random
    mention of an issue is not sufficient to raise the issue on appeal).
    Baysdon additionally claims that because his guilty plea was not knowing and
    voluntary, the resulting sentence is illegal, and he is not required to file a motion in arrest
    of judgment. He points out that an illegal sentence can be challenged at any time. See
    Iowa R. Crim. P. 2.24(5)(a); Sahinovic v. State, 
    940 N.W.2d 357
    , 360 (Iowa 2020). An
    illegal sentence is “one not authorized by statute.” Tindell v. State, 
    629 N.W.2d 357
    , 359
    (Iowa 2001). There is a distinction between an illegal sentence and a sentence illegally
    imposed. 
    Id.
     Only illegal sentences may be challenged at any time. 
    Id.
     Baysdon does
    not claim there was no statutory authority for his sentence; he claims his sentence was
    illegally imposed, as a consequence of a claimed invalid guilty plea. Therefore, his
    challenge is not one that may be raised at any time.
    We determine Baysdon’s claims challenging his guilty plea may not be considered
    because he has not filed a motion in arrest of judgment and has not presented evidence
    that he fits within an exception to the requirement to file such a motion prior to challenging
    his guilty plea. We must dismiss his appeal for want of authority to consider it.
    APPEAL DISMISSED.
    1 We also note Iowa Code section 814.7 (Supp. 2019) provides that an ineffective-
    assistance claim “shall not be decided on direct appeal from the criminal proceedings.”
    These claims may only be considered in postconviction-relief proceedings. 
    Iowa Code § 814.7
    ; State v. Tucker, 
    959 N.W.2d 140
    , 151 (Iowa 2021).
    

Document Info

Docket Number: 19-2145

Filed Date: 11/3/2021

Precedential Status: Precedential

Modified Date: 11/3/2021