State Of Iowa Vs. Terry Leland Berg, Jr. ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 07–2043
Filed December 11, 2009
STATE OF IOWA,
Appellee,
vs.
TERRY LELAND BERG, JR.,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Woodbury County, John D.
Ackerman, Judge.
Defendant appeals from his conviction and sentences for the
offenses of (1) possession of a precursor substance, (2) manufacturing a
controlled substance, and (3) conspiracy to manufacture a controlled
substance. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J.
Japuntich, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Patrick Jennings, County Attorney, and James D.
Loomis, Assistant County Attorney, for appellee.
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PER CURIAM.
Terry Berg, Jr. entered guilty pleas to the offenses of possession of
a precursor substance, manufacturing a controlled substance, and
conspiracy to manufacture a controlled substance in violation of Iowa
Code sections 124.401(1)(c)(6) and 124.401(4)(b) (2005). Berg now
appeals, claiming his counsel rendered ineffective assistance by
erroneously advising him the court had no discretion in imposing a one-
third mandatory minimum sentence and by failing to file a motion in
arrest of judgment. Berg contends that, had he been properly informed
of the court’s discretion, he would not have waived his trial rights and
pled guilty. The court of appeals rejected Berg’s claim, finding Berg failed
to prove the required prejudice. Upon our review, we vacate the decision
of the court of appeals and preserve Berg’s ineffective-assistance-of-
counsel claim for postconviction relief proceedings.
I. Facts and Prior Proceedings.
On April 18, 2007, the defendant was charged with five controlled
substance offenses. On October 9, 2007, Berg entered into a plea
agreement with the State wherein he agreed to plead guilty to Count I,
possession of a precursor substance, a class “D” felony; Count II,
manufacturing a controlled substance, methamphetamine, a class “C”
felony; and Count IV, conspiracy to manufacture a controlled substance,
methamphetamine, a class “C” felony. Counts II and IV were violations
of Iowa Code section 124.401(1)(c)(6). Per the agreement, the defendant
would receive five years on Count I, ten years on Count II, and ten years
on Count IV, with all of the sentences to run concurrently and with the
imposition of a one-third mandatory minimum sentence with regard to
Counts II and IV, pursuant to Iowa Code section 124.413.
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On November 1, 2007, Berg was sentenced in accordance with the
terms of the plea agreement, and the court dismissed the remaining
counts. No motion in arrest of judgment was filed. On November 9,
2007, the defendant filed a notice of appeal.
Shortly thereafter, the district court began receiving written
correspondence from Berg and his family questioning the validity of the
defendant’s sentence and requesting reconsideration. A hearing was
held on April 8, 2008. At the hearing, the defendant asserted his counsel
erroneously advised him regarding the district court’s ability to waive the
mandatory minimum requirement of Iowa Code section 124.413. See
Iowa Code §§ 124.413 (requiring person sentenced under section
124.401(1)(c) to serve a minimum period of confinement of one-third of
the maximum indeterminate sentence prescribed by law); 901.10(1)
(providing for the court’s discretion in the imposition of a mandatory
minimum sentence for a person’s first conviction under section 124.413
if mitigating circumstances exist). Counsel contended he mistakenly
advised Berg that Berg’s prior South Dakota conviction for possession of
anhydrous ammonia would preclude the court’s ability to waive the
mandatory minimum in whole or in part. Berg asserted he would not
have signed the plea agreement as written if he had known the court had
discretion to waive the mandatory minimum.
The district court denied the defendant’s request to find the plea
was defective, concluding the time for filing a motion in arrest of
judgment had passed. This issue, the court held, must be resolved on
appeal or in a postconviction relief action. However, under section
902.4, the court determined it had the authority to reconsider and
modify the defendant’s sentence. Nevertheless, the court concluded that
under the terms of the plea agreement it was not required to make any
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findings as to the existence of mitigating factors that would justify a
waiver of any portion of the defendant’s sentence. Moreover, in the
absence of any proof of mitigating circumstances, the serious nature of
the charges, and the benefits the defendant received in the plea
agreement, the court found the sentence imposed to be appropriate.
Therefore, the court denied the defendant’s request for reconsideration.
Berg’s appeal was transferred to the court of appeals where the
court rejected his claim of ineffective assistance of counsel, concluding
Berg failed to prove there was a reasonable probability that, but for
counsel’s error, he would not have pleaded guilty and would have
insisted on going to trial. We now grant further review, vacate the
decision of the court of appeals, and preserve the defendant’s claim for
postconviction relief.
II. Scope and Standards of Review.
In order to challenge a plea of guilty, it is incumbent upon the
defendant to file a motion in arrest of judgment. Iowa R. Crim. P.
2.24(3). “However, this failure does not bar a challenge to a guilty plea if
the failure to file a motion in arrest of judgment resulted from ineffective
assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
Although ineffective-assistance-of-counsel claims are generally preserved
for postconviction relief actions, we will consider the claim on its merits
on direct appeal when an adequate record exists. State v. Bearse, 748
N.W.2d 211, 214 (Iowa 2008).
To succeed on an ineffective-assistance-of-counsel claim, the
defendant must show (1) his counsel failed to perform an essential duty,
and (2) the defendant was prejudiced by counsel’s error. Straw, 709
N.W.2d at 133. The first prong of the test requires counsel’s performance
to be measured “ ‘against the standard of a reasonably competent
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practitioner with the presumption that the attorney performed his duties
in a competent manner.’ ” State v. Dalton, 674 N.W.2d 111, 119 (Iowa
2004) (quoting State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003)). “[I]n
order to satisfy the ‘prejudice’ requirement, the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203,
210 (1985); accord Straw, 709 N.W.2d at 138. When an ineffective-
assistance-of-counsel claim is raised on direct appeal, we must decide
whether either or both elements are established or negated as a matter of
law. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).
III. Merits.
Berg contends his guilty plea was not knowing and voluntary
because his attorney provided him with inaccurate advice. See Straw,
709 N.W.2d at 133 (noting due process requires a defendant’s guilty plea
be voluntarily and intelligently entered). This court has previously
stated:
“A guilty plea must represent the informed, self-determined
choice of the defendant among practicable alternatives; a
guilty plea cannot be a conscious, informed choice if the
accused relies upon counsel who performs ineffectively in
advising him regarding the consequences of entering a guilty
plea and of the feasible options.”
Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983) (quoting Hawkman v.
Parratt, 661 F.2d 1161, 1170 (8th Cir. 1981)).
Iowa Code section 124.413 provides in pertinent part:
A person sentenced pursuant to section 124.401,
subsection 1, paragraph . . . “c” . . . shall not be eligible for
parole until the person has served a minimum period of
confinement of one-third of the maximum indeterminate
sentence prescribed by law.
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In certain situations, however, this mandatory provision is subject
to tempering. In pertinent part, Iowa Code section 901.10 provides:
A court sentencing a person for the person’s first conviction
under section . . . 124.413 . . . may, at its discretion,
sentence the person to a term less than provided by the
statute if mitigating circumstances exist and those
circumstances are stated specifically in the record.
In this case, it is undisputed the defendant’s attorney advised
Berg, prior to his entering into a plea agreement, that his previous South
Dakota conviction precluded the district court from exercising its
discretion in determining whether to impose the mandatory one-third
minimum sentence on Berg’s section 124.401(1)(c) convictions. This
advice was wrong. See State v. Neary, 470 N.W.2d 27, 29 (Iowa 1991)
(holding express terms of section 901.10 do not include prior out-of-state
convictions). Moreover, it evinces a breach of counsel’s duty to perform
competently as a matter of law. See Meier, 337 N.W.2d at 206–07
(holding counsel’s legal bad advice regarding applicable mandatory
sentencing breached the range of normal competency); see also State v.
Kress, 636 N.W.2d 12, 22 (Iowa 2001) (holding defense counsel’s failure
to correct court’s misinformation concerning defendant’s potential
sentence exposure, or to file motion in arrest of judgment raising the
issue, placed counsel below range of normal competency). Thus, the
defendant has met the first prong in establishing his counsel was
ineffective as a matter of law.
Nevertheless, even though defense counsel failed to perform an
essential duty, on this record Berg has not established as a matter of law
that he was prejudiced by his counsel’s failure. As we have repeatedly
held,
a defendant who relies on an ineffective-assistance-of-
counsel claim to challenge the adequacy of a guilty plea has
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the burden to prove “there is a reasonable probability that,
but for counsel’s errors, he or she would not have pleaded
guilty and would have insisted on going to trial.”
Bearse, 748 N.W.2d at 219 (quoting Straw, 709 N.W.2d at 138).
Here, Berg did state at the reconsideration hearing that had he
been aware the one-third mandatory minimum could be waived he would
not have entered into the plea agreement. However, no further inquiry
was made regarding what evidence, if any, Berg had that would support
his claim that he would have refused the offered plea agreement and
insisted on going to trial. We noted in Straw that “most claims of
ineffective assistance of counsel in the context of a guilty plea will require
a record more substantial” than the record available on direct appeal.
709 N.W.2d at 138. In the absence of an adequate record in that case,
we concluded the claim had to be preserved for postconviction relief
proceedings. Id. The same conclusion is warranted here. Because Berg
has raised no additional claims, we affirm the district court judgment
and preserve Berg’s ineffective-assistance-of-counsel claim for
postconviction relief proceedings.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
This opinion shall not be published.