Thomas Duane Morris v. State of Iowa ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0182
Filed April 17, 2019
THOMAS DUANE MORRIS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Henry County, Mark Kruse, Judge.
An applicant convicted of second-degree theft appeals the denial of his
application for postconviction relief. AFFIRMED.
Jeffrey L. Powell of Powell and McCullough, PLC, Coralville, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee State.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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TABOR, Judge.
The Henry County Attorney charged Thomas Morris with stealing three
cars, burglarizing two other cars, and taking a navigation system during the
summer of 2014. After his public defender negotiated a plea agreement, Morris
pleaded guilty to one count of theft in the second degree. Represented by retained
counsel at sentencing, Morris received an indeterminate five-year suspended
prison term. He did not file a direct appeal. But after the district court revoked his
probation in 2015, Morris filed an application for postconviction relief (PCR),
challenging counsel’s performance. The district court denied relief. Morris appeals
that denial, alleging he was prejudiced by “two separate attorneys’ failure to follow
his wishes regarding withdrawal of his guilty plea.”
Because Morris fails to meet his burden to show a breach of duty by his
attorneys in the guilty-plea process, we affirm the PCR denial.
I. Facts and Prior Proceedings
At his plea hearing in November 2014, Morris admitted taking possession
of a 2000 Ford Contour, valued at more than $1000 but not more than $10,000,
with the intent to permanently deprive the owner of that vehicle. His plea to one
count of second-degree theft was part of a comprehensive bargain. In exchange
for his guilty plea, the parties agreed to a five-year prison sentence and the
dismissal of two additional second-degree theft counts, one fourth-degree theft
count, and two counts of third-degree burglary. The State also agreed to dismiss
an unrelated felony drug charge.
Before sentencing, Morris retained attorney Frank Santiago, and his public
defender, Djalal Arbabha, withdrew. Notwithstanding terms of the plea agreement,
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at the January 2015 hearing, attorney Santiago urged the district court to grant
Morris a suspended sentence. The court asked if Morris understood the
“ramifications” of not abiding by the plea deal. The defense confirmed the State
would go forward with prosecuting the felony drug charge but would still dismiss
the remaining counts. The district court imposed a prison term not to exceed five
years, suspended the sentence, and placed Morris on probation for five years.
Morris did not appeal the conviction or sentence.
In June 2015, Morris’s probation officer filed a report alleging several
violations, including possession of contraband and commission of theft. Based on
that report, the district court revoked Morris’s probation and imposed the previously
suspended five-year sentence.
In February 2016, Morris filed a PCR application, which alleged counsel
was ineffective for failing to file a motion in arrest of judgment challenging the
factual basis for Morris’s guilty plea to second-degree theft. During the district
court’s hearing on the application, Morris testified by deposition, and both attorney
Arbabha and attorney Santiago testified in person. Morris alleged he didn’t fully
understand the elements of the theft charge. Morris testified before he hired
attorney Santiago, he asked attorney Arbabha to move to withdraw the guilty plea.
Morris maintained Arbabha said he would draft a motion but failed to follow
through. Attorney Arbabha testified if Morris had insisted on filing a motion in arrest
of judgment to challenge the guilty plea, he would have done so. Attorney Santiago
likewise testified Morris did not express an interest in filing a motion in arrest of
judgment before sentencing.
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In rejecting the PCR application, the district court found Morris’s testimony
to be unbelievable. The court concluded Morris’s claim “two lawyers simply
ignored a request to file the motion or otherwise [was] unsupported by sufficient
evidence.” Morris now appeals the denial of his PCR application.
II. Scope and Standards of Review
We generally review PCR proceedings for correction of legal error.
Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). But when the application
alleges ineffective assistance of counsel, we review the issues de novo. Allison v.
State, 914 N.W.2d 866, 870 (Iowa 2018). We give weight to the district court’s
witness credibility findings. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
III. Analysis
As the PCR applicant, Morris must show, by a preponderance of the
evidence, trial counsel breached an essential duty and prejudice resulted. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Lamasters, 821 N.W.2d at
866. We will affirm the PCR denial if either prong is unsatisfied. Anfinson v. State,
758 N.W.2d 496, 499 (Iowa 2008).
On appeal, Morris claims his trial attorneys were ineffective in not filing a
motion in arrest of judgment attacking his guilty plea. He alleges: “Had either
attorney for Morris filed a motion in arrest of judgment, the Court could have set
aside [his] guilty plea and allowed him to proceed to trial as Morris intended.”
The rules of criminal procedure explain the role of motions in arrest of
judgment. Such motions allow a defendant to apply for a ruling that no judgment
be rendered on his or her plea of guilty. Iowa R. Crim. P. 2.24(3)(a). The court
must grant the motion “when upon the whole record no legal judgment can be
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pronounced.” Id. If a defendant fails to challenge the adequacy of a guilty-plea
proceeding by motion in arrest of judgment, he or she cannot assert such a
challenge on appeal. Id. But a defendant’s failure to file a motion in arrest of
judgment will not bar a challenge on appeal if the neglect resulted from ineffective
assistance of counsel. State v. Bearse, 748 N.W.2d 211, 218 (Iowa 2008).
What’s missing from Morris’s appellate argument is any mention of a
deficiency in the guilty-plea hearing that would have justified either attorney in filing
a motion in arrest of judgment. See State v. Barbee, 370 N.W.2d 603, 605 (Iowa
Ct. App. 1985) (explaining motion in arrest of judgment “must point out wherein the
deficiency exists”). By not pointing to any inadequacy in the guilty-plea
proceeding, Morris fails to prove a breach of duty by his trial counsel.
Even if Morris could identify a deficiency in the plea proceeding, the record
does not support his claim he expressed his wish to withdraw his guilty plea to
either of his trial attorneys. We defer to the district court’s specific credibility finding
on that question. See Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984). Because
Morris cannot show counsel’s performance fell below an objective standard of
reasonable competence, we affirm the PCR denial.
AFFIRMED.