State of Iowa v. Matthew A. McCanna ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1210
Filed August 1, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MATTHEW A. McCANNA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Steven P. Van Marel,
District Associate Judge.
Matthew McCanna appeals his judgment and sentence following his guilty
plea to absence from custody. AFFIRMED.
Shawn Smith of The Smith Law Firm, PC, Ames, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
Matthew McCanna signed out of a residential work release center and did
not return at the appointed time. The State charged him with absence from
custody, a serious misdemeanor. See Iowa Code § 719.4(3) (2017). McCanna
pled guilty to the crime, and the State agreed to recommend ninety days in jail with
credit for time served and a $315.00 fine plus costs and applicable surcharges.
The sentence was to be served consecutively to “all other cases.” The written plea
agreement stated, “I understand that the court may sentence me up to the
maximum provided by the law.”
The district court accepted the plea. The court sentenced McCanna to a jail
term not exceeding one year, with credit for time served. The court also imposed
the fine and surcharge.
On appeal, McCanna contends his plea attorney was ineffective “in failing
to file a motion in arrest of judgment where the district court did not allow [him] to
withdraw his plea when the court did not follow the plea agreement.” We assume
without deciding this is the appropriate framework.1 Although we generally
preserve ineffective-assistance claims for postconviction relief, we find the record
1
In State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014), the court stated the motion-in-
arrest-of-judgment rule “has no applicability to a situation . . . where the defendant does
not know the deficiency in the plea proceeding until after sentencing.” The court
concluded the defendant could raise the issue of whether the district court erred in
imposing a greater sentence than agreed to in the plea agreement “without first filing a
motion in arrest of judgment.” Thompson, 856 N.W.2d at 922. Like Thompson, McCanna
could not have known prior to the sentencing hearing that the court would decline to accept
the recommended sentence. Accordingly, a motion in arrest of judgment was
unnecessary, and we could review the issue directly, on error, rather than under an
ineffective-assistance-of-counsel rubric. But because the defendant and the State use
this rubric, so will we.
3
adequate to address the issue. See State v. Thorndike, 860 N.W.2d 316, 319
(Iowa 2015).
McCanna must establish the breach of an essential duty and prejudice. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006). We will focus on the breach prong.
McCanna hangs his hat on Iowa Rule of Criminal Procedure 2.10(4), which
states:
If, at the time the plea of guilty is tendered, the court refuses to be
bound by or rejects the plea agreement, the court shall inform the
parties of this fact, afford the defendant the opportunity to then
withdraw defendant’s plea, and advise the defendant that if
persistence in a guilty plea continues, the disposition of the case may
be less favorable to the defendant than the contemplated by the plea
agreement.
As McCanna asserts, the rule does indeed authorize the withdrawal of a plea. But
the rule cannot be read in isolation. See State v. Pryor, No. 16-1982, 2017 WL
2684361, at *2 (Iowa Ct. App. June 21, 2017) (citing State v. Weaver, No. 05-0764,
2006 WL 3018498, at *3 (Iowa Ct. App. Oct. 25, 2006)). One of the rule’s
subsections states in part, “[I]f the agreement is conditioned upon concurrence of
the court in the charging or sentencing concession made by the prosecuting
attorney, the court may accept or reject the agreement, or may defer its decision
as to acceptance or rejection until receipt of a presentence report.” Iowa R. Crim.
P. 2.10(2). Another subsection states in part:
When the plea agreement is conditioned upon the court’s
concurrence, and the court accepts the plea agreement, the court
shall inform the defendant that it will embody in the judgment and
sentence the disposition provided for in the plea agreement or
another disposition more favorable to the defendant than that
provided for in the plea agreement.
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Iowa R. Crim. P. 2.10(3). Both provisions speak to pleas conditioned on the court’s
concurrence. Rule 2.10(4) must be read in that context.
The Iowa Supreme Court said as much in State v. Wenzel, 306 N.W.2d 769,
771 (Iowa 1981). The court held the rule
gives a court three options regarding the plea agreement at the time
the plea is offered if the agreement is conditioned on the court’s
acceptance. First, the court may accept the agreement and “inform
the defendant that it will embody in the judgment and sentence the
disposition provided for in the plea agreement” or a more favorable
disposition. Second, the court may reject the plea agreement and
“afford the defendant the opportunity to then withdraw his or her
plea.” Third, the court “may defer its decision as to acceptance or
rejection until receipt of a presentence report.”
Wenzel, 306 N.W.2d at 771 (citations omitted).
McCanna’s plea was not conditioned upon the court’s concurrence. It
unequivocally stated the court was free to impose the maximum sentence allowed
by law, which was one year. See Iowa Code § 903.1(1)(b). Because the court
was not bound by the State’s agreement to recommend a ninety-day jail sentence,
counsel had no duty to challenge the district court’s failure to allow him to withdraw
the plea following the imposition of the one-year sentence. See State v.
Thompson, 856 N.W.2d 915, 922 (Iowa 2014) (“Here the plea agreement was that
the State would recommend a certain sentence upon Thompson’s plea of guilty.
Nowhere in the plea agreement did it state the agreement required the district
court’s concurrence.”). On our de novo review, we conclude McCanna’s
ineffective-assistance-of-counsel claim necessarily fails.
McCanna also argues the district court failed to consider mitigating factors
in sentencing him, such as the nature of the offense and his decision to take
immediate responsibility for the offense. Our review is for an abuse of discretion.
5
See State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). We discern no abuse.
The court considered the nature of the offense and, in particular, the fact McCanna
was absent “for four or five months.” The court also considered MCanna’s failure
to think about “the consequences” and his violation of the laws “time and time
again.” Although the court did not mention McCanna’s expression of remorse at
leaving the facility, the court was not required to acknowledge each claim of
mitigation urged by him. See State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App.
1995).
We affirm McCanna’s judgment and sentence for absence from custody.
AFFIRMED.