State of Iowa v. Frank John Nucaro ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1304
Filed December 18, 2019
FRANK JOHN NUCARO,
Applicant-Appellant,
vs.
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.
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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.
1
The offenses included five theft charges of varying degrees, domestic abuse
assault causing bodily injury, and first-degree harassment. The charges were all
filed between March and July 2016.
3
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. My wife has cancer,
and I’ve had a lot on my plate. . . .
It’s been a rough couple years. And I just want
to say I take responsibility. I’m sorry for my actions. I
contacted my [probation officer] nine times, went and
saw him on two of my appointments, and he wasn’t
available. Never contacted me back within that two-
week period. I told him my wife has cancer, and I have
to take her to appointments. Plus, I drive a semi, and
I’m a part-time pastor, so I have a pretty busy schedule.
4
And I don’t know why these things happened,
but the last message I left him was that when you find
time or you think you can find time for me, you call me
because I’m busy, after two times of going to the
appointments and calling him nine times.
But this is very rough on me right now. Like I
said, I’m responsible for my own actions. I can be
honest and tell you that. I just think—wish things were
different, but we’re all responsible for our own
behaviors.
When the court asked during the plea and revocation hearing if Nucaro
wanted to accept the plea agreement, Nucaro clearly stated he did. Nucaro then
asked for mercy in the court’s sentencing decision and requested time served on
the misdemeanors. The court again asked if he wanted the plea deal, and Nucaro
said, “Yes, Your Honor.”
The resulting revocation sentencing order stated Nucaro stipulated his
probation violation was “leaving treatment at the Fort Des Moines residential facility
without completing programming, new conviction.” Nucaro, who had never started
treatment at Fort Des Moines, filed an application for a nunc pro tunc order, asking
for the order to “correctly represent which terms of the defendant’s probation he
violated.”
During a July 27, 2017 hearing on the application for nunc pro tunc, Nucaro
challenged the stipulation of leaving Fort Des Moines. Nucaro also argued that
because the February violation report did not include the new offense, the court
should not have allowed a stipulation to the April offense as a probation violation.
The court ruled against Nucaro, finding the offense could be used as a basis for
probation revocation because Nucaro stipulated to having committed and pleaded
guilty to the new offense. The court entered an order amending the probation
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revocation stipulation to state “[Nucaro] violated his probation by committing the
new offense. . . . The defendant does not stipulate that he violated probation in
any other way.”
On September 4, 2017, Nucaro filed an application for postconviction relief.
After several amendments, the final application alleged three types of claims: (1)
ineffective assistance of trial counsel for failing to adequately investigate defenses,
pressuring Nucaro into stipulating to probation violations, and failing to object to
inclusion of the new charge as a violation of probation; (2) unlawful probation
revocation and illegal custody; and (3) violation of Nucaro’s due process rights in
the probation revocation and disposition.
Nucaro’s postconviction trial was held May 31, 2018. Nucaro testified and
a deposition of his trial counsel was admitted into evidence. Nucaro did not offer
any new evidence of the defenses he claimed trial counsel should have
investigated. The postconviction court found Nucaro stipulated to the allegations
within the violation report, understood the benefit he was receiving from the State,
and chose to accept the offer. The court found Nucaro’s counsel did not violate
his duty by failing to investigate defenses, of which Nucaro failed to present
evidence at the postconviction trial. The court denied Nucaro’s application for
postconviction relief. Nucaro appeals.
II. Standard of Review
We generally review postconviction proceedings for correction of errors at
law. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011). We review constitutional
claims de novo. Id.
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III. Analysis
The Supreme Court has set out the procedural due process that must be
afforded to a defendant in a probation revocation proceeding. See Morrissey v.
Brewer, 408 U.S. 471, 489 (1972) (listing the minimum requirements for procedural
due process to be afforded a parolee at a parole revocation hearing); see also
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (holding that “a probationer, like a
parolee, is entitled to a preliminary and a final revocation hearing, under the
conditions specified in Morrissey”). Written notice of the claimed probation
violation is one requirement. Morrissey, 408 U.S. at 489. On appeal, Nucaro
claims he was not provided with written notice that his April 4, 2017 charge and
subsequent plea would be used against him in the probation revocation.
Nucaro entered into a plea agreement with the State encompassing both
his new charge and the probation revocation. As part of the agreement, the parties
agreed Nucaro would plead guilty to a lesser-included offense, receive credit for
time served for the new charge, and several of Nucaro’s misdemeanor
sentences—which had previously been ordered to run consecutively—would run
concurrent to the felony sentences, reducing his prison sentence from eighteen–
to–twenty years to ten years.2 Nucaro now claims he would not have entered into
the plea agreement had his counsel investigated mitigating factors relating to his
probation violations. At his postconviction trial, Nucaro stated he felt counsel
“bullied” him into accepting the plea deal.
2
The offense Nucaro pleaded guilty to has a two-year sentence. Due to the plea
agreement reached, the sentence—which may have run consecutively without the
agreement—was ordered to run concurrently.
7
Nucaro entered into and received the benefit from the global plea
agreement encompassing both the new offense and his probation revocation. He
had notice of the hearing, which would address his probation violations. Nucaro
was aware of his new offense and agreed to plead guilty to it before the revocation
hearing. The purposes of providing a probationer with notice of a violation are to
inform the probationer of the “inquiry, its purpose, and the alleged violations,” and
to provide the person time to present relevant information and question adverse
informants. See Morrissey, 408 U.S. at 486–87. Those purposes were met here.
Moreover, Nucaro has failed to establish any prejudice resulted from the notice of
violation not being amended prior to his entering his plea. See Univ. of Iowa
Hosps. & Clinics v. Waters, 674 N.W.2d 92, 98 (Iowa 2004) (“A showing of
prejudice is essential to establishing a due process violation.” (citation omitted)).
Nucaro also claims his trial counsel provided ineffective assistance during
his probation revocation hearing. “To establish an ineffective-assistance-of-
counsel claim, a claimant must demonstrate ‘(1) his trial counsel failed to perform
an essential duty, and (2) this failure resulted in prejudice.’” State v. Madsen, 813
N.W.2d 714, 723 (Iowa 2012) (citation omitted)). “The claimant must prove both
elements by a preponderance of the evidence.” Id. at 724. Counsel’s performance
is presumed competent, and we measure it “against the standard of a reasonably
competent practitioner.” Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015)
(citation omitted). To prove prejudice, the claimant must establish by a
preponderance of evidence that counsel’s unprofessional errors undermine
confidence in the outcome of the proceeding. Id. at 868–69.
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In particular, Nucaro claims counsel failed to adequately investigate
potential defenses and mitigation to the probation violations, and counsel was
ineffective for allowing him to enter a stipulation to violation of probation relating to
a new charge. His claims relate to the plea agreement he entered at the plea and
revocation hearing. “[T]o demonstrate prejudice in the plea-bargaining process, ‘a
claimant must show the outcome of the plea process would have been different
with competent advice.’” Dempsey, 860 N.W.2d at 869 (citation omitted). Nucaro
has failed to prove the result of the plea process would have been different.
The record leaves no doubt Nucaro violated the terms of his probation.
Nucaro was facing his second revocation hearing within six months, having failed
to comply with any of the conditions imposed by the court at his first revocation
hearing. He told the court he initially attempted to contact his probation officer, but
then was “too busy” to continue communication attempts for placement in a
residential facility. In addition to his continued violation of probation conditions,
Nucaro had committed a new offense after the report of violation had been filed.
Without the plea agreement, Nucaro faced trial on a felony-level vehicle offense
and imposition of the entire eighteen year sentence previously suspended. Nucaro
has presented no evidence any mitigating factors exist or that they would have
resulted in a reduced sentence or the court not revoking his probation.
Based on the record before us, we cannot conclude that, even if counsel
committed an error, it rose to the level of undermining our confidence in the
resulting probation revocation and sentencing. See id. at 870–71. Nucaro has not
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established the requisite prejudice. We affirm the dismissal of Nucaro’s PCR
application.
AFFIRMED.