Nicholas Toles, Applicant-Appellant v. State of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0432
Filed May 14, 2014
NICHOLAS TOLES,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Thomas N.
Bower, Judge.
Nicholas Toles appeals the denial of his application for postconviction
relief. AFFIRMED.
Kathryn J. Mahoney, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle, J., and Miller, S.J.* Bower, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
MILLER, S.J.
Nicholas Toles appeals the denial of his application for postconviction
relief. He contends his trial counsel was ineffective in allowing him to plead guilty
and waive his right to file a motion in arrest of judgment because he did not
knowingly and voluntarily enter his plea. Because Toles fails to show counsel
breached a duty, we affirm.
I. Background Facts and Proceedings.
Toles was eighteen years old on January 20, 2008, when he entered a
Kwik Star convenience store with a friend, wearing a black hood over his head
and a red bandana over his face.1 With his hand in his pocket to appear as
though he had a weapon, Toles demanded the store clerk empty the cash
register drawer. The clerk was uncertain whether Toles was serious until Toles
reached across the counter and punched him in the face. After making more
demands for the money, Toles knocked everything off the counter and fled.
On January 25, 2008, Toles was arrested and charged with robbery in the
second degree, in violation of Iowa Code sections 711.1 and 711.3 (2007), and
criminal gang participation, in violation of section 723A.2. Toles entered a guilty
plea to the robbery charge pursuant to North Carolina v. Alford, 400 U.S. 25, 37,
91 S. Ct. 160, 167, 27 L. Ed. 2d 162, 171 (1970), in exchange for dismissal of the
criminal gang participation charge. After waiving his right to file a motion in arrest
1
One of the other people who entered to the store with Toles later admitted to
investigators to being a member of the Vice Lords street gang, and described how they
are always seen wearing a red or black bandana.
3
of judgment, the court sentenced him to ten years in prison with a mandatory
seventy percent to be served before he could be eligible for parole.
Two days later, Toles wrote letters to the court asking for a ninety-day
“shock” and to withdraw his guilty plea because his attorney had lied to him about
the consequences of pleading guilty. His direct appeal of the conviction was
dismissed pursuant to Iowa Rule of Appellate Procedure 6.104.
In 2009, Toles filed an application for postconviction relief (PCR), alleging
his trial counsel was ineffective in failing to inform him of the mandatory minimum
sentence and in erroneously informing him of the possibility of reconsideration of
his sentence. The district court denied the application after a hearing. Toles filed
a timely notice of appeal.
II. Analysis.
Ordinarily, we review PCR actions for corrections of errors at law.
Berryhill v. State, 603 N.W.2d 243, 244 (Iowa 1999). But where, as here, the
defendant alleges constitutional error, our review is de novo. Id. at 244-45. In
such cases we conduct our review “in light of the totality of the circumstances
and the record upon which the postconviction court’s rulings were made.” Perez
v. State, 816 N.W.2d 354, 356 (Iowa 2012).
In order to establish his claim of ineffective assistance of counsel, Toles
must demonstrate his trial counsel failed to perform an essential duty and this
failure resulted in prejudice. See Lado v. State, 804 N.W.2d 248, 251 (Iowa
2011). We may dispose of his ineffective-assistance claim if he fails to prove
4
either element by a preponderance of the evidence. See State v. Cook, 565
N.W.2d 611, 614 (Iowa 1997).
On appeal, Toles contends he did not knowingly and voluntarily plead
guilty and waive his right to file a motion in arrest of judgment. He argues the
plea colloquy elicited “only short answers to conclusory statements” and that the
court made no inquiry into what he understood. Toles asserts he “did not
understand the terms and consequences of his [guilty] plea.”
The record of the plea hearing shows the district court did a careful and
thorough job of identifying Toles’s rights and explaining those rights and the
consequences of waiving them. Before accepting his guilty plea, the district court
made inquiry into his age, education level, ability to understand English, physical
and mental health, and prescription medications. The court then outlined the
rights Toles was waiving by pleading guilty, including his right to a speedy trial,
his right to confront witnesses and present a defense, his right to an attorney, his
right against self-incrimination, and his right to a trial by jury. Toles stated he
understood these rights and agreed to waive them, along with any defenses he
may have had.
The court also carefully explained the consequences of Toles’s guilty plea
by informing Toles of the penalties he faced by pleading guilty, including “a
requirement that you be incarcerated” for “a 70 percent minimum or seven
years.” The court asked Toles if he was induced to plead guilty by any threats or
promises, to which he answered “no.” He also agreed he was satisfied with his
attorney’s representation.
5
After accepting Toles’s plea, the court then asked Toles if he wished to
give up his right to delay sentencing, his right to have a presentence investigation
completed before sentencing, and his right to file a motion in arrest of judgment,
explaining each of these rights in lay terms. With regard to waiving his right to
file a motion in arrest of judgment, the court stated: “If you get sentenced today
you can’t file that motion, you can never take back your guilty plea and you will
never have a trial.” Toles stated he understood and agreed to waive his rights.
In his brief, Toles states he “believes he was lied to by his attorney”
regarding the terms of the plea agreement. This bare allegation is insufficient to
overcome statements made on the record during the plea colloquy. See Wise v.
State, 708 N.W.2d 66, 71 (Iowa 2006).
The record of the personal colloquy between the court and Toles in the
plea proceeding demonstrates that Toles knowingly and voluntarily entered his
guilty plea. Accordingly, his trial counsel did not breach a duty in allowing him to
plead guilty and to waive his right to a motion in arrest of judgment. On this
basis, we affirm.
AFFIRMED.