State of Iowa v. Sherry Faye Mosley ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0175
Filed October 20, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHERRY FAYE MOSLEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, James B. Malloy,
District Associate Judge.
Defendant appeals her convictions for possession of methamphetamine,
second offense; possession of marijuana, third offense; and third-degree theft.
APPEAL DISMISSED.
Martha J. Lucey, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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SCHUMACHER, Judge.
After pleading guilty, Sherry Mosley appeals her convictions for possession
of methamphetamine, second offense; possession of marijuana, third offense; and
third-degree theft. In support of her right to appeal, Mosley raises three separate
constitutional challenges to Iowa Code section 814.7 (Supp. 2019): separation of
powers, equal protection, and due process. In the alternative, Mosley argues even
if section 814.7 is constitutional, she has demonstrated good cause to appeal.
Mosley’s constitutional challenges to section 814.7 have been resolved by
our supreme court.1 As such, we reject her constitutional arguments. See State
v. Tucker, 959 N.W.2d 140, 147 (Iowa 2021) (holding section 814.7 does not
violate equal protection or separation-of-powers); State v. Treptow, 960 N.W.2d
98, 108 (Iowa 2021) (holding statute requiring ineffective-assistance-of-counsel
claims to be resolved in the first instance in postconviction-relief proceedings
rather than on direct appeal did not violate due process rights).
We find Mosley has not shown good cause for a direct appeal from her guilty
pleas because she is not raising a sentencing issue or alleging incompetency. As
Mosley has not preserved error on the issues she seeks to raise concerning the
denial of the motion in arrest of judgment, we do not grant discretionary review of
her claims. Accordingly, the appeal must be dismissed.
I. Background Facts & Proceedings
On September 10, 2019, Mosley was charged by trial information with third-
offense possession of methamphetamine, in violation of Iowa Code section
1We recognize counsel was without the benefit of the supreme court guidance on
her challenges to Iowa Code section 814.7 at the time of briefing.
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124.401(5) (2019), a class “D” felony; third-offense possession of marijuana, in
violation of Iowa Code section 124.401(5), a class “D” felony; and third-degree
theft, in violation of Iowa Code sections 714.1(1) and 714.2(3), an aggravated
misdemeanor. The following month, on October 29, 2019, Mosley signed written
guilty pleas to possession of methamphetamine, second offense, in violation of
Iowa Code section 124.401(5), an aggravated misdemeanor; possession of
marijuana, third offense, in violation of section 124.401(5), an aggravated
misdemeanor; and theft in the third degree, in violation of sections 714.1(1) and
714.2(3), an aggravated misdemeanor, as originally charged.2 The written plea
agreements state she had “previously been convicted of a violation of chapter 124”
and “twice been convicted of possession of marijuana.”
Mosley filed a motion in arrest of judgment on November 20. She claimed
she was not guilty and had “only entered a plea of guilty because she thought she
had to do so.” Following a hearing, the court denied the motion in arrest of
judgment, finding “[t]he defendant’s pleas were not factually deficient.” The court
concluded the pleas were entered voluntarily and knowingly.
On January 8, 2020, Mosley was sentenced to a term of imprisonment not
to exceed two years on each of the charges, to be served consecutively. Mosley
appeals.
II. Right to Appeal
Under legislation that became effective on July 1, 2019, a defendant does
not have a right to a direct appeal from a guilty plea when the crime they pled guilty
2 The trial information was amended to conform to the written pleas of guilty.
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to was something other than a class “A” felony unless “the defendant establishes
good cause.” Iowa Code § 814.6(1)(a)(3) (Supp. 2019). The Iowa Supreme Court
has determined there is good cause to appeal “when the defendant challenges his
or her sentence rather than the guilty plea.” State v. Damme, 944 N.W.2d 98, 105
(Iowa 2020). An issue of competency to enter a guilty plea may also be considered
a good cause. See State v. Chindlund, No. 20-1368, 2021 WL 2608944, at *2
(Iowa Ct. App. June 30, 2021). When a defendant has not presented a “legally
sufficient reason” for a direct appeal of a guilty plea, there is no right to appeal.
State v. Allen, No. 20-0124, 2021 WL 1399753, at *2 (Iowa Ct. App. Apr. 14, 2021).
Mosley asserts that she has good cause to appeal because her guilty pleas
were not made knowingly and voluntarily. She does not challenge the sentence
imposed. We find Mosley has not shown good cause for a direct appeal from her
guilty plea because she is not raising an issue of sentencing or competency.
III. Discretionary Review
We may grant discretionary review of “[a]n order denying a motion in arrest
of judgment on grounds other than an ineffective assistance of counsel claim.”3
Iowa Code § 814.6(2)(f). An application for discretionary review may be granted
“upon a determination that (1) substantial justice has not been accorded the
applicant, (2) the grounds set forth in [Iowa Rule of Appellate Procedure]
6.104(1)(d) for an interlocutory appeal exist, or (3) the grounds set forth in any
statute allowing discretionary review exist.” Iowa R. App. P. 6.106(2).
3 Mosley filed a notice of appeal, not an application for discretionary review. When
a party seeks the wrong form of review, we may proceed as though the proper
form of review was filed. See Iowa R. App. P. 6.108.
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Mosley’s motion in arrest of judgment did not claim she received ineffective
assistance of counsel. She claimed she was not guilty and had “only entered a
plea of guilty because she thought she had to do so.” The court denied her motion
in arrest of judgment.
Mosley raises a different issue on appeal. She contends that her
stipulations to prior drug-related convictions were not made knowingly and
voluntarily. She concedes this issue was not raised in her motion in arrest of
judgment but asserts that she was not adequately informed she needed to raise
the issue in such a motion. A defendant must be informed “that any challenges to
a plea of guilty based on alleged defects in the plea proceedings must be raised in
a motion in arrest of judgment and that failure to so raise such challenges shall
preclude the right to assert them on appeal.” Iowa R. Crim. P. 2.8(2)(d); see also
Iowa R. Crim. P. 2.24(3)(a). When a defendant has not been adequately informed
that the failure to file a motion in arrest of judgment precludes the ability to
challenge a guilty plea, the defendant is not precluded from challenging the guilty
plea. State v. Smith, 924 N.W.2d 846, 851 (Iowa 2019).
Mosley’s written guilty pleas stated:
I have discussed with my attorney and understand that to
contest the adequacy of my guilty plea, I must do so within forty-five
(45) days from the entry of my plea and no later than five (5) days
prior to sentencing by filing a Motion in Arrest of Judgment, as
provided in Iowa Rule of Criminal Procedure 2.24(3). This motion is
jurisdictional. If I fail to file it within the time limits prescribed, I will
lose my right to appeal the validity of the guilty plea.
There must be substantial compliance with rule 2.8(2)(d). Damme, 944
N.W.2d at 108. A defendant may be adequately informed through the language in
a written guilty plea. State v. Barnes, 652 N.W.2d 466, 467 (Iowa 2002). The
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written guilty pleas signed by Mosley substantially comply with the requirement to
inform her any challenge to her guilty plea must be raised in a motion in arrest of
judgment and the failure to challenge the guilty plea in such a motion precluded
her ability to contest the guilty plea proceedings on appeal.
Mosley contends she should have been specifically informed that she
needed to file a motion in arrest of judgment in order to challenge the stipulation
that she had been convicted of prior drug-related offenses. See Smith, 924
N.W.2d at 851 (finding a court has a duty to inform a defendant that challenges to
a stipulation to previous offenses “must be raised in a motion in arrest of judgment
and the failure to do so precludes raising those challenges on appeal”). Smith
involved habitual offender proceedings, not a guilty plea. Id. at 848. Although the
court informed Smith of the right to file a motion in arrest of judgment, Smith was
not informed of the consequences of failing to file a motion. Id. The Iowa Supreme
Court concluded the district court did not substantially comply with its duty under
rule 2.8(2)(d). Id. at 851.
We find Smith is not applicable in the present circumstances. Mosley was
informed of the consequences of a failure to file a motion in arrest of judgment.
We conclude she has not preserved error on her claim that her stipulations to prior
drug-related convictions were not made knowingly and voluntarily because the
issue was not raised in a motion in arrest of judgment. See Iowa R. Crim. P.
2.24(3)(a). Because Mosley has not preserved error on the issues she seeks to
raise concerning the denial of the motion in arrest of judgment, we do not grant
discretionary review of her claims. See Iowa R. App. P. 6.106(2).
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As Mosley’s appeal cannot be considered on direct appeal and we do not
grant discretionary review, the appeal must be dismissed.
APPEAL DISMISSED.