State of Iowa v. Stuart Michael Vanmersbergen ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0232
Filed October 9, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STUART MICHAEL VANMERSBERGEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, James D.
Birkenholz, District Associate Judge.
Stuart Vanmersbergen appeals his guilty plea to operating while
intoxicated, second offense, and operating while barred. AFFIRMED.
Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Mullins and Greer, JJ.
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GREER, Judge.
Stuart Vanmersbergen appeals from his conviction by guilty plea to
operating while intoxicated, second offense, and operating while barred. Through
an ineffective-assistance-of-counsel claim, he argues he did not understand the
plea offer before submitting his plea. Because the record is inadequate to address
his ineffective-assistance claim on direct appeal, we preserve it for any later
postconviction-relief action. We affirm his conviction and sentence.
I. Background Facts and Proceedings.
On October 1, 2018, Vanmersbergen, with the assistance of counsel,
entered a written guilty plea. In that plea, he pleaded guilty to one count of
operating while intoxicated, second offense, in violation of Iowa Code section
321J.2 (2018) and one count of operating a motor vehicle while barred in violation
of Iowa Code sections 321.560 and .561. The plea agreement recommended a
two-year sentence with all but seven days suspended, fines, and four years of
supervised probation. But the plea agreement noted, “The Court has the discretion
to accept or reject any plea agreement made between the State of Iowa and me.”
As part of his written plea, Vanmersbergen signed and dated three separate
provisions acknowledging and waiving several rights, including waivers of his
rights to: (1) “directly appeal [his] guilty plea,” (2) file a motion in arrest of judgment,
and (3) allocution. He also signed and dated an acknowledgement of appeal
rights. Presented with the guilty plea, the court accepted it the same day and set
the case for sentencing on November 26.
On January 25, 2019, during an unreported sentencing hearing, the court
sentenced Vanmersbergen to two years in prison on each count, with the
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sentences to run concurrently, as well as an $1875 fine and applicable surcharge
and costs, including court-appointed attorney fees. The court ordered that
Vanmersbergen undergo screening for placement in a continuum of programming
for supervision and treatment of offenders convicted under Iowa Code chapter
321J. He now appeals.
II. Standard of Review.
We review ineffective-assistance-of-counsel claims de novo. State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006).
III. Analysis.
Before July 1, 2019, criminal defendants could raise ineffective-assistance-
of-counsel claims on direct appeal if they had “reasonable grounds to believe that
the record is adequate to address the claim on direct appeal.” Iowa Code
§ 814.7(2) (2018); Straw, 709 N.W.2d at 133. Effective July 1, 2019, the legislature
prohibited an appellate court from addressing an ineffective-assistance-of-counsel
claim on direct appeal. 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code
§ 814.7 (2019)). The Iowa Supreme Court determined this statutory amendment
applies prospectively only. See State v. Macke, ___ N.W.2d ___, ___, No. 18-
0839, 2019 WL 4382985, at *7 (Iowa 2019) (“We conclude the absence of
retroactivity language in sections 814.6 and 814.7 means those provisions apply
only prospectively and do not apply to cases pending on July 1, 2019.”). For that
reason, the statutory amendment does not affect this case. That said, we must
decide whether the record is adequate to address Vanmersbergen’s claim on
direct appeal.
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Vanmersbergen asserts his guilty plea was not knowingly, voluntarily, and
intelligently entered because he received ineffective assistance of counsel. He
complains that he felt pressured to accept the plea and did not realize he might go
to prison. See State v. Boone, 298 N.W.2d 335, 337 (Iowa 1980) (holding that
before accepting a guilty plea, the district court must ensure that the defendant
understands the consequences of the plea).
The appeal record sheds little light on Vanmersbergen’s decision to plead
guilty. The judgment entry relayed the district court’s sentencing concern that it
was Vanmersbergen’s lifetime fourth OWI and he was minimizing his substance-
abuse issues. Complicating the matter and garnering the special attention of the
court, Vanmersbergen failed to appear for sentencing twice leading to the issuance
of two warrants for his arrest. While the State had recommended suspended
sentences, as the written plea takes note, there is no guarantee that the court will
accept any plea proposals. Because there is no record of a plea hearing and the
sentencing hearing was unreported, this record is not adequate to address
Vanmersbergen’s claim of ineffective assistance of counsel on direct appeal. See
State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer is entitled to his
[or her] day in court, especially when his [or her] professional reputation is
impugned.”).
IV. Disposition.
For all of the above stated reasons, we preserve Vanmersbergen’s
ineffective-assistance-of-counsel claim for any later postconviction-relief action
and affirm his guilty plea and sentence.
AFFIRMED.