State of Iowa v. Tina Lynn Thacker ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0374
Filed October 15, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TINA LYNN THACKER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, James D. Birkenholz,
District Associate Judge.
Appeal from the conviction and sentence following a guilty plea to
harassment in the second degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, John P. Sarcone, County Attorney, and Kevin Bell, Assistant County
Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.
Tina Thacker was charged with harassment in the first degree. Pursuant
to a plea agreement, she pleaded guilty to harassment in the second degree, in
violation of Iowa Code section 708.7(3) (2013). The record reflects Thacker
appeared in person with counsel and submitted a written petition to plead guilty.
The signed petition included a waiver of time before sentencing and a waiver of
the right to a verbatim record of the plea and sentencing hearing. The plea and
sentencing court accepted Thacker’s guilty plea and sentenced Thacker to one
year in jail, said sentence suspended. The sentencing order provided “the plea
agreement” was the reason for the sentence. The sentencing order does not
indicate whether the court considered any other factor or factors at sentencing.
Thacker now challenges her conviction and sentence.
Thacker first contends her attorney rendered constitutionally deficient
performance by not challenging the plea. Specifically, Thacker contends her
counsel should have challenged the plea because the plea agreement was not
adequately disclosed in the petition and sentencing order and because there was
no verbatim transcription of the plea colloquy. We conclude the argument is
without merit.
Thacker has not demonstrated any prejudice. See Everett v. State, 789
N.W.2d 151, 159 (Iowa 2010) (noting an ineffective-assistance claim may be
resolved on the prejudice prong without considering whether counsel breached
an essential duty). She does not contend the State failed to honor the plea
agreement. Nor does she contend the district court failed to honor the plea
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agreement. Nor does she contend she did not understand the plea agreement.
Instead, her only argument is that counsel was ineffective for not challenging the
plea solely because the plea agreement was not written into the blank section of
the form reserved for the same and the colloquy was not reported. There is no
indication in this record Thacker would have insisted on going to trial had the
terms of the plea agreement been set forth in the form. There is no indication in
this record that Thacker would have insisted on going to trial had the colloquy
been reported. The failure to demonstrate she would have insisted on trial
defeats her claim. See State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006) (“[I]n
order to satisfy the prejudice requirement, the defendant must show that there is
a reasonable probability that, but for counsel’s errors, he or she would not have
pleaded guilty and would have insisted on going to trial.”).
Second, the record does not identify any error supporting arrest of
judgment. The sentencing order provided as follows:
The Court has reviewed the signed petition to plead guilty and
considered the statements of the Defendant. The Court finds the
Defendant understands the charge, the penal consequences, and
the constitutional rights being waived. Based on the statements of
the Defendant, statements of the prosecutor, and the minutes of
testimony accepted as true by the Defendant and considered by the
Court, the plea has a factual basis and is knowingly, voluntarily,
and intelligently made.
We presume Thacker’s attorney “rendered competent representation” and
Thacker “bears the burden to prove otherwise.” See Millam v. State, 745 N.W.2d
719, 721 (Iowa 2008). Likewise, the court’s actions are cloaked with a strong
presumption of regularity. See State v. Pappas, 337 N.W.2d 490, 494 (Iowa
1983). The burden of overcoming the presumption rests on the party
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complaining. State v. Stanley, 344 N.W.2d 564, 568 (Iowa Ct. App. 1983). It is
Thacker’s obligation to provide us with “a record affirmatively disclosing the error
relied upon.” See State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995); State v.
Ludwig, 305 N.W.2d 511, 513 (Iowa 1981). Thacker could have used procedural
mechanisms to create an adequate record in lieu of reporting. See Iowa R. App.
P. 6.806 (providing a mechanism “to create a record of a hearing . . . for which a
transcript is unavailable”); Iowa R. Crim. P. 2.25 (allowing the party “to make the
proceedings . . . appear of record which would not otherwise so appear”). With
no record in support of her claim, Thacker has failed to overcome the
presumption counsel acted competently has not demonstrated that she was
prejudiced by any alleged error. See Strickland v. Washington, 466 U.S. 668,
687 (1984). We “will not speculate as to what was said” during the plea and
sentencing colloquy. See State v. Washington, 308 N.W.2d 422, 424 (Iowa
1981).
Thacker also contends the court failed to give adequate reasons for the
sentence. Iowa Rule of Criminal Procedure 2.23(3)(d) provides the sentencing
court “shall state on the record its reason for selecting the particular sentence.”
However, when a court is merely “giving effect to the parties’ agreement . . . the
purpose of a statement of reasons for imposition of the sentence would serve no
practical purpose.” State v. Snyder, 336 N.W.2d 728, 729 (Iowa 1983). Because
the court’s sentence was not a result of an exercise of discretion, but rather a
result of giving effect to the plea agreement, the court gave sufficient reasons for
the sentence imposed and did not abuse its discretion. See id.; see also State v.
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Cason, 532 N.W.2d 755, 757 (Iowa 1995) (finding no abuse of discretion where
sentencing court “was merely giving effect to the parties’ agreement”); State v.
Palmer, No. 00-0897, 2001 WL 310895, at *1 (Iowa Ct. App. Apr. 2, 2001).
For the foregoing reasons, the defendant’s convictions and sentence are
affirmed.
AFFIRMED.
Doyle, J., concurs; Vaitheswaran, P.J., dissents.
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VAITHESWARAN, P.J. (dissenting)
I respectfully dissent. I would conclude the district court abused its
discretion in citing “plea agreement” as its reason for the sentence, when no plea
agreement is apparent in the record. I would also preserve Thacker’s ineffective-
assistance-of-counsel claim for postconviction relief proceedings. See State v.
Meron, 675 N.W.2d 537, 543 (Iowa 2004). Absent delineation of the plea
agreement, I would find the record inadequate to determine whether the plea was
entered voluntarily and intelligently, as required by Iowa Rule of Criminal
Procedure 2.8(2)(b), and whether counsel was ineffective in failing to challenge
the plea on this ground.