State of Iowa v. Hector Jose Tejeda, Jr ( 2018 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 17-0451
    Filed February 21, 2018
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    HECTOR JOSE TEJEDA, JR,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, David May, Judge.
    A defendant appeals his conviction asserting his attorney provided
    ineffective assistance and the court erred in assessing him restitution and court
    costs related to a dismissed count. AFFIRMED AND REMANDED.
    Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Clive, for appellant.
    Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
    General, for appellee.
    Considered by Doyle, P.J., McDonald, J., and Scott, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
    2
    SCOTT, Senior Judge.
    Hector Tejeda Jr. appeals following his conviction for possession of a
    controlled substance—methamphetamine—with the intent to deliver, in violation of
    Iowa Code section 124.401(1)(b)(7) (2016), a class “B” felony. He asserts his
    counsel provided ineffective assistance by permitting him to plead guilty to the
    offense when the record lacks a factual basis to support the guilty plea. He also
    claims counsel was ineffective in pressuring or coercing him to plead guilty and in
    failing to subpoena a witness for trial.       Finally, he asserts the court erred in
    assessing him restitution and court costs connected to the dismissed drug-tax-
    stamp count.
    I. Ineffective Assistance.
    To prove counsel provided ineffective assistance, Tejeda must prove
    counsel failed to perform an essential duty and he suffered prejudice as a result.
    See State v. Ortiz, 
    789 N.W.2d 761
    , 764 (Iowa 2010). Both elements must be
    proved by a preponderance of the evidence. See 
    id. Ineffective-assistance claims
    are usually preserved for postconviction-relief proceedings because the record on
    direct appeal is rarely adequate to address such claims. State v. Straw, 
    709 N.W.2d 128
    , 133 (Iowa 2006).         However, an ineffective-assistance challenge
    based on counsel’s failure to ensure the record has a factual basis to support a
    guilty plea is typically resolved on direct appeal because “[i]f a factual basis
    existed, counsel was not ineffective for failing to file a motion in arrest of judgment;
    if a factual basis does not exist, then counsel was ineffective.” State v. Brooks,
    
    555 N.W.2d 446
    , 448 (Iowa 1996). Prejudice is presumed if a factual basis does
    not exist in the record. 
    Ortiz, 789 N.W.2d at 764
    –65.
    3
    A. Factual Basis. Tejeda asserts there is an insufficient factual basis to
    support the conclusion he intended to deliver the methamphetamine in his
    possession. He notes the transcript of the guilty plea hearing shows the following:
    THE COURT: And you intended to                     deliver   [the
    methamphetamine] to another person?”
    THE DEFENDANT: So they say. Yes. Yes.
    He asserts this “hesitation” results in a lack of a factual basis. He also claims the
    court failed to indicate it was relying on the minutes of evidence to provide a factual
    basis.
    We note the transcript of the guilty plea hearing goes on after the excerpt
    cited by Tejeda:
    THE COURT: Well, there are—one or two things is true: either
    you intended to share or sell it to another, or you didn’t. So did you
    intend to share or sell it with another person?
    THE DEFENDANT: Yes.
    Whatever hesitation Tejeda reads into the transcript from his answer to the court’s
    first question regarding his intent is cleared up in the subsequent exchange. In
    addition, the factual basis inquiry is an objective inquiry of the entire record before
    the plea court, and the court’s failure to state its consideration of the minutes of
    evidence is of no consequence. See State v. Finney, 
    834 N.W.2d 46
    , 62 (Iowa
    2013) (“The failure of the district court in this case to explain on the record the
    evidence supporting his finding of a factual basis is thus an omission unrelated to
    the substantive claim being made.”). Upon our review of the guilty plea transcript
    and the minutes of evidence, we conclude there is a factual basis to support the
    guilty plea, and thus, counsel’s failure to challenge the factual basis through a
    motion in arrest of judgment does not amount to ineffective assistance.
    4
    B. Coercion. Next, Tejeda claims counsel was ineffective by coercing or
    pressuring him to plead guilty. He cites three factors that he says “lean” towards
    finding he was pressured to plead guilty: (1) his hesitation to say he intended to
    deliver the methamphetamine, (2) his inability to post bond and his request for
    immediate sentencing upon his plea of guilty, and (3) the fact his guilty plea was
    entered on the Friday before his jury trial was set to begin. However, he concedes
    the trial record alone may not be sufficient to resolve this claim on direct appeal,
    and he asks that we preserve for postconviction-relief proceedings. We agree the
    record is insufficient to address this claim, and it is preserved for possible
    postconviction relief proceedings. See State v. Johnson, 
    784 N.W.2d 192
    , 198
    (Iowa 2010).
    C.   Witness.     Tejeda also claims counsel was ineffective in failing to
    subpoena for trial a witness Tejeda thought would provide favorable testimony.
    Tejeda fails to indicate in his brief what witness counsel failed to subpoena or what
    testimony that witness might provide. He only notes “the trial record alone may be
    insufficient to resolve this claim on direct appeal,” and he asks that the claim be
    preserved. Where the record is insufficient to resolve an ineffective assistance
    claim on direct appeal, we “must preserve it for a postconviction-relief proceeding,
    regardless of the court’s view of the potential viability of the claim.” 
    Id. This claim
    is likewise preserved.
    5
    II. Sentencing.
    Finally, Tejeda asserts this case must be remanded because in the written
    sentencing order he was assessed court costs and restitution related to the drug
    tax stamp charge that was dismissed.
    At sentencing, the district court addressed Tejeda’s responsibility for
    restitution and court costs, saying, “Court concludes Defendant has no reasonable
    ability to pay restitution or his fees and costs and will enter ‘zero’ in that portion of
    the order.” However, the written sentencing order provided: “Pursuant to the plea
    agreement, Defendant is ordered to: (1) pay restitution if restitution is due on any
    of the dismissed counts/cases; and (2) pay court costs on any dismissed
    counts/cases.”1
    “[W]here there is a discrepancy between the oral pronouncement of
    sentence and the written judgment and commitment, the oral pronouncement of
    sentence controls.” State v. Hess, 
    533 N.W.2d 525
    , 528 (Iowa 1995) (citation
    omitted).
    [W]hen a judgment entry incorrectly differs from the oral rendition of
    the judgment merely as a result of clerical error, the trial court holds
    the inherent power to correct the judgment entry so that it will reflect
    the actual pronouncement of the court. The district court may correct
    a clerical error in a judgment entry through issuance of a nunc pro
    tunc order.
    
    Id. at 527
    (citations omitted).
    Because we conclude the provision regarding restitution and court costs in
    the written sentencing order was the result of a clerical error, we remand this case
    1
    The plea agreement articulated on the record did not contain a statement that Tejeda
    would be responsible for court costs or restitution related to the dismissed count.
    6
    for the entry of a nunc pro tunc order so that the written sentencing order conforms
    with the court’s oral pronouncement at sentencing.
    III. Conclusion.
    We affirm Tejeda’s conviction as we find a factual basis to support his guilty
    plea, but we remand this case for the entry of a nunc pro tunc order correcting the
    sentencing order. Tejeda’s remaining ineffective-assistance claims are preserved
    for postconviction-relief proceedings.
    AFFIRMED AND REMANDED.
    

Document Info

Docket Number: 17-0451

Filed Date: 2/21/2018

Precedential Status: Precedential

Modified Date: 2/28/2018