IN THE COURT OF APPEALS OF IOWA
No. 5-889 / 04-1248
Filed January 19, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LEE ALLAN ROLFE,
Defendant-Appellant.
Appeal from the Iowa District Court for Clayton County, Margaret L.
Lingreen, Judge.
Defendant appeals, alleging ineffective assistance of trial counsel,
after defendant entered a guilty plea to the charges first degree
harassment and assault causing bodily injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, Kevin L. Clefisch, County Attorney, and Stephen D. Saunders,
Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
SACKETT, C.J.
Defendant, Lee Allan Rolfe, pled guilty to first-degree harassment
and assault causing bodily injury, in violation of Iowa Code sections
708.7(2) and 708.2(2) (2003). Defendant's sentences of imprisonment were
suspended and defendant was placed on probation. Due to the charges to
which defendant pled guilty and the minutes of testimony that accompanied
defendant's guilty plea, defendant's probation officer required defendant
to register as a sex offender, move from his home, and have no contact with
children. On appeal, defendant claims his trial counsel was ineffective
for failing to ensure that the guilty plea was entered voluntarily and
intelligently and that his trial counsel was ineffective for failing to
file a motion to arrest judgment. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Defendant was charged by trial information with third degree sexual
abuse, in violation of Iowa Code sections 709.1(1) and 709.4(1) (2003), on
June 24, 2003. On April 9, 2004 defendant filed a written guilty plea to
the charges of first-degree harassment and assault causing bodily injury.
Consistent with the plea agreement, defendant was sentenced to two years in
prison on the harassment charge and 365 days in county jail on the assault
charge. The court suspended the sentences and placed defendant on
probation, under the supervision of the Department of Correctional
Services. Defendant was also ordered to pay various fines.
The minutes of testimony that were included with defendant's previous
charge of third degree sexual abuse were not replaced or amended when the
trial information was amended. Therefore, the minutes of testimony that
accompanied defendant's guilty plea stated defendant forced the seventeen-
year-old babysitter for his four children, M.K., to have sexual intercourse
with him against her will. At numbered paragraph eleven of defendant's
written guilty plea he agreed that the minutes of testimony were
substantially correct.
Based on the minutes of testimony that recited the facts, which if
proven would support a finding defendant was a sexual offender, defendant's
probation officer required that defendant register as a sexual offender,
move from his home, and have no contact with children. Defendant sought
and was granted a stay and review of his probation requirements. A hearing
on the matter was held on July 13, 2004 in district court. The district
court concluded Iowa Code section 692A.2(1) requires that a person
convicted of a criminal offense against a minor must register as sexual
offender under the conditions of this case. Iowa Code section 692A.1(5)
defines "criminal offense against a minor" to include any indictable
offense involving sexual conduct directed toward a minor and any indictable
offense against a minor involving sexual contact with a minor. After
examining the minutes of testimony, the district court concluded that
defendant was subject to the statute. The district court ordered the stay
be lifted and that the defendant comply with the conditions of probation,
including the registration requirements of Iowa Code chapter 692A.
On appeal, defendant argues his trial counsel was ineffective for
failing to ensure that his guilty plea was entered voluntarily and
intelligently and his trial counsel was ineffective for failing to file a
motion to arrest judgment to challenge the validity of the plea. Defendant
claims his intent in pleading guilty was to avoid pleading to crimes
involving a sexual offense that would require him to register as a sex
offender. He claims his trial counsel was to have prepared and filed a
different written guilty plea in which defendant denied sexually abusing
the victim, but his trial counsel did not do so.
II. SCOPE OF REVIEW.
Defendant did not preserve error with regard to his claim that his
guilty plea was not entered into voluntarily or intelligently because he
did not file a timely motion to arrest judgment. Defendant claims his
failure to timely file a motion to arrest judgment resulted from
ineffective assistance of counsel. Failure to file a motion to arrest
judgment does not preclude a challenge to a guilty plea on direct appeal if
the failure to file the motion resulted from ineffective assistance of
counsel. State v. Schoelerman, 315 N.W.2d 67, 71 (Iowa 1982).
A claim of ineffective assistance of counsel implicates constitutional
rights; therefore, our review is de novo. State v. Carter, 602 N.W.2d 818,
820 (Iowa 1999). Ineffective assistance claims are generally reserved for
postconviction relief actions; however, we will resolve them on a direct
appeal of the criminal conviction in two situations:
If the record on appeal shows . . . that the defendant cannot prevail
on such a claim as a matter of law, we will affirm the defendant's
conviction without preserving the ineffective-assistance-of-counsel
claims. Conversely, if the record on appeal establishes both elements
of an ineffective-assistance claim and an evidentiary hearing would
not alter this conclusion, we will reverse the defendant's conviction
and remand for a new trial.
State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004) (citations and
quotation marks omitted).
A defendant receives ineffective assistance of counsel when (1) the
defense attorney fails in an essential duty and (2) prejudice results.
State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). In order to meet the
first test, defendant must overcome the strong presumption his attorney's
actions were reasonable under the circumstances and fell within the normal
range of competency. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996).
To succeed on the second test, it must be shown that, but for counsel's
error, the result of the proceedings would have been different. State v.
Buck, 510 N.W.2d 850, 853 (Iowa 1994). The defendant has the burden of
proving by a preponderance of the evidence both elements of a claim of
ineffective assistance. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa
1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). Counsel is not
ineffective for failing to pursue a meritless issue. State v. Scalise, 660
N.W.2d 58, 62 (Iowa 2003) (citing State v. Greene, 592 N.W.2d 24, 29 (Iowa
1999)).
III. ANALYSIS.
The record in the present case is insufficient to rule on defendant's
ineffective assistance of counsel claims; therefore, we preserve
defendant's claims for possible postconviction relief proceedings.
From defendant's brief, it appears he alleges his trial counsel filed
the wrong guilty plea with the district court. At the district court
hearing to review the probation requirements, defendant offered a different
guilty plea as an exhibit and indicated that this different plea was
supposed to have been filed in this case when the State amended the trial
information. The guilty plea defendant contends should have been filed
includes a modified paragraph eleven, which states as follows:
11. I agree the Minutes of Testimony are substantially correct or I
did the following act(s) to commit this crime: The minutes concerning
any sexual abuse with the victim or the new charges relating to any
offense under 692A.1 is not admitted to or a part of the plea.
The record before us is not clear as to why this version of defendant's
guilty plea was not filed. Therefore, we cannot determine if trial counsel
failed to perform an essential duty.
As an alternative, defendant appears to argue that his trial counsel
was ineffective for failing to make defendant aware of the consequences of
his plea. In particular, defendant claims he was not aware he was actually
admitting to sexual abuse and that he would be required to comply with the
requirements of Iowa Code chapter 692A. Trial counsel need only advise a
defendant on direct consequences of a guilty plea and "we adhere to our
rule that failure to advise a defendant concerning collateral consequences,
even serious ones, cannot provide a basis for a claim of ineffective
assistance of counsel." Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987).
Direct consequences are those that are the "definite, immediate and largely
automatic" effects of a guilty plea. Direct consequences that a defendant
must be made aware of before entering a guilty plea include the possible
maximum sentence, as well as any mandatory minimum punishment. State v.
Carney, 584 N.W.2d 907, 908 (Iowa 1998). In the present case, requiring
defendant to register as a sex offender was not a direct consequence of his
guilty plea. The decision as to whether a defendant is subject to Iowa
Code chapter 692A and is required to register as a sex offender is the
province of the Department of Public Safety. See Iowa Code § 692A.8.
Additionally,
the primary purpose of a sex offender registry is not to punish but to
aid the efforts of law enforcement officers in protecting society. . .
. [The] statute may be fairly characterized as remedial and not as a
statute for deterrence or retribution purposes, even though
disseminations are "unpleasant consequences of the offense."
State v. Pickens, 558 N.W.2d 396, 400 (Iowa 1997).
However, "if a defendant is affirmatively misled by an attorney
concerning the consequences of a plea, the plea may be held to be invalid,
even though the consequences are characterized as collateral." Mott, 407
N.W.2d at 583. The record on direct appeal is insufficient to determine
whether defendant relied to his detriment on any advice given concerning
the applicability of Iowa Code chapter 692A. Therefore, we cannot
determine whether counsel failed to perform an essential duty.
The record in the present case is not sufficient for us to rule on
defendant's ineffective assistance of counsel claims; therefore, we affirm
the district court and we preserve defendant's claims for possible
postconviction relief proceedings.
AFFIRMED.
