THOMAS DODGE, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-141 / 06-0736
Filed April 11, 2007
THOMAS DODGE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, Mary Ann
Brown, Judge.
Applicant-appellant
Thomas
Dodge
appeals
from
the
denial
of
postconviction relief. AFFIRMED.
Philip Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Michael Short, County Attorney, and Bruce C. McDonald, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
EISENHAUER, J.
Applicant-appellant
Thomas
Dodge
appeals
from
the
denial
of
postconviction relief. Dodge claims (1) his counsel was ineffective in connection
with the advice about a plea offer from the State, and (2) his consecutive
sentences are illegal in violation of the Double Jeopardy Clause of the United
States and Iowa Constitutions. We affirm.
BACKGROUND FACTS AND PROCEEDINGS.
In May 1999, Dodge was charged with drug offenses in a multi-count trial
information, including count I, manufacturing methamphetamine more than five
grams as a second offense, count II, receipt of a precursor with intent to
manufacture as a second offense, count III, possession of pseudoephedrine with
intent to manufacture, and count IV, violation of the tax stamp requirement.
Counts I, II and III were subject to enhancement for Dodge’s prior drug felony.
This enhancement allows the court to triple the length of a sentence. In addition,
because Dodge had two prior felonies, counts II, III and IV were subject to
enhancement for his habitual offender status. Pursuant to State v. Sisk, 577
N.W.2d 414, 416 (Iowa 1998), the sentencing court had discretion to employ the
two enhancements at the same time on counts II and III, and apply the triple
enhancement to the sentences Dodge received as a habitual offender.
The case went to trial in August 1999. At the close of the trial, the State
withdrew count IV. The jury found Dodge not guilty of count II. However, Dodge
was found guilty of a lesser included offense of count I: manufacturing less than
five grams of methamphetamine. He was sentenced to twenty years for this
count. Dodge was also found guilty of count III, possession of pseudoephedrine
3
with intent to manufacture, and was sentenced to fifteen years with the habitual
violator enhancement. The sentencing court specifically declined to enhance the
sentence for count III as a second drug offense. It did, however, order the two
sentences to be served consecutively, giving Dodge a total of thirty-five years in
prison.
On direct appeal we affirmed the conviction and sentence.
State v.
Dodge, No. 99-1503 (Iowa Ct. App. Sept. 27, 2000). Further review was denied
by the Iowa Supreme Court. Dodge then filed this postconviction relief action.
The district court denied the relief after a hearing. Dodge appeals, presenting
two claims: (1) he received ineffective assistance of counsel in connection with
the advice he received about a plea offer from the State, and (2) his consecutive
sentences were illegal in violation of the Double Jeopardy Clause of the United
States and Iowa Constitutions.
INEFFECTIVE ASSISTANCE OF COUNSEL.
The State made a plea offer to Dodge: Dodge could plead guilty to count I
without enhancement and the State would dismiss the other charges. Count I
carried a sentence of up to twenty-five years in prison. It could be tripled to
seventy-five years with enhancement for his prior drug offense. Dodge testified
at the postconviction hearing that the State also made a twenty-year offer right
before trial.
However, neither Dodge’s attorney nor the prosecutor had
recollection of the second offer. Record of this offer has never been located.
Dodge discussed the plea offer with his counsel. Being confident that the
State only had sufficient evidence to convict him on count III, Dodge’s discussion
with counsel focused on the potential sentence on count III. Without knowledge
4
of State v. Sisk, counsel advised Dodge that it was still a debatable issue
whether the two enhancements can be applied at the same time. Dodge claims
this inaccurate advice misled him to think that he was only facing fifteen years for
count III.
He further claims that had counsel done adequate research and
advised him that he could be facing forty-five years in prison on count III, he
would have accepted the plea bargain.
He contends he was prejudiced by
counsel’s misconduct; therefore he is entitled to plead guilty as offered by the
State.
We review claims of ineffective assistance of counsel de novo. State v.
McBride, 625 N.W.2d 372, 373 (Iowa Ct. App. 2001). To succeed with a claim of
ineffective assistance of counsel, a defendant typically must prove the following
two elements: (1) counsel failed to perform an essential duty, and (2) defendant
was prejudiced by counsel’s error. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
The court need not
address both components if the defendant makes an insufficient showing on
either of the prongs. Id. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.
In the present case, we first address the prejudice element. The prejudice
prong is satisfied if “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Dodge asserts the prejudice
is that he did not accept the guilty plea. He claims that if counsel’s advice was
accurate and adequate, he would have pled guilty to count I to avoid the potential
forty-five years penalty on count III. His assertion raises the question whether
this strategic guilty plea would have been successful. We find it would not. A
5
guilty plea is an admission of crime. It is itself a conviction. State v. Straw, 709
N.W.2d 128, 138 (Iowa 2006). One cannot plead guilty to a crime he did not
commit. Iowa Rule of Criminal Procedure 2.8(2)(b) (1999) expressly provides
that “the court . . . shall not accept a plea of guilty without first determining that
the plea . . . has a factual basis.” The Iowa Supreme Court also emphasizes the
importance of the factual basis requirement in a guilty plea and prohibits the
defendant from pleading guilty for strategic reasons. See State v. Hack, 545
N.W.2d 262, 263 (Iowa 1996). The supreme court commented in Hack that
allowing a plea that was not supported by the record made violated the letter and
spirit of Rule 2.8(2)(b), and eroded the integrity of all pleas and the public’s
confidence in our criminal justice system. Id.
In this case, the plea offer only allowed Dodge to plead guilty on count I,
manufacturing methamphetamine more than five grams 1 .
Dodge never
acknowledged guilt on that count. In fact, he was confident that he would not be
convicted on count I. The verdict eventually confirmed his belief. The jury found
he was not guilty on count I because the State failed to prove the five-gram
quantity element. 2 Under this circumstance, even if Dodge had attempted to
plea guilty to count I, the court, acting as a fact-finder, would have found there
was not sufficient evidence to establish the required quantity element and
rejected the plea for lack of factual basis. Therefore, we conclude that Dodge
never had a valid plea offer that he could have accepted.
1
The records show that Dodge once proposed to plead guilty on count III with fifteen
years. The State rejected this bargain.
2
The lab technician testified in deposition that there was not five grams of
methamphetamine.
6
In addition, the record suggests Dodge would not have pled guilty even if
the advice had been accurate. A guilty plea is not a game. After having made a
choice that falls short of his expectations, the defendant cannot take a second
bite at the apple simply by claiming ineffective assistance of counsel. Because of
the clear self-serving nature of this assertion, we go beyond the assertion and
carefully consider the circumstances surrounding the plea to determine whether
Dodge would have gone to trial had counsel’s performance been adequate. We
find the record is contrary to Dodge’s assertion. At the postconviction hearing,
Dodge made the following statement explaining why he had rejected the plea
offer,
[T]he worst I could get is the 30 for the receipt of pseudoephedrine.
. . . I mean what judge is going to give me 30 years with all these
enhancements on a 10-year sentence? I mean I would think any
judge wouldn’t give me more than 20 on a 10 year sentence, you
know, for the little bit of drug --- the one drug charge I had prior to
that and that I was going to get more than 15 or 20. So I said: Why
would I take that?
Although this statement was made in the context of his understanding as to count
II, it clearly suggests that Dodge never believed the judge would triple the
sentence. Dodge would not have taken the plea offer even if he had known the
potential maximum sentence was forty-five years, because he did not believe the
judge would apply this maximum sentence to him.
From the above analysis, we conclude that Dodge could not have and
would not have pled guilty as offered by the State even if the he had received
adequate advice from counsel. He was not prejudiced; therefore, his ineffective
assistance of counsel claim fails. We need not address the first prong of the test.
7
DOUBLE JEOPARDY.
Dodge also claims it was a violation of the Double Jeopardy Clause of the
United States and Iowa constitutions to sentence him for both manufacturing
methamphetamine
and
possession
of
pseudoephedrine
with
intent
to
manufacture. Dodge raised the same issue as a claim of ineffective assistance
of counsel on direct appeal. State v. Dodge, No. 99-1503 (Iowa Ct. App. Sept.
27, 2000). We ruled then that there was no violation of the merger doctrine since
each offense of which Dodge was convicted contained an element not found in
the other, and that double jeopardy did not apply to these two different crimes.
Id. We conclude that we already decided the substance of this issue, and will not
reconsider it in this postconviction proceeding.
AFFIRMED.
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