STATE OF IOWA, Plaintiff-Appellee, vs. GREGORY JOHN WILLETTE, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-290 / 06-1659
Filed June 13, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GREGORY JOHN WILLETTE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, John A. Nahra and
J. Hobart Darbyshire, Judges.
Gregory John Willette appeals his judgment and sentence for third-degree
sexual abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and James Tomka, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, William E. Davis, County Attorney, and Robert Weinberg, Jerold
Feuerbach and Julie Walton, Assistant County Attorneys, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
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MAHAN, P.J.
Gregory John Willette appeals his judgment and sentence for third-degree
sexual abuse in violation of Iowa Code section 709.4(2)(c)(4) (2005). He argues
he received ineffective assistance of counsel when his counsel failed to file a
motion in arrest of judgment after the district court failed to properly inform him of
the maximum sentence prior to his guilty plea. We affirm.
I. Background Facts and Proceedings
On May 4, 2006, Willette was charged with one count of third-degree
sexual abuse. Willette entered a plea agreement with the State. He agreed to
plead guilty, and the State agreed to both dismiss a second count of third-degree
sexual abuse from a separate case and make no recommendations at
sentencing. At the plea hearing, the district court asked Willette about the plea
agreement. The following exchange also took place:
THE COURT: Other than this agreement, has anyone made
any other agreements with you or promises or is anyone forcing
you or threatening you which makes you plead guilty today?
WILLETTE: No.
THE COURT: Other than this agreement, has anyone made
any predictions to you about what this Court will do at sentencing.
WILLETTE: No.
Later, the court informed Willette of his possible sentence, stating, “[Section
709.4(2)(c)(4)] provides that sexual abuse in the third degree is a Class C felony,
punishable by a term of imprisonment of not to exceed ten years and a fine of not
to exceed $10,000.” Willette’s plea was accepted. His attorney did not file any
motion in arrest of judgment.
On September 13, 2006, the district court sentenced Willette to a period of
imprisonment not to exceed ten years. The court also stated,
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In addition, pursuant to section 903—903B.1, this being a class C
or greater offense under Chapter 709 of the Iowa Code, you are
sentenced to a special sentence committing you to the custody of
the Director of the Iowa Department of Corrections for the rest of
your life with eligibility for parole as provided by Chapter 906 of the
Iowa Code. A special sentence imposed under section 903B.1
shall commence upon the completion of the sentence imposed on
you under Chapter 709 of the Code of Iowa, which is the sentence
for the underlying criminal offense, and you shall begin the
sentence under this subsection upon completion of the sentence
under that code section.
Willette appeals, arguing his attorney should have filed a motion in arrest
of judgment after the district court failed to inform him of the special sentence
under section 903B.1.
II. Standard of Review
We review claims of ineffective assistance of counsel de novo. State v.
Tejeda, 677 N.W.2d 744, 754 (Iowa 2004).
III. Merits
In order to show his counsel rendered ineffective assistance, Willette must
show (1) his counsel breached an essential duty and (2) that breach resulted in
prejudice to his defense.
Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Generally, we preserve
ineffective assistance of counsel claims for postconviction relief actions. State v.
Tate, 710 N.W.2d 237, 240-41 (Iowa 2006). This practice ensures both that an
adequate record of the claim may be developed and that the attorney charged
with ineffectiveness may have an opportunity to respond. State v. Biddle, 652
N.W.2d 191, 203 (Iowa 2002).
The State argues it is possible defense counsel’s failure to file a motion in
arrest of judgment was a strategic decision. The State takes this position due to
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“personal communications” it has had with the Iowa Department of Corrections.
These “personal communications” indicate many judges were unaware of 903B.1
when it became effective and efforts to enforce 903B.1 post-sentencing were
either largely ineffective or completely absent. Thus, the State argues Willette
may have been gambling on the court being unaware of section 903B.1.
We find this argument unpersuasive for three reasons.
First, Willette
testified no one made any predictions to him about what the sentencing court
would do. Second, the State’s “personal communications” are not in the record
and are not evidence we can consider. See Iowa R. App. P. 6.10(1); Alvarez v.
IBP, Inc., 696 N.W.2d 1, 3 (Iowa 2005). Third, we do not consider betting the
court is unaware of the law to be reasonable trial strategy.
We therefore
conclude counsel breached an essential duty. See State v. Straw 709 N.W.2d
128, 134 (Iowa 2006); State v. Myers, 653 N.W.2d 574, 578 (Iowa 2001); State v.
Kress, 636 N.W.2d 12, 22 (Iowa 2001).
In order to show the breach of duty caused him prejudice, Willette must
show there is a reasonable probability that, absent counsel’s errors, he would not
have pleaded guilty and would have demanded a trial. Straw, 709 N.W.2d at
138. Willette has not made that showing here. See id. (noting it would be helpful
to the prejudice determination to know whether trial counsel spoke with the
defendant about the maximum possible sentence.) We preserve his claim for
postconviction relief.
AFFIRMED.
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