STATE OF IOWA, Plaintiff-Appellee, vs. TODD ALLEN NOSA, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-374 / 06-1809
Filed July 12, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TODD ALLEN NOSA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Todd Nosa appeals from his conviction and sentence, following his guilty
plea, for credit card fraud. CONVICTION AFFIRMED; SENTENCE VACATED
AND CASE REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, William E. Davis, County Attorney, and Julie Walton, Assistant County
Attorney, for appellee.
Todd A. Nosa, Pro Se.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
MILLER, J.
Todd Nosa appeals from his conviction and sentence, following his guilty
plea, for credit card fraud. He contends the district court abused its discretion by
not allowing him to exercise his right to allocution, his guilty plea was in violation
of his Fifth Amendment privilege against self-incrimination, and he received
ineffective assistance of counsel. We affirm his conviction, vacate the sentence
and remand the case for resentencing, and preserve his ineffective assistance
claim for a possible postconviction proceeding.
The State charged Nosa, by trial information, with credit card fraud, in
violation of Iowa Code section 715A.6(2) (2005). Nosa signed and filed a written
guilty plea and a written memorandum of the parties’ plea agreement.
A
sentencing hearing was held on this case and another pending Scott County
prosecution against Nosa. At the time of the hearing Nosa had already been
sentenced to a ten-year prison term in yet another case. At hearing the State
recommended the sentence for the credit card fraud conviction and the
sentences in the other pending prosecution be run consecutively.
attorney argued for concurrent sentences.
Nosa’s
Immediately following defense
counsel’s argument the court district asked, “Is there anything else you want to
say?” Nosa’s counsel responded, “No, Your Honor.” Nosa did not respond to
the court’s inquiry. The court sentenced Nosa to a period of incarceration not to
exceed two years on the credit card fraud conviction and ordered that sentence
to run consecutively to the sentences it imposed on the other convictions in the
other pending case.
3
Nosa appeals, claiming the district court erred in failing to allow him to
exercise his right to allocution, his guilty plea was in violation of his Fifth
Amendment privilege against compulsory self incrimination because the State
told him it would not seek habitual offender sentencing enhancement if he pled
guilty, and his counsel was ineffective for misadvising him concerning what the
court would do at sentencing.
Our review of sentencing procedures is for an abuse of discretion. State
v. Craig, 562 N.W.2d 633, 634 (Iowa 1997). Such abuse will be found only if the
district court's discretion was exercised on grounds or for reasons clearly
untenable or to an extent clearly unreasonable. Id.
A sentencing court is required under Iowa Rule of Criminal Procedure
2.23(3)(a) to ask the defendant whether he or she “has any legal cause to show
why judgment should not be pronounced against” him or her. The rule continues
on in paragraph (d) to require that prior to the court’s rendition of judgment
“counsel for the defendant, and the defendant personally, shall be allowed to
address the court where either wishes to make a statement in mitigation of
punishment.” Together these requirements are referred to as a defendant's right
to allocution. See Craig, 562 N.W.2d at 635-37.
Sentencing courts are not required to use any particular language to
satisfy rule 2.23(3)(d). State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999);
Craig, 562 N.W.2d at 635. Substantial compliance with the rule is sufficient.
Duckworth, 597 N.W.2d at 800. “The important thing is whether the defendant is
given an opportunity to volunteer any information helpful to the defendant's
4
case.”
Craig, 562 N.W.2d at 635.
Therefore, as long as the district court
provides the defendant with an opportunity to speak regarding his punishment,
the court is in compliance with the rule. Id. In dealing with a comparable federal
rule the Supreme Court has stated:
[T]o avoid litigation arising out of ambiguous records in order to
determine whether the trial judge did address himself to the
defendant personally, we think that the problem should be, as it
readily can be, taken out of the realm of controversy. This is easily
accomplished. Trial judges before sentencing should, as a matter
of good judicial administration, unambiguously address themselves
to the defendant. Hereafter trial judges should leave no room for
doubt that the defendant has been issued a personal invitation to
speak prior to sentencing.
Green v. United States, 365 U.S. 301, 305, 81 S. Ct. 653, 655, 5 L. Ed. 2d 670,
674 (1961).
Nosa argues that at no point prior to pronouncing sentence was he
afforded his right to allocution as provided for in rule 2.23(3). After reviewing the
sentencing transcript, we agree. Although trial counsel availed himself of the
opportunity to address the court on the subject of sentencing, our supreme court
has held the right to allocution is personal to the defendant and will not be
deemed exercised through counsel alone. Craig, 562 N.W.2d at 636-37. The
language of rule 2.23(3)(d) is consistent with the holding in Craig, indicating
“counsel for defendant, and the defendant personally” shall have the opportunity
to exercise the right. (Emphasis added).
5
The district court did not unambiguously provide Nosa with the opportunity
to exercise his right to allocution. We conclude the sentence in this case must be
vacated and the case remanded to the district court for resentencing. 1
Nosa next claims his guilty plea was in violation of his Fifth Amendment
privilege against self-incrimination because the State threatened to file a habitual
offender sentencing enhancement if he did not plead guilty. Generally our review
of a challenge to the entry of a guilty plea is for correction of errors at law. State
v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). To the extent Nosa is claiming a
constitutional violation, our review is de novo in light of the totality of the
circumstances as shown by the entire record. State v. Turner, 630 N.W.2d 601,
606 (Iowa 2001).
To preserve guilty plea challenges for appeal, a defendant must file a
motion in arrest of judgment within forty-five days of entry of a guilty plea and no
later than five days before the date set for sentencing.
Iowa R. Crim. P.
2.24(3)(a), (b). Nosa did not file a motion in arrest of judgment challenging his
guilty plea, and therefore has not preserved error on this issue for our review.
See State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998).
Furthermore, in support of this claim Nosa alleges that his plea stated:
“The State will not seek the Habitual Criminal enhancement if Defendant pleads
guilty pursuant to this Plea Agreement.” Nosa’s plea consists of the written guilty
plea and the written memorandum of plea agreement filed in this case. Upon our
1
We continue to urge defense counsel to avoid the unnecessary time and expense of
appeal by bringing to the attention of the district court any claimed errors that can readily
be remedied in the trial court, such as the failure to afford the defendant a right of
allocution. See State v. Millsap, 547 N.W.2d 8, 10 n.1 (Iowa Ct. App. 1996).
6
careful review of the record we find no term, either express or implied, such as
alleged by Nosa. To the contrary, the written guilty plea expressly states that “no
one has made any promises or inducements to make me plead guilty, nor has
anyone threatened me to cause me to plead guilty.”
The relevant record thus contains and consists of Nosa’s own assertion
that no promises or inducements led to his guilty plea, and thus his bare
allegation to the contrary neither meets a minimum threshold of credibility nor
overcomes the presumption the record truly reflects the facts. Therefore, and
assuming Nosa has preserved error on this claim, we find it to be without merit.
See, e.g., Foster v. State, 395 N.W.2d 637, 638 (Iowa 1986) (holding applicant
for postconviction relief not entitled to hearing where allegation directly
contradicted record and minimum threshold of credibility not met); State v. Boge,
252 N.W.2d 411, 414 (Iowa 1977) (same); see also Wise v. State, 708 N.W.2d
66, 70-71 (Iowa 2006) (stating district court could have summarily dismissed
application for postconviction relief where applicant’s allegation directly
contradicted the overwhelming record).
Finally, Nosa claims his trial counsel was ineffective for misadvising him
concerning what the court would do at sentencing. He contends his counsel told
him the court would run the sentence on the credit card fraud conviction and the
sentences on the other pending charges all concurrently. As noted above, the
court ordered the sentence in this case and the sentences in the other case to all
run consecutively. Nosa argues that if he would have known he was not going to
receive concurrent sentences he would not have pled guilty in this case.
7
We ordinarily preserve ineffective assistance of counsel claims for a
postconviction proceeding, doing so when and because the record is inadequate
to resolve the claims on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245
(Iowa 1999).
Such is the case here.
We therefore preserve for a possible
postconviction proceeding Nosa’s claim that trial counsel rendered ineffective
assistance by misadvising him concerning the sentence that would be imposed in
this case.
CONVICTION
AFFIRMED;
REMANDED FOR RESENTENCING.
SENTENCE
VACATED
AND
CASE
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