ALAN DUANE BEARD, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-010 / 07-0073
Filed February 27, 2008
ALAN DUANE BEARD,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Gary L.
McMinimee, Judge.
Applicant appeals from the denial of his application for postconviction
relief. SENTENCE VACATED AND REMANDED.
Mark C. Smith, State Appellate Defender and Theresa Wilson, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney
General, and Jim Robbins, County Attorney, for appellee State.
Considered by Sackett, C.J., and Vogel and Vaitheswaran, JJ.
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VOGEL, J.
Alan Beard was originally charged with one count of second-degree
sexual abuse, in violation of Iowa Code section 709.9(2) (2003). Pursuant to a
plea agreement, Beard later pleaded guilty to one count of third-degree sexual
abuse, in violation of section 709.4(2)(a), and one count of lascivious acts with a
child, in violation of section 709.8.
Beard did not file a motion in arrest of
judgment and did not directly appeal from his convictions.
On February 24, 2006, Beard filed a pro se application for postconviction
relief (PCR), claiming a lack of DNA evidence and that the victim’s mother failed
to turn over a relevant videotape. The court later appointed counsel to represent
Beard and counsel filed an amended petition, alleging claims of ineffective
assistance of counsel, in particular for failing to have Beard’s competency
determined, failing to move in arrest of judgment, and failing to move to suppress
evidence based on Beard’s diminished capacity. The court then appointed Dr.
Craig Rypma to evaluate the claim of lack of capacity to enter the guilty plea.
Following a trial, the court denied Beard’s application, concluding he had not met
his burden to overcome the presumption he was competent at the time of
entering his plea and therefore failed to prove his counsel was ineffective. It also
rejected the pro se claims.
Beard filed a timely appeal from this postconviction ruling. On appeal,
Beard now alleges for the first time that his trial counsel provided ineffective
assistance for failing to challenge his guilty plea due to its lack of a factual basis.
He also claims postconviction counsel was ineffective in failing to allege the
ineffectiveness of trial counsel. He also argues postconviction counsel failed to
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properly support his claim of incompetency and that the postconviction court
erred in refusing to permit him to present his pro se claims.
We typically review postconviction relief proceedings on error. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001).
However, when the applicant
asserts a claim of constitutional nature, such as ineffective assistance of counsel,
we evaluate the totality of the circumstances in a de novo review. Id.
It is axiomatic that a trial court “may not accept a guilty plea without first
determining that the plea has a factual basis.” State v. Schminkey, 597 N.W.2d
785, 788 (Iowa 1999). If a defendant enters a plea of guilty to a crime and the
record fails to disclose a factual basis, defense counsel fails to provide effective
assistance and prejudice is inherent under the circumstances. Id.
The State concedes neither of the pleas are supported by a factual basis.
We therefore conclude Beard’s guilty plea counsel provided ineffective
assistance in failing to move in arrest of judgment. See State v. Keene, 630
N.W.2d 579, 581 (Iowa 2001) (finding error preserved on challenge to guilty plea
where failure to file motion in arrest of judgment due to ineffective assistance of
counsel). Postconviction counsel was therefore ineffective as well in failing to
assert the ineffectiveness of guilty plea counsel on this ground. Dunbar v. State,
515 N.W.2d 12, 14-15 (Iowa 1994) (stating ineffectiveness of postconviction
counsel amounts to sufficient reason to excuse applicant’s failure to raise issue
in prior proceedings).
Both Beard and the State request that we remand in order to provide the
State further opportunity to establish a factual basis for the plea. See State v.
Royer, 632 N.W.2d 905, 909-10 (Iowa 2001). We grant this request.
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Beard next claims postconviction counsel rendered ineffective assistance
when he “failed to properly support his claim of applicant’s incompetency” by
obtaining a formal competency evaluation, and that the failure to do so
constituted ineffective assistance. We reject this contention. A defendant is not
entitled to perfect representation, but only that which is in the reasonable range
of competency. Karasek v. State, 310 N.W.2d 190, 192 (Iowa 1981). Here,
counsel recognized Beard’s competency as an issue and was granted
authorization to hire an expert.
While this expert did not perform a formal
competency evaluation, he did perform two hours of testing and interviewed
Beard for testing.
Beard also claims the postconviction court erred “when it did not permit
[him] to present his pro se claims.” We find the postconviction court did address
and reject the claims made in Beard’s pro se application. We further conclude
the court properly rejected them as having been waived. See State v. Speed,
616 N.W.2d 158, 159 (Iowa 2000) (noting a guilty plea waives all defenses which
are not intrinsic to the plea).
Finally, Beard has filed a pro se brief on appeal. This brief appears to
consist mainly of factual allegations. Whatever legal claims may be raised are
not supported by citation to authority.
See Iowa R. App. P. 6.14(1)(c).
Accordingly, we decline to address them.
SENTENCE VACATED AND REMANDED.
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