STATE OF IOWA, Plaintiff - Appellee, vs. TERRY LELAND BERG JR., Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-825 / 07-2043
Filed November 13, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TERRY LELAND BERG JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, John D.
Ackerman, Judge.
Terry Leland Berg Jr. appeals from his conviction and sentences for the
offenses of (1) possession of a precursor substance, (2) manufacturing a
controlled substance, and (3) conspiracy to manufacture a controlled substance.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Patrick Jennings, County Attorney, and James Loomis, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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DOYLE, J.
Terry Leland Berg Jr. appeals from his conviction and sentences for the
offenses of (1) possession of a precursor substance, (2) manufacturing a
controlled substance, and (3) conspiracy to manufacture a controlled substance
in violation of Iowa Code sections 124.401(4)(b) and 124.401(1)(c)(6) (2007). He
contends defense counsel was ineffective in handling his guilty pleas. Upon our
review, we affirm.
I. Background Facts and Proceedings.
On April 18, 2007, Berg was charged by trial information with possession
of a precursor substance (Count I), manufacturing a controlled substance—
methamphetamine (Count II), sale or receipt of precursor drugs for unlawful
purpose (Count III), conspiracy to manufacture controlled substance—
methamphetamine (Count IV), and purchasing more than the legally allowed
quantity of pseudoephedrine (Count V). Berg initially entered a plea of not guilty.
On October 9, 2007, Berg entered into a plea agreement, subject to court
approval, with the State wherein he would plead guilty to Counts I, II, and IV, and
the State agreed to dismiss the remaining charges. It was agreed that he would
be sentenced to indeterminate terms of incarceration of five years, ten years, and
ten years, to be served concurrently. Berg entered his plea of guilty. He was
sentenced on November 1, 2007, in accordance with the plea agreement. Berg
filed a notice of appeal on November 9, 2007.
In December 2007 and February 2008, the district court received letters
from Berg and his father challenging the imposition of the mandatory minimum
sentence on Counts II and IV and requesting reconsideration of Berg‟s sentence.
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Following a hearing on the matter, the court on April 9, 2008, denied the request
for reconsideration.
Berg appeals. He contends his counsel was ineffective in not filing a
motion in arrest of judgment and in allowing Berg to plead guilty upon faulty legal
advice.
II. Scope and Standards of Review.
Normally, our review of a challenge to the entry of a guilty plea is for
corrections of errors at law. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
However, where the ineffectiveness of counsel is alleged in connection with the
entry of the guilty plea, we perform de novo review of the entire record. Ledezma
v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective assistance of
counsel raised on direct appeal are generally preserved for postconviction relief
proceedings so that a sufficient record can be developed, and so attorneys
whose ineffectiveness is alleged may have an opportunity to defend their actions.
State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). We note claims of ineffective
assistance of counsel need not be raised on direct appeal to preserve them for
postconviction proceedings. Iowa Code § 814.7. But where such claims are
advanced on direct appeal, and the record is adequate to permit our review of
them, or where the record permits us to determine whether prejudice resulted
from counsel‟s alleged unprofessional error, we may decide them on direct
appeal.
Allen, 348 N.W.2d at 248. We conclude the record in this case is
adequate to decide this issue.
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III. Merits.
Berg was originally charged with: possession of a precursor substance, a
class “D” felony; manufacture of a controlled substance, a class “C” felony; sale
or receipt of precursor drugs for unlawful purposes, a class “C” felony; conspiracy
to manufacture a controlled substance, a class “C” felony; and purchase of more
than the legally allowed quantity of pseudoephedrine, a serious misdemeanor.
The plea agreement was silent regarding the court‟s ability to impose, or waive,
the mandatory minimum sentence.1
Berg‟s counsel apparently erroneously
advised Berg that the court had no discretion to waive the mandatory minimum
sentence due to Berg‟s prior conviction in South Dakota for possession of
anhydrous ammonia. However, under Iowa Code section 901.10, the prohibition
on reducing minimum sentences does not apply to foreign convictions. Iowa
Code § 901.10; State v. Neary, 470 N.W.2d 27, 29 (Iowa 1991). Berg claims his
counsel was ineffective in allowing him to plead without that knowledge.
The defendant must prove by a preponderance of the evidence that
“(1) his counsel failed to perform an essential duty, and (2) prejudice resulted.”
State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). If he fails to prove either
prong of the claim, it must fail.
Id.
“[I]n order to satisfy the „prejudice‟
requirement, the defendant must show that there is a reasonable probability that,
but for counsel‟s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370,
88 L. Ed. 2d 203, 210 (1985).
1
A court or counsel may not give incorrect
Certain class “C” felony drug offenses are subject to a mandatory minimum period of
confinement of one-third of the maximum indeterminate sentence prescribed by law.
Iowa Code § 124.413.
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information to a defendant regarding consequences of a guilty plea. Meier v.
State, 337 N.W.2d 204, 207 (Iowa 1983).
Assuming without deciding Berg‟s counsel breached an essential duty in
this case, Berg must show he was prejudiced as a result. At the reconsideration
hearing, Berg stated:
I just wanted to let the Court be aware that I wasn‟t aware
that the one-third mandatory could be waived; and with that being
known, I don‟t believe that I would have pled to the plea agreement
prior to knowing that.
His lawyer stated at the hearing, “The defendant would not have signed the plea
agreement if we had been correctly informed at the time of signing.” “In order to
satisfy the „prejudice‟ requirement, the defendant must show there is a
reasonable probability that, but for counsel‟s errors, he would not have pleaded
guilty and would have insisted on going to trial.” State v. Myers, 653 N.W.2d
574, 578 (Iowa 2002) (quoting Hill, 474 U.S. at 58-59, 106 S. Ct. at 370, 88
L. Ed. 2d at 210); see also State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). In
this regard, conclusory claims of prejudice are not sufficient. Myers, 653 N.W.2d
at 579.
We conclude Berg has failed to prove there is a reasonable probability,
but for counsel‟s error, he would not have pleaded guilty and would have insisted
on going to trial. Berg himself did not assert he would have insisted on going to
trial. Even if he did make such an assertion, a conclusory claim of prejudice is
insufficient to demonstrate the type of prejudice required to establish ineffective
assistance of counsel. See id. For the first time, in his appeal brief, it is stated:
“Had the defendant understood that the mandatory minimum imposed by the
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court was discretionary and not directory, he would not have waived his trial
rights and pled guilty.” By entering pleas of guilty to Counts I, II, and IV, Berg
avoided conviction on Count III (a class “C” felony carrying a possible term of
incarceration of ten years) and on Count V (a serious misdemeanor), and he
further avoided consecutive sentences on four felony convictions rather than the
concurrent sentences he received.
We find no reasonable probability Berg would have rejected the plea
agreement and insisted on going to trial if he had been informed that the court
had the discretion to waive the mandatory minimum sentence.
AFFIRMED.
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