Munz v. State

• Decision Date: 18 December 1985
• Docket Number: No. 84-1109,84-1109
• Citation: 382 N.W.2d 693
• Parties: Thomas A. MUNZ, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee.
• Court: Iowa Court of Appeals

Page 693

382 N.W.2d 693

Thomas A. MUNZ, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee.

No. 84-1109.

Court of Appeals of Iowa.

Dec. 18, 1985.

Thomas A. Munz, pro se, and Brad J. Brady of Crawford, Sullivan, Read & Roemerman, Cedar Rapids, for petitioner-appellant.

Thomas J. Miller, Atty. Gen., Rebecca L. Claypool, Asst. Atty. Gen., and G. Kent Renegar, Asst. Co. Atty., for respondent-appellee.

Heard by SNELL, P.J., and SCHLEGEL and HAYDEN, JJ.

SNELL, Presiding Judge.

In 1982 Munz pled guilty to a charge of sexual exploitation of children in violation of Iowa Code section 728.12 (1981) pursuant to a plea bargain under which other charges were dropped. No motion in arrest of judgment was filed. His direct appeal of his conviction was dismissed by the Iowa Supreme Court on the ground that the appeal was frivolous. The court stated in its order of dismissal, "After examining the record, we agree with counsel that there is no ground for reversal of defendant's conviction and sentence. Accordingly, defendant's court-appointed counsel is hereby permitted to withdraw, and the appeal is hereby ordered dismissed pursuant to Iowa R.App.P. 104, without prejudice to defendant's right to raise the issue of trial counsel's effectiveness in postconviction relief proceedings under Iowa Code Chapter 663A." After Munz filed his application and amended application for postconviction relief, the State sought summary dismissal of the application which was granted pursuant to Iowa Code section 663A.6 (1983). See State v. Munz, No. 69261 (Iowa Supreme Court, March 10, 1983).

On appeal, petitioner asserts that his application for postconviction relief raises material issues of fact and, therefore, the court erred by granting the State's motion to dismiss.

Iowa Code section 663A.6 (1985) provides that "The court may grant a motion by either party for summary disposition of the application, when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." The principles underlying our summary judgment procedure, Iowa R.Civ.P. 237-40, also apply to summary dispositions under the postconviction procedures of chapter 663A. Boge v. State, 309 N.W.2d 428, 430 (Iowa 1981).

On the other hand, "we find no need for the trial court to afford petitioner a hearing on allegations which directly contradict the record, unless some minimum threshold question of credibility appears." Id. Thus, whether a genuine issue of material fact exists so as to preclude summary disposition turns on whether reasonable minds could draw different inferences and reach different conclusions from them." State v. Boge, 252 N.W.2d 411, 414 (Iowa 1977).

I. Guilty Plea. Munz argues that the postconviction court erred by dismissing his contention that his guilty plea was not voluntarily and intelligently made. Munz's contention is that he could not have intelligently and voluntarily entered a guilty plea because during the plea hearing he was under the influence of a psycho-depressant drug administered by the jail nurse. He contends that the jail records would verify his claim and the postconviction court's denial of his discovery request foreclosed adequate development of this evidentiary support for his claim.

The State asserts that Munz is precluded from challenging the voluntariness of his guilty plea because this issue was conclusively determined by the Iowa Supreme Court's dismissal of his direct appeal. The State relies on Iowa Code section 663A.8 (1983) which provides that any ground finally adjudicated "in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application."

The court dismissed Munz's direct appeal pursuant to Iowa R.App.P. 104. This dismissal was initiated by Munz's counsel. Munz was notified and resisted dismissal in a timely manner. The Iowa Supreme Court, when faced with a situation in this procedural posture, held "that a rule 16 (now R.App.P. 104) dismissal which is contested or objected to by the appellant does not prevent issues which could have been presented upon direct appeal from being embraced in a petition for postconviction relief under § 663A.8." Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 34 (Iowa 1979). The court reasoned, "For this court to bind an appellant to an action taken by his counsel in derogation of his instructions of which this court has knowledge, would be to establish or maintain an unreasonable procedural bar to postconviction relief. If the initial order to dismiss was accurate and the appeal is frivolous, it would take little time to resolve. If there is merit to petitioner's ground, then he or she should not be bound by a dismissal to which a timely objection was made." Id.

Therefore, we conclude that the dismissal of the direct appeal poses no bar to Munz's claim for postconviction relief.

The State also asserts that challenges to a guilty plea must first be raised in a motion in arrest of judgment in order to raise that issue on appeal. Iowa R.Crim.P. 8(2)(d) provides that "The court shall inform the defendant that any challenges to a plea of guilty based on alleged defects in the plea proceedings must be raised in a motion in arrest of judgment and that failure to so raise such challenges shall preclude the right to assert them on appeal." Iowa R.Crim.P. 23(3)(a) defines a motion in arrest of judgment as "an application by the defendant that no judgment be rendered on a finding, plea, or verdict of guilty." Rule 23(3)(a) also reiterates that "A defendant's failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall preclude his or her right to assert such challenge on appeal."

The purpose of rules 8(2)(d) and 23(3)(a) is to allow the trial court to correct defects in guilty plea proceedings before an appeal and thus eliminate the necessity for an appeal. Wenman v. State, 327 N.W.2d 216, 216 (Iowa 1982).

We have consistently held that unless the trial court failed to address the defendant as required by Iowa R.Crim.P. 8(2)(d), we would not review the validity of a guilty plea in the absence of a rule 23(3)(a) motion in arrest of judgment. State v. Lucas, 323 N.W.2d 228, 230 (Iowa 1982). The record in this case shows that the court did meet this requirement at the end of the guilty plea proceeding:

THE COURT: Now, in connection with your guilty plea, if you believe there are any defects in these plea proceedings, you have a right to challenge the guilty plea and you do that in a Motion In Arrest of Judgment, and if you wished to challenge your guilty plea because of any defects that's the way you have to do it, and you must do that by filing a Motion In Arrest of Judgment within five days of your sentence date and in no event later than forty-five days from today. If you fail to raise any such defects in a Motion In Arrest of Judgment, you would not be able to raise them if you later appealed your case, you won't be able to raise them on an appeal.

Furthermore, in the instant case, the record shows the following colloquy during sentencing:

THE COURT: Mr. Munz, did you understand that you had a right to file a Motion in Arrest of Judgment prior to today?

THE DEFENDANT: Yes, your Honor, I did.

THE COURT: Did you do that?

THE DEFENDANT: No, I did not, your Honor. I discussed that with my present Attorney, Mr. Meyer, and he advised against it.

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THE COURT: Is that what you did, Mr. Meyer?

MR. MEYER: Yes, your Honor. Upon reviewing all of the information available to me in the Trial Information and talking with Mr. Munz and considering the nature of the plea and the plea bargain that was entered into, I advised him that it was my judgment in his best interests to proceed with sentencing on the plea that had been entered.

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THE COURT: Well, the Court is satisfied that this Defendant on legal advice has not filed a Motion in Arrest of Judgment and we should proceed with sentencing.

From the court's statement and its colloquy with Munz, it is obvious that the court advised defendant of the necessity of a motion in arrest of judgment and the record indicates that Munz affirmatively showed his understanding of the necessity of filing such a motion and the consequences of his decision not to do so.

Because defendant was informed by the trial court as to the necessity of filing a motion in arrest of judgment, there is no basis for suspending the application of rule 23(3)(a) unless defendant's failure to move in arrest of judgment resulted from ineffective assistance of counsel. State v. Schoelerman, 315 N.W.2d 67, 71 (Iowa 1982). "When a claim of ineffective assistance of counsel is made, we have allowed an exception to the general rule of error preservation." Lucas, 323 N.W.2d at 232. "Because these claims (realistically) are not made by attorneys against their own actions, we have allowed the suspension of rule 23(3)(a)." Id.

While most of Munz's allegations are couched in terms of ineffective assistance of counsel, the attack on the validity of his guilty plea appears to be on the merits. However, in his amended application for postconviction relief, Munz contends that his trial counsel rendered ineffective assistance by refusing to enter a motion in arrest of judgment despite various defects in the plea proceedings.

Because the applicant proceeding pro se is entitled to a liberal construction of his pleadings, we will examine Munz's claim in terms of ineffective assistance of counsel, and the lack of a motion in arrest of judgment poses no bar to such consideration.

When a defendant relies on a specific act or omission to prove ineffective assistance of counsel, two conditions must be...