State v. Hallock

• Decision Date: 22 January 2009
• Docket Number: No. 08-0875.,08-0875.
• Citation: 765 N.W.2d 598
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Jason Levi HALLOCK, Defendant-Appellant.
• Court: Iowa Court of Appeals

765 N.W.2d 598

STATE of Iowa, Plaintiff-Appellee, v. Jason Levi HALLOCK, Defendant-Appellant.

No. 08-0875.

Court of Appeals of Iowa.

January 22, 2009.

Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, and Kevin H. Clefisch, County Attorney, for appellee.

Considered by SACKETT, C.J., and EISENHAUER and DOYLE, JJ.

DOYLE, J.

Jason Hallock appeals from his conviction and sentence for the offense of assault with intent to commit sexual abuse causing bodily injury other than serious injury, in violation of Iowa Code section 709.11 (2007). He contends defense counsel was ineffective in handling his guilty plea. Upon our review, we vacate the sentence on the assault charge and remand for further proceedings.

I. Background Facts and Proceedings.

According to the minutes of testimony and statements, in the early morning hours of August 19, 2007, Jason Hallock broke into the home of his ex-girlfriend, the mother of his children. He proceeded to her bedroom and fired a handgun at the bed. The bullet went through a pillow and lodged in the wall. Hallock told his ex-girlfriend that she was going to die that night. He tried to force the gun into her mouth and also put the gun to her head. He grabbed her chin because she wasn't looking at him. He threw a ring at her head. He forced her to have sex with him twice while he kept the gun near her head.

On August 28, 2007, Hallock was charged by trial information with burglary in the first degree (Count I), sexual abuse in the second degree (Count II), intimidation with a dangerous weapon (Count III), and possession with a firearm by a felon (Count IV). Hallock initially entered a plea of not guilty. Following a plea bargaining agreement, the State filed a motion to amend trial information, changing Count I from burglary in the first degree (a class B felony) to burglary in the second degree (a class C felony) and changing Count II from sexual abuse in the second degree (a class C felony) to assault with intent to commit sexual abuse causing injury other than serious injury (a class D felony). On November 20, 2007, Hallock appeared before the district court and entered an Alford plea on the assault charge and guilty pleas on the remaining three charges. See North Carolina v. Alford, 400 U.S. 25, 32-38, 91 S.Ct. 160, 164-68, 27 L.Ed.2d 162, 168-72 (1970) (holding that an accused may consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime). After accepting the pleas, the district court explained Hallock's right to file a motion in arrest of judgment. Hallock waived that right and consented to immediate sentencing by the court. Hallock was sentenced to ten years of imprisonment each on Counts I and III, to be served concurrently, and five years each on Counts II and IV, to be served concurrently. The sentences for Counts I and III were to be served consecutively with the sentences for Counts II and IV, resulting in one continuous term of incarceration not to exceed fifteen years. Fines were imposed but suspended, and Hallock was ordered to register as a sex offender.

After the Iowa Department of Corrections alerted the district court that the sentencing order failed to contain the mandatory ten-year period of probation required by Iowa Code section 903B.2, the court held a resentencing hearing on April 30, 2008. Hallock appeared in person. He made no request to withdraw his plea. The court amended Hallock's sentence to include that he would serve a term of ten years of probation, pursuant to section 903B.2.

Hallock appeals. He contends his counsel was ineffective in not filing a motion in arrest of judgment.

II. Scope and Standards of Review.

Failure to file a motion in arrest of judgment generally precludes challenges to a guilty plea on appeal. Iowa Rs.Crim. P. 2.24(3)(a), 2.8(2)(d); State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001). However, the failure to file a motion in arrest of judgment will not preclude the claim if the failure was the result of ineffective assistance of counsel. State v. Bearse, 748 N.W.2d 211, 218 (Iowa 2008); Kress, 636 N.W.2d at 19.

Our review of ineffective assistance of counsel claims is de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). We typically preserve these claims for postconviction relief although we will resolve them on direct appeal if the record is adequate. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). We conclude the record in this case is adequate to decide this issue.

III. Timeliness of Appeal.

The State claims Hallock's appeal is untimely because it was filed more than thirty days after the court's initial judgment and sentence of November 21, 2007. Under Iowa Rule of Appellate Procedure 6.101, appeals in criminal actions must be taken within thirty days of the final judgment. A sentence is a final judgment in a criminal case, and, excepting statutory provisions, is the end of the case in regard to control of the sentencing court. State v. Sullivan, 326 N.W.2d 361, 363 (Iowa 1982). However, a sentencing court is bound to impose a sentence prescribed by statute. State v. Ohnmacht, 342 N.W.2d 838, 842-43 (Iowa 1983). A sentence not permitted by statute is void. Id. at 842; see also Iowa R.Crim. P. 2.24(5)(a) (stating the court may correct an illegal sentence at any time); State v. Draper, 457 N.W.2d 600, 606 (Iowa 1990) (noting when a sentencing court departs upward or downward from a legislatively authorized sentence, the pronounced sentence is a nullity subject to correction on appeal or later). Void sentences are not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation. Ohnmacht, 342 N.W.2d at 843. Thus, the time for appeal does not begin to run until a valid judgment is entered. Id. at 845.

The court's original judgment and sentence did not contain the mandatory special sentence set forth in section 903B.2, which our supreme court recently upheld against several constitutional challenges in State v. Wade, 757 N.W.2d 618 (Iowa 2008). Thus, a valid judgment was not entered until April 30, 2008, when the court amended its original sentence to comport with that statute. Hallock's appeal on May 13, 2008, from that order was therefore timely. See Ohnmacht, 342 N.W.2d at 845 (stating the defendant would have the ability to appeal his conviction upon entry of a valid judgment and sentence).

IV. Merits.

Hallock claims his trial counsel was ineffective for failing to file a motion in arrest of judgment because his plea lacked a factual basis. For the reasons that follow, we agree.

To establish his claim of ineffective assistance of counsel, Hallock "must prove by a preponderance of the evidence that (1) his counsel failed to perform an essential duty, and (2) prejudice resulted." State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006) (quoting State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004)). If he fails to prove either prong of the claim, it must fail. State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003).

Under the first prong of this test, counsel's performance is measured "against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner." State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004).

A. Lack of Factual Basis.

Hallock argues his counsel failed to perform an essential duty in not challenging the plea for lack of factual basis. Hallock entered an Alford plea to the charge of assault with the intent to commit sexual abuse and causing bodily injury but not serious injury. He claims that he did not provide a factual basis for his plea, and the minutes of testimony contain no mention of the victim sustaining any injury that would support a factual basis for the plea.

The district court may not accept a guilty plea without first determining that the plea has a factual basis. This requirement exists even where the plea is an Alford plea. Where a factual basis for a charge does not exist, and trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an essential duty. Prejudice in such a case is inherent.

State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (citations omitted). Therefore, our first and only inquiry is whether the record shows a factual basis for Hallock's plea. We consider the entire record before the district court at the guilty plea hearing, including any statements made by the defendant, facts related by the prosecutor, and the minutes of testimony. Id.

Relevant portions of the plea follow:

THE COURT: Next, turning to Count II, the amended and lesser charge of Assault with Intent to Commit Sexual Abuse, the Assault Causing Bodily Injury Other Than Serious Injury, the State would have to prove before you would be convicted that on or about the 19th of August, 2007, in Clayton County, Iowa, you did hit or strike or touch another person; you did so in such a way that it caused that person to be injured; the injury was not a serious injury but was a bodily injury; and you did these acts with the plan or purpose of causing bodily injury.

Do you understand those requirements?

THE DEFENDANT: Yeah.

....

THE COURT: —and you want an Alford plea to Count II.

THE DEFENDANT: Yeah.

....

THE COURT: Okay. Turning to Count II, the Assault with Intent to Commit Sexual Abuse Causing Bodily Injury Other Than Serious Injury, it's my understanding you wish to, instead of pleading straight up like you did plan to do to the others, that you want to make what's called an Alford plea.

Is that right?

THE DEFENDANT: Yeah.

THE COURT: An Alford plea is authorized by the decision of the United States Supreme Court in North Carolina v. Alford. In that case, the United States Supreme Court made a ruling that a trial judge, like me,...