State v. Montgomery

• Decision Date: 11 May 2011
• Docket Number: No. 1-150 / 10-0638,1-150 / 10-0638
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. ELISA MARIE MONTGOMERY, Defendant-Appellant.
• Court: Iowa Court of Appeals

STATE OF IOWA, Plaintiff-Appellee, v. ELISA MARIE MONTGOMERY, Defendant-Appellant.

No. 1-150 / 10-0638

COURT OF APPEALS OF IOWA

Filed: May 11, 2011

Appeal from the Iowa District Court for Black Hawk County, Jon Fister, Judge.

Appeal from the denial of a motion in arrest of judgment and from sentences imposed following Alford pleas to eleven charges. AFFIRMED.

Matthew T. Early of Fitzgibbons Law Firm, Estherville, for appellant

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., Potterfield, J., and Huitink, S.J.^* Tabor, J., takes no part.

SACKETT, C.J.

Defendant-appellant, Elisa Montgomery, appeals from the denial of her motion in arrest of judgment and the sentences imposed after her Alfod¹pleas to eleven prescription-medication related charges. She contends the court erred in accepting her pleas and in denying her motion in arrest of judgment. She also contends counsel was ineffective in not seeking a competency determination. She further contends the court abused its discretion in sentencing. We affirm.

I. Background.

In December of 2008 Montgomery was charged by trial information with one count of ongoing criminal conduct, five counts of prohibited acts, and five counts of possession and/or conspiracy to possess Hydrocodone with intent to deliver.

Montgomery entered an Alford plea on July 8, 2009, before the Honorable Jon Fister. She filed a motion in arrest of judgment, contending the factual basis for the plea was legally insufficient and did not support a judgment against her and her plea should be withdrawn. The motion was amended on August 9, 2009, wherein Montgomery contended her plea was not entered knowingly because she was under the influence of prescription medication at the time and did not understand the proceedings.

The motion came before the Honorable Richard D. Stochl, who denied the motion finding:

The court has reviewed the transcript of the guilty plea taken before the Honorable Jon Fister and the colloquy that exists between the court and the defendant as to a factual basis for the underlying charges. The defendant readily admits that the court could rely upon the minutes of testimony as being true and accurate in order to form a factual basis. She further admits on the record that there is sufficient evidence in the minutes of testimony upon which a jury could find her guilty of each of the individual offenses. Based on that colloquy between the court and the defendant, her motion for arrest of judgment is DENIED.

Defendant further alleges that she was under the influence of prescription medications at the time of her Alford plea and therefore did not understand the proceedings. The Court asked her the following question during its colloquy:

And I understand that you take medication and that you have some counseling issues and so forth, but are any of the medications you're taking or mental issues that you have got you so confused that you don't understand what we're doing here today?

ANSWER: Not today, no.

This plea was entered shortly before a jury was [to be] selected for trial on the underlying counts. It was entered pursuant to a plea agreement with the County Attorney's office. It is clear from the transcript that defendant had a sufficient understanding of the proceedings to merit the court's finding that she fully understood her rights and that she was entering an Alford plea to the charges. Accordingly, the court finds that she was not so influenced by prescription medications that she could not understand the proceedings.

(Emphasis added.)

At the sentencing hearing, the court noted defendant had filed a motion for a new lawyer and a motion for Judge Fister's recusal earlier that day, alleging a conflict of interest. The pro se recusal motion also sought the judge's recusal "due to filing of judicial qualifications" against him. Judge Fister observed his only involvement with the case to that point was accepting defendant's plea, because Judge Stochl had ruled on the motion in arrest of judgment.

The court reviewed the presentence investigation, heard the testimony of Dr. Mohammad Afridi, a psychiatrist who had seen defendant four or five timesover an eight-month period and was managing her medication, heard defendant's statements and the statements of counsel. The State recommended sentences totaling fifty-five² years based on defendant's extensive record, her lengthy involvement in the crimes charged, and her involving family members in the crimes.

The court stated its reasons for the sentences:

Based on your history, Miss Montgomery, for whatever reasons, you've determined your own fate by your own behavior. It's nothing I've done or nothing Mr. Walz has done, nothing the police have done. You're responsible for what you do and you're accountable for what you do and you've made your bed and now you're going to have to [lie] in it. You are incorrigible. It is not safe to have you out in the community because you continue to return to the same patterns of behavior in the past where you've broken the law and enlisted other people, including family members, to help you with that. Because of the circumstances of these charges, because of your prior record, for community protection and for, if at all possible, your rehabilitation in a controlled environment where you can be monitored and supervised, I am going to....

At that point defendant asked permission to speak, which the court granted. She proceeded to question the judge's statements and argue with him. After several exchanges, the court finally stopped defendant:

Well ma'am, we're done. You had a chance to talk and now you have to be quiet and I get to sentence you and we're going to do that and you're going to file an appeal and we'll see what happens. Okay? Good.

The court misunderstood the State's recommendation concerning the interplay of consecutive and concurrent sentences on the multiple charges and began to impose consecutive sentences that would have totaled 125 years. The State noted it was asking that the ten-year sentences be concurrent with each other. The court agreed and restated the sentences to follow the State's recommendation. When the court stated it could not find any basis that defendant was not a danger to the community and thus would not be released on bond, defendant again challenged and began to argue, seeking to be released for a day to get her affairs in order. In denying her request, the following dialogue occurred:

COURT: Well I wish you had made some arrangements for it, ma'am. I'm sorry for it. DEFENDANT: But you're not sorry for me because of me filing the motion with the... ethics board or whatever and I know this has a part in it.

COURT: No, it doesn't. You have a perfect right to use every avenue you have to get the best result for you that you can. DEFENDANT: Right. Exactly.

COURT: But I can't guarantee you will be successful. DEFENDANT: I'm not going to say that I'm going to be successful, but there will still be a conflict of interest there regardless with me doing this and you knowing now that I did this, there is a conflict of interest there.

COURT: In your opinion. DEFENDANT: That's—Yeah and that's true. That's what-that's what it is. Because I'm not going— My mother is sick. I'm not going to go anywhere. I'm just asking the court for one day to make sure my family is [taken] care of and turn myself in. If you want me to turn myself in at 6:00 in the morning, at least I can have some time to get my house together and make arrangements for my kids.

COURT: You've had much time, ma'am. We'll close the hearing. Good luck to you.

Within two weeks of sentencing, defendant filed motions for correction of an illegal sentence, for reconsideration of sentence, and for reduction of appeal bond. In denying the motion for correction of an illegal sentence, the court noted:

Defendant's motion for correction of an illegal sentence does not state any way in which the sentence imposed on her is not authorized by Iowa law. Her complaints of diminished capacity, poor assistance of counsel, recusal issues and bias issues, are all issues for direct appeal or postconviction relief. They do not go to the legality of her sentence.

The court denied the motion for reduction of appeal bond, finding correctional facilities had mental health programs available to defendant, so she did not need to be out of prison for out-patient treatment.

Concerning the motion for reconsideration of sentence, the court made no decision on the merits, but directed defendant's counselor to prepare a report and recommendation for the court. The subsequent report and recommendation were for defendant's continued incarceration. In denying the motion, the court summarized the counselor's recommendation:

Defendant's counselor does not feel that defendant should be released from prison until she has completed her treatment programming because of her lengthy criminal history and because her only focus since her arrival at Mitchellville has been the appeal of her case or a reconsideration of her sentence. She is on the waiting list to begin substance abuse treatment and on the waiting list for life skills class. She has received disciplinary notices for exaggerating her medical condition and for obstructive/disruptive conduct.

Defendant appeals.

II. Scope of Review.

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 defendant is claiming a constitutional violation because of her alleged incompetence, 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); State v. Kempf, 282 N.W.2d 704, 707 (Iowa 1979). Defendant's claim her plea resulted from ineffective trial counsel is a claim with...