State v. Petty

• Decision Date: 22 March 2019
• Docket Number: No. 18-0437,18-0437
• Citation: 925 N.W.2d 190
• Parties: STATE of Iowa, Appellee, v. Kenneth Edward PETTY, Appellant.
• Court: Iowa Supreme Court

925 N.W.2d 190

STATE of Iowa, Appellee,

v.Kenneth Edward PETTY, Appellant.

No. 18-0437

Supreme Court of Iowa.

Filed March 22, 2019

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Katie Krickbaum, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Patrick J. Eppler, Assistant County Attorney, for appellee.

WIGGINS, Justice.

A defendant who pled guilty to lascivious acts with a child and sexual exploitation of a minor challenges his guilty pleas and sentences. He also claims he was denied the right to counsel. He claims the district court failed to comply with Iowa Rule of Criminal Procedure 2.8(2)(b ) in accepting his guilty pleas, did not adequately inquire into the alleged communication breakdown in the attorney–client relationship, imposed a surcharge in violation of the Ex Post Facto Clauses of the Iowa and United States Constitutions, and erroneously ordered restitution without first determining his reasonable ability to pay.

We find that the defendant did not preserve error on his guilty pleas challenge and that the record on appeal is insufficient to conduct an ineffective-assistance-of-counsel analysis. We find the record on appeal is also insufficient to determine whether the district court adequately inquired into the alleged communication breakdown. We leave both of these claims for postconviction relief if the defendant wants to pursue them.

We next find the imposition of the surcharge violated the Ex Post Facto Clauses and the district court erroneously ordered restitution without first conducting the applicable reasonable-ability-to-pay analysis. We vacate these portions of the defendant’s sentences and remand for entry of a corrected sentence with respect to the surcharge and for resentencing in light of this opinion and our opinion in State v. Albright , 925 N.W.2d 144 (Iowa 2019), with respect to restitution.

I. Facts and Proceedings.

On December 29, 2016, the State charged Kenneth Petty for crimes related to his sex acts with two minors in two separate cases. First, the State charged Petty with four counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1, 709.4, and 903B.1 (2015), and three counts of sexual exploitation of a minor, in violation of sections 728.12, 903B.1, and 903B.2. These charges arose after M.S., the minor daughter of Petty’s neighbor, alleged that she had been having sex with Petty for approximately two years and that Petty had videotaped the two of them on at least one occasion. In the subsequent investigation, officers discovered a video depicting Petty engaging in a sex act with M.S. when M.S. was fifteen or sixteen years of age and Petty was in his mid-forties.

Separately, the State charged Petty with one count of sexual abuse in the second degree in violation of Iowa Code sections 709.1(3), 709.3(1)(b ), 709.3(2), and 903B.1. These charges arose after Z.C., the daughter of Petty’s romantic partner, alleged Petty fondled her breasts and put his finger in her vagina.

The district court set trial for the case involving M.S. for January 17, 2018, and trial for the case involving Z.C. for the following week. On January 4, the State amended the trial information to charge Petty with two counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1, 709.4, and 903B.1, instead of four counts as previously charged.

On January 17, following a hearing on the parties’ motions in limine and while the jury venire was present and ready in the courtroom, the parties announced Petty would enter an Alford plea based on his acceptance of the State’s plea offer. Under the terms of the plea offer, Petty would plead guilty to sexual exploitation of a minor, a class "C" felony, for the charges stemming from the case involving M.S. Then for the case involving Z.C., Petty would plead guilty to lascivious acts with a child, also a class "C" felony, in violation of Iowa Code sections 709.8(1)(a ) and 709.8(2)(a ). Petty would receive a ten-year indeterminate prison term on each charge, which he would serve concurrently for a total of ten years in prison. He would also be subject to the sex offender provisions and lifetime parole provisions.

After reading through the terms of the agreement, the court asked Petty how he pled to the amended charge of lascivious acts in the case involving Z.C. Petty pled guilty. The court asked, "And you understand that’s a Class C felony carrying up to ten years in prison and/or a $10,000 fine? You understand that’s the maximum penalty?" Petty confirmed, and he then pled guilty to sexual exploitation for the case involving M.S. The court set sentencing for March 12.

On January 18, Petty’s counsel filed a motion to withdraw, stating he could no longer effectively represent Petty because he could no longer communicate with Petty or agree with Petty on how to handle the cases. Defense counsel reported that Petty had texted him expressing his displeasure over the plea bargain and accusing defense counsel of having a conflict of interest. The court scheduled the hearing on the motion to withdraw for March 12, the same day as Petty’s sentencing.

On January 30, defense counsel filed a motion in arrest of judgment on Petty’s behalf. The motion stated that Petty’s guilty pleas were insufficient because Petty was not adequately advised of his constitutional rights, Petty did not fully understand his constitutional rights, the court did not establish a factual basis for the pleas, Petty did not adequately understand the penal consequences of his pleas, and "for whatever other reasons set out in [Petty’s] Affidavit which is attached hereto." In the attached affidavit, Petty stated he was fully prepared for trial, was not aware of any plea bargains before the day of trial, had insufficient time to consider the offer, and believed the agreement was unfair.

On March 12, the court held a hearing on the motion in arrest of judgment, the motion to withdraw, and sentencing. Petty testified regarding his reasons for the motion in arrest of judgment. Petty testified that he did not understand the charges he pled guilty to before pleading guilty; that defense counsel did not represent him, wanted him to plead guilty for something he did not do, and pressured him into pleading guilty; and that his pleas were not voluntary. The court overruled Petty’s motion, finding Petty’s pleas were voluntarily and intelligently made. The court never reached counsel’s motion to withdraw, but counsel represented Petty throughout the hearing.

The court then sentenced Petty in accordance with the plea agreement to two concurrent, ten-year indeterminate terms of imprisonment. As part of the sentence, Petty was ordered to register with the sex offender registry for life. The court ordered Petty to pay a civil penalty of $250, in accordance with Iowa Code section 692A.110, and said, "All court costs, including court-appointed attorney fees are taxed to the Defendant." The court also ordered that "[t]he fines, costs, surcharges, attorney fees and expenses, and restitution assessed against the Defendant are due immediately." The court did not conduct a reasonable-ability-to-pay analysis before ordering immediate payment of court costs and attorney fees.

On March 13, Petty filed a notice of appeal. On March 14, the clerk of court filed the total amount of fees Petty owed as $1911.75 for the case involving Z.C. and $526 for the case involving M.S.

II. Issues.

On appeal, Petty claims the district court erred in four respects: first, in denying his motion in arrest of judgment; second, in denying him the right to counsel; third, in imposing the sexual abuse victim surcharge under Iowa Code section 911.2B ; and fourth, in failing to determine his reasonable ability to pay restitution before imposing restitution.

III. Standards of Review.

We review challenges to denials of motions in arrest of judgment for an abuse of discretion. State v. Smith , 753 N.W.2d 562, 564 (Iowa 2008). We will only find an abuse of discretion if the trial court exercised its discretion on clearly untenable or unreasonable grounds. Id. A ruling is untenable when the court bases it on an erroneous application of the law. Graber v. City of Ankeny , 616 N.W.2d 633, 638 (Iowa 2000) (en banc).

We review a claim that the district court failed to adequately inquire into an alleged breakdown of the attorney–client relationship de novo. State v. Wells , 738 N.W.2d 214, 218 (Iowa 2007). We grant de novo review because the right to counsel is a constitutional claim. State v. Tejeda , 677 N.W.2d 744, 749 (Iowa 2004).

We normally review claims of an illegal sentence for correction of errors at law. State v. Hoeck , 843 N.W.2d 67, 70 (Iowa 2014). A constitutional challenge to an illegal sentence, however, is reviewed de novo. State v. Lyle , 854 N.W.2d 378, 382 (Iowa 2014).

We review a restitution order for correction of errors at law. State v. Klawonn , 688 N.W.2d 271, 274 (Iowa 2004). We review the restitution order to determine whether the court’s findings lack substantial evidentiary support or whether the court misapplied the law. Id.

IV. Denial of the Motion in Arrest of Judgment.

Petty first argues the district court erred when it denied his motion in arrest of judgment because he was not fully informed of the consequences of his guilty pleas. The State counters that Petty failed to preserve error and Petty cannot prove his claim under an ineffective-assistance-of-counsel framework.

We agree with the State that Petty failed to preserve error on his challenge to his guilty pleas proceeding. Although Petty challenged the pleas proceeding in a motion in arrest of judgment as required by Iowa Rule of Criminal Procedure 2.24(3)(a ), the grounds for the challenge in the motion and argued at the motion hearing are different from the ground raised on appeal. For error to be preserved, the underlying legal basis...