State v. Plettenberg, 17-0624

• Citation: 919 N.W.2d 635 (Table)
• Decision Date: 02 May 2018
• Docket Number: No. 17-0624,17-0624
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Marc Christopher PLETTENBERG, Defendant-Appellant.
• Court: Court of Appeals of Iowa

919 N.W.2d 635 (Table)

STATE of Iowa, Plaintiff-Appellee,
v.
Marc Christopher PLETTENBERG, Defendant-Appellant.

No. 17-0624

Court of Appeals of Iowa.

Filed May 2, 2018

Richard R. Hollis, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.

DOYLE, Presiding Judge.

After Marc Plettenberg pled guilty to four offenses, he was sentenced to serve the sentences imposed consecutively. Thereafter, the court ordered Plettenberg to pay restitution for damages to a county police vehicle and for room, board, and medical expenses incurred while serving his sentences in its jail. He now appeals various aspects of the case, including arguing his trial counsel rendered ineffective assistance. Upon our review, we affirm.

I. Background Facts .

In 2015, Marc Plettenberg was found guilty of driving while barred as an habitual offender in case number AGCR086445. A few months thereafter, he pled guilty to forgery and unauthorized use of a credit card of an amount under $1000 in case number FECR086357. He was placed on probation for all three convictions.

Plettenberg subsequently violated his probation agreement in numerous ways, including "failing to obey all laws" and "testing positive for methamphetamine." He was found in contempt of his probation supervision and ordered, as an additional condition of his probation, to complete a stay at the Marshalltown Residential Facility. Plettenberg was placed at the facility on February 9, 2016, but he absconded from the facility less than a week later. Plettenberg was charged thereafter with the crime of escape, a class "D" felony. See id . § 719.4(1) (2016).

Three weeks later, while he was a fugitive, a deputy sheriff observed Plettenberg driving a car with an expired validation sticker. The deputy, driving a fully-marked sheriff’s office patrol truck, attempted to initiate a traffic stop, but Plettenberg did not stop. A chase ensued. During the chase, Plettenberg drove up over a curb, blowing out his car’s right front tire. He proceeded to drive across the lawn of the Hawkeye Care Center, causing extensive damage to the lawn and a concrete sidewalk. The chase continued. Ultimately, the deputy was able to pin and stop Plettenberg’s car, but Plettenberg attempted to flee on foot. Plettenberg was then tackled by other law enforcement officers and a civilian and subsequently placed under arrest.

II. Proceedings .

Thereafter, Plettenberg was charged with four crimes as a habitual offender in case number FECR088617: (I) escape, (II) eluding, and (III) second-degree criminal mischief, each a class "D" felony; and (IV) driving while barred, an aggravated misdemeanor. See id . §§ 321.279(3), 321.561, 716.1, 716.4, 719.4(1). Plettenberg initially pled not guilty to the four offenses, but he and the State later reached a plea agreement. Plettenberg agreed to plead guilty as charged to count IV, driving while barred, as well as pleading guilty to three lesser-included offenses of the other crimes charged, to be amended as follows: (I) escape, in violation of section 719.4(2), a serious misdemeanor, (II) eluding, in violation of section 321.279(2), an aggravated misdemeanor, and (III) third-degree criminal mischief, in violation of sections 716.1 and .5(2), an aggravated misdemeanor. The habitual-offender sentencing enhancement remained.

On March 10, 2017, Plettenberg entered four separate written guilty pleas. Concerning the escape charge, the plea stated:

I understand that a maximum sentence for the offense charge is a fine of at least $315 but not to exceed $1,875 with a surcharge of 35%, and in addition the court may also order imprisonment not to exceed one year, that I may be held responsible for court-appointed attorney fees and restitution, court costs, and a law enforcement initiative surcharge of $125[.]

The other three pleas each stated:

I understand that a maximum sentence for the offense charges is imprisonment up to, but not to exceed two years. There shall be a fine of at least $625 but not to exceed $6,250, and I will be held accountable for a 35% surcharge on any fine imposed as well as court costs and attorney fees.

There was no explicit language in those latter three agreements addressing restitution. However, all four plea agreements stated:

I have discussed with my attorney and hereby waive my right to be present and personally inform the Court of my plea and to speak for myself regarding sentencing, as is my right under rule 8(2)(b), Iowa Rules of Criminal Procedure.

I have discussed with my attorney and understand that to contest the adequacy of my guilty plea, I must do so at least five (5) days prior to sentencing by a motion in arrest of judgment, and in any event at least 45 days from the acceptance of my plea, as provided in Rule 23(3), Iowa Rules of Criminal Procedure.

My plea of guilty has been the result of a plea bargain whereby the parties will each make their own sentencing recommendation. The defense requests that this matter be handled at the same time as the probation revocation disposition in FECR086357 and AGCR086445. I ask the Court to accept my plea of guilty.

The court subsequently accepted the guilty pleas, finding:

The written plea of guilty shows that the defendant’s plea is voluntary, being freely and intelligently made, with an understanding of the charge, with knowledge of the penal consequences of the plea, with full knowledge of the defendant’s constitutional rights, and that said rights are waived by a plea of guilty, without any threats, improper inducements or persuasion, and the Court finds there is a factual basis for the defendant’s plea of guilty.

A sentencing hearing was held in March 2017. There, the prosecutor explicitly recommended:

[T]urning to ... FECR088617, starting with the misdemeanor [escape conviction], the State recommends a sentence of one year in jail, that, of course, that it runs consecutively to be served at the end of any other sentences; a $315 fine and 35 percent surcharge.

For the [eluding conviction], the State recommends a sentence of two years; $625 fine; 35 percent surcharge.

For the [criminal-mischief conviction], the State recommends a sentence of two years, with the minimum $625 fine; 35 percent surcharge; Law Enforcement Initiative Surcharge. And that Mr. Plettenberg be ordered to pay restitution, if it is applicable.

On [the driving-while-barred conviction], the State recommends a sentence of two years prison with a $625 fine; 35 percent surcharge. And the State recommends that all the fines and the 35 percent surcharges be suspended. The State recommends that all these sentences run consecutive to one another.

Plettenberg’s counsel did not object to the State’s reference to restitution with respect to the criminal-mischief conviction and not the escape conviction, which was the only charge that explicitly referenced restitution in the parties’ agreement. Defense counsel did request concurrent sentences be imposed and that the court suspend "any and all fines that are able to be suspended." Thereafter, the court accepted the State’s recommendations and sentenced Plettenberg as follows:

[I]t will be the judgment and sentence of the court as to [the escape conviction, count I in FECR088617], that [Plettenberg] be fined $315.00, with a 35 percent surcharge. That sum cannot be suspended, so it will have to be paid. Court costs and attorney fees, of course, will be assessed to [Plettenberg].

As to [c]ounts II, III, and IV, [eluding, third-degree criminal mischief, and driving while barred, Plettenberg] will be fined the minimum fine of $625.00, with a 35 percent surcharge, both of which will be suspended.

On each of those matters, [Plettenberg] is further sentenced to a two-year term of incarceration ....

As to [the escape conviction, Plettenberg] is sentenced to a term of 365 days in the custody of the Marshall County Sheriff ... [to] begin at the expiration of any existing sentences.

All sentences imposed in [FECR088617], again, will run consecutively to each other as well as consecutively to the terms of imprisonment on the probation revocation matters.

....

I think I need to back up, too, on that [criminal mischief conviction. The clerk of court] will also assess a $125.00 Law Enforcement Initiative Surcharge on that matter. And any victim restitution will have to be paid as part of the sentence in this case.

On March 27, 2017, the court entered its judgment entry regarding count I, the escape offense. The court entered an amended judgment entry on March 29, 2017, regarding counts II, III, and IV, the eluding, criminal mischief, and driving while barred offenses. The judgment entries were consistent with its sentencing on the record. The only mention of restitution in the judgment entries was in regard to count III, the criminal mischief offense.

On April 7, 2017, the prosecutor filed a statement of pecuniary loss, stating "the victim requests that restitution be ordered." The statement identifies the victim as the Marshall County Sheriff’s Department and indicates the restitution sought was for $1151 in property damages. Attached was an estimate from Thats My Truck for a pushbumper with lights, a light, and labor to install and wire, totaling $1151. The same day, the court entered an...