                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1484
                           Filed September 17, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RYAN WAYNE LARUE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve

(guilty plea) and Thomas G. Reidel (motion in arrest of judgment), Judges.



       Ryan Larue appeals his judgment and sentence for domestic abuse

assault and driving while barred. AFFIRMED.




       Shawn C. McCullough of The Law Office of Jeffrey L. Powell, Washington,

for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, and Alan Ostergren, County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.

        Ryan Larue appeals from the judgment and sentence entered following his

guilty plea to domestic abuse assault and driving while barred, contending his

plea counsel was ineffective and the district court erred in denying his motion for

judgment of acquittal in light of counsel’s ineffective assistance. We affirm.

I.      Background Facts and Proceedings

        At 7:21 a.m. on April 10, 2013, Muscatine police officers were dispatched

to a gas station regarding a domestic assault in progress. The officers were

advised a male (later identified as Larue) had stopped his vehicle and

aggressively taken a young child out of the arms of a woman (later identified as

Nikia Lanfier). When the officers arrived at the gas station, Lanfier and the child

were inside with two women, Kathleen Jenkins and Maggie Curry, who had

witnessed the incident. The officers noticed Lanfier was upset and had obvious

bruising on her left eye and her arms. Lanfier stated Larue had assaulted her

throughout the previous night, and had also trashed their apartment. Jenkins

and Curry confirmed they had witnessed Larue take the child out of Lanfier’s

arms.

        At the police station, Lanfier provided a written statement and photographs

were taken of her injuries.     Lanfier told officers Larue had accused her of

cheating on him and proceeded to hit, push, and choke her before slamming her

head against the wall. She stated that she attempted to leave several times, but

Larue physically prevented her from doing so and threatened her life. Lanfier

stated at one point Larue held a large kitchen knife and stated, “I should just . . .

kill you right now.”
                                          3


        The next morning, Larue continued to be verbally abusive, but left to go to

work.   Lanfier then left with their child and began walking toward the child’s

daycare provider. As she was walking, Larue pulled up to her in his vehicle and

then tried to grab her and the child, ordering them into the car. After a short

struggle, Larue was able to get the child out of Lanfier’s arms. At this point,

Lanfier ran to the gas station and witnesses Jenkins and Curry called 911.

Before officers arrived, Larue entered the gas station and confronted Lanfier

again and then left the scene.

        Larue was located and taken into custody for questioning at the Public

Safety Building. He was argumentative and verbally abusive toward officers.

The interview was terminated. He was handcuffed, and with some difficulty, was

placed in the back seat of a squad car to be transported to jail. Larue kicked the

back passenger window with such force that it came out its tracks. He was then

placed in ankle chains, secured to the cage in the squad car, and transported to

jail. Officers were forced to restrain him to a chair at the jail due to his anger and

combativeness.

        The State filed a trial information charging Larue with domestic abuse

assault, false imprisonment, child endangerment, driving while revoked, and

driving while barred.     Larue initially pled not guilty.     Pursuant to a plea

agreement, Larue later entered a guilty plea to the charges of domestic abuse

assault, in violation of Iowa Code section 708.2A(5) (2013), a class “D” felony,

and driving while barred, in violation of sections 321.560 and 321.561, an
                                            4


aggravated misdemeanor.         A plea hearing was held on the domestic abuse

charge.1

       Larue subsequently filed a motion to withdraw his guilty plea; claiming

ineffective assistance of counsel prevented his plea from being knowing and

voluntary. Hearing on the motion, treated as a motion in arrest of judgment, was

combined with the sentencing hearing.

       At the hearing Larue, appearing with new counsel, requested a

continuance so that Lanfier could be subpoenaed to testify. In support of his

motion to continue, Larue presented an affidavit. The affidavit contained the

transcription of a voice mail message received by Larue’s lawyer’s office seven

days prior to the hearing. The message was from a person—identifying herself

as Lanfier—stating Larue “did not choke me.”2 The district court denied Larue’s

motion to continue, stating seven days was sufficient time to subpoena Lanfier.

The court accepted into evidence the affidavit giving it “the weight that it’s due.”3

       Following the hearing, the court denied Larue’s motion in arrest of

judgment, and sentenced him to a term of imprisonment not to exceed five years

for the domestic abuse assault conviction and a term of imprisonment not to

exceed two years for the driving while barred conviction, to run concurrently.

Larue now appeals.


1
  Larue entered a written plea on the driving while barred charge.
2
  The message was not authenticated by Lanfier.
3
  In a follow-up written order denying the motion for continuance, the court stated it gave
the same weight to the affidavit concerning Lanfier’s statement as the court would have
given if Lanfier had testified to the same information in court. The court aptly noted,
“The weight given to any recanting witness in the area of domestic abuse must also be
balanced against known research articles indicating a propensity for victims to falsely
recant for many reasons.” Regarding this point, we find illuminating the caller’s
statement, “I don’t think he should get as much time as he is looking at.”
                                            5


II.    Scope and Standard of Review

       Although a defendant’s guilty plea waives all defenses and objections

which are not intrinsic to the plea, a defendant can challenge the validity of his

guilty plea by proving counsel’s failure to perform pre-plea tasks rendered the

plea involuntary or unknowingly. See State v. Carroll, 767 N.W.2d 638, 641-42

(Iowa 2009). Here, Larue claims the district court erred in denying his motion in

arrest of judgment because counsel’s alleged ineffectiveness (in failing to request

depositions or interview witnesses and in pressuring him to accept a plea offer)

prevented his plea from being knowing and voluntary. 4 He also challenges the

knowing and voluntary nature of his guilty plea.           Because these claims are

premised on counsel’s alleged ineffectiveness, our review is de novo. See State

v. Gines, 844 N.W.2d 437, 440 (Iowa 2014).

III.   Analysis

       To prevail on a claim of ineffective assistance of counsel, Larue must

show (1) a deficiency in counsel’s performance, and (2) that the deficient

performance prejudiced his defense. State v. Ross, 845 N.W.2d 692, 697-98

(Iowa 2014) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Larue

must prove both the “essential duty” and “prejudice” prongs by a preponderance

of the evidence.       See id.      “There is a presumption the attorney acted

competently, and prejudice will not be found unless there is a reasonable


4
  We observe Larue has not cited any authority to support his claim regarding the court’s
denial of his motion in arrest of judgment. “When a party, in an appellate brief, fails to
state, argue, or cite to authority in support of an issue, the issue may be deemed
waived.” State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct. App. 2001). Although a party's
failure in a brief to cite authority in support of an issue may be deemed waiver of that
issue, see Iowa R. App. P. 6.903(2)(g)(3), we elect to address it in conjunction with
Larue’s claims of ineffective assistance relating to the voluntariness of his plea.
                                          6


probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Ennenga v. State, 812 N.W.2d 696, 701

(Iowa 2012) (internal quotation marks omitted).

       The voluntariness of Larue’s plea is largely tied to the prejudice element of

his ineffective assistance claims, and Larue must demonstrate counsel’s deficient

performance was prejudicial to the extent that it prevented his plea from being

knowingly and voluntarily entered. See Carroll, 767 N.W.2d at 644. Specifically,

to demonstrate prejudice in the context of this case, Larue “must show that there

is a reasonable probability that, but for the counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 59 (1985) (interpreting the Strickland test as applied to challenges to

guilty pleas).

       “Although claims of ineffective assistance of counsel are generally

preserved for postconviction relief proceedings, we will consider such claims on

direct appeal where the record is adequate.” State v. Bearse, 748 N.W.2d 211,

214 (Iowa 2008).     Neither party suggests we preserve Larue’s claims for a

postconviction proceeding and we find the record adequate to address the issues

on direct appeal.

       Larue contends his counsel was ineffective in failing to request

depositions or interview witnesses, and in pressuring him to accept a plea offer

and that the district court erred in denying his motion in arrest of judgment in light

of counsel’s ineffective assistance. Larue testified his original attorney had tried

to “prosecute” him. Larue stated his attorney did not request depositions or
                                         7


medical reports, which according to Larue, would have disproved the claim that

he hurt Lanfier.

       Specifically, Larue testified that prior to entering his plea he had requested

his attorney take depositions of the State’s witnesses, but his attorney “said it

was too late.” Larue also stated he asked his attorney to contact his mother as a

potential defense witness because “she was there” at the time of the alleged

assault and “she seen it all happen,” but his attorney “never made an effort [to]

contact her” despite the fact that she “left thousands and thousands of

messages.”

       In regard to his decision to plead guilty, Larue testified he asked his

attorney for a jury trial, but his attorney told him “it wouldn’t be worth going to

because I was looking at, like, ten years altogether and they would slam me if I

went and tried to fight it.”   Larue stated even though he felt there was “no

evidence of—of the felony domestic whatsoever,” he was “basically scared into

taking” the guilty plea by his attorney. There are serious weaknesses in Larue’s

claims regarding counsel’s alleged deficiencies on these grounds.

       We take note of the following portions of colloquy from Larue’s plea

hearing:

               COURT: All right. And do you understand that you have a
       right to a jury trial? DEFENDANT: Yes.
               COURT: Do you understand that if you plead not guilty, and
       if you cannot afford to hire a lawyer, one would be appointed to
       represent you at the expense of the State of Iowa? DEFENDANT:
       Yes.
               ....
               COURT: Do you understand that at your trial the State would
       have to make you aware of the witnesses they would intend to call
       to convict you, and that you would have the right, through your
       lawyer, to cross-examine those witnesses? DEFENDANT: Yes.
                                          8


             COURT: Do you understand that you also have the right
       before trial to have your lawyer question the State’s witnesses
       under oath to find out what they would say at trial? DEFENDANT:
       Yes.
             COURT: Do you understand that you have the right to
       subpoena witnesses, which means that you could compel any such
       witnesses to appear and testify on your behalf at trial?
       DEFENDANT: Yes.
             ....
             COURT: Are you satisfied with the advice of counsel and
       counsel that Mr. Dircks has given to you in this case?
       DEFENDANT: Yes.

The court also asked Larue whether “anyone promised [him] anything to make

[him] plead guilty,” to which Larue responded, “No.” The court then directed

Larue’s attorney to establish the factual basis for Larue’s plea, which he did. We

observe the record establishes the court’s substantial compliance with Iowa Rule

of Criminal Procedure 2.8(2)(b) prior to acceptance of Larue’s plea.

       Larue was facing criminal charges on five offenses—domestic abuse

assault, child endangerment, false imprisonment, driving while revoked, and

driving while barred—of which the minutes of testimony provided sufficient

evidence for a jury to find him guilty. He was aware of the evidence against him

and the possibility of serving “ten years altogether.” Larue realized the plea

agreement would result in the State dismissing three of his charges. Larue was

aware of his right to compel witnesses to testify on his behalf. He was also

aware of his right to depose and cross-examine the State’s witnesses. Larue

stated he was satisfied with the advice of his counsel, and that he had not been

persuaded to plead guilty. See State v. Myers, 653 N.W.2d 574, 578-79 (Iowa

2002) (“[The defendant’s] conclusory claim of prejudice, that she ‘was ready to

insist on going to trial,’ is not a sufficient assertion of prejudice. She must show a
                                           9


reasonable probability that, but for counsel’s error, she would not have entered

the plea of guilty.”).

       Furthermore, other than his mother and Lanfier, Larue does not even hint

at what “potential witnesses” he claims his counsel should have contacted or

deposed, or what they would have testified to, or how it would have supported his

defense, or how it would have changed the outcome.               And in regard to his

mother, Larue does not allege with any specificity what her testimony would have

been, how it would have supported his defense, or how it would have changed

the result of a trial. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (stating

the defendant must state specific ways in which counsel’s performance was

inadequate and how competent representation probably would have changed the

outcome); Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981) (noting complaints

about the failure to call witnesses should be accompanied by a showing their

testimony would have been beneficial).

       In regard to Lanfier, Larue asserts her testimony “would have

demonstrated that [Larue] never impeded or obstructed [her] breathing or

circulation on blood flow,” thus disabling the State from proving the necessary

elements of the domestic abuse charge.5 We disagree. Larue’s assertion is

founded solely upon the unauthenticated telephone message left at the office of

Larue’s new counsel some two months after the guilty plea hearing and a week

before the sentencing hearing, wherein the caller, who identifies herself as


5
 Iowa Code section 708.2A(5) requires the domestic abuse assault be “committed by
knowingly impeding the normal breathing or circulation of the blood of another by
applying pressure to the throat or neck of the other person or by obstructing the nose or
mouth of the other person, causing bodily injury.”
                                         10


Lanfier, states: “[H]e did not choke me.”       The statement is contrary to the

statement Lanfier gave at the scene to police officers that Larue “choked her.”

The statement is contrary to Lanfier’s written statement to police officers that

Larue “choked me.” The statement is contrary to Larue’s own admissions made

to the court. At the guilty plea hearing, the following colloquy occurred:

               COURT: And on that particular date, did some physical
       abuse occur? DEFENDANT: Yes.
               COURT: And did it also include your placing your hands on
       or near her throat which would cause an obstruction of air to her?
       DEFENDANT: Yes.
               COURT: And do you believe that she was in pain at any
       point in this? DEFENDANT: Yes.

Furthermore, Larue agreed the minutes of testimony, which included the police

arrest report and Lanfier’s written statement, were “accurate and complete as

they relate to [Larue’s] involvement.”    Under these circumstances we cannot

conclude, as Larue asserts on appeal, that had original defense counsel deposed

Lanfier, “she would have testified that [Larue] was innocent of the alleged count

of domestic abuse by choking.”

       Considering the facts and circumstances of this case, we conclude Larue

has failed to prove a reasonable probability he would not have pleaded guilty and

would have insisted on going to trial despite counsel’s alleged deficiencies, and

that his plea was not knowingly and voluntarily entered.         We affirm Larue’s

judgment and sentence.

       AFFIRMED.
