                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0039
                           Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ELISA MARIE WALKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      Eliza Walker appeals after pleading guilty to one count of second-degree

theft and one count of identity theft. AFFIRMED.



      R. Ben Stone of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Heard by Danilson, C.J., and Potterfield and Doyle, JJ.
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DOYLE, Judge.

       Eliza Walker appeals after pleading guilty to one count of second-degree

theft and one count of identity theft. She contends her counsel was ineffective in

allowing her to plead guilty when questions existed concerning her competency.

       I. Background Facts and Proceedings.

       Walker was arrested on July 31, 2017, in connection with the charges that

gave rise to this appeal. On August 10, 2017, the State charged her with one count

of second-degree theft (obtain property of another by deception), and one count of

identity theft over $1000 and under $10,000. While in jail awaiting trial, Walker

sent the court numerous ex parte communications in which she asked for the

court’s assistance.    Walker referred to her mental health in almost every

correspondence, at various times stating she was “mentally ill” or “very sick

mentally.” She also referred to her “medical problems,” “mental health problem,”

a “serious mental impairment,” and a “mental disorder,” in addition to claiming that

her “brain is very bad,” she had “brain problems,” her “health is fallen apart,” and

that she has “great health needs.” She complained that she was not being treated

in jail “for brain, chest, back, blood clots,” and that she was “really sick mentally

brain and blood clots. Medical can’t help me.” She said she was “very sick and

Medical can’t help me, I’m a brain Pt and very sick.” She said she was “feeling like

I’m gon[n]a die with these people,” and that she needed emergency medical

attention.   The court entered orders noting it had received the ex parte

communications and also ordered the clerk of court to provide Walker’s counsel

with copies of the correspondence.
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       At the initial hearing, the district court approved Walker’s application for

court-appointed counsel. The court first appointed the public defender’s office to

represent Walker before appointing Dan O’Brien on August 4. O’Brien filed a

motion to withdraw as Walker’s counsel on November 12, stating there had been

“an irreparable breakdown in attorney client communications” and a conflict of

interest. The court appointed Jared Knapp, who represented Walker in other

pending criminal matters, to represent Walker on the theft charges.

       On December 6, 2017, a guilty plea hearing was held. It does not appear

that the hearing was reported. The court’s order states, “At the time set for hearing,

[Walker] was unable to render a valid plea to the Court. The matter is returned to

the trial docket.”

       On December 8, an unscheduled plea hearing was held before a different

judge. During the plea colloquy, the court engaged Walker and her counsel in a

lengthy discussion about her mental health, beginning by inquiring about her

medication:

              THE COURT: Are you currently on any medication?
              THE DEFENDANT: A lot.
              THE COURT: What medication are you on?
              THE DEFENDANT: I don’t even know the name of all of them
       they give me over there. And I—they’re wrong, but they have me
       take them.
              THE COURT: Okay.
              THE DEFENDANT: A lot.
              THE COURT: What are you taking medication for?
              THE DEFENDANT: Because of my brain, for my back, and for
       my depression. These things that’s on here (indicating)—let me see.
       Where’d they go to? (Peruses document.)
              Anxiety, depression, and mood instability. And I have
       something else. There’s some—couple of other things. Oh,
       schizophrenia disorder and bipolar.
              THE COURT: Are—all the medications you’re taking, are they
       prescribed by a doctor?
                                 4


        THE DEFENDANT: Yes, from over at the jail.
        THE COURT: And are you taking them the way the doctor
prescribed them?
        THE DEFENDANT: Yeah.
        THE COURT: Have you taken the medicine that you were
supposed to take for today?
        THE DEFENDANT: Yeah.
        THE COURT: Is there anything about any of that medication
that makes it difficult for you to understand what’s happening?
        THE DEFENDANT: No.
        THE COURT: Mr. Knapp, in your conversations with Ms.
Walker and the fact that she’s on medication, do you have any
concerns with her ability to understand what’s happening here
today?
        MR. KNAPP [defense counsel]: In all my interactions with her
I believe she understands the nature of the proceedings, I mean, and
understands what’s happening. That’s my understand—I mean,
that’s my impression, Your Honor. I mean, I’m not a psychiatrist or
psychologist. But I don’t have reason to think she doesn’t
understand the nature of the proceedings.
        THE COURT: And is there anything in particular about today
that makes you think she doesn’t know what’s going on? Is today
any different than any other day?
        MR. KNAPP: Well—okay. Well, she seemed to think
someone was in the room that is not here, so I—I saw that. But
beyond that, everything else has been the same.
        THE COURT: Today, you mean?
        MR. KNAPP: Yes.
        THE DEFENDANT: It happens all the time in my room.
        MR. KNAPP: Okay. It may be a symptom of one of her
conditions, Your Honor.
        THE COURT: Should we perhaps put this off until Monday?
I’m here on Monday as well.
        MR. KNAPP: Well—
        THE DEFENDANT: We—no. I don’t think so because I
mentally cannot take that jail anymore. I can’t.
        THE COURT: Mr. Knapp?
        MR. KNAPP: Well, Your Honor, I mean, it seemed unusual
that she said that. But she seems, you know, to be able to
understand things otherwise. I mean, I—in talking with her today,
I’ve spoken to her twice already, once at the jail and once here, and
I explained the plea offer.
        And she said she understood it and understands the nature of
the offense and everything else. So to me, you know, I think she
understands the process and what she’s doing. And she does want
to plead guilty, Your Honor.
        THE COURT: Ms. O’Donnell, anything for the record?
                                            5


              MS. O’DONNELL [prosecutor]: No, Your Honor. Obviously
       the State is concerned about the validity of the plea if Ms. Walker is
       saying that she is seeing people in the courtroom who are not here.
              THE COURT: And obviously that’s the State’s concern—or
       the Court’s concern as well.
              THE DEFENDANT: But it’s just my husband, and he’s just
       always there. Ever since he got killed, he’s always been there with
       me.
              THE COURT: Mr. Knapp, we’re going to go off the record. I’m
       going to ask that you go over to the conference room and see if you
       can flush out what may or may not be happening, and we might
       postpone the plea.

No written order was entered.

       Another unscheduled plea hearing was held six days later on December 14

before a third judge. The discussion concerning Walker’s mental health at the

hearing was much shorter than it had been one week prior:

              THE COURT: Okay. Are you presently under the care of a
       doctor or a physician?
              THE DEFENDANT: Yes.
              THE COURT: Is that for anything that would affect your ability
       to understand what you’re doing here today?
              THE DEFENDANT: No.
              THE COURT: Are you clear why you’re here and what you’re
       doing?
              THE DEFENDANT: Yes.
              THE COURT: Are you under the influence of any medicine,
       alcohol, or drugs at this time?
              THE DEFENDANT: No.

The court then informed Walker of the rights she was waiving by pleading guilty,

the minimum and maximum sentences for the offenses, and the elements of each

offense. Defense counsel indicated Walker wanted to proceed with an Alford

plea.1 Defense counsel agreed when the court asked, “[B]ased upon your review


1
  An Alford plea is a variation of a guilty plea; the defendant does not admit to the
commission of the criminal act but acknowledges the prosecution has enough evidence
to win a conviction from a judge or jury, and the defendant consents to the imposition of a
sentence. See North Carolina v. Alford, 400 U.S. 25, 32-38 (1970).
                                          6


of the evidence do you believe that if the witnesses testified as shown in the

minutes, if they testified like that, there is a reasonable likelihood that your client

could be convicted of both of these offenses.” He also agreed the plea agreement

was in Walker’s best interests and that the court could rely upon the minutes,

complaint, and affidavit to form a factual basis. The following exchange occurred:

               THE COURT: Do you think it is in your best interest to take
       advantage of that plea agreement and have everything run
       concurrently?
               THE DEFENDANT: Yeah.                 I’m confused on the plea
       agreement but—
               THE COURT: Okay. What are you confused about, ma’am?
       Why don’t you talk to your attorney and maybe he can explain it to
       you.
               (An off-the-record discussion was held.)
               THE DEFENDANT: Okay.
               THE COURT: Did you get that explained to you, ma’am?
               THE DEFENDANT: Yeah.
               THE COURT: Okay. Are you clear, and now do you think it is
       in your best interests to take advantage of this plea agreement and
       have these new charges all run concurrently?
               THE DEFENDANT: Yeah, I do. But I haven’t been in trouble
       for 8 years and with my parole officer, never missed an appointment.
       Nothing. No—one dirty UA over the years.
               THE COURT: Now, ma’am, let me stop you. If you don’t want
       to take this plea agreement, we don’t have to do it. What—We can
       set this back on. If you want to take advantage of the plea
       agreement, . . . I’ll follow that, and I’ll do what you’ve agreed to do.
       Is that what you want to do?
               THE DEFENDANT: Yeah.
               THE COURT: Okay. So I will be bound by the plea agreement
       but—and you’re satisfied that that’s in your best interests?
               THE DEFENDANT: Yes.
               THE COURT: Okay. Keeping that in mind, . . . Miss Walker,
       what is your plea to—by way of an Alford plea to the theft in the
       second degree charge; guilty or not guilty?
               THE DEFENDANT: What is my—
               THE COURT: Yeah. By way of an Alford plea?
               THE DEFENDANT: Oh, Alford plea. I was thinking that it was
       a third degree offense, that they will put them all in.
               THE COURT: Well, ma’am, it is coming in as a second
       degree, and so . . . is your plea by way of an Alford plea to count I
       guilty or not guilty?
                                           7


              THE DEFENDANT: Guilty.
              THE COURT: Okay. And to count II, the identity theft, by way
       of an Alford plea, is your plea guilty or not guilty?
              THE DEFENDANT: Guilty.
              THE COURT: Any reason I should not accept the defendant’s
       pleas, state?
              MS. O’DONNELL: No, Your Honor.
              THE COURT: Mr. Knapp?
              MR. KNAPP: No, Your Honor.

       The court accepted Walker’s pleas, finding that she understood the rights

she was waiving and that her plea was voluntarily entered with an understanding

of the consequences. The court then asked Walker if she wanted to proceed to

sentencing, to which she replied: “Yes. I’ve been over at the jail for 150-some odd

days, and that is ridiculous to be sitting over there that long. . . . And I have lots of

medical needs and stuff. I want to get this over with so I can go to Mitchellville and

get some medical care.” Walker again stated her desire to leave jail when the

court asked if she wanted to make a statement of mitigation, answering, “No. Just

hurry up and get me out of over there.” The court then found Walker guilty of both

charges and sentenced her according to the plea agreement. Addressing Walker,

the court said, “You agree that it is in your best interests. We’ll get you on the

road, and I’ll get this order done today so the next bus out of here you can jump

on it.” Walker responded, “Please.”

       The court entered judgment and sentence the same day as the plea

hearing. On January 3, 2018, Walker filed a motion asking the court to reconsider

its sentence in light of “her health problems,” asking the court to impose a

suspended sentence or set the matter for a hearing. The court denied the motion

the following day, and Walker appealed.
                                          8


       II. Error Preservation.

       Entry of a guilty plea waives all defenses and objections that are not intrinsic

to the plea. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A challenge

to a defendant’s competency to enter a guilty plea is a challenge to the adequacy

of the guilty plea proceeding in that the defendant’s competency affects the

knowing, voluntary, and intelligent nature of the guilty plea. See State v. Lucas,

323 N.W.2d 228, 231 (Iowa 1982) (stating a defendant’s claim that a competency

hearing was required “goes to the very heart of the court’s determination that the

plea was entered voluntarily, intelligently, and understandably”). Ordinarily, a

defendant must file a motion in arrest of judgment before challenging the adequacy

of a guilty plea proceeding on appeal. See Iowa R. Crim. P. 2.24(3)(a). However,

a defendant’s failure to file a motion in arrest of judgment does not bar a challenge

to the adequacy of the plea proceeding if the failure is a result of ineffective

assistance of counsel. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

       Because Walker asserts that her trial counsel was ineffective in failing to file

a motion in arrest of judgment challenging the adequacy of the plea proceedings,

we may consider her claim on direct appeal.

       III. Scope and Standard of Review.

       We review an ineffective-assistance claim de novo. See id. In order to

establish a claim of ineffective assistance of counsel, a defendant must show (1)

trial counsel failed to perform an essential duty and (2) that failure resulted in

prejudice. See id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).

Counsel breaches an essential duty by failing to file a motion in arrest of judgment

when a defendant’s plea was not knowing and voluntary. See id. at 134. Prejudice
                                         9


is established if the record shows a reasonable probability that the defendant

would not have entered a plea and would have insisted on going to trial if counsel

had not breached that duty. See id. at 138 (citing Hill v. Lockhart, 474 U.S. 52, 59

(1985). “Failure to demonstrate either element is fatal to a claim of ineffective

assistance.” State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

      IV. Discussion.

      Iowa Code section 812.3(1) (2017) provides:

             If at any stage of a criminal proceeding the defendant or the
      defendant’s attorney, upon application to the court, alleges specific
      facts showing that the defendant is suffering from a mental disorder
      which prevents the defendant from appreciating the charge,
      understanding the proceedings, or assisting effectively in the
      defense, the court shall suspend further proceedings and determine
      if probable cause exists to sustain the allegations. The applicant has
      the burden of establishing probable cause. The court may on its own
      motion schedule a hearing to determine probable cause if the
      defendant or defendant’s attorney has failed or refused to make an
      application under this section and the court finds that there are
      specific facts showing that a hearing should be held on that question.

Iowa Code § 812.3(1). Because section 812.3 applies to plea proceedings, see

State v. Kempf, 282 N.W.2d 704, 707 (Iowa 1979), the trial court must resolve any

questions concerning a defendant’s mental competence before accepting a guilty

plea, see State v. Boge, 252 N.W.2d 411, 414 (Iowa 1977). However, an inquiry

into the defendant’s mental health is not required during the plea proceeding

unless the question of the defendant’s competency is apparent from the record or

the defendant has directly raised it. See id. (“We decline to accept petitioner’s

suggestion that a mental competency inquiry be added to the plea hearing

procedure where no question of competency is apparent, or the question of

competency is not directly raised.”). Here, Walker’s complaint is that her attorney
                                           10


failed to request a Chapter 812 competency hearing and allowed her to proceed

with her plea and sentencing.2 The question is whether “the record contains

information from which a reasonable person would believe a substantial question

of the defendant’s competency exists.” Kempf, 282 N.W.2d at 706. When a

question concerning the defendant’s competency at the time of the plea hearing

arises on appeal, we examine the information before the court at the plea hearing

to determine if an unresolved question of the defendant’s competency reasonably

appeared. See id. at 707.

       There is a presumption that the defendant is competent, and the defendant

bears the burden of establishing incompetence. See State v. Pedersen, 309

N.W.2d 490, 496 (Iowa 1981). A history of mental illness, standing alone, is

insufficient to establish incompetence. See State v. Edwards, 507 N.W.2d 393,

395 (Iowa 1993). Rather, we consider several factors in making this determination,

including “(1) the defendant’s irrational behavior, (2) any demeanor at the trial that

suggests a competency problem, and (3) any prior medical opinion on the

defendant’s competency to stand trial.” Id. We consider the cumulative effect of

the factors to determine whether a question of competency reasonably appears.

See Kempf, 282 N.W.2d at 709.             “[T]he critical question . . . is whether the

defendant has a present ability to (1) appreciate the charge, (2) understand the

proceedings, and (3) assist effectively in the defense.” Edwards, 507 N.W.2d at

395.


2
  This appeal is distinguishable from State v. Einfeldt, 914 N.W.2d 773 (Iowa 2018).
There, defense counsel’s request for a Chapter 812 competency hearing was denied by
the district court. Id. at 775. The case primarily deals with a district judge’s duty when
facing a Chapter 812 motion. Id. at 779-783. That is not an issue here.
                                         11


       The record at the time of the plea hearing raises a question as to Walker’s

competence. Only eight days earlier, the district court rejected Walker’s guilty plea

because it found she was “unable” to render a valid plea. Two days later, another

hearing was held and the guilty plea was postponed because of concerns about

the validity of the plea. There is no indication that anything had changed by the

third plea hearing. However, the record is insufficient to allow us to determine

whether counsel was ineffective. Lucas, 323 N.W.2d at 232 (“Normally, however,

the record on appeal is insufficient to allow us to consider a claim of ineffective

assistance of counsel, and we often reserve the claim for a post-conviction

proceeding so that the facts, including an explanation of counsel’s actions or

omissions, may be fully developed.”). The record is devoid of any information

concerning what, if any, investigation counsel made as to Walker’s competency.

See id. There is no medical evidence concerning Walker’s ability to appreciate the

charges she was facing, understand the proceedings, or assist effectively in her

defense. There is no medical evidence concerning the effects of the medication

Walker was taking.     In order to determine the validity of Walker’s claim of

ineffectiveness of counsel, an evidentiary hearing is necessary.         Because a

postconviction-relief proceeding is the appropriate forum in which to conduct such

a hearing, see id., we preserve Walker’s ineffective-assistance claim. See State

v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (If the appellate court determines

the claim cannot be addressed on appeal, the court must preserve it for a

postconviciton-relief proceeding.).

       AFFIRMED.
