                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0701
                              Filed June 25, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERRANCE DESHAUN ALLEN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Washington County, Myron L.

Gookin (motion in arrest of judgment) and Joel D. Yates (guilty plea and

sentencing), Judges.



      A defendant appeals his drug conviction following his guilty plea, alleging

ineffective assistance of counsel. AFFIRMED.



      R.E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, and Larry Brock, County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
                                              2



TABOR, J.

          In this guilty plea appeal, Terrance Allen alleges his trial counsel

performed below constitutional standards by failing to conduct discovery, by not

moving to suppress evidence, and by “unduly influencing” his decision to plead

guilty to possession with intent to deliver marijuana. Because Allen fails to show

that but for counsel’s alleged errors he would have rejected the State’s plea offer

and insisted on going to trial, we affirm.

I.        Background Facts and Proceedings

          Washington County Sheriff’s Deputy Brandon Hamilton spotted Allen and

Ryan Neveau sitting together on a bench in the City of Washington’s Central

Park on June 9, 2011.1 Deputy Hamilton informed Allen he had an outstanding

warrant for his arrest. Allen replied “fuck that!” and took off running.

          Allen ran for several blocks before his large, red shorts slipped from his

waist to his knees and slowed his progress. Officers caught Allen in a residential

backyard and arrested him. Officer Hamilton retraced Allen’s path and found ten

small, individual baggies of marijuana, held in one large plastic bag, discarded in

a bush in the corner of the yard Allen had entered. The officer located the bag

fifteen feet from where Allen stopped.

          Jailers found Allen in possession of $838.09 in cash. Allen kept one and

ten dollar bills in his upper shorts pocket and larger denominations in his lower

cargo pocket. Allen claimed he earned the money working as a roofer for his

uncle, but could not provide details like the name of the company.


1
     These facts are taken from the minutes of evidence.
                                             3



       Another officer spoke with Neveau about what he was doing in the park.

Neveau said he did not see any drug deals take place, but did recall Allen say he

was carrying $200 worth of marijuana.

       On July 18, 2012, the State charged Allen with possession of marijuana

with intent to deliver, a class “D” felony, in violation of Iowa Code section

124.401(1)(d) (2011).      On July 19, 2012, the court released Allen under

conditions set by the district department of corrections. The district court revoked

his pretrial release on November 8, 2012, based on several violations because

Allen—who was thirty-four years old—admitted “smoking pot at a birthday party”

and lying to his supervising officer that he was living with his grandmother.

       On November 21, 2012, Allen entered a guilty plea to the drug charge.

The State agreed to recommend a suspended a five-year prison sentence and a

“non-suspended fine” of $750, and to dismiss a related simple misdemeanor

charge of interference with official acts.

       At the plea hearing, Allen described to the court in his own words what he

did to violate the law: “I had marijuana.”       He said he was confident it was

marijuana because “the person told me what it was.” Allen also confirmed that

he intended to sell or give some of the marijuana to someone else. He further

stated: “It was given to me at the park.” He said he was not sure of its weight,

but knew it was less than fifty kilograms of marijuana.

       Also at the plea hearing, the prosecutor said: “[S]ince the defendant will be

released, if he commits any further violations of law or court orders prior to

sentencing, whether or not charged and convicted, the State does reserve the
                                            4



right to argue for additional penalties.” The court reinforced the point: “Let me

just phrase it, Mr. Allen, you understand it’s not going to look very favorable to a

judge if you get in any trouble between now and January 22?” Allen personally

acknowledged the State’s ability to seek additional penalties if he did not stay out

of trouble.    The court accepted the guilty plea, and ordered a presentence

investigation (PSI) report be completed. The court also informed Allen about the

forty-five-day deadline for filing a motion in arrest of judgment if he wanted to

challenge the guilty plea.

       In mid-December, Allen improperly left the Burlington Residential Facility

where he was placed following an unrelated probation violation. Allen also failed

to appear for his PSI interview. The court issued a bench warrant and authorities

arrested Allen on January 25, 2013.

       On February 7, 2013, Allen filed a motion in arrest of judgment asserting

his innocence and seeking to withdraw his plea of guilty. Allen noted the State

informed him it would be recommending additional penalties because of his

recent arrest. He also stated his plea was “not based on a factual basis of guilt

but rather on his desire to speed up his release from jail” so that he could face

the unrelated probation violation in Henry County. The motion was filed thirty-

one days after the time allowed under Iowa Rule of Criminal Procedure

2.24(3)(b).2




2
  “The motion must be made not later than 45 days after plea of guilty, verdict of guilty,
or special verdict upon which a judgment of conviction may be rendered, but in any case
not later than five days before the date set for pronouncing judgment.” Iowa R. Crim. P.
2.24(3)(b).
                                        5



       The court held a hearing on the motion in arrest on February 21, 2013. At

the hearing Allen’s counsel gave two reasons for seeking withdrawal of the guilty

plea. First, he noted the “changed circumstances” of the prosecutor indicating he

would be asking for a five-year prison sentence rather than a suspended term in

light of Allen’s failure to appear and failure to remain at the halfway house.

Second, counsel told the court Allen “indicated that he pled guilty despite being

innocent of the charges” so he could “finish up the Washington County charges

and begin facing the charges that he faced in Henry County without undue

delay.” Allen’s counsel told the court his client would like to make a statement

regarding the motion, but Allen declined to do so after the court indicated he

would be placed under oath.

       The State resisted the motion in arrest of judgment, emphasizing Allen

provided a factual basis for the offense at the plea hearing, which could be

supplemented by minutes of testimony. The State also argued Allen was “well

aware” if he committed additional violations the State could change its

sentencing recommendation. “In fact, it was made abundantly clear to him that

he essentially was being given a rope and it was up to him not to hang himself

with that rope. He has done that.” Finally, the State asserted the motion was

filed too late.

       On March 1, 2013, the court denied the motion in arrest of judgment as

untimely.    Also addressing the merits, the court found no basis to grant the

motion given “the record made at the guilty plea hearing.”
                                        6



      The court held a sentencing hearing on April 15, 2013.           The State

recommended incarceration and Allen’s counsel asked for probation. Allen told

the sentencing judge: “I apologize for wasting the court’s time on my bad

decisions that I made. And I know that I can do much better than what I’ve done

if given another opportunity on probation or whatever the case may be.” The

court sentenced Allen to a prison term not to exceed five years. Allen now

appeals.

II.   Standard of Review

      We review claims of ineffective assistance of counsel de novo because of

their constitutional implications. State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).

Courts use a two-part standard for evaluating such claims.          Strickland v.

Washington, 466 U.S. 668, 694 (1984) (holding defendant must show counsel’s

representation fell below an objective standard of reasonableness and a different

result was reasonably probable but for counsel’s unprofessional errors).

      The two-part Strickland test applies to guilty plea challenges based on

ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 57 (1985).

To satisfy the prejudice prong in a guilty plea case, a defendant must show a

reasonable probability that but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial. Id. at 59; State v. Straw, 709

N.W.2d 128, 138 (Iowa 2006).

      Generally, we do not resolve ineffective-assistance issues on direct

appeal, preferring to leave them for possible postconviction-relief proceedings.

State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Postconviction proceedings
                                           7



allow the parties to develop an adequate record and the attorney accused of

error to respond to the defendant’s claims. Id. But we will decide such claims on

direct appeal when the record is sufficient to resolve them. State v. Coil, 264

N.W.2d 293, 296 (Iowa 1978). In this case, the development of an additional

factual record is not necessary because we can reject Allen’s claims by reviewing

both the guilty plea hearing and the hearing on Allen’s motion in arrest of

judgment.

III.       Analysis

           On appeal, Allen complains, in general terms, about his counsel’s

representation leading up to the guilty plea. He first contends his attorney failed

to challenge the police officers’ assumption that he threw down the marijuana

while      he   was    running   from   them.      He    urges   “the   challenge   of

ownership/possession of the packets of marijuana is central to the defense of

these charges.” He next notes his attorney did not file any motions, including no

motion to suppress, before the plea hearing. Allen also points out counsel did

not take depositions.

           Allen further argues the factual basis for the plea was “bare bones” and

included “no detail necessary to establish a real admission.” But he stops short

of asserting no factual basis existed for the plea. Finally, Allen contends “there is

adequate evidence that Counsel unduly influenced [him] in his decision to plead

guilty.”     Allen summarizes his allegations as counsel’s failure “to adequately

advise [him] in relation to his decision to plead guilty.”
                                         8



      “Generally, a criminal defendant waives all defenses and objections to the

criminal proceedings by pleading guilty, including claims of ineffective assistance

of counsel.” Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). In other words,

      [w]hen a criminal defendant has solemnly admitted in open court
      that he is in fact guilty of the offense with which he is charged, he
      may not thereafter raise independent claims relating to the
      deprivation of constitutional rights that occurred prior to the entry of
      the guilty plea. He may only attack the voluntary and intelligent
      character of the guilty plea . . . .

State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011) (quoting Tollett v. Henderson,

411 U.S. 258, 267 (1973).

      Our supreme court recognized an exception to the waiver-by-guilty-plea

doctrine for ineffective-assistance claims alleging counsel’s failure to perform

“certain pre-plea tasks that ultimately render the plea involuntary or unknowing.”

State v. Carroll, 767 N.W.2d 638, 642 (Iowa 2009).         The court equated the

voluntariness of the plea with the prejudice element, requiring defendant to

establish the guilty plea would not have been entered but for the breach of duty

by counsel. Castro, 795 N.W.2d at 793.

      We first consider the pre-plea tasks that Allen faults his attorney for not

completing. Allen states “[a]ppearantly no depositions are taken” and asserts

counsel thereby breached an essential duty. Our supreme court has held “it is

not always necessary for defense counsel to depose witnesses before trial.”

State v. Williams, 341 N.W.2d 748, 752 (Iowa 1983). Allen discloses no reason

why taking depositions was essential to the competent defense of his drug

charge or what additional discovery might have revealed that would have

prompted him to turn down the plea offer and stand trial. Allen’s claim that
                                          9



counsel failed “to conduct appropriate discovery” is “too general in nature” to

allow us to preserve it for a postconviction proceeding. See Dunbar v. State, 515

N.W.2d 12, 15 (Iowa 1994).

       Allen next suggests his attorney breached a duty by not filing a motion to

suppress. Because counsel has no duty to raise a meritless issue, the resolution

of this claim hinges on whether Officer Hamilton violated Allen’s constitutional

right against unreasonable search and seizure by collecting baggies of marijuana

found in a bush on Allen’s flight path from the park.           Once an individual

voluntarily abandons property, he no longer has an expectation of privacy in it

and cannot challenge its seizure. State v. Bumpus, 459 N.W.2d 619, 625 (Iowa

1990). Because Allen did not have an expectation of privacy in the abandoned

drugs, counsel was not ineffective for failing to file a motion to suppress.

       Finally, Allen variously contends his trial attorney “unduly influenced” or

“failed to adequately advise” or “improperly advised” him to plead guilty in return

for the promise of a suspended sentence. Allen does not pinpoint what was

improper or missing from his counsel’s advice regarding the plea.              Allen’s

appellate counsel refers to his “client’s base desire to get out of jail no matter

what the cost” and contends trial counsel’s advice “merely satisfied” that desire.

But Allen does not accuse trial counsel of misinforming him about the law or even

misreading the strength of the State’s case. Accordingly, Allen fails to establish

counsel’s plea advice fell below professional norms or that had he received

different advice he would have insisted on going to trial.
                                          10



       At the plea hearing, Allen told the court he and his counsel had discussed

possible defenses. Counsel told the court he knew of no defenses other than a

general denial that could affect the outcome of Allen’s case. Allen also said “yes”

when the court asked if he was satisfied with the services provided by trial

counsel. Allen also confessed in open court to possessing marijuana in the park.

Allen at no time expressed any dissatisfaction with counsel, nor the plea

agreement despite the opportunity in court to do so.

       Allen’s change of heart came in response to the State’s decision to revoke

its recommendation of a suspended sentence.             Allen does not contend the

State’s harsher recommendation breached the plea agreement. And rightly so,

the prosecutor reserved the right to seek prison time if Allen violated the law

before sentencing. The motion in arrest of judgment3 was premised on those

changed circumstances, as well as Allen’s new claim he was innocent of the

Washington County charge, but entered a guilty plea so he could more quickly

answer charges in another county. The district court appropriately denied Allen’s

request to withdraw his guilty plea on those grounds.4

       Allen’s cryptic critique of his attorney’s plea advice does not satisfy his

burden to show counsel’s performance fell below professional norms. Moreover,

Allen does not even allege on appeal that he would have rejected the original




3
  Allen does not allege his counsel was ineffective in regard to the motion in arrest of
judgment.
4
  A disappointed expectation of leniency is not enough to require withdrawal of a guilty
plea. State v. Ramirez, 400 N.W.2d 586, 589 (Iowa 1987). This maxim is especially
true here where Allen has only himself to blame for squandering the opportunity for
leniency by his own misconduct.
                                      11



plea agreement and insisted on going to trial if counsel had provided different

advice.

      AFFIRMED.
