                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2031
                             Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DUSTIN ALLEN HEUER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hardin County, James C. Ellefson

(plea) and John J. Haney (sentencing), Judge.



      A defendant appeals his conviction and claims his counsel was ineffective.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Dustin Heuer appeals his conviction for sexual abuse in the second

degree, in violation of Iowa Code sections 709.1(1) and 709.3(1)(b) (2015).

Heuer claims he was not competent to enter a plea and his counsel was

ineffective in not challenging his guilty plea. We affirm.

       I.     Background Facts and Proceedings

       Heuer has intellectual limitations.    He lives in his own apartment but

sometimes stays with his guardian. He also receives assistance in his daily

activities from case worker, Enoch Higbee.         On June 25, 2015, Heuer was

spending time at Higbee’s house while two young children were present. Heuer

is sexually aroused by the smell of feces.       While Heuer was alone with the

children, he massaged one of the children’s anuses, became aroused, and

masturbated in front of the children. Heuer told Higbee about the incident, and

Higbee called law enforcement.

       On July 2, 2015, the State charged Heuer with sexual abuse in the second

degree. On August 31, 2015, Heuer pled guilty to the charge as part of a plea

agreement with the State. During the plea hearing, the district court engaged in

a colloquy and discussed the consequences of the guilty plea with Heuer.

Heuer’s counsel also described his investigation of possible defenses Heuer

could raise and his investigation of Heuer’s mental health, which included an

evaluation by Dr. Art Konar, a licensed psychologist. Dr. Konar found “Heuer

had borderline intellectual functioning, that he was either just above or just below

the mental retardation point but that he understands all the facts and could name

his medications, the folks involved in this case, and what was involved legally.”
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Additionally, the court asked counsel if he had any doubts about Heuer’s

competency, to which counsel responded that Heuer “clearly” understood the

pertinent facts and penalties.

       On October 14, 2015, Heuer, through new counsel, filed a motion in arrest

of judgment, claiming his plea was entered under duress or coercion.            On

October 23, 2015, Heuer filed a motion to dismiss his motion in arrest of

judgment and requested a sentencing hearing.          At the hearing, the court

discussed the motion in arrest of judgment with Heuer and confirmed that Heuer

wished to dismiss it and proceed with sentencing. The court also confirmed with

new counsel that he had discussed the issue with Heuer and that counsel

believed Heuer understood the consequences of his choice. After this colloquy,

the court granted the motion to dismiss the motion in arrest of judgment and

proceeded with sentencing. Heuer appeals.

       II.    Standard of Review

       Generally, we review challenges to the entry of a guilty plea for correction

of errors at law. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006). We review

whether a defendant was competent de novo. State v. Lyman, 776 N.W.2d 865,

871 (Iowa 2010), overruled on other grounds by Alcala v. Marriot Int’l, Inc., 880

N.W.2d 699, 708 (Iowa 2016). When a defendant challenges a guilty plea in the

context of a claim of ineffective assistance of counsel, our review is de novo.

Tate, 710 N.W.2d at 239.
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      III.   Entry of Guilty Plea

      Heuer claims the district court violated his due process rights by accepting

his guilty plea without holding a competency hearing. The State argues Heuer

failed to preserve error regarding the entry of his guilty plea because he withdrew

his motion in arrest of judgment. Additionally, the State asserts there was no

basis to question Heuer’s competence when accepting his guilty plea.

      Generally, we will not review the validity of a guilty plea in the absence of

a motion in arrest of judgment. State v. Lucas, 323 N.W.2d 228, 230 (Iowa

1982). The district court made this rule clear to Heuer when accepting his plea.

Heuer demonstrated his understanding of this rule when he filed a motion in

arrest of judgment. Yet, at the hearing on Heuer’s motion, Heuer indicated he

wished to withdrawal his motion in arrest of judgment, leave his guilty plea in

place, and proceed with sentencing.         The district court again reviewed the

importance of a motion in arrest of judgment, and Heuer indicated he understood

and still wished to withdraw his motion.       Consequently, error has not been

preserved, and we refuse to address the voluntariness of Heuer’s guilty plea.

See id. at 230.

      However, when a defendant claims they were denied due process

because the district court failed to order a competency hearing sua sponte, “[t]he

defendant does not directly challenge the voluntariness of the plea, but claims

that due process mandates a competency hearing.” Id. at 232. In this context,

we allow an exception to our normal error preservation rules.           Id. (“It is

fundamental that if the defendant was incompetent he was in no position to

preserve error, request a section 812.3 hearing, or avoid a waiver of his motion in
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arrest of judgment.”). Therefore, we will proceed to a determination of whether

the district court violated Heuer’s due process rights by not ordering a

competency hearing.        In determining whether due process requires a

competency hearing, we consider: (1) the defendant’s irrational behavior, (2) the

defendant’s demeanor in court, and (3) prior medical opinions on competence.

Id. “The critical question is ‘whether [the defendant] has sufficient present ability

to consult with his lawyer with a reasonable degree of rational understanding—

and whether he has a rational as well as factual understanding of the

proceedings against him.’” Id. (quoting Dusky v. United States, 362 U.S. 402,

402 (1960)).

       Heuer points to his intellectual limitations, that he has a guardian, and that

he was taking antipsychotic medication as reasons the court should have

ordered a competency hearing. The State counters with Heuer’s educational

accomplishments, his living status, his recall and explanation of the facts of the

crime, his behavior during the plea and sentencing hearings, and the opinion of a

licensed psychologist procured by Heuer’s counsel as support for the district

court’s decision not to order a competency hearing. We agree with the State.

Our review of the record finds Heuer did not exhibit any irrational behavior and

his demeanor during the hearings, while understandably somber, was

cooperative and appropriately-responsive to the court’s questions.          Further,

Heuer’s counsel indicated he considered the issue but believed Heuer

understood the facts and consequences of the incident. Counsel’s conclusion

was partially based on the opinion of a licensed psychologist who examined

Heuer and concluded Heuer “understands all the facts and could name his
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medications, the folks involved in this case, and what was involved legally.”

Based on these facts, and both Heuer’s and counsel’s indication that their

relationship was functional and productive, we conclude the district court did not

err in accepting Heuer’s guilty plea without ordering a competency hearing.

      IV.    Ineffective Assistance of Counsel

      Heuer claims his counsel was ineffective in: (1) allowing him to enter a

guilty plea while Heuer was incompetent and (2) moving to withdraw Heuer’s

motion in arrest of judgment. The State argues Heuer’s counsel did not breach

an essential duty in either respect. “Ordinarily, we do not decide ineffective-

assistance-of-counsel claims on direct appeal. . . . However, we depart from this

preference in cases where the record is adequate to evaluate the appellant’s

claim.” Tate, 710 N.W.2d at 240.

      Counsel is ineffective when counsel’s performance, measured against

objective standards, falls below professional norms. State v. Clay, 824 N.W.2d

488, 494–95 (Iowa 2012).       “In order to succeed on a claim of ineffective

assistance of counsel, a defendant must prove: (1) counsel failed to perform an

essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185,

195 (Iowa 2008).

      Whether counsel failed to perform an essential duty is measured against

the objective standard of a reasonably competent practitioner. Id. at 195–96.

We begin with the presumption that counsel performed their duties competently,

and “this court ‘avoid[s] second-guessing and hindsight.’” Id. at 196 (alteration in

original) (quoting Ledezma v. State, 626 N.W.2d 134,142 (Iowa 2001)). Further,

we analyze the claim based on the totality of the circumstances. Id. Strategic
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decisions made based on thorough investigation and reasonable professional

judgments are “virtually unchallengeable.” Ledezma, 626 N.W.2d at 143 (quoting

Strickland v. Washington, 466 U.S. 668, 690–91 (1984)).

             A.     Entry of Guilty Plea

      Heuer argues his counsel was ineffective in allowing him to enter a guilty

plea because he was incompetent. For many of the same reasons discussing

Heuer’s competence above, we conclude counsel did not breach an essential

duty by allowing Heuer to plead guilty. Based on our review of the record, we

already determined there was no indication Heuer was not competent. Further,

Heuer’s counsel considered the possibility of a defense based on Heuer’s

intellectual limitations and had an evaluation completed.        Based on that

evaluation and his interactions with Heuer, counsel concluded Heuer was

competent and a guilty plea was a good option for Heuer. Based on the totality

of the circumstances, we conclude counsel investigated the issue and made a

reasonable strategic decision in pursuing a possible guilty plea. Therefore, we

conclude counsel did not fail to perform an essential duty.

             B.     Withdrawal of Motion in Arrest of Judgment

      Heuer next claims his counsel was ineffective in filing a motion to withdraw

Heuer’s motion in arrest of judgment based on duress and coercion. At the

hearing, the district court questioned Heuer about his motion in arrest of

judgment, explained the purpose and importance of a motion in arrest of

judgment again, and probed Heuer’s desire to allow his guilty plea to stand.

Heuer indicated repeatedly that he had discussed the issues with counsel and

wished to proceed. Counsel indicated that he discussed the issues with Heuer
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thoroughly and concluded that the basis of the motion in arrest of judgment—

duress or coercion—was not present.           We conclude counsel researched the

issue, discussed it with his client, and made a reasonable strategic decision.

Therefore, we conclude counsel did not fail to perform an essential duty.

         Because we conclude counsel did not breach an essential duty in either of

the respects Heuer claims, we reject Heuer’s ineffective-assistance-of-counsel

claim.

         V.     Conclusion

         Because we conclude the trial court did not err in accepting Heuer’s guilty

plea and because we conclude Heuer’s counsel was not ineffective, we affirm

Heuer’s conviction.

         AFFIRMED.
