                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1679
                              Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL J. LOWE, JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, James M.

Drew (Guilty Plea and Motion in Arrest of Judgment) and DeDra L. Schroeder

(Judgment and Sentencing), Judges.



      Michael Lowe, Jr. appeals his convictions following his guilty pleas to

second-degree sexual abuse and lascivious acts with a child. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Elisabeth Reynoldson, Assistant

Attorney General, for appellee.




      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

       Michael Lowe, Jr. appeals the judgment entered and sentence imposed

following his convictions of second-degree sexual abuse and lascivious acts with

a child. He challenges the denial of his motion in arrest of judgment, in which he

argued the change in his drug regimen following his arrest rendered his guilty

plea involuntary and unintelligent.     He also contends his trial counsel was

ineffective. Because the record shows the district court acted within its discretion

in denying Lowe’s motion, we affirm, and we preserve Lowe’s claim of ineffective

assistance of counsel for a possible postconviction-relief proceeding to allow the

record to be fully developed.

       I. Background Facts and Proceedings.

       In May 2015, the State filed a six-count trial information, which charged

Lowe with two counts each of second-degree sexual abuse, third-degree sexual

abuse, and lascivious acts with a child. Lowe agreed to plead guilty to one count

of second-degree sexual abuse and one count of lascivious acts with a child, and

in exchange, the State agreed to dismiss the remaining charges against Lowe.

The State also agreed to recommend a twenty-five-year prison sentence on the

sexual-abuse charge—which carried a seventy-percent mandatory minimum—

and a ten-year prison sentence on the lascivious-acts charge, with the sentences

running concurrently.

       On July 28, 2015, Lowe entered a written plea agreement. The document,

which contains twenty-two paragraphs and multiple subparagraphs, states: “I

should not initial any paragraph of this document if I do not understand it or its

contents are incorrect.”        Lowe initialed next to all the paragraphs and
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subparagraphs contained therein. On the same day, Lowe also appeared before

the district court for the plea colloquy. The court asked Lowe if he was under the

care of a doctor and whether he took medications; Lowe responded “[y]es” to

both.    He was then asked, “Is there anything about your health or the

medications that you’re taking that make it difficult for you to understand court

proceedings?” Lowe replied, “Not at this time.” Lowe further confirmed he had

enough time to review the trial information with his attorney and that he was

satisfied with his attorney’s services. At the close of the hearing, the court found

Lowe voluntarily entered his pleas with a full understanding of his rights and the

consequences of his pleas, determined a factual basis existed for each plea, and

accepted Lowe’s guilty pleas.

        On September 9, 2015, Lowe filed a pro se motion in arrest of judgment

“on the grounds that [he] was not of clear mind at the time of [the] plea

agreement.” He stated: “Although I was not under the influence of chemicals, I

was still under serious withdrawal effects of prescribed morphine, Lortab and

Adderall. These conditions are improving daily.”

        At the September 14, 2015 hearing on Lowe’s motion in arrest of

judgment, Lowe testified that at the time of his May 2015 arrest, he was taking

numerous prescribed medicines, which he did not receive for the first two days

he was in jail. He testified that prior to his arrest, he had been taking morphine

and Lortab for a ten-year period due to chronic back pain and knee pain, and he

had been taking Adderall or a different ADHD medication for a period of eight to

ten years. Lowe claimed that the sudden cessation of his prescription medication

caused him to experience withdrawal symptoms, which he described as being
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“sick to [his] stomach” and “starting to have hallucinations,” which “went on for a

long period of time.”

       While in jail, Lowe was placed on a protocol to wean him off of morphine

over a period of eleven to fourteen days, which occurred during the beginning to

middle of June. Lowe testified this protocol only eased his withdrawal symptoms

“[f]or maybe an hour or two a day, but it just put [him] to sleep.” After the protocol

ended, Lowe testified his withdrawal symptoms resumed: “All I could think about

was the pain that I was in. Reality was in and out.” Lowe testified that he spent

“a lot of time in [his] bunk sleeping.” He further testified he had difficulty paying

attention without taking Adderall. When asked if there was anything about the

written guilty plea that he did not understand, Lowe stated:

               At that time I don’t know, but looking back at it now, like last
       week when I was looking at it, I looked at it, I was like I don’t
       believe that I would have signed that. I—I wanted to get it over
       with. I wanted to do it and be done, and now I don’t believe that
       that’s the way I should have signed that.

Lowe was then asked if there was anything he still did not understand about the

proceedings, to which he replied:

               I just don’t know what my rights are as far as all of it or
       what’s happening, you know.            I understand that this is—I
       understand what’s going on right now, but I don’t know that I fully
       understood that—what the sentencing was, what I was agreeing to.
       Everything was coming at me so fast. It came like—the 27th was
       when it had to be in, and the next day—I saw you the day before
       that and then the next day it had to be signed. . . . And I was told
       that I had—you were giving me plenty of time to think about it, but
       the whole time I didn’t look at nothin’ so I had like three days to look
       at everything and then sign it and be done.

       Nicole Lea Medina, a family nurse practitioner, also testified at the

hearing. Medina saw Lowe during his intake at the county jail on May 20, 2015.
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She saw Lowe again the next week to see how he was doing without morphine,

and she did not notice any withdrawal symptoms at that time. Medina, who has

experience with people undergoing drug withdrawal, testified that when she saw

Lowe a final time on June 17, 2015, he was not experiencing withdrawal

symptoms and was of sound mind. Medina testified that in her professional

medical opinion, she did not believe Lowe was suffering from the effects of

withdrawal. She further testified Lowe told her he felt better off the morphine.

       On September 18, 2015, the court entered its order denying Lowe’s

motion. The order states:

              The evidence in the record does not support [Lowe’s] claim
       that his guilty pleas were the result of clouded judgment caused by
       withdrawal symptoms. [Medina] . . . saw [Lowe] on June 17. She
       observed no withdrawal symptoms, and [Lowe] made no
       complaints in that regard. The court observed nothing unusual
       about [Lowe] when taking his guilty pleas. He appeared to
       understand all questions and answered them appropriately.
       Furthermore, [Lowe’s attorney] advised [Lowe] that she saw no
       basis for the filing of a motion in arrest of judgment. Therefore, the
       court sees no valid reason for allowing [Lowe] to withdraw his guilty
       pleas.

       The sentencing hearing was held on September 28, 2015.                      As

recommended by the State, the court sentenced Lowe to twenty-five years in

prison on the sexual-abuse charge and ten years on the lascivious-acts charge.

However, the court ordered the sentences to run consecutively rather than

concurrently, citing “the nature of the offenses, the fact that they’re separate and

distinct victims, and they’re separate and distinct time frames according to

[Lowe’s] guilty pleas.”
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       II. Motion in Arrest of Judgment.

       On appeal, Lowe argues the district court abused its discretion in denying

his motion in arrest of judgment because he was suffering from the effects of

withdrawal from his medications at the time he entered his guilty pleas, which

prevented him from understanding the plea proceedings and rendered his pleas

unknowing and involuntary.        We review the denial of a motion in arrest of

judgment for an abuse of discretion. See State v. Smith, 753 N.W.2d 562, 564

(Iowa 2008). “An abuse of discretion will only be found where the trial court’s

discretion was exercised on clearly untenable or unreasonable grounds.” Id. A

ruling is untenable when based on an erroneous application of law. See id.

       “It is well-settled that a defendant who pleads guilty surrenders basic

constitutional rights.” State v. Nail, 743 N.W.2d 535, 545 (Iowa 2007). In order

to be valid, the defendant must intentionally relinquish known rights. See State v.

Philo, 697 N.W.2d 481, 488 (Iowa 2005). In other words, the plea must be

voluntary and intelligent.     See id.   “To enter a guilty plea voluntarily and

intelligently means the defendant has a full understanding of the consequences

of a plea.” Id. (citation omitted).

       Lowe failed his burden of showing he entered his pleas unknowingly and

involuntarily because his withdrawal symptoms prevented him from thinking

clearly. Medina, who has experience treating persons undergoing withdrawal,

testified that Lowe did not exhibit any withdrawal symptoms when she saw him

on three separate occasions in May and June 2015, prior to his entry of the guilty

pleas on July 28. Lowe did not complain to Medina of any withdrawal symptoms.

In fact, Lowe told Medina he felt better after he stopped taking morphine. In
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Medina’s professional medical opinion, Lowe was not experiencing withdrawal

symptoms. Lowe failed to present any evidence, aside from his own testimony,

to refute Medina’s testimony.      Furthermore, the district court judge who

considered the motion in arrest of judgment was the same judge who accepted

Lowe’s guilty pleas; the order notes the court “observed nothing unusual about

[Lowe] when taking his guilty pleas” and that Lowe “appeared to understand all

questions and answered them appropriately.” On the record before us, the court

reasonably exercised its discretion in denying Lowe’s motion in arrest of

judgment.

      III. Ineffective Assistance of Counsel.

      Lowe also raises a claim of ineffective assistance of counsel. We review

such claims de novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). A

valid ineffective-assistance-of-counsel claim exists when counsel fails to perform

in an objectively reasonable manner under prevailing professional standards and

that failure prejudices the defendant. See id. at 494-95. Although we ordinarily

preserve ineffective-assistance claims for postconviction-relief proceedings, we

will resolve them on direct appeal when the record is adequate. See id. at 494.

      Lowe acknowledges that a medical expert would ordinarily be necessary

to demonstrate that the alteration of his medication regimen rendered his pleas

unknowing and involuntary. See Castro v. State, 795 N.W.2d 789, 795 (Iowa

2011). He argues his trial counsel’s failure to procure an expert witness on the

issue of the voluntariness of his guilty pleas was a breach of an essential duty.

The record before us is silent as to the existence of a medical expert who would

support Lowe’s claims.      Lowe is free, however, to raise this claim in a
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postconviction-relief proceeding, which allows for full development of the record.

See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (noting that if a claim of

ineffective assistance cannot be addressed on direct appeal, “the court must

preserve it for a postconviction-relief proceeding, regardless of the court’s view of

the potential viability of the claim”). Accordingly, this issue is preserved for a

postconviction-relief proceeding, should Lowe choose to bring one.

       AFFIRMED.
