                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0211
                             Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RONALD RICHARD PAGLIAI,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William A. Price,

District Associate Judge.



      A defendant appeals the judgments and sentences on his guilty pleas to

third-degree theft and eluding. AFFIRMED.



      Jeremy L. Merrill of Lubinus Law Firm, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
                                             2


TABOR, Judge.

       Ronald Pagliai appeals the judgments and sentences on his guilty pleas to

two aggravated misdemeanors.            Pagliai contends his guilty pleas were not

knowing, voluntary and intelligent because he did not understand the

consequences and he did not voluntarily waive the right to an attorney.

Alternatively, he argues his attorney, who first appeared after Pagliai entered the

guilty pleas, provided ineffective assistance by failing to file a motion in arrest of

judgment.     Pagliai also asserts the district court did not provide adequate

reasons for imposing consecutive sentences.1

       Because Pagliai did not preserve error to directly challenge his guilty

pleas, we consider only his ineffective-assistance claim. We find no error in

Pagliai’s waiver of counsel but conclude our record is not sufficient to resolve

Pagliai’s remaining guilty-plea challenge on direct appeal. Accordingly, we affirm

his convictions but preserve that issue for postconviction proceedings. We also

affirm Pagliai’s sentence because the district court gave sufficient reasons for

imposing consecutive terms.

I.     Facts and Prior Proceedings

       The State charged Pagliai with theft in the third degree, in violation of Iowa

Code section 714.2(3) (2015), and eluding, in violation of Iowa Code section

321.279(2). Pagliai appeared at his arraignment without an attorney and pleaded
1
  Pagliai filed a pro se supplemental brief in this matter. To the extent Pagliai’s brief—
which is in the form of a letter and does not include citations to authority or pertinent
parts of the record—raises additional issues, we decline to address them. See Iowa R.
App. P. 6.903(2)(g)(3); State v. Martin, No. 11-1621, 2012 WL 4513891, at *5 (Iowa Ct.
App. Oct. 3, 2012) (“Pro se or not, parties to an appeal are expected to follow applicable
rules.”); see also Iowa R. App. P. 6.901(2) (providing time for filing and service of pro se
supplement briefs but not exempting them from other rules of appellate procedure
governing content).
                                             3


not guilty. About seven weeks later, Pagliai filed written waivers of his rights to a

speedy trial and to an attorney.

         Pagliai filed a written plea of guilty, which was accepted by the district

court at a plea hearing on July 23, 2015. The written plea form noted Pagliai was

pleading guilty to the “charge of Theft 3, Eluding” and indicated the maximum

and minimum sentences for “this charge.”               By signing the form, Pagliai

acknowledged “the judge may sentence me up to the maximum provided by law.”

In exchange for Pagliai’s guilty pleas, the State agreed to dismiss a different

pending theft charge, and Pagliai consented to have a presentence investigation

(PSI) report completed before his sentencing.

         On September 9, forty-eight days after the district court accepted Pagliai’s

guilty pleas, Pagliai appeared in district court with an attorney for sentencing.

But the court did not proceed with Pagliai’s sentencing because it had not yet

ordered the PSI. In an order following the hearing, the court repeated language

from the original order accepting Pagliai’s guilty pleas with the following

addendum: “NOTE: PLEA WAS PREVIOUSLY ACCEPTED BUT PSI WAS NOT

ORDERED UNTIL THIS DATE.” The court rescheduled the sentencing hearing.

         The sentencing hearing ultimately took place on January 7, 2016. 2 The

State made no sentencing recommendation; Pagliai asked for probation. After

considering the information in the PSI report, the court sentenced Pagliai to serve

two consecutive two-year terms of incarceration.

         Pagliai now appeals his judgments and sentences.



2
    The court continued the sentencing hearing after Pagliai was arrested on new charges.
                                          4


II.    Error Preservation

       The State contends Pagliai failed to preserve error to directly challenge his

guilty pleas because he did not file a motion in arrest of judgment. See Iowa R.

Crim. P. 2.24(3)(a). We agree. A defendant who does not file a motion in arrest

of judgment may not challenge a guilty plea on direct appeal unless the district

court failed to comply with the requirements of rule 2.8(2)(d) (“The court shall

inform the defendant that any challenges to a plea of guilty based on alleged

defects in the plea proceedings must be raised in a motion in arrest of judgment

and that failure to so raise such challenges shall preclude the right to assert them

on appeal.”). See State v. Meron, 675 N.W.2d 537, 541 (Iowa 2004).

       At the plea hearing, the district court explained to Pagliai the necessity of

filing a motion in arrest of judgment to directly challenge his guilty pleas as well

as the amount of time he had to file the motion. The order following the plea

hearing reiterated the court’s admonition. Pagliai does not claim, nor do we find,

any deficiency in the court’s explanation. See State v. Straw, 709 N.W.2d 128,

132 (Iowa 2006). Accordingly, we consider Pagliai’s guilty-plea challenges under

the framework of ineffective assistance of counsel. See id. at 133 (noting failure

to move in arrest of judgment “does not bar a challenge to a guilty plea if the

failure to file a motion in arrest of judgment resulted from ineffective assistance of

counsel”).

III.   Scope and Standards of Review

       Our review of ineffective-assistance-of-counsel claims is de novo. See id.

We ordinarily preserve such claims for postconviction-relief proceedings, see

State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011), regardless of our estimation of
                                         5

their “potential viability,” see State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

Only if we find the development of the factual record would not be useful to

decide an ineffective-assistance claim will we address it on direct appeal. See

State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

      We review a district court’s sentencing decision for abuse of discretion.

See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016) (citation omitted). A district

court abuses its discretion when it makes a sentencing decision “on grounds

clearly untenable or to an extent clearly unreasonable” or when it fails to give

adequate reasons to provide appellate review of the sentencing court’s

discretion. Id. at 272–73.

IV.   Ineffective Assistance of Counsel

      Pagliai argues his attorney provided ineffective assistance when he failed

to file a motion in arrest of judgment. Pagliai contends his guilty pleas were not

knowing, voluntary, and intelligent for two reasons: (1) he did not understand the

range of punishments he faced and (2) his waiver of counsel was not voluntary.

To establish ineffective assistance of counsel, Pagliai must prove by a

preponderance of the evidence both that his counsel failed to perform an

essential duty and the failure resulted in prejudice.           See Strickland v.

Washington, 466 U.S. 668, 687–88 (1984); Straw, 709 N.W.2d at 133.              We

conclude our record is not sufficient to resolve on direct appeal Pagliai’s claim he

did not understand the range of punishments he faced. Therefore, we preserve

that first claim for a potential postconviction-relief proceeding. But we find our

record is adequate to reject Pagliai’s claim that counsel was ineffective for not

moving to arrest judgment based on Pagliai’s original waiver of counsel.
                                            6


       A.      Consequences of Pleas

       We cannot reach the merits of Pagliai’s claim he did not understand the

consequences of his pleas for two reasons. First, we are unable to determine

whether Pagliai’s counsel failed to perform an essential duty because it is unclear

whether Pagliai retained counsel before the window for filing a motion in arrest of

judgment closed. See Iowa R. Crim. P. 2.24(3)(b) (“The motion must be made

not later than [forty-five] days after plea of guilty . . . but in any case not later than

five days before the date set for pronouncing judgment.”). The State contends

the record is unclear on this matter—Pagliai’s attorney first appeared in court

with Pagliai on September 9, 2015, three days after the time for filing a motion in

arrest of judgment had expired, and he did not file a written appearance

beforehand.3 But Pagliai urges us to find the motion-in-arrest-of-judgment clock

reset on September 9 because the district court entered an order confirming

Pagliai’s guilty pleas on that date.

       Pagliai does not cite, nor do we find, any authority supporting his claim a

defendant may file a motion in arrest of judgment within forty-five days of the

court’s “reacceptance” of a guilty plea. See Iowa R. Crim. P. 2.24(3)(b) (“The

motion [in arrest of judgment] must be made not later than [forty-five] days after

plea of guilty . . . .” (emphasis added)); State v. Smith, 753 N.W.2d 562, 564

(Iowa 2008) (finding “if the date of sentencing is set more than fifty days after the

plea, the maximum time a defendant has to file the motion in arrest of judgment

is forty-five days after the plea”).     Accordingly, because the record does not


3
  Pagliai’s attorney made no filings in the case until after the district court issued the
sentencing order. At that time, he filed a limited appearance and notice of appeal.
                                         7


disclose when Pagliai retained his attorney, we cannot determine whether his

attorney breached an essential duty by failing to file a motion in arrest of

judgment.

       Second, assuming Pagliai’s attorney could have filed a timely motion in

arrest of judgment, we are unable to determine on the current record whether

Pagliai was prejudiced by his failure to do so.          To satisfy the prejudice

requirement, a defendant generally 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.” Straw, 709 N.W.2d at 138. Here, Pagliai had already

pleaded guilty at the time he hired an attorney, so the analysis changes slightly—

Pagliai must show he did not file a motion in arrest of judgment due to the error

of counsel and, but for the error, he would have both filed the motion and insisted

on proceeding to trial. “[I]t is abundantly clear that most claims of ineffective

assistance of counsel in the context of a guilty plea will require a record more

substantial than the one now before us.” Id. Nothing in our record indicates

whether Pagliai’s counsel, once retained, discussed with Pagliai the range of

possible punishments he could face. We cannot, as the State suggests, simply

infer that Pagliai’s attorney or the prosecutor advised him of this information.

Accordingly, we preserve this claim for a possible postconviction-relief

proceeding.

       B.     Waiver of Counsel

       The record is adequate to decide Pagliai’s waiver-of-counsel claim

because, even assuming Pagliai retained his attorney in time to file a motion in

arrest of judgment, his attorney did not breach an essential duty by failing to file
                                         8

the motion on that basis. See State v. Dalton, 674 N.W.2d 111, 120 (Iowa 2004)

(rejecting ineffective-assistance claim when trial counsel did not fail to perform

essential duty). We measure the performance of Pagliai’s attorney “against the

standard of a reasonably competent practitioner with the presumption that the

attorney performed his duties in a competent manner.” See id. at 119.

       A defendant has a constitutional right to counsel during “all critical stages

of the criminal process,” including the entry of a guilty plea. State v. Majeres,

722 N.W.2d 179, 182 (Iowa 2006). But a defendant may waive the right to

counsel as long as the waiver is made “knowingly and intelligently with sufficient

awareness of the relevant circumstances.”        Id.   Pagliai does not attack the

sufficiency of his written waiver or of the district court’s colloquy at his plea

hearing. Rather, Pagliai suggests the court improperly pressured him to waive

his right to counsel.

       Without citation to authority, Pagliai asserts: “this case is lined with red

flags indicating that the Defendant desired to be represented by an attorney” and

“[t]he environment created by the judge [during the plea hearing] compelled the

waiver [of counsel] from the defendant.” The State counters the written waiver of

counsel and the colloquy at Pagliai’s plea hearing were sufficient and the district

court did not coerce Pagliai but, rather, granted him as much time as he needed

to understand his waiver.

       We find Pagliai’s arguments unconvincing. Pagliai may have expressed

the intent to hire an attorney to represent him, but his actions did not reflect that
                                            9


intent. Pagliai chose to move forward without legal counsel until shortly before

his sentencing hearing.4

       Moreover, we disagree with Pagliai’s characterization of the plea hearing.

As an initial matter, Pagliai signed a detailed waiver of counsel three months

before the plea hearing.      Then, at the hearing, the district court verified the

validity of Pagliai’s written waiver—asking Pagliai if he had reviewed the form

carefully before signing and whether he understood the ramifications of the

waiver, which were listed on the form.          After Pagliai responded he “sort of”

comprehended the waiver, the court stated: “Here. Sit and review it until you

understand it. We’ll get back to you. Have a seat over there. I have many other

people waiting. Thank you.” When the court revisited the issue, Pagliai stated

he had finished his review of the document and understood it. The court then

performed an in-court colloquy, further ensuring Pagliai’s understanding.

       Rather than rushing Pagliai through the process, the court gave Pagliai as

much time as he needed to review his waiver and then questioned Pagliai to

confirm he fully understood his decision. We see no improper pressure at any

point in the plea hearing.        Accordingly, we find Pagliai’s waiver-of-counsel

challenge to be without merit, and Pagliai’s attorney was not ineffective for failing

to raise it. See State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998).

V.     Sentencing

       Finally, Pagliai argues the district court’s reasons for imposing consecutive

sentences were inadequate because they were too generic and did “not provide


4
  In his pro se supplemental brief, Pagliai explains: “I represented myself because I felt
that I can handle the misdemeanors that I was charged with . . . .”
                                            10


a rationale for the exercise of the judge’s discretion.”5 The State disagrees,

asserting the district court’s rationale was explicit and specific to Pagliai.

         A sentencing court must “state on the record its reason for selecting the

particular sentence.” Iowa R. Crim. P. 2.23(3)(d). This rule also applies to a

court’s decision to impose a consecutive sentence, but “in doing so the court may

rely on the same reasons for imposing a sentence of incarceration.” See Hill,

878 N.W.2d at 275. A “terse and succinct” statement may suffice, “when the

reasons for the exercise of discretion are obvious in light of the statement and

the record before the court.”       State v. Thacker, 862 N.W.2d 402, 408 (Iowa

2015).

         Here, the district court stated:

                 The Court, as noted earlier, did review the [PSI]. It appears
         that Mr. Pagliai is not a good candidate for probation. For reasons
         probably best known to Mr. Pagliai, he continues to struggle to live
         within the law.

5
  In the midst of this argument, Pagliai briefly mentions another issue. Citing Iowa Rule
of Criminal Procedure 2.8(2)(c), Pagliai argues the district court should have inquired
into the plea discussion with the prosecutor at the sentencing hearing and the prosecutor
should have disclosed the terms of an earlier plea offer, which included a
recommendation of “two years,” that had expired by the time Pagliai pleaded guilty.
Pagliai does not argue the State breached the plea agreement, nor does he cite
authority for his contention the State should have offered information regarding the
expired plea offer at the sentencing hearing.
        We find this issue more applicable to the guilty-plea stage than to sentencing.
And we find no violation of rule 2.8(2)(c) (“The court shall also inquire as to whether the
defendant’s willingness to plead guilty results from prior discussions between the
attorney for the state and the defendant . . . . The terms of any plea agreement shall be
disclosed of record . . . .”). Pagliai’s written plea of guilty included a plea agreement—
the State agreed to dismiss an unrelated theft charge—which is a part of the record.
The agreement included no sentencing recommendation by the State, and Pagliai
affirmed: “I know that the judge may sentence me up to the maximum provided by law.”
At the plea hearing, Pagliai confirmed the statements in the written plea were correct in
response to the court’s inquiry. Because rule 2.8(2)(c) was satisfied at the plea hearing,
the sentencing judge was not required to complete its requirements a second time. See
State v. Parrish, 232 N.W.2d 511, 514–15 (Iowa 1975).
        To the extent Pagliai raises a violation of rule 2.8(2)(c) on appeal, we reject his
claim.
                                       11


              ....
              The Court believes that the appropriate order would be that
       of incarceration.
              The Court takes into account Mr. Pagliai’s age and
       character. Of particular import is his prior criminal history.

The court then sentenced Pagliai to a period of incarceration not to exceed two

years on each charge, to be served consecutively. Recognizing its discretion to

impose either concurrent or consecutive sentences, the district court explained:

“The reason[s] for the consecutive sentences are the specific facts of these

cases, as well as the extensive criminal history that you’ve created for yourself

over the last few years.”

       The district court’s reasoning was adequate. The court referred to the

facts of the instant case—a theft of merchandise approaching $500 followed by a

high-speed police chase—and Pagliai’s criminal history, which included

numerous theft convictions. Because it is clear from the court’s statements what

prompted the consecutive sentences, it is not an abuse of discretion that those

reasons were pithy or were similar to the court’s reasons for imposing a two-year

term of incarceration on each charge. See Hill, 878 N.W.2d at 275.

       Accordingly, we affirm.

       AFFIRMED.
