                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0014
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS THORNE WIREMAN,
     Defendant-Appellant.
________________________________________________________________


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

Harris, Judge.



      A defendant appeals following his Alford pleas to two counts of

possession with intent to deliver controlled substances while in possession of a

firearm. AFFIRMED.




      Karmen R. Anderson of The Law Office of Karmen Anderson, Des

Moines, for appellant.

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

Attorney General, for appellee.



      Heard by Potterfield, P.J., and Mullins and McDonald, JJ.
                                          2


MULLINS, Judge.

         Nicholas Wireman challenges his Alford1 pleas to one count of possession

of mushrooms with intent to deliver while in possession of a firearm and one

count of possession of marijuana with intent to deliver while in possession of a

firearm.    Wireman claims his plea was not voluntary because (1) the State

amended the trial information to change the charged lysergic acid diethylamide

(LSD) offense, which was subsequently dismissed, from a class “C” to a class “B”

felony on the morning of trial and (2) his wife’s plea agreement with the State

was contingent on his pleas.         He also asserts his trial counsel rendered

ineffective assistance in (1) failing to object to the amendment to the trial

information and (2) not objecting to the package plea deal and instead advising

Wireman to accept the offer. We affirm.

    I.      Background Facts and Proceedings

         On March 18, 2011, officers of the Cedar Falls Police Department

executed a search warrant at the apartment Wireman shared with his wife,

Jessica Smith.      The officers found marijuana, LSD, psilocin mushrooms,

prescription pills, cash, a digital scale, packaging materials, drug paraphernalia,

an AK-47 semiautomatic rifle, a loaded twenty-gauge shotgun, a twelve-gauge

shotgun, and various ammunition in Wireman and Smith’s shared bedroom and a

shared common area accessible to their young children. The officers arrested

Wireman and Smith.



1
 An Alford plea allows a defendant to “voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence” without admitting “participation in the
acts constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                            3


       On April 29, the State filed a trial information charging Wireman and Smith

as codefendants and coconspirators with one count of possession of LSD with

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

124.401(1)(c) (2011) (count I);2 one count of possession of psilocin mushrooms

with intent to deliver, a class “C” felony, in violation of section 124.401(1)(c)

(count II); and one count of possession of marijuana with intent to deliver, a class

“D” felony, in violation of section 124.401(1)(d) (count III).         All charges were

enhanced by possession of a firearm, in violation of section 124.401(1)(e), which

doubled the applicable maximum sentences.

       On April 8, 2014, while awaiting jury selection for trial, the State orally

amended the trial information, correcting the code section for count I to section

124.401(1)(b)(5) and the classification to a class “B” felony. The State offered a

plea agreement, which provided Wireman would plead guilty to counts II and III

immediately and plead guilty to count I without the firearm enhancement at the

time of sentencing on all three counts.3 In exchange, Wireman would receive a

suspended twenty-five-year sentence on count I, a twenty-year sentence on

count II, and a ten-year sentence on count III, all to run concurrently.

Additionally, Wireman would have all fines suspended and would not be subject

to any mandatory minimums. The State also indicated it would offer a plea deal

2
  The complaint, dated March 19, 2011, accuses Wireman and Smith of conspiracy to
distribute LSD while in the immediate possession of a firearm (total weight less than ten
grams), in violation of Iowa Code section 124.401(1)(b)(5). The original trial information
classifies the charge of possession of LSD as a class “C” felony and cites section
124.401(1)(c). On April 8, 2014, the State orally requested an amendment of the trial
information to reflect the correct classification as a class “B” felony and code section as
section 124.401(1)(b)(5); Wireman did not object.
3
  The State crafted the plea agreement regarding Wireman’s guilty plea to count I so that
he could delay being taken into custody until sentencing, which was to be scheduled for
four weeks later.
                                            4


to Smith,4 but the offer was conditioned on Wireman’s acceptance of his own

plea deal. Wireman accepted the plea agreement, entered an Alford plea of

guilty to counts II and III, and agreed to enter an Alford plea to count I at the time

of sentencing.

          At the September 29, 2014 sentencing hearing, Wireman refused to enter

an Alford plea to count I and claimed he had been “misled and lied to and bullied

into” accepting the plea agreement. The district court continued sentencing and

appointed new counsel for Wireman.              At the second sentencing hearing on

December 19, the court sentenced Wireman to a prison term of twenty years on

count II and ten years on count III, to run concurrently, and suspended all fines.

The court also ordered Wireman to pay all surcharges and court costs, and

revoked his license.       The court dismissed count I on the State’s motion.

Wireman appeals.

    II.      Error Preservation

          In order to challenge a guilty plea on appeal, a defendant must file a

motion in arrest of judgment. See State v. Meron, 675 N.W.2d 537, 540 (Iowa

2004) (“Generally, a defendant must file a motion in arrest of judgment to

preserve a challenge to a guilty plea on appeal.”); Iowa R. Crim. P. 2.24(3)(a) (“A

defendant’s failure to challenge the adequacy of a guilty-plea proceeding by

motion in arrest of judgment shall preclude the defendant’s right to assert such



4
  The plea agreement offered to Smith provided that she would enter Alford pleas to all
counts charged, without the firearm enhancements, and receive suspended sentences
and fines on all counts, plus fees, surcharges, and a license revocation. Smith accepted
the plea offer and entered Alford pleas of guilty to counts II and III without the firearm
enhancement and with the expectation that she would enter an Alford plea to count I at
the time of sentencing.
                                        5


challenge on appeal.”). However, before we will penalize a defendant for failing

to file the motion in arrest of judgment, the district court must have informed the

defendant of the obligation to file the motion and the consequences of failing to

file the motion. See Meron, 675 N.W.2d at 540; Iowa R. Crim. P. 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.”).

          Wireman did not file a motion in arrest of judgment here.     The State

concedes the plea colloquy contained no discussion of the requirement that

Wireman must file a motion in arrest of judgment to challenge his plea or the

consequences for failing to do so. Because the court failed to advise Wireman

pursuant to rule 2.8(2)(d), Wireman is relieved of the requirement to file the

motion in arrest of judgment in order to challenge his guilty plea on appeal. See

Meron, 675 N.W.2d at 541. Thus, we need not consider Wireman’s alternative

claim trial counsel provided ineffective assistance in failing to file a motion in

arrest of judgment.

   III.      Standards of Review

          “We generally review a defendant’s challenge to a guilty plea for

correction of errors at law.” State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011).

However, a claim that a guilty plea was not entered voluntarily is reviewed de

novo because it implicates the Due Process Clause of the Fourteenth

Amendment. State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003).
                                          6


   IV.      Analysis

         We now turn to the merits of Wireman’s claims.        At the plea hearing,

Wireman stated that other than the plea agreement offered by the State, he had

not received any threats or promises persuading him to plead guilty. Wireman

now argues his Alford pleas were not voluntary because (1) the State amended

the trial information on the day set for trial to reflect that count I was not a class

“C” but instead a class “B” felony, which carried a longer sentence; and (2) the

State refused to extend a plea offer to his wife unless he accepted his offer and

pled guilty.

         “A defendant’s plea of guilty is a serious act that he or she must do

voluntarily, knowingly, and intelligently with an awareness of the relevant

circumstances and consequences.” Utter, 803 N.W.2d at 651. “To enter a guilty

plea voluntarily and intelligently means the defendant has a full understanding of

the consequences of a plea.” State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005)

(quoting State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001)). A guilty plea is not

voluntary if it is induced by undue influence, fraud, or coercion.           State v.

Hellickson, 162 N.W.2d 390, 394 (Iowa 1968).           However, the law does not

require a defendant act “of his own free will,” but rather, a defendant “may elect

to plead guilty to a lesser offense when he is also charged with a more serious

offense” and his plea will not be considered coerced.          State v. Speed, 573

N.W.2d 594, 597 (Iowa 1998) (quoting State v. Lindsey, 171 N.W.2d 859, 865

(Iowa 1969)); see also State v. Longbine, 263 N.W.2d 527, 528 (Iowa 1978)

(“[T]he fact that a plea was induced by the possibility of a more serious charge

does not render the plea involuntary.”). The question before us is “whether in the
                                           7


circumstances of this case the inducement for the guilty plea was one which

necessarily overcame [Wireman]’s ability to make a voluntary decision.” State v.

Whitehead, 163 N.W.2d 899, 903 (Iowa 1969) (quoting Cortez v. United States,

337 F.2d 699, 701 (9th Cir. 1964)).

       A.     Amendment of the Trial Information

       Wireman argues he was unduly influenced into accepting the State’s plea

offer because, on the day set for trial, the State amended the trial information,

changing count I from a class “C” to a class “B” felony—effectively increasing his

potential sentence by another thirty years.5 The State contends Wireman had

notice count I charged him with a class “B” felony because the offense charged—

possession of less than ten grams of LSD with intent to deliver—is always a

class “B” felony. See Iowa Code § 124.401(1)(b)(5). For support, the State

notes the original trial information included the correct title of the code section

even though it did not cite the correct section number.6

       Pursuant to Iowa Rule of Criminal Procedure 2.4(8)(a), a court may order

the trial information amended “either before or during the trial . . . to correct errors

or omissions in matters of form or substance,” so long as “(1) substantial rights of

the defendant are not prejudiced [by the amendment], and (2) a wholly new or

different offense is not charged.” State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997).


5
  The trial information originally cited Iowa Code section 124.401(1)(c), providing the
offense was a class “C” felony, carrying a maximum ten-year sentence under section
902.9(1)(d), doubled to a twenty-year maximum with the firearm enhancement under
section 124.401(1)(e). After the State amended the trial information to correct the code
section for possession of ten grams or less of LSD with intent to deliver to section
124.401(1)(b)(5), providing the offense was a class “B” felony, Wireman faced a twenty-
five-year sentence under section 902.9(1)(b), which was doubled to a fifty-year
maximum pursuant to the firearm enhancement under section 124.401(1)(e).
6
  The complaint filed March 19, 2011, correctly cited section 124.401(1)(b)(5).
                                            8


       In determining whether a “wholly new or different offense” is charged, the

Maghee court considered that

       the original charges and the amended charges involve[d] violations
       of the same code section: Iowa Code section 124.401(1) [(1993)].
       This provision contains the base prohibition that no one shall
       manufacture, deliver, or possess with the intent to manufacture or
       deliver certain controlled substances or conspire to do so. The
       elements under the original or amended charges are therefore the
       same.

Id. The Maghee court thus concluded the amendment changing the charged

offenses from a class “C” to a class “B” felony “did not charge a ‘wholly new or

different offense,’” but rather “charged the same offense . . . resulting in a

potentially more severe sentence.” Id.

       Here, the original trial information charged Wireman with a class “C” felony

in violation of section 124.401(1)(c) (2011).          The State amended the trial

information, correcting the citation of the charged offense to section

124.401(1)(b)(5), a class “B” felony. The amendment “result[ed] in a potentially

more severe sentence” but effectively “charged the same offense” under section

124.401, which prohibits possession of a controlled substance with the intent to

deliver the substance. See id. Accordingly, we find the State’s amendment did

not charge “a wholly new or different offense.” See Iowa R. Crim. P. 2.4(8)(a);

see also Maghee, 573 N.W.2d at 5.7




7
  Moreover, the Iowa Rules of Criminal Procedure do not “explicitly require the State to
charge the defendant with a specific paragraph.” State v. Dalton, 674 N.W.2d 111, 120
(Iowa 2004). This court has previously held that even when the “trial information
misstate[s] both the type of controlled substance [the defendant] allegedly delivered, and
the applicable subparagraph of section 124.401(1),” the defendant will be considered
“properly charged with a violation of Iowa Code section 124.401.” State v. Brisco, 816
N.W.2d 415, 419 (Iowa Ct. App. 2012).
                                         9


       The remaining question then is whether the amendment prejudiced

Wireman’s “substantial rights.” See Maghee, 573 N.W.2d at 6. “An amendment

prejudices the substantial rights of the defendant if it creates such surprise that

the defendant would have to change trial strategy to meet the charge in the

amended information.” Id. (citing State v. Fuhrmann, 257 N.W.2d 619, 624 (Iowa

1977)).

       The record shows the minutes of testimony attached to the original trial

information put Wireman on notice the State considered his offense to be a class

“B” felony. Additionally, the original complaint alleged: “[Wireman] is accused of

the crime of Conspiracy to Distribute Lysergic Acid Diethylamide (LSD) while in

Immediate Possession of a Firearm . . . in violation of: [section] 124.401(1)(b)(5).”

Clearly, Wireman was on notice the State was pursuing the charge of possession

of LSD with intent to deliver while in the immediate possession of a firearm in

count I, which is a class “B” felony. Therefore, we determine the amendment did

not surprise Wireman and find his substantial rights were not prejudiced. See

Iowa R. Crim. P. 2.4(8)(a).

       Accordingly, we conclude the State’s amendment to the trial information

neither charged a wholly new or different offense nor prejudiced the substantial

rights of Wireman, and thus, his plea was voluntary and without undue influence

or coercion. See Hellickson, 162 N.W.2d at 394; see also Maghee, 573 N.W.2d

at 5–6.

       Wireman also appears to argue his counsel provided ineffective

assistance in failing to object to the amendment to the trial information.        To

succeed on a claim of ineffective assistance of counsel, Wireman must show “by
                                         10


a preponderance of the evidence: ‘(1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.’” State v. Thorndike, 860

N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams, 810 N.W.2d 365, 372

(Iowa 2012)); accord Strickland v. Washington, 466 U.S. 668, 687 (1984).

Failure to prove either prong is fatal to the claim. See State v. Shanahan, 712

N.W.2d 121, 142 (Iowa 2006). In examining Wireman’s claims, we presume his

trial attorney performed his duties competently. See Thorndike, 860 N.W.2d at

320. We review claims of ineffective assistance of counsel de novo. Id. at 319.

As noted above, Wireman was on notice he was being charged with a class “B”

felony in count I prior to the State’s oral amendment. Furthermore, Wireman

never pleaded guilty to count I, and the State ultimately dismissed the charge.

Wireman was not prejudiced by the amendment on the day of trial, and therefore,

counsel was not ineffective in failing to object to the amendment to the trial

information.

       B.      Package Plea Deal

       Wireman argues the State’s refusal to offer his wife, codefendant Smith, a

plea deal unless Wireman accepted his plea offer from the State, amounted to

undue influence, and therefore, his plea was involuntary. Wireman does not

argue that all package plea deals are involuntary per se, thus we need not decide

this issue.8 The State contends the conditional offer of leniency extended to

Smith did not undermine the voluntariness of his Alford pleas.



8
 The State urges us to reach the issue and cites numerous federal and out-of-state
cases in support of its argument that “a package deal plea agreement does not
automatically undermine the voluntariness of a guilty plea.”
                                         11


       In general, federal circuit courts examining similar package plea deals

involving immediate family have held conditional promises of leniency do not

automatically render a guilty plea involuntary.       See, e.g., United States v.

Marquez, 909 F.2d 738, 741–42 (2d Cir. 1990) (holding the defendant’s plea was

voluntary despite the prosecutor’s offer of leniency to defendant’s wife being

conditioned on his pleading guilty and discussing other federal circuit court cases

concluding the same); see also United States v. Gamble, 327 F.3d 662, 664 (8th

Cir. 2003) (holding plea was voluntary even though “the government would only

agree to more lenient treatment for his brother if Gamble himself pleaded guilty”).

Numerous state courts have also held a defendant’s plea deal may be voluntary

even when the state’s offer of leniency to an immediate family member is

contingent upon the defendant pleading guilty. See, e.g., Stinson v. State, 839

So. 2d 906, 908–09 (Fla. Dist. Ct. App. 2003) (holding the government’s offer to

the defendant of leniency for his codefendant brother in exchange for a guilty

plea and agreed sentence of thirty years in prison did not render the plea

involuntary); see also In re Ibarra, 666 P.2d 980, 986–87 (Cal. 1983), abrogated

on other grounds by People v. Mosby, 92 P.3d 841 (Cal. 2004) (requiring a court

to conduct “an inquiry into the totality of the circumstances whenever a plea is

taken pursuant to a ‘package-deal’ bargain” considering the following factors: (1)

“whether the inducement for the plea is proper” and the prosecutor has “a

reasonable and good faith case against the third part[y] to whom the leniency is

promised”; (2) “the factual basis for the guilty plea”; (3) “the nature and degree of

coerciveness,” including any special relationship between the defendant and the

third party and the presence of any psychological pressures or specific threats;
                                         12


(4) whether “the promise of leniency to a third party was an insignificant

consideration by a defendant in his choice to plead guilty”; and (5) any other

relevant factor, including “the age of the defendant, whether defendant or the

prosecutor had initiated the plea[] negotiations, and whether charges have

already been pressed against a third party” (citations omitted)); State v. Salvetti,

687 S.E.2d 698, 707–08 (N.C. Ct. App. 2010) (holding the prosecutor’s offer of

leniency to the defendant’s wife, which was made contingent on the defendant’s

pleading guilty, did not render the defendant’s guilty plea involuntary).

       We recognize the State’s offer of leniency to Smith may well have been an

important consideration influencing Wireman’s decision to enter an Alford plea,

but it was not the only consideration he received.         See State v. Anderson,

No. 03-0458, 2004 WL 794484, at *6 (Iowa Ct. App. Apr. 14, 2004). Wireman

received additional, significant consideration for his plea deal, including having

his sentences on counts II and III run concurrently; having all of his fines

suspended; having his convictions not be subject to any mandatory minimums;

and having the ability to plead guilty to count I without the firearm enhancement

at a later date and avoid being immediately taken into custody pending the

sentencing hearing.9 See Harmon v. Mohn, 683 F.2d 834, 837 (4th Cir. 1982)

(stating benefit to wife was not sole benefit, but even if it were, since there was

probable cause for charges against wife and no indication of bad faith by

prosecutor, plea would be upheld). Here, the record shows there was probable

cause for the charges against Smith, and there is no indication of bad faith by the

9
 In fact, Wireman received even more of a benefit than he bargained for in the plea
agreement when the State eventually dismissed count I entirely “to assure that the
defendant [did] not get a more severe sanction than was initially bargained for.”
                                        13


prosecutor.   Further, the court asked Wireman whether he had received any

threats or promises other than the plea agreement that persuaded him to plead

guilty, and Wireman stated he had not.        Accordingly, we cannot determine

Wireman’s plea was involuntary simply because the State conditioned its offer of

leniency to his wife on Wireman pleading guilty. See Kent v. United States, 272

F.2d 795, 798–99 (1st Cir. 1959) (“If a defendant elects to sacrifice himself for

such motives, that is his choice, and he cannot reverse it after he is dissatisfied

with his sentence, or with other subsequent developments.”).

       Wireman also seems to argue his trial counsel provided ineffective

assistance in failing to object to the package plea deal as coercive or unduly

influential and in subsequently advising Wireman to accept the offer. As noted

above, Wireman must show counsel failed to perform an essential duty and

prejudice resulted.   See Thorndike, 860 N.W.2d at 320.        The record shows

Wireman received significant consideration for his plea deal other than the offer

of leniency to his wife. Thus, we cannot conclude Wireman suffered prejudice as

a result of any failure of his counsel in objecting to the package plea deal or in

allowing Wireman to accept the plea offer.

       We conclude Wireman voluntarily entered his Alford pleas to two counts of

possession with intent to deliver controlled substances while in possession of a

firearm and affirm.

       AFFIRMED.
