                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1293
                             Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERNEST TOBY GASTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cedar County, Mark Lawson, Judge.



      Defendant appeals his convictions for eluding and possession of marijuana,

third or subsequent offense. AFFIRMED.



      Eric D. Tindal of Keegan Tindal & Mason, PC, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
                                          2


SCHUMACHER, Judge.

       Ernest Gaston appeals his convictions for eluding and possession of

marijuana, third or subsequent offense. Gaston claims it was error for the court to

proceed with his pleas of guilty until his competency had been determined. We

find no error in the trial court accepting the pleas, and we affirm Gaston’s

convictions.

       I.      Background Facts & Proceedings

       According to the minutes of testimony, on March 27, 2018, a State trooper

observed a red Jeep Grand Cherokee driving seventy-four miles per hour in a

sixty-five-mile-per-hour zone on Interstate 80.       The trooper activated his

emergency lights, but the Jeep accelerated, so the trooper turned on his siren and

pursued the Jeep.     The Jeep traveled at speeds up to 110 miles per hour.

Eventually the trooper got in front of the Jeep while another trooper got behind it,

and they forced the Jeep to pull over onto the shoulder of the road.

       The driver of the Jeep, Gaston, was placed under arrest. During a search

incident to arrest, officers found a small baggie of marijuana in the pocket of

Gaston’s jeans. The Jeep had a strong odor of marijuana, and Gaston admitted

smoking marijuana. Gaston’s driver’s license was barred at the time due to his

status as a habitual offender.

       Gaston was charged with Count I, eluding, in violation of Iowa Code section

321.279(3) (2018); Count II, operating a motor vehicle while barred, in violation of

section 321.561; and Count III, possession of marijuana, third or subsequent

offense, in violation of section 124.401(5).
                                        3


      Gaston entered into a plea agreement in which he agreed to plead guilty to

Counts I and III. The State agreed to dismiss Count II and recommend concurrent

sentences. At the guilty plea proceeding, Gaston stated he was driving on the

interstate and “kept going” when the trooper had his lights and siren activated. He

stated he was in possession of marijuana at the time, which was in leaf form and

in a baggy. Gaston stated he knew the substance was marijuana. He admitted to

prior convictions for possession of crack cocaine and possession of marijuana.

The court accepted Gaston’s guilty plea.

      Prior to sentencing, the court received a presentence investigation report

(PSI), which noted, “Mr. Gaston reported he was diagnosed with a learning

disability as a child and received education assistance throughout his educational

years.” Gaston dropped out of school after the tenth grade and was unable to

obtain a GED. He receives Social Security disability benefits. The PSI stated, “Mr.

Gaston is unable to manage his finances and his common-law wife . . . is his

payee.”

      At the sentencing hearing, the State recommended Gaston receive five

years on each count, to be served concurrently. Gaston asked for a deferred

judgment. His attorney stated Gaston received disability benefits “for learning

disabilities or a mental health impairment.” Gaston stated:

      I would like to apologize to my family, to the Court and to the
      community for my actions due to my drug addiction which has led me
      to many turmoil years in life, Your Honor. And if granted—and if not
      granted any reprieve, Your Honor, I would use this time to better
      myself so that I can be a better person, father, son for the community
      and for my family.
                                           4


       Gaston was sentenced to a term of imprisonment not to exceed five years

on each count, to be served concurrently. He appeals.

       II.    Standard of Review

       Competency issues are reviewed de novo. State v. Einfeldt, 914 N.W.2d

773, 778 (Iowa 2018).

       III.   Discussion

       In general, “[i]f the defendant fails to file a motion in arrest of judgment after

the court has informed the defendant of his or her obligation to do so, he or she

cannot directly appeal from the guilty plea.” State v. Weitzel, 905 N.W.2d 397, 401

(Iowa 2017); see also Iowa R. Crim. P. 2.24(3)(a). A defendant is not precluded,

however, from challenging a guilty plea “under a claim of ineffective assistance of

counsel.” State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). This is because

a claim of ineffective assistance of counsel is “an exception to our normal rules of

error preservation.” Id.

       The district court adequately informed Gaston of his obligation to file a

motion in arrest of judgment if he wanted to challenge his guilty plea. Gaston in

passing mentions ineffective assistance of counsel only in the standard-of-review

or preservation of error portion of his appellate brief. Gaston does not argue he

received ineffective assistance of counsel because defense counsel did not file a

motion in arrest of judgment to challenge his guilty plea.1 See State v. Straw, 709



1 We decline to reach the merits of an ineffective-assistance-of-counsel argument
because to do so “would require us to assume a partisan role and undertake the
appellant’s research and advocacy. This role is one we refuse to assume.” See
Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974).
                                          5


N.W.2d 128, 140 (Iowa 2006) (noting there is an exception when the failure to file

a motion in arrest of judgment is the result of ineffective assistance of counsel).

       Rather, Gaston argues the district court should have held a hearing to

determine if he was competent to enter a guilty plea. Iowa Code section 812.3(1)

provides, in part:

       If at any stage of a criminal proceeding the defendant or the
       defendant’s attorney, upon application to the court, alleges specific
       facts showing that the defendant is suffering from a mental disorder
       which prevents the defendant from appreciating the charge,
       understanding the proceedings, or assisting effectively in the
       defense, the court shall suspend further proceedings and determine
       if probable cause exists to sustain the allegations. The applicant has
       the burden of establishing probable cause.

The court may raise the issue of competency on its own motion. Iowa Code

§ 812.3(1).

       “A guilty plea proceeding is a ‘stage of a criminal proceeding’ for purposes

of section 812.3.” State v. Kempf, 282 N.W.2d 704, 707 (Iowa 1979). “Probable

cause exists for a competency hearing when a reasonable person would believe

that there is a substantial question of the defendant’s competency.” Einfeldt, 914

N.W.2d at 779. “The relevant considerations include (1) the defendant’s apparent

irrational behavior, (2) any other demeanor that suggests a competency problem,

and (3) any prior medical opinion of which the trial court is aware.” State v. Mann,

512 N.W.2d 528, 531 (Iowa 1994). We presume a defendant is competent to stand

trial and the defendant has the burden to prove he was not competent. Id.

       We only consider those factors known to the court at the time of the guilty

plea hearing. State v. Walton, 228 N.W.2d 21, 23 (Iowa 1975) (“Our task . . . is to

examine all the circumstances before [the] trial court to determine if at the time his
                                          6


plea was accepted there existed an unresolved reasonable doubt as to defendant’s

competence to plead guilty.”); see also State v. Jasper, No. 16-2039, 2017 WL

6513603, at *3 (Iowa Ct. App. Dec. 20, 2017) (“But we only consider factors known

by the court at the time of the plea colloquy.”). Therefore, we do not consider the

information in the PSI that Gaston claims shows he was not competent to plead

guilty, as the district court did not have the PSI at the time of the plea colloquy.

       During the plea colloquy, Gaston stated he went to eleventh grade but did

not have a GED or high school diploma. He denied having “any difficulty reading,

writing, or understanding the English language.”        He denied being under the

influence of any medications, drugs, or alcohol at the time of the hearing. Gaston

initially denied having any other pending charges but after discussion with his

attorney stated he did have charges in other counties.

       Gaston was able to provide a factual basis for his guilty plea. He stated he

had been driving a Jeep Cherokee on the interstate and “[he] kept going” when an

officer with his lights and siren activated followed him. He stated at the time he

was in possession of marijuana. Gaston stated the marijuana was in a baggy and

was in leaf form, and “[i]t was in [his] pocket.” When asked about a prior conviction

from 2004, Gaston stated, “I don’t remember, but yeah.” He agreed the State could

prove the conviction from the record. Gaston remembered a second conviction

from 2017.

       After a thorough and detailed colloquy, the district court found there was an

adequate factual basis for the plea and stated, “[T]he defendant is aware of his

rights and voluntarily waives them, that he understands the nature of the charges

and the consequences of a plea of guilty to those charges.”
                                           7


       We determine Gaston has not presented evidence that would cause a

reasonable person to believe that there was a substantial question of his

competency. See Einfeldt, 914 N.W.2d at 779. There was no evidence of irrational

behavior, any other demeanor that would suggest a competency problem, or any

prior medical opinion of which the court was made aware. See Mann, 512 N.W.2d

at 531. “[S]ubnormal intelligence is only one factor to be considered in determining

whether an accused is competent to stand trial; it will not in itself bar the trial.” Id.

We conclude Gaston has not met his burden to show he was not competent. See

id.

       Even if we were to consider the information in the PSI, the evidence does

not show Gaston was “suffering from a mental disorder which prevents [him] from

appreciating the charge, understanding the proceedings, or assisting effectively in

the defense.” See Iowa Code § 812.3(1). The evidence shows Gaston understood

the charges, as he was able to provide a factual basis for them, understand the

proceedings, and assist in his defense. We note Gaston had a lengthy criminal

history and was not previously declared to be incompetent. See State v. Jarrell,

No. 12-1262, 2013 WL 535775, at *3 (Iowa Ct. App. Feb. 13, 2013) (noting in a

discussion of the defendant’s competency that the defendant “was not a neophyte

to the criminal justice system at the time he entered” his plea).

       Upon our review, we find no evidence in the record to indicate Gaston was

not competent such that the trial court should have sua sponte scheduled a

competency hearing and rejected Gaston’s pleas. Accordingly, we affirm the

defendant’s convictions.

       AFFIRMED.
