                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0815
                                   Filed April 4, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS DEAN FREITAG,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman

Salic, District Associate Judge.



       Nicholas Freitag appeals his convictions following his guilty pleas to

possession of firearm or offensive weapon by a felon and domestic abuse assault.

AFFIRMED.



       F. David Eastman of Eastman Law Office, Clear Lake, for appellant.

       Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.




       Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       Nicholas Freitag appeals his convictions following his guilty pleas to

possession of a firearm or offensive weapon by a felon and domestic abuse

assault.   He claims his trial counsel rendered ineffective assistance for (1)

pressuring him to withdraw a motion in arrest of judgment, (2) failing to inform the

trial court the plea colloquy was insufficient, specifically concerning the

requirement to complete batterer’s education, and (3) not challenging the State’s

alleged failure to abide by its obligations under the plea agreement.

I.     Background Facts and Prior Proceedings

       On or about February 28, 2017, Freitag was in a physical altercation with

his girlfriend, A.A., during which he picked up a firearm, pointed it at her, and

physically assaulted her. On March 10, Freitag was charged by trial information

with being a felon in possession of a firearm or offensive weapon as a habitual

offender (count one), domestic abuse assault while displaying a dangerous

weapon (count two), and domestic abuse assault impeding breathing or circulation

of blood causing bodily injury as a habitual offender (count three).

       On April 12, Freitag filed a written plea of guilty that recited the plea

agreement. In exchange for Freitag’s guilty plea, the State agreed to amend count

one to dismiss the habitual-offender allegation, reduce count two to a simple

misdemeanor, and dismiss count three. The State further agreed it would concur

with the presentence investigation report’s recommendations for count one, and

for count two would recommend two days of jail time, to run concurrently with any

sentence of incarceration imposed on count one. Freitag agreed he would be

required to complete the domestic-abuse program and pay associated court costs,
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fees, and restitution. There is no mention of the no-contact order between Freitag

and A.A. in the guilty plea. The written guilty plea recited Freitag understood the

State’s recommendation would not be binding on the court, the court could

sentence him up to the maximum allowed by law, and the court would not accept

his plea unless it was satisfied he was guilty and had sufficient knowledge of his

rights.

          The court held a hearing the same day, conducted a guilty plea colloquy,

and accepted Freitag’s plea of guilty. At the plea hearing, the court stated the

following regarding the terms of the plea agreement:

                 THE COURT: It appears there’s a plea agreement in which
          the habitual felony offender enhancement for this offence would be
          omitted and that the state will make a recommendation consistent
          with that made by the presentence investigator. Also, that you pay
          court costs and fees and surcharges. Also, that Count II, the
          Domestic Abuse Assault charge, would be amended to a simple
          misdemeanor with a recommendation of two days in jail concurrent
          with Count I; no fine but the hundred dollar domestic abuse assault
          surcharge; completion of the Iowa Domestic Abuse Program; court
          costs, restitution and fees; and that Count III be dismissed. Is that
          your understanding of the plea agreement?
                 THE DEFENDANT: Yes, Your Honor.
                 THE COURT: Do you understand that’s not binding on the
          Court and the Court could impose any sentence up to the maximum
          penalties we discussed earlier?
                 THE DEFENDANT: Yes, Your Honor.
                 ....
                 THE COURT: Knowing all these rights, are you wanting to
          give them up and plead guilty?
                 THE DEFENDANT: Yes, Your Honor.
                 THE COURT: Has anyone made any threats or promises to
          force you to plead guilty?
                 THE DEFENDANT: No, Your Honor.
                 THE COURT: Has the decision to plead guilty been made by
          you voluntarily?
                 THE DEFENDANT: Yes.
                 ....
                 THE COURT: Based on our discussion here and your written
          plea, Mr. Freitag, I find that you are knowingly and voluntarily
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      entering your plea of guilty to each of the charges with a full
      understanding of the nature of the charge, the possible
      consequences, and any defenses you might have. I further find there
      is a factual basis for each plea and your plea of guilty to each Count
      I and II is entered of record.
              If you wish to challenge the legality of the guilty plea
      proceedings, you must do so by filing a written Motion in Arrest of
      Judgment. That has to be filed with the Clerk of Court within 45 days
      of today’s date but not less than five days before the day of
      sentencing. If you fail to timely file that, you’ll give up your
      opportunity to appeal.

      After the plea hearing, Freitag’s plea counsel withdrew, and Freitag retained

new counsel who appeared on April 27. On May 1, Freitag filed a motion in arrest

of judgment claiming the guilty plea proceeding was inadequate because he did

not fully understand his constitutional rights and did not fully understand and

appreciate the legal consequences of his guilty plea.         On May 22, the court

convened to address both the motion in arrest of judgment and sentencing, and

made the following record:

               THE COURT: The defendant had filed a Motion in Arrest of
      Judgment. That was set for hearing today as well. The defendant
      this morning has filed a withdrawal of that motion.
               Is that correct, [defense counsel]?
               [DEFENSE COUNSEL]: Yes, Your Honor.
               ....
               THE COURT: And, [defense counsel], now with the
      withdrawal of the Motion in Arrest of Judgment, do you know of any
      reason why we should not proceed with sentencing at this time?
               [DEFENSE COUNSEL]: No, Your Honor, and I would like to
      state for the record that I did review, again, the document entitled
      Entry of Guilty—Entry of Plea of Guilty filed April 12, 2017, with my
      client, and although it at the time did not include spaces to initial each
      paragraph, I believe Mr. Freitag fully understands all of his rights
      attendant to this proceeding and is now ready to proceed.
               THE COURT: And I would note that, [defense counsel], you
      were not present at that hearing because the defendant had different
      counsel at that time and we did review the defendant’s plea with him
      in full for a felony colloquy so we did review all of that and I do believe
      that he understood the provisions of the guilty plea as well as our
      discussion.
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              [DEFENSE COUNSEL]: That’s my understanding as well, and
       I’m satisfied that the Court did its usual thorough job with that during
       the colloquy.

The court then proceeded with sentencing.              For count one, the State

recommended five years of incarceration, not suspended.              The State also

recommended two days in jail for count two, to run concurrently with the sentence

for count one.

       The court sentenced Freitag to an indeterminate term of incarceration not

to exceed five years for count one and a concurrent term of thirty days for count

two. During the sentencing hearing, the court also ordered Freitag to complete the

Iowa Domestic Abuse Program and terminated the no-contact order. On May 25,

the court filed a nunc pro tunc order, adding the required completion of the Iowa

Domestic Abuse Program, which was omitted from the original written judgment

and sentencing order. As noted, Freitag appeals.

II.    Scope and Standards of Review

       Generally, a defendant must file a motion in arrest of judgment in order to

challenge a guilty plea. State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006). If a

defendant fails to file a motion in arrest of judgment after the court has informed

the defendant of their obligation to do so, they cannot directly appeal from the guilty

plea. Iowa R. Crim. P. 2.24(3)(a); Straw, 709 N.W.2d at 132. When counsel fails

to file such a motion, a defendant may attack the plea on appeal through a claim

of ineffective assistance of counsel. State v. Perkins, 875 N.W.2d 190, 192 (Iowa

Ct. App. 2015). “In a criminal case, an ineffective-assistance-of-counsel claim

‘need not be raised on direct appeal from the criminal proceedings in order to

preserve the claim for postconviction relief purposes.’”       Everett v. State, 789
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N.W.2d 151, 156 (Iowa 2010) (quoting Iowa Code § 814.7(1)). However, such

claims may be raised on direct appeal when the record is adequate to permit a

ruling. State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).

       Because ineffective-assistance-of-counsel claims are rooted in the Sixth

Amendment, we review them de novo. State v. Thorndike, 860 N.W.2d 316, 319

(Iowa 2015). We will resolve ineffective-assistance claims on direct appeal only

when the record is sufficient to do so; if the record is lacking, we will preserve the

claim for postconviction-relief proceedings. See id. To prevail, Freitag must show

by a preponderance of the evidence that (1) counsel failed to perform an essential

duty and (2) prejudice resulted. See id. “[T]he court may consider either the

prejudice prong or breach of duty first, and failure to find either one will preclude

relief.” State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015).

III.   Analysis

       Due process requires a guilty plea be voluntary. See State v. Loye, 670

N.W.2d 141, 150 (Iowa 2003). “To be truly voluntary, the plea must not only be

free from compulsion, but must also be knowing and intelligent.” Id. at 151. Due

process requires the defendant to have an understanding of “the constitutional

protections that he gives up by pleading guilty, . . . ‘the nature of the crime with

which he is charged’ and the potential penalties.” Id. (quoting State v. Fluhr, 287

N.W.2d 857, 863 (Iowa 1980)). Before a court accepts a guilty plea for serious

crimes, the district court must engage in some kind of colloquy with the defendant

in order to ensure there is a factual basis for the plea and the defendant has

knowingly and voluntarily waived important constitutional rights.        Finney, 834

N.W.2d at 50.
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       In order to challenge his guilty plea on appeal, Freitag needed to file a

motion in arrest of judgment. Freitag did, in fact, file a motion in arrest of judgment

prior to sentencing.     However, he withdrew the motion the morning of his

sentencing hearing. Because the motion was withdrawn before sentencing, the

court had no opportunity to address these claims. So, the claims are not preserved

for our review. See Iowa R. Crim. P. 2.24(3)(a); Meier v. Senecaut, 641 N.W.2d

532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues

must ordinarily be both raised and decided by the district court before we will

decide them on appeal.”). However, Freitag claims the withdrawal of the motion

was due to ineffective assistance of counsel, contending defense counsel placed

undue pressure on him to withdraw the motion before it was heard.

       In reviewing a claim of ineffective assistance of counsel, “[i]f a claim lacks

prejudice, it can be decided on that ground alone without deciding whether the

attorney performed deficiently.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001). When a defendant raises a claim of ineffective assistance in relation to a

guilty plea, the defendant has the burden to show “there is a reasonable probability

that, but for counsel’s errors, he or she would not have pleaded guilty and would

have insisted on going to trial.”     Straw, 709 N.W.2d at 138.        “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Ledezma, 626 N.W.2d at 142.

       Here, Freitag claims his defense counsel pressured him to withdraw the

motion in arrest of judgment before it was decided by the court, contending counsel

advised him that he would be sent to prison if he did not withdraw it. A review of

the sentencing hearing transcript does not reveal the circumstances surrounding
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the withdrawal of the motion, and while defense counsel was asked to confirm its

withdrawal, Freitag was not. The record is not adequate for us to consider this

claim.    Therefore, we preserve this claim for a possible postconviction-relief

proceeding to allow further development of the record.

         Freitag also claims the court failed to inform him of the need to complete

the batterer’s education program during the plea hearing, so consequently counsel

was ineffective for failing to act on this insufficient plea colloquy. In order to ensure

a guilty plea is voluntarily and intelligently made in indictable cases, the court must

articulate the consequences of the plea to the defendant. See Iowa Rs. Crim. P.

2.1(1), 2.8(2)(b).

         However, Freitag was facing the requirement to complete batterer’s

education for the simple misdemeanor domestic-assault charge pursuant to Iowa

Code section 708.2A(10) (2017), which provides “the court shall order a person

convicted under subsection 2 or 3 to participate in a batterers’ treatment program

as required under section 708.2B.” Simple misdemeanors are not subject to rule

2.8(2)(b). The written guilty plea together with Freitag’s response of “guilty” when

the court asked him his plea to count two were adequate for the court to accept

the plea to the simple misdemeanor charge. No further colloquy was required.

Compare Iowa R. Crim. P. 2.63, with Iowa R. Crim. P. 2.8(2)(b); see generally

State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (noting “counsel has no duty to

raise issues that have no merit,” so counsel cannot be found to be ineffective if the

defendant’s underlying claims lack validity). Consequently, Freitag’s claim on this

issue fails.
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       Finally, in his brief on appeal, Freitag argues his understanding of the plea

agreement was that the State would recommend that any incarceration sentence

would be suspended and the no-contact order be terminated. He contends that

his defense counsel was ineffective for not requiring the State to abide by its

promised recommendations identified in the plea agreement.

       A review of the record finds that in Freitag’s written guilty plea for count one,

the State’s recommendation would be consistent with the presentence

investigation report’s recommendation. Further, during the guilty plea colloquy,

the court repeated the same was part of the agreement.              The presentence

investigator recommended that Freitag be sentenced to five years in the custody

of the department of corrections for count one, thirty days in jail for count two, and

that both sentences run concurrently with one another.              The presentence

investigator did not recommend that any term of incarceration be suspended.

Consequently, the State’s recommendation for incarceration was consistent with

the presentence investigation report and the plea agreement. Counsel had no

obligation to object to the State’s compliance with the terms of the written guilty

plea as confirmed during the court’s colloquy. Freitag’s claim on this issue fails.

       At the time of sentencing, the court terminated the no-contact order. To the

extent Freitag has argued the State’s request to extend the no-contact order

violated the plea agreement, he can show no prejudice, so this claim fails.

       Therefore, we affirm Freitag’s conviction but preserve one claim of

ineffective assistance of counsel for possible postconviction-relief proceedings.

       AFFIRMED.
