                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0322
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BARRY J. HOLDEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, DeDra L. Schroeder,

Judge.



      A defendant appeals the judgment and sentence following his guilty plea.

PLEA AND SENTENCE VACATED; CASE REMANDED.



      Mark C. Meyer, Cedar Rapids, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VOGEL, Presiding Judge.

      Barry Holden appeals the judgment and sentence following his guilty plea

to assault with intent to commit sexual abuse, in violation Iowa Code section

709.11(3) (2013). Holden claims his plea was not knowing and intelligent, there

was no factual basis for his plea, and his counsel was ineffective. Because we

find Holden’s counsel was ineffective, we vacate Holden’s plea and sentence and

remand for further proceedings.

      I.     Background Facts and Proceedings

      On June 4, 2014, the State charged Holden with burglary in the first

degree, sexual abuse in the third degree, and assault with intent to commit

sexual abuse.    On November 17, 2015, Holden, in conjunction with a plea

agreement, pled guilty to one count of assault with intent to commit sexual

abuse, an aggravated misdemeanor. At the plea hearing, the State said the plea

agreement allowed for the dismissal of the burglary and sexual abuse charges

against Holden and described the other terms as follows:

      The State would then recommend a suspended two-year prison
      term. That he be placed on probation for a period of two years to
      the Department of Corrections.         That this case would run
      concurrent to the case he’s currently serving on probation for, and
      that he be subject to the sex offender registry. 903 I think it’s B.2 is
      the special sentence that applies to an aggravated misdemeanor

The district court discussed the penalties Holden could face and stated: “There’s

also the requirement of a ten-year registry with the sex offender registry, as

[defense counsel] visited with you about. Do you understand that?” Following

the colloquy, the court accepted Holden’s guilty plea.
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       Following a brief recess and Holden’s waiver of additional time before

sentencing, the court commenced with the sentencing hearing.                  The State

recommended a suspended two-year prison term, a fine, a civil penalty, a no-

contact order, and “[t]hat he be required to register on the sex offender registry

for ten years.” The State also asked “that it run concurrent to his case that he’s

currently on probation for.” The court then sentenced Holden in conjunction with

the State’s recommendation.1

       On December 9, 2015, Holden filed a motion seeking clarification

regarding the concurrent nature of the probation portion of the sentence with the

probation he was already serving for a prior conviction.            Holden claimed he

believed, when he entered his plea, that his probation for this conviction would

end at the same time as his prior probation, which was slated to end in a few

weeks. The State resisted Holden’s view of the plea agreement and sentence

and contended that the probation period was two years and only ran “concurrent”

with the prior probation for the period both were active. The district court agreed

with the State and rejected Holden’s interpretation of the probationary term of the

current sentence.

       Holden appeals from his guilty plea claiming the district court erred in

stating he would be required to be on the sex offender registry (SOR) for a period

of only ten years when the Iowa Code requires lifetime registration for his
1
  Ten years was consistently referred to as the term for the sex offender registry and the
court used that term in oral pronouncement at sentencing. However, the written
sentencing order does not specify a term of years; rather, it says Holden will register in
conjunction with 692A—which actually would have required lifetime registry. See State
v. Hess, 533 N.W.2d 525, 528 (Iowa 1995) (“A rule of nearly universal application is that
‘where there is a discrepancy between the oral pronouncement of sentence and the
written judgment and commitment, the oral pronouncement of sentence controls.’”
(citation omitted)).
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offense. He also claims his counsel was ineffective in failing to catch the court’s

error and failing to file a motion in arrest of judgment. He also claims his counsel

was ineffective for misadvising him as to the extent of his probationary term and

in not challenging the factual basis for his guilty plea.

       II.    Standard of Review

       We review challenges to the entry of a guilty plea for correction of errors at

law. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006). However, we review

challenges to guilty pleas in the context of a claim of ineffective assistance of

counsel de novo. Id.

       III.   Error Preservation

       Generally, we will not review the validity of a guilty plea unless the

defendant filed a motion in arrest of judgment. State v. Lucas, 323 N.W.2d 228,

230 (Iowa 1982). The district court informed Holden of this when accepting his

plea. Nevertheless, Holden elected to proceed with sentencing and waived his

right to challenge his plea through a motion in arrest of judgment. Consequently,

error has not been preserved, and to the extent Holden’s claims are direct

challenges to his plea and sentence, we decline to address them. See id. at 230.

       However, claims of ineffective assistance of counsel are an exception to

the general rule that a guilty plea may not be challenged absent a motion in

arrest of judgment.        State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).

Accordingly, we will address Holden’s claims to the extent he asserts his counsel

was ineffective. See id.
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      IV.    Ineffective Assistance of Counsel

      Holden claims his counsel was ineffective in: (1) misadvising him about

the nature of his concurrent sentence, (2) misadvising him about the length of

time he would be required to register on the SOR, and (3) allowing him to enter a

guilty plea without a factual basis. The State responds that while Holden was

misadvised by counsel regarding the length of his probation and the length of the

time he will be on the SOR, Holden was not prejudiced by the faulty advice, and

there was a factual basis for his plea. “Ordinarily, we do not decide ineffective-

assistance-of-counsel claims on direct appeal. . . . However, we depart from this

preference in cases where the record is adequate to evaluate the appellant’s

claim.” Tate, 710 N.W.2d at 240.

      Counsel is ineffective when counsel’s performance, measured against

objective standards, falls below professional norms. State v. Clay, 824 N.W.2d

488, 494–95 (Iowa 2012).       “In order to succeed on a claim of ineffective

assistance of counsel, a defendant must prove: (1) counsel failed to perform an

essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185,

195 (Iowa 2008).

      Whether counsel failed to perform an essential duty is measured against

the objective standard of a reasonably competent practitioner. Id. at 195–96.

“We begin with the presumption that counsel performed competently and

measure counsel’s performance objectively, ‘by determining whether counsel’s

assistance was reasonable, under prevailing professional norms, considering all

the circumstances.’” State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011) (quoting

State v. Vance, 790 N.W.2d 775, 785 (Iowa 2010).
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      To show prejudice, a defendant must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

694 (1984). Therefore, Holden must demonstrate a reasonable probability he

would not have pled guilty, absent any breach of duty by his counsel.

      Holden asserts his counsel failed to perform an essential duty by

misinforming him about the length of time he would be on probation. “Holden

contends his counsel misadvised him that “concurrent” meant the probation for

the current offense would end at the same time as his prior probation—just a few

weeks after the sentencing hearing. Consequently, Holden asserts he was not

aware he would remain on probation for two years following the imposition of the

sentence, regardless of the discharge of his prior probation.

      At the hearing on Holden’s motion to clarify his sentence, his counsel was

candid in confirming for the court that he misunderstood the concurrent nature of

Holden’s   probation   and     that    this   misunderstanding   informed   Holden’s

understanding of the plea agreement. Holden’s counsel also acknowledged that

the Iowa Supreme Court’s decision in State v. Canas did not support his

understanding of concurrent.      571 N.W.2d 20, 24 (Iowa 1997) (“If the court

imposes concurrent sentences, the sentences must be served simultaneously in

whole or in part.”). Canas is directly on point and contradicts Holden’s counsel’s

definition of concurrent.    See id.    In failing to recognize Canas’s dictate and

advise his client accordingly, counsel’s performance fell below professional

norms. See Clay, 824 N.W.2d at 494–95. Therefore, we conclude counsel failed
                                        7


to perform an essential duty in misadvising Holden about the concurrent nature

of his probation.

       Due process requires guilty pleas to be entered voluntarily. State v. Loye,

670 N.W.2d 141, 150 (Iowa 2003). In order to be voluntary, a guilty plea must be

knowing and intelligent.   Id.   “[A] defendant must be aware not only of the

constitutional protections that he gives up by pleading guilty, but he must also be

conscious of ‘the nature of the crime with which he is charged’ and the potential

penalties.” Id. at 150–51 (citation omitted). “Misstatements by defense counsel,

once given, can . . . destroy a defendant’s opportunity to make a knowing and

intelligent choice.” Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983). Ultimately,

counsel’s failures undermined Holden’s ability to understand the potential

sentences he faced.     While the district court explained the options plainly,

Holden’s understanding was warped by his counsel’s incorrect advice. Based on

that incorrect advice and the resulting misinformation provided to Holden, we find

Holden’s plea was not knowing and intelligent. See Meier, 337 N.W.2d at 207.

       The defects in Holden’s plea could have a significant impact on the

sentence he ultimately serves. His two-year prison sentence was suspended,

and he was instead put on probation. But if during that two-year time, he violated

the terms of his probation, the prison sentence could be imposed. With this in

mind, his misunderstanding about the concurrent nature of his probation terms is

significant and could have impacted his decision to plead guilty. Because Holden

was misinformed about the potential punishments he faced when he entered his
                                            8


plea, there is a reasonable probability that, if provided with the correct options, he

would have chosen not to enter a guilty plea. 2 See Strickland, 466 U.S. at 694.

       V.      Conclusion

       Because we conclude Holden’s trial counsel failed to perform an essential

duty by not informing him of the correct duration of his probation and Holden was

prejudiced by the lack of such information, we hold Holden’s counsel was

ineffective. Therefore, we vacate his plea and sentence and remand for further

proceedings.

       PLEA AND SENTENCE VACATED; CASE REMANDED.

Vaitheswaran, J., concurs; McDonald, J., dissents.




2
  Holden also claims his counsel was ineffective in allowing him to enter a guilty plea
without a factual basis to support the plea. On our review of the record, we find a factual
basis was shown to support his plea; therefore, counsel was not ineffective, in allowing
him to plead guilty to the offense.
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MCDONALD, Judge. (dissenting)

       Generally, “notice of appeal must be filed within thirty days after the filing

of the final order or judgment.” Iowa R. App. P. 6.101(1)(b). In this case, the

criminal judgment was entered on November 18, 2015. Holden filed his notice of

appeal on February 17, 2016, almost sixty days after the deadline. Timely filing

notice of appeal is a jurisdictional prerequisite. See Baur v. Baur Farms, Inc.,

832 N.W.2d 663, 668–69 (Iowa 2013). We are thus required to dismiss the

appeal for lack of jurisdiction.

       To reach the merits of the case, the majority must conclude the time for

filing notice of appeal was tolled. See Root v. Toney, 841 N.W.2d 83, 87 (Iowa

2013). Rule 6.101(1)(b) provides the appeal deadline can be tolled and notice of

appeal can be filed within thirty days after the district court rules on a motion filed

pursuant to Iowa Rule of Civil Procedure 1.904(2). The tolling period applies,

however, only where the motion is both proper and timely. Harrington v. State,

659 N.W.2d 509, 513 (Iowa 2003) (“If the rule 1.904(2) motion is not timely filed .

. . it will not toll the thirty-day time period for filing a notice of appeal.”); Bellach v.

IMT Ins. Co., 573 N.W.2d 903, 904–05 (Iowa 1998) (stating that an improper

motion will not toll the time period to file an appeal).

       Holden’s motion to correct sentence was not proper and did not toll the

jurisdictional deadline. Rule 1.904(2) allows for a party to file a motion to enlarge

or amend the judgment.         On December 9, Holden filed a “motion to correct

sentence,” in which he essentially asked for clarification whether “concurrent”

meant “concurrent.” The district court issued an order “correcting and clarifying

judgment and sentence” on December 22. The order did not in any way alter the
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legal substance of the judgment. On December 28, the State filed a motion

requesting a hearing on the matter. In response, on January 21, 2016, the court

ordered “the Defendant will not receive credit for time served on probation that

was served prior to the Defendant’s sentencing.” Holden appealed from this

order concerning whether he would receive credit for time served. The motion to

correct sentence did not seek to enlarge or amend the judgment; it sought only

an interpretation of the judgment. The December 9 motion was not a proper

motion tolling the time to file notice of appeal. See Hedlund v. State, 875 N.W.2d

720, 727 (Iowa 2016) (dismissing appeal where improper motion failed to toll

time for appeal); In re Marriage of Okland, 699 N.W.2d 260, 265 n.2 (Iowa 2005)

(“A rule 1.904(2) motion . . . is not available to a party to challenge a ruling that

was confined to a question of law with no underlying issue of fact.”).

       Even if Holden’s motion were a proper motion, the motion was not timely

filed. Rule 1.904(2) provides the motion must be filed “within the time allowed for

a motion for new trial.” A motion for new trial must be filed within fifteen days of

the challenged order or judgment.       See Iowa R. Civ. P. 1.1007.       Here, the

judgment was entered on November 18.             The motion was not filed until

December 9, or more than fifteen days after the judgment. The majority does not

identify any timely filed motion that would have tolled the time to file notice of

appeal.

       This court’s “jurisdiction of the subject matter . . . may be raised at any

time and is not waived even by consent.” Green v. Sherman, 173 N.W.2d 843,

846 (Iowa 1970). We are required to address subject matter jurisdiction even if

not raised by the parties. “If we determine subject matter jurisdiction is absent,
                                      11

an order dismissing the petition is the only appropriate disposition.” Lloyd v.

State, 251 N.W.2d 551, 558 (Iowa 1977). I would dismiss this appeal for lack of

subject matter jurisdiction.
