                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1222
                                 Filed July 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KURTIS MICHAEL CULBERT,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, David F.

Staudt (plea) and Andrea J. Dryer (sentencing), Judges.



      Kurtis Michael Culbert appeals his conviction, following a plea of guilty, for

robbery in the second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

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

General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., Potterfield, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MILLER, S.J.

       Kurtis Michael Culbert appeals his conviction, following a plea of guilty, for

robbery in the second degree, a class “C” felony, in violation of Iowa Code

sections 711.1 and 711.3 (2011). He contends his plea of guilty was involuntary

and his attorney thus rendered ineffective assistance by “not moving to withdraw

the plea as involuntary.”

I.     BACKGROUND FACTS.

       Culbert was released from prison on a Thursday. The following Monday,

April 11, 2011, a bank near a public library in Waterloo was robbed shortly before

9:53 a.m. The male robber demanded and received eighty dollars. Officers were

dispatched to the bank at 9:53 a.m.

       Overwhelming evidence pointed to Culbert as the robber. He had his

sister take him to the library, which opened at 9:00 a.m. the morning of the

robbery. He was seen on library surveillance cameras entering the library at

about 9:07 a.m. in one set of clothes and carrying a backpack; leaving the library

in the same clothes and with the backpack; re-entering the library in the same

clothes and with the backpack; leaving the library at about 9:49 a.m. in other

clothes that matched those worn by the robber; returning in the clothes worn by

the robber at about 9:53 a.m.; and then again leaving the library about 9:55 a.m.

carrying the backpack, wearing the original set of clothing.       Two correctional

services employees, apparently familiar with Culbert, saw the library’s

surveillance photos on the news. One of them called the Waterloo police and

indicated they both identified the robbery suspect as Culbert.
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       Culbert had his sister take him to a homeless shelter in Cedar Rapids that

evening. He was detained by the Cedar Rapids police and declined to speak

with them. When detained, he had a backpack and clothing that matched those

in the library’s surveillance films of the robbery suspect.

       Culbert was arrested by Waterloo authorities, returned to Waterloo, and

charged with robbery in the second degree. He demanded speedy trial, later

waived his right to speedy trial, and later yet waived his right to be tried within

one year. Finally, just three weeks less than two years after his arrest, on March

22, 2013, Culbert pled guilty to the charge of robbery in the second degree. No

motion in arrest of judgment was filed. In April 2013 the district court sentenced

Culbert to a term of no more than ten years, a sentence involving a mandatory

seventy percent.

       Culbert filed an untimely pro se notice of appeal. Our supreme court

granted an application for a delayed appeal.

II.    ISSUES ON APPEAL.

       Culbert asserts that as part of its inquiry concerning whether his guilty plea

was voluntary, the district court “should have discussed with Culbert the waiver of

his defenses and whether the coercive environment at the [Black Hawk County]

jail influenced his desire to plead guilty.” In a separate pro se brief Culbert

argues the same points, and adds an assertion that he pled guilty in part

because he “felt threatened by the prosecution.”1




1
  At the April 2013 sentencing hearing Culbert explained that what he characterized as
“threats by the prosecution” was his concern that the prosecution might “question my
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      Although represented by counsel, about one and one-half years after his

arrest and being held in the Black Hawk County jail, Culbert began filing

documents pro se in his pending criminal case.          Such filings occurred on

September 25, October 30, December 3, and December 4, 2012.               In them

Culbert now claimed he had committed the robbery because he had been

threatened by prison inmates before leaving prison, that he was to rob a bank of

$80,000, and that if he did not do so, or informed the police, he and his family

would be harmed. He also complained of abuse by other jail inmates and by jail

staff. The district court acknowledged Culbert’s filings, took no action on them as

they requested no specific relief related to his criminal case, had copies provided

to counsel of record, and had copies provided to the Black Hawk County Sheriff

or county attorney.

      In his pro se filings, in the guilty plea proceeding, and at sentencing,

Culbert acknowledged he had robbed the bank. The essence of his complaint of

ineffective assistance of counsel appears to be that he was coerced to commit

the robbery; his plea of guilty was coerced by mistreatment by jail inmates and

staff and by feeling threatened by the prosecution; the district court did not

inquire “whether he was giving up the right to raise a defense that he had been

coerced into robbing the bank or whether his treatment at the county jail impelled

him to plead guilty to leave that institution”; his guilty plea was therefore

involuntary; his counsel should have recognized his plea was not voluntary and




family.” Law enforcement had, however, questioned his mother and sister almost two
years before his guilty plea and had received their cooperation.
                                        5



should have moved to withdraw it; and that counsel rendered ineffective

assistance by not doing so.

       Iowa Rule of Criminal Procedure 2.8(2)(a) provides in part: “At any time

before judgment, the court may permit a guilty plea to be withdrawn and a not

guilty plea substituted.” A motion to withdraw a guilty plea invokes the discretion

of the trial court.   State v. Ramirez, 400 N.W.2d 586, 588 (Iowa 1987).         In

situations in which a trial court has refused to allow withdrawal of a guilty plea,

such refusal will be upheld where “‘a defendant, with full knowledge of the charge

against him and of his rights and the consequences of a plea of guilty, enters

such a plea without fear or persuasion.’” Id. (quoting State v. Weckman, 180

N.W.2d 434, 436 (Iowa 1970)).

III.   INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

       A defendant alleging ineffective assistance of counsel must prove that (1)

counsel failed to perform an essential duty, and (2) prejudice resulted. State v.

Carroll, 767 N.W.2d 638, 641 (Iowa 2009). Both elements must be proved by a

preponderance of the evidence.      State v. Utter, 803 N.W.2d 647, 652 (Iowa

2011). The claim fails if either of the two elements is lacking in proof. State v.

Braggs, 784 N.W.2d 31, 34 (Iowa 2010).

       Proof of the first prong of an ineffective-assistance-of-counsel claim

requires a showing that counsel’s performance fell outside the normal range of

competency.     State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009).            “‘Trial

counsel’s performance is measured objectively by determining whether counsel’s

assistance was reasonable under prevailing professional norms, considering all
                                          6



the circumstances.’” State v. Vance, 790 N.W.2d 775, 785 (Iowa 2010) (quoting

State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)). Proof of the second prong

requires a showing of a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).             The burden to prove

prejudice in the context of a guilty plea requires a defendant to prove that but for

counsel’s breach of duty, the party would not have pled guilty and would have

elected to stand trial. Carroll, 767 N.W.2d at 644.

       In general, claims of ineffective assistance of counsel are preserved for a

possible postconviction proceeding to allow full development of the facts

surrounding counsel’s conduct.      State v. Atley, 564 N.W.2d 817, 833 (Iowa

1997). However, if we determine the record is adequate, we may resolve such a

claim on direct appeal. State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012). In

this case neither party suggests the record is inadequate for us to address

Culbert’s claim on direct appeal, and we believe it is adequate.

IV.    ANALYSIS.

       Culbert points out certain facts that he appears to suggest indicate his

guilty plea might have not been voluntary. Between the ages of six and eighteen,

he at times lived in foster homes and group homes. His mother became his

guardian and conservator when he became eighteen years of age, and she

continued in that capacity at the time of his guilty plea. Culbert received disability

benefits from 1998 until he was incarcerated in 2008. He was on medications for

general anxiety, ADHD, and learning disorders. He does not, however, explain
                                         7



how these facts relate to his apparent claim his counsel should have recognized

his guilty plea was involuntary because of a possible defense—coercion by

mistreatment while in jail, or feeling threatened by the prosecution. Perhaps his

point is to suggest that they indicate an individual who is unusually susceptible to

external and internal pressures.

       Other facts, however, demonstrate the contrary. At the time of his guilty

plea Culbert was thirty years of age. He was a high school graduate and had

taken classes at two community colleges and at Kaplan University, including one

and one-half years at one of the community colleges. Culbert had extensive

experience with the criminal justice system.        He had received a deferred

judgment on an aggravated assault with a weapon in 2002. In 2008 he was

convicted of assault with intent, received a suspended sentence that was later

revoked, and spent time in prison. In 2008 he was also convicted of six counts of

forgery, which also resulted in a later-revoked suspended sentence and time in

prison. When arrested on the current robbery charge, Culbert invoked his right to

remain silent and his right to appointed counsel. He made numerous filings pro

se in this case.

       The record of the guilty plea proceeding shows that the district court fully

complied with Iowa Rule of Criminal Procedure 2.8(2). In addition, as stated by

the State in its brief,

       the court conducted an exhaustive colloquy with the defendant,
       carefully advising him of the consequences of his plea in easily
       understandable language, probing his mental state and
       medications, and questioning him thoroughly about whether it was
       his own decision to plea[d] guilty.
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The court painstakingly explored whether Culbert’s guilty plea was voluntary. It

inquired whether any threats or promises had been made to induce a guilty plea.

Culbert assured that none had. The court assured that Culbert understood he

was the only person who could decide whether he would plead guilty, and

received and accepted his assurance that the choice to plead guilty was his

“personal decision.”    The court, through an extensive colloquy with Culbert,

inquired whether he needed additional time to consult with counsel, understood

he could have a trial if he wished, and knew he alone had the final decision as to

whether to plead guilty or go to trial. Most importantly perhaps, and contrary to

Culbert’s present allegations, the court received Culbert’s assurances that no

threats had led him to plead guilty and that his desire to come to court and plead

guilty was not the result of feeling pressured to do so.2

       We conclude the district court fully explored whether Culbert’s guilty plea

was voluntary, its finding that the plea was voluntary is strongly proved by the

record, and counsel therefore did not breach an essential duty by not moving to

withdraw the plea.

       In addition, even if we were to find a breach of an essential duty, or to find

that the record needed further development on that first prong of an ineffective-

assistance-of-counsel claim, Culbert nevertheless cannot have been prejudiced

by any such breach. The evidence of his guilt was overwhelming, and he does



2
  See, e.g., State v. Nosa, 738 N.W.2d 658, 661 (Iowa Ct. App. 2007) (noting that where
the record contains and consists of a defendant’s assertion that no promises or
inducements led to a guilty plea, a bare allegation to the contrary “neither meets a
minimum threshold of credibility nor overcomes the presumption the record truly reflects
the facts”).
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not show, or even assert, that if counsel had not breached a duty he would have

gone to trial.

       We affirm Culbert’s conviction.

       AFFIRMED.
