                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0506
                               Filed April 29, 2020


ROGER ALLEN ROUSE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Clay County, David A. Lester, Judge.



      Roger Allen Rouse appeals the denial of his application for postconviction

relief. AFFIRMED.




      Jennifer Bennett Finn of Pelzer Law Firm, LLC, Estherville, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.

       In this appeal from the district court’s denial of postconviction relief, Roger

Allen Rouse argues his plea attorney was ineffective in (A) “allowing [him] to plead

guilty without a valid waiver of his right to plead in open court” and (B) “allowing

[him] to plead guilty since his guilty plea was involuntary.”

I.     Background Proceedings

       The State charged Rouse with the class “D” felony of domestic abuse

assault, third or subsequent offense. Rouse entered a written guilty plea to the

serious misdemeanor crime of assault causing bodily injury. The plea included the

following paragraph: “I (do)(do not) waive my right to enter this plea of guilty in

open court pursuant to Iowa Rule of Procedure 2.8(2)(b)(5). I (do)(do not) waive

my right to appear at sentencing.” Neither “do” nor “do not” were circled.

       The district court did not conduct an in-court colloquy with Rouse. The court

found Rouse “waiv[ed] right to appear in open court,” imposed judgment of

conviction and sentence on the misdemeanor, suspended all but seven days of

the sentence, and placed Rouse on probation.

       Rouse filed a direct appeal. This court found a factual basis for the plea

and affirmed his conviction. See State v. Rouse, No. 16-0788, 2016 WL 7393944,

at *1–2 (Iowa Ct. App. Dec. 21, 2016). We preserved “for possible postconviction-

relief proceedings” his claim that “counsel provided ineffective assistance in

permitting him to plead guilty without a valid waiver of his right to plead guilty in

open court and address the court in mitigation of sentencing.” Id.

       Rouse filed a postconviction-relief application alleging in part that his plea

attorney “badger[ed]” him into a “plea bargain” even though he told him “no I am
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not guilty.” At the postconviction hearing, Rouse’s attorney framed the issues for

decision as follows: (1) Rouse did not waive “his right to appear in open court and

his right to enter his guilty plea there, to be present for his sentencing” and (2) the

plea was “not a knowing and voluntary plea.” Both issues were raised under an

ineffective-assistance-of-plea-counsel rubric. As noted, the district court denied

the application, and this appeal followed.

II.    Analysis

       To succeed on his ineffective-assistance-of-counsel claims, Rouse must

prove deficient performance and prejudice. See Strickland v. Washington, 466

U.S. 668, 687 (1984). To establish prejudice in the plea context, an applicant must

demonstrate ”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.” State v.

Petty, 925 N.W.2d 190, 196 (Iowa 2019) (quoting State v. Straw, 709 N.W.2d 128,

138 (Iowa 2006)). Our review of the record is de novo. State v. Majors, 940

N.W.2d 372, 386 (Iowa 2020).

       A.     Iowa Rule of Criminal Procedure 2.8(2)(b) requires a court to

“address the defendant personally in open court” but permits waiver of the

procedure “in a plea of guilty to a serious or aggravated misdemeanor.” In State

v. Sutton, 853 N.W.2d 284, 294 (Iowa Ct. App. 2014), the court of appeals

concluded:

       Rule 2.8(2)(b) and the applicable case law give the court the
       discretion to waive an in-person colloquy with a defendant, with
       defendant’s approval, so long as a written guilty plea adequately
       provides the court sufficient information from which the court can
       make a finding that the plea is voluntarily and intelligently tendered,
       and that the court finds there is a factual basis for the plea. For us
       to rule otherwise would effectively deny the court the exercise of
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          discretion the rule expressly provides. Because no in-person
          colloquy is required in serious and aggravated misdemeanor cases,
          we conclude the requirement that a defendant understand “[t]he
          nature of the charge to which the plea is offered” can be satisfied by
          a written guilty plea.

The court clarified, however, that a written guilty plea would suffice in serious and

aggravated misdemeanor cases only if the defendant waived an in-person

colloquy. Sutton, 853 N.W.2d at 288-89; see also State v. Ditsworth, No. 14-1475,

2015 WL 4233025, at *2 (Iowa Ct. App. July 9, 2015) (concluding counsel

“breached an essential duty in failing to challenge the absence of an in-court

colloquy where there was no waiver of presence contained in the written guilty plea

form”).

          The postconviction court found Rouse’s purported waiver of an in-person

colloquy was equivocal. The court concluded his plea attorney “breached an

essential duty” in “failing to ensure that Rouse’s written guilty plea clearly stated

whether or not he was waiving his right to enter his plea of guilty in open court, as

well as his right to appear at sentencing.” On our de novo review, we agree with

the court’s conclusion. Without a circle around “do,” the phrase “I (do)(do not)

waive” failed to convey Rouse’s intent to forego an in-person colloquy with the

court. Counsel had a duty to ensure his client’s intent was clear.

          We turn to the prejudice prong of the Strickland test. On this prong, Rouse

contends he “would have been unable to provide the district court with a factual

basis for the guilty plea.” But, as the postconviction court noted, this court found

a factual basis for the plea from the minutes of testimony. See Rouse, 2016 WL

7393944, at *1. At the postconviction-relief hearing, Rouse did little to controvert

the specific assertions in the minutes. Although he maintained his innocence, his
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bare allegation that he did not commit the crime was insufficient to establish a

reasonable probability that he would have insisted on going to trial but for counsel’s

failure to ensure a proper waiver of his presence at a guilty plea proceeding and

at sentencing. See Blue v. State, No. 16-2201, 2017 WL 4050248, at *2 (Iowa Ct.

App. Sept. 13, 2017) (“Although Blue made a few statements during his testimony

at the PCR hearing that he would have insisted on going to trial if he knew there

was a chance his confession could be suppressed, these self-serving statements

are not enough to establish prejudice.” (citing Kirchner v. State, 756 N.W.2d 202,

206 (Iowa 2008))); cf. Schmidt v. State, 909 N.W.2d 778, 797 (Iowa 2018) (“For an

applicant to succeed on a freestanding actual-innocence claim, the applicant must

show by clear and convincing evidence that, despite the evidence of guilt

supporting the conviction, no reasonable fact finder could convict the applicant of

the crimes for which the sentencing court found the applicant guilty in light of all

the evidence . . . .”).

       Also on the prejudice prong, Rouse asserts that, had he been allowed to

appear for an in-person colloquy, he would have established his inability to

reimburse the State for court-appointed attorney fees and investigator expenses.

As noted, Strickland prejudice gauges the probability of going to trial versus

acceptance of a plea. We are not persuaded Rouse’s ability-to-pay argument

furthers that analysis. See State v. Root, No. 03-1941, 2004 WL 2173422, at *4

(Iowa Ct. App. Sept. 29, 2004) (noting defendant’s assertion that he may have

received a less severe sentence was “insufficient to demonstrate prejudice” and

stating the defendant did “not assert he would have insisted on going to trial”). In

any event, Rouse addressed his ability to pay in his written guilty plea, attesting he
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would “be able to pay all financial obligations imposed herein pursuant to a court

approved payment plan.”1 And at the postconviction hearing, he testified he was

“mak[ing] a $50 payment” on his cost obligation “[e]ach month.” While he also

stated he “barely g[o]t a meal to eat a day because of all of this crap,” he did not

deny understanding what the costs might be to him at the time he entered the plea.

In his words, he “figured, hey, I’ll live another day.”

        At the end of the day, Rouse conceded his plea agreement reduced his

exposure to incarceration from a prison term not exceeding five years with a one-

year mandatory minimum to a seven-day jail sentence. And he conceded his

attorney explained the maximum time he could face behind bars. In light of the

significant reduction in the time he would serve, we conclude there is no

reasonable probability he would have forgone the plea agreement and proceeded

to trial. See id. (“Further, given Root’s favorable plea agreement, which reduced

four felony counts to misdemeanor charges, and the amount of evidence the State

had against him, it is unlikely he would have changed his decision to enter a plea

of guilty.”).




1 Under recent precedent, the assessment of court-appointed attorney fees and
investigator expenses must await the filing of a final restitution plan. See State v.
Albright, 925 N.W.2d 144, 162 (Iowa 2019) (“Once the court has all the items of
restitution before it, then and only then shall the court make an assessment as to
the offender’s reasonable ability to pay.”); see also State v. Petty, 925 N.W.2d 190,
197 (Iowa 2019) (“In Albright, we clarified that certain items of restitution are
subject to a reasonable-ability-to-pay determination. We also clarified that a plan
of restitution is not complete until the sentencing court issues the final restitution
order. Finally, we emphasized that a final restitution order must take into account
the offender’s reasonable ability to pay certain items of restitution.” (citations
omitted)).
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       B.     Rouse next claims his plea was involuntary. See State v. Speed,

573 N.W.2d 594, 597 (Iowa 1998) (“Fundamental due process requires a guilty

plea be voluntary and intelligent.”). He asserts he “felt badgered into pleading

guilty.” The postconviction court concluded Rouse’s evidence fell “well short of

establishing that [his attorney] in any way threatened, coerced, or intimidated [him]

in order to get him to sign the written guilty plea.” On our de novo review of the

record, we agree with this conclusion.

       Rouse’s attorney testified he did not “remember badgering [Rouse]” but he

did “remember having a very frank conversation with him about what the

mandatory minimum requirements would be if the court were to convict him of the

domestic as it was currently charged.” While acknowledging that Rouse “was

adamant . . . that he wanted to take the stand and testify,” he stated Rouse would

not “have done well in front of a jury” because he had “problems articulating

himself.” He testified, “[I]t worried me that he wouldn’t stay focused on the stand

if he took the stand and that it would really hurt the case.” Counsel “was not overly

positive or optimistic about the chances of . . . surviving a trial without a conviction.”

Nonetheless, counsel testified, “I always tell my clients, at the end of the day,

whatever you do is your decision. I’ll have a trial if you want to have a trial, and

that’s your right and your choice.”

       The    postconviction    court   found    the   same     problems     during   the

postconviction hearing that Rouse’s attorney feared—inarticulate and unfocused

testimony. We agree with the court’s characterization. Although it is clear Rouse

wanted to go to trial, we also agree Rouse’s attorney did not coerce him to forego

the option but, instead, strategically “encouraged his client to accept” what was “a
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very favorable plea offer from the State.” Counsel did not breach an essential duty

in failing to challenge the plea as involuntary.

       We affirm the denial of Rouse’s postconviction-relief application.

       AFFIRMED.
