                       IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1782
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICKY LEE MAHNESMITH,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Adam D.

Sauer, District Associate Judge.



       Ricky Mahnesmith appeals following his guilty pleas to possession of

methamphetamine (third offense) and forgery. AFFIRMED.




       Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C., Mason

City, for appellant.

       Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



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

           Ricky Lee Mahnesmith pled guilty to possession of methamphetamine (third

offense). See Iowa Code § 124.401(5) (2017). He also entered an Alford plea1 to

the aggravated misdemeanor crime of forgery. See id. § 715A.2(1)(b), (2)(b). The

district court sentenced Mahnesmith to a prison term not exceeding five years on

the possession count and two years on the forgery count, with the sentences to be

served concurrently with each other but consecutively to sentences imposed in two

probation-revocation matters.

           On appeal, Mahnesmith argues (1) the pleas were not voluntary; (2) the

district     court   abused   its   discretion   in   “not   following   the   [sentencing]

recommendation of the parties” and in failing to “make it clear why the sentences

would run consecutively with the sentences in the probation revocation matters”;

and (3) defense counsel was ineffective in several respects.2

           On the first issue, the State argues Mahnesmith’s challenge to the

voluntariness of the plea was waived by virtue of his failure to file a motion in arrest

of judgment. We agree.

           “Iowa court rules require the court to inform a defendant at the time of his

or her plea that in order for the defendant to challenge the plea, the defendant

must file a motion in arrest of judgment.” State v. Weitzel, 905 N.W.2d 397, 401



1 An Alford plea is a variation of a guilty plea where the defendant does not admit
participation in the acts constituting the crime but consents to the imposition of a
sentence. North Carolina v. Alford, 400 U.S. 25, 37 (1970).
2 The supreme court lifted a stay of the appeal after concluding recent changes to

Iowa Code section 814.6 that limit direct appeals from guilty pleas do “not apply to
a direct appeal from a judgment and sentence entered before July 1, 2019.” See
State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019).
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(Iowa 2017) (citing Iowa R. Crim. P. 2.8(2)(d)). “If 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.” Id.

       The district court properly advised Mahnesmith about his right to file a

motion in arrest of judgment and the consequences of failing to file a motion.

Specifically, the court stated:

       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, with
       the Clerk of Court, within forty-five days of today’s date but not less
       than five days before the date set for sentencing. If you fail to timely
       file the motion, you will be giving up the opportunity to appeal based
       on any errors that we may have made in this proceeding.

The court asked Mahnesmith if he understood the admonition.              Mahnesmith

responded, “Yes, Your Honor.” We conclude Mahnesmith waived his right to

challenge the voluntariness of his plea on direct appeal.

       Mahnesmith additionally argues his attorney “was ineffective in this matter

for failing to make the defendant fully understand the import of his plea.” “[I]f the

guilty plea resulted from ineffective assistance of counsel, the defendant can

challenge the plea under the rubric of ineffective assistance of counsel.” Id.

Mahnesmith asserts the claim is “best reserved for postconviction proceedings.”

We agree the record is inadequate to address the claim on direct appeal.

       We turn to Mahnesmith’s challenge to the district court’s sentencing

decision. Mahnesmith notes that “[t]he plea agreement proposed by the State at

sentencing was that [he] would plead guilty to possession third offense and to

forgery as an aggravated misdemeanor and have both sentences suspended to

be placed on probation for a period of three to five years.” He faults the district
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court for declining to follow the recommendation and for instead imposing “the

maximum sentences on [both] charges.” But, as the State points out, Mahnesmith

signed plea agreements stating the district court was not bound by the sentencing

recommendation. And at the plea hearing, the court asked Mahnesmith, “Do you

understand that the court is not bound by this plea agreement and that the court

can impose any sentence up to the maximum penalties?” Mahnesmith responded,

“I do understand that, Your Honor.” We conclude the non-binding nature of the

sentencing recommendation was clear to Mahnesmith.

      We turn to the court’s reasons for choosing prison over probation. The court

stated:

      Well, one, it’s been pretty clear through the [presentence
      investigation report] and also today, that the residential facility is not
      something that you are interested in based on numerous factors,
      health, work, and that is not something that you believe is appropriate
      or recommended by yourself. And unfortunately the Drug Court
      didn’t work because of different factors. One of which was health,
      also maybe your lack of wanting to truly participate in that program.
      But the Court was left for your recommendation with either prison or
      probation. And based on what I have seen in the file, with your
      history, and with obviously two pending probation revocation
      matters, probation doesn’t seem to be appropriate at this time.

We discern no abuse of discretion in the court’s statement of reasons. See State

v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002) (“We will not reverse the decision

of the district court absent an abuse of discretion or some defect in the sentencing

procedure.”).

      Mahnesmith also argues the district court did not provide a statement of

reasons for running the sentences consecutively to the sentences in the probation

revocation matters. See State v. Hill, 878 N.W.2d 269, 274–75 (Iowa 2016)

(“Sentencing courts should also explicitly state the reasons for imposing a
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consecutive sentence, although in doing so the court may rely on the same

reasons for imposing a sentence of incarceration.”). The State responds that the

court was simply “giving effect to the [plea] agreement and the defendant’s own

recommendation, which were made part of the record at sentencing.” We agree

with the State.

       At the sentencing hearing, defense counsel stated: “So we would ask that

the sentences in these cases in the probation matters that they remain suspended.

And that in the new cases, that the sentences as [the State] said run concurrent

with each other but consecutive to his probation matters which are already

consecutive to each other.” The district court asked the prosecutor and defense

whether it was clear that, under the plea agreement, the two sentences imposed

in the possession and forgery cases would run concurrently but “those will be

ordered to run consecutively to [his] probation revocation matters.”              Both

responded it was clear.

       The district court imposed the sentence agreed to by the parties. Because

the court did not exercise discretion, we conclude the court did not abuse its

discretion in failing to state reasons for the sentence. See State v. Sandstrom, No.

17-1582, 2018 WL 3654858, at *3–4 (Iowa Ct. App. Aug. 1, 2018) (“Sandstrom

received the sentence he requested and should not be able to complain now. The

district court stated in its oral rendition and the sentencing order that the court was

imposing the sentence consistent with the plea agreement . . . . The court imposed

the sentence pursuant to the plea agreement. We find no error of law or abuse of

discretion.”); State v. Serrano, No. 16-0770, 2017 WL 1403625, at *2 n.2 (Iowa Ct.

App. Apr. 19, 2017) (“Although we acknowledge the district court did not rely on
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the parties’ plea agreement in sentencing Serrano, we note the sentences imposed

were precisely that to which Serrano agreed in his plea agreement with the

State.”).

       We are left with several ineffective-assistance-of-counsel claims. As noted,

Mahnesmith concedes the record is inadequate to address them on direct appeal.

       We affirm Mahnesmith’s judgment and sentence for possession of

methamphetamine (third offense) and forgery.

       AFFIRMED.
