Anna Sothman v. State of Iowa

                    IN THE COURT OF APPEALS OF IOWA

                                     No. 19-1837
                               Filed October 21, 2020


ANNA SOTHMAN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Marion County, Michael K.

Jacobsen, Judge.



       Anna Sothman appeals the denial of her application for postconviction relief.

AFFIRMED.




       Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate D

efender, for appellant.

       Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




       Considered by Bower, C.J., and May and Ahlers, JJ.
                                           2


BOWER, Chief Judge.

         Anna Sothman appeals the denial of her application for postconviction relief.

Sothman claims her trial counsel was ineffective by providing incorrect and

misleading information about her potential sentence prior to her plea and for failing

to assert her right to a public plea hearing. We affirm.

         I. Background Facts & Proceedings

         On August 6, 2016, Sothman pleaded guilty to child endangerment resulting

in death.1 This initial plea hearing occurred in open court.

         Child endangerment resulting in death is a forcible felony under Iowa law,

with a statutory sentence of fifty years in prison. Iowa Code § 702.11 (2016) (listing

“any felonious child endangerment” as a forcible felony);

id. § 726.6(4) (establishing

the specific sentence). Part of the original plea agreement was that

after Sothman had been in prison for several months, she could file for

reconsideration of her sentence and request a suspended sentence, which the

State would not resist.2

         Soon after Sothman entered her plea, the county attorney determined

Sothman would not be eligible for a suspended sentence because her offense is

a forcible felony. See

id. §§ 702.11, 907.3

(disallowing suspended or deferred

sentences for forcible felony offenses). The county attorney offered to write a letter

of recommendation to the parole board on Sothman’s behalf after she had served

six months of her sentence if she decided to continue under the plea and proceed




1   Sothman did not directly appeal her guilty plea and conviction.
2   The State also agreed not to file several other serious charges.
                                          3


to sentencing. Alternatively, the State would not resist if Sothman filed a motion in

arrest of judgment and asked to withdraw her guilty plea.

         Sothman’s counsel advised Sothman she “would be an excellent candidate

for parole” but noted “there are no guarantees on either a motion to reconsider or

parole request. The ultimate decision is out of your hands.” Sothman’s counsel

informed her she would immediately be eligible for parole, and individuals typically

served an average of between four and five years on such a sentence.

         The September 23 sentencing hearing began in chambers. A record was

made where the attorneys discussed their original understanding and the alteration

of the plea agreement due to the impossibility of a reconsideration of sentence.

Sothman testified she had an opportunity to discuss the change with her attorney

and she understood she would be sentenced and any future parole would be at

the discretion of the parole board. She also testified she understood she could

have attempted to withdraw her plea through a motion in arrest of judgment and

chose not to do so. The hearing then moved to open court where the court

rendered judgment and imposed the statutory fifty-year sentence.

         Sothman was denied parole in her annual reviews in 2017 and 2018 due to

the seriousness of her crime. On April 16, 2019, Sothman filed an application for

postconviction relief (PCR). Her PCR trial occurred on October 2.3

         The PCR court found counsel did not fail to perform an essential duty and

Sothman had failed to prove prejudice.        Consequently, the court denied her

application for PCR. Sothman appeals.



3   Sothman’s parole was denied for the third time one week before the PCR trial.
                                            4


         II. Standard of Review

         We generally review postconviction proceedings for correction of errors at

law. Sauser v. State, 

928 N.W.2d 816

, 818 (Iowa 2019). “We review claims of

ineffective assistance of counsel de novo.” State v. Clay, 

824 N.W.2d 488

, 494

(Iowa 2012).

         III. Analysis

         Sothman claims her trial counsel provided ineffective assistance. First, she

claims counsel misinformed her regarding parole eligibility so her plea was not

knowing and voluntary. She also claims counsel was ineffective in not asserting

her right to a public plea hearing.

         “Ineffective assistance of counsel constitutes deficient performance by

counsel resulting in prejudice, with performance being measured against an

objective standard of reasonableness, under prevailing professional norms.”

Id. at 494-95

(quotation marks and citations omitted).            “In order to prevail on an

ineffective-assistance-of-counsel claim, [an applicant] must demonstrate both that

‘(1) . . . trial counsel failed to perform an essential duty, and (2) this failure resulted

in prejudice.’” 

Sauser, 928 N.W.2d at 818

(citation omitted). “If the 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).

         Sothman testified, “My understanding was that I would plead guilty to this

and then be immediately transported to the prison and be eligible for parole and

be home within a year.” She agreed to the plea deal, believing it was the fastest

way to get the children and herself home. Sothman stated she did not want to
                                          5


drag her children through a trial and just wanted everything over with as soon as

possible.   Sothman further testified she would not have accepted the plea

agreement if she had understood it entailed years in prison.

       During his testimony, Sothman’s trial counsel mentioned Sothman’s desire

to avoid the publicity and social costs of a trial as well as a lack of defense beyond

a general denial.    Letters from counsel to Sothman indicated her immediate

eligibility for parole. After the State corrected, post-plea, the misconception about

the possibility of reconsideration, Sothman and her counsel discussed what to do.

Counsel’s letters dated August 11 and 16, 2016, specifically note the State’s offer

to Sothman to set aside her guilty plea based on the unavailability of sentence

reconsideration. In the August 16 letter, defense counsel mentions a multi-year

average sentence despite immediate parole eligibility and that “there are no

guarantees on either a motion to reconsider or parole request.” Sothman signed

and returned a copy of the letter indicating she wanted to seek parole and did not

wish to change her guilty plea.

       “When the ineffectiveness claim is based on alleged failure to advise a

defendant of the consequences of a guilty plea, the rule is that, if the consequences

flow ‘directly’ from the plea, the plea may be held invalid.” State v. Carney, 

584 N.W.2d 907

, 910 (Iowa 1998) (citation omitted). A guilty plea based on erroneous

legal advice can establish the prejudice prong of an ineffective-assistance-of-

counsel claim.4 Meier v. State, 

337 N.W.2d 204

, 208 (Iowa 1983).


4 “[I]f the fallout from the plea is ‘collateral,’ counsel is generally not held to be
ineffective for failing to inform the defendant about it.” 

Carney, 584 N.W.2d at 910

(citation omitted). “Parole eligibility is a collateral consequence of a plea.” Stevens
v. State, 

513 N.W.2d 727

, 728 (Iowa 1994).
                                            6


       If   Sothman   had    gone    into       sentencing   unaware   that   sentence

reconsideration was not an option, she would have established prejudice.

However, immediately upon realization Sothman was ineligible for sentence

reconsideration, the State offered to allow Sothman to withdraw her plea and

presented an alternative in the form of a letter of recommendation for her parole

within months of her conviction. The State, Sothman’s counsel, and the court

discussed with Sothman the change and what it meant before proceeding to

sentencing, including that parole would be up to the parole board. This case does

not fall within the Meier erroneous advice standard. See 

Meier, 337 N.W.2d at 208

.

       Sothman was not misinformed. At the time of Sothman’s initial plea, the

court stated, “It is up to the parole board to determine when and if you will be

eligible for parole. They make those decisions, the court does not.” At the

sentencing hearing, when assuring Sothman still wanted to enter her guilty plea

before proceeding to sentencing, her counsel asked, “And it’s your understanding

today that you will be sentenced, . . . and that there is no mandatory minimum and

you would be eligible for parole. But the court will not be granting that. That would

have to go through the parole board?” Sothman responded, “That’s correct.”

Sothman did not have any questions, indicated she felt fully informed, and chose

to proceed with her plea.

       After sentencing, Sothman was immediately eligible for parole—just as

counsel advised. The State has provided the promised recommendation letter.

From counsel’s letter, Sothman was informed the average time served on her

sentence was over four years.       We find Sothman’s misunderstanding of the
                                           7


potential parole timeline is not sufficient to provide a basis for a claim of ineffective

assistance.

       Next, Sothman claims counsel provided ineffective assistance by not

objecting to the in-chambers colloquy with the judge immediately prior to

sentencing. Sothman claims she would have withdrawn her plea under advice

from her father if the plea reconsideration discussion had occurred in open court.

During her testimony, she admitted her father had visited her multiple times at the

jail following her plea and after counsel advised her reconsideration was not

possible for her offense. They did not discuss her decision to not withdraw her

guilty plea in any of those visits. Nor did she establish her father would have

interrupted the hearing or advise her to change her plea.

       [W]hen a defendant raises a public-trial violation via an ineffective-
       assistance-of-counsel claim, . . . prejudice is not shown
       automatically. Instead, the burden is on the defendant to show either
       a reasonable probability of a different outcome in his or her case
       or . . . to show that the particular public-trial violation was so serious
       as to render his or her trial fundamentally unfair.

Weaver v. Massachusetts, 

137 S. Ct. 1899

, 1911 (2017) (citation omitted).

       Sothman has not established a reasonable probability that she would have

changed her plea if reviewing her decision had been conducted in open court

rather than in the judge’s chambers. Nor has she established conducting the

colloquy in chambers rendered the process fundamentally unfair.                We find

Sothman has not established prejudice, and her claim of ineffective assistance of

counsel fails.

       AFFIRMED.
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