Sothman v. State

967 N.W.2d 512

Anna SOTHMAN, Appellant,

v.STATE of Iowa, Appellee.

No. 19-1837

Supreme Court of Iowa.

Submitted October 21, 2021

Filed December 10, 2021

Martha J. Lucey, State Appellant Defender, and Shellie L. Knipfer (argued), Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller (argued), Assistant Attorney General, for appellee.

Waterman, J., delivered the opinion of the court, in which Christensen, C.J., and Mansfield, McDonald, and Oxley, JJ., joined. McDermott, J., filed a dissent, in which Appel, J., joined.

WATERMAN, Justice.

In this appeal, we must decide whether a defense attorney's advice about his client's future prospects for release on parole and his failure to object to an in-chambers proceeding constituted ineffective assistance of counsel that entitles the defendant to vacate her guilty plea. The defendant left her thirteen-month-old daughter in the bathtub unattended for about thirty minutes, and during that time, the child drowned. The defendant pleaded guilty to child endangerment resulting in death, and the court imposed an indeterminate sentence of up to fifty years with immediate parole eligibility. She filed no direct appeal. Several years later, she filed this application for postconviction relief, alleging her plea counsel provided ineffective assistance in his parole advice and by failing to object to an in-chambers proceeding. Her plea counsel told her that defendants served an average of 4.6 years for child endangerment resulting in death. Other evidence developed later indicated that her parole was unlikely before she served seven years, or longer.

The district court denied her application, finding she failed to prove breach of an essential duty or prejudice. We transferred the case to the court of appeals, which affirmed the district court, determining the defendant was correctly advised there were no guarantees, parole was up to the parole board, the in-chambers proceeding was not fundamentally unfair, and she failed to establish prejudice. We granted the defendant's application for further review.

On our de novo review, we affirm. The defendant failed to meet her burden to prove that her plea counsel breached an essential duty in his parole advice or that but for his alleged errors, she would not have pleaded guilty and would have insisted on going to trial. We hold the defendant had a right to conduct the proceeding in open court and her counsel breached his duty by failing to object to his client being placed under oath in the in-chambers proceeding or elicit her waiver. But in this postconviction action, a showing of prejudice is required, and the defendant failed to show she was prejudiced by the in-chambers proceeding. We decline to find a structural error or presume prejudice. Accordingly, we affirm the decision of the court of appeals and the district court's judgment.

I. Background Facts and Proceedings.

On June 20, 2016, thirteen-month-old E.S. drowned while under the care of her mother, Anna Sothman, at their home in Pella, Iowa. Sothman, age twenty-eight, had fed her three young children breakfast after her husband left for work. No one else was home with the children. Sothman put E.S. in the bathtub by 8:45 a.m. because of a dirty diaper. Sothman then left the child alone in the bathtub for roughly thirty minutes without checking on her. During that time, Sothman talked by phone twice with her mother, texted, received another phone call, broke up a fight between her two year old and four year old, and used Pinterest.¹

Sothman's phone records showed her first six-minute phone call with her mother began at 8:44 a.m. and her second six-minute call with her mother lasted from 9:11 a.m. to 9:16 a.m. Sothman did not stay in the bathroom for those phone calls because she was charging her phone's battery in another room. Her social media records show she was logged into Pinterest from 8:28 a.m. to 9:16 a.m. and actively using Pinterest from 9:15 a.m. to 9:16 a.m. This evidence undermined Sothman's claim she received a phone call from a student loan company, realized it was 9:12 a.m., and checked on E.S. at that time.

When she did return to the bathroom, Sothman found E.S. floating face down motionless in the bathwater. She immediately called 911 at 9:22 a.m. First responders arrived and transported the unresponsive child to the hospital. E.S. was placed on life support and later pronounced dead. Police interviewed Sothman at the hospital without giving her a Miranda warning. There, and in subsequent interviews, she gave varying time frames and reasons for her failure to check on her daughter. At one point, she claimed she left her daughter in the bathtub unattended for no more than two or three minutes. But she ultimately admitted in her guilty plea colloquy that the child was in the bathwater unobserved from approximately 8:45 to 8:50 a.m. until about 9:15 to 9:20 a.m.

The medical examiner determined the child's manner of death was accidental drowning. The Iowa Department of Human Services (DHS) removed the older children from the family home. Sothman retained an attorney to represent her who has been practicing law in Iowa since 1998 and has experience defending serious felony charges. He advised Sothman that she was unlikely to win at trial and unlikely to win a motion to suppress. Sothman was motivated to plead guilty because she wanted to avoid putting herself and her family through the trauma of a public trial where autopsy photos of E.S. would be viewed and because DHS would not return her two children to their father's care while she remained home before her incarceration.

Her attorney negotiated a prearraignment plea agreement on her behalf with the Marion County Attorney. Sothman's attorney advised her that after she served a few months in prison, she could file a motion to reconsider requesting a suspended sentence and informed her that as part of the plea bargain, the State agreed not to resist that motion. Sothman's attorney was wrong. Sothman was ineligible for a suspended sentence because she pleaded guilty to a forcible felony.

On August 6, Sothman pleaded guilty in open court to one count of child endangerment resulting in death, a class "B" felony, in violation of Iowa Code sections 726.6(1)(a ), 726.6(3), and 726.6(4) (2016). The parties informed the district court of the plea agreement under which the State agreed not to charge Sothman with murder in the first degree under a theory of indifference to human life, in violation of section 707.2(1)(e ), or other child endangerment crimes. But the proposed motion to reconsider her sentence was not disclosed to the court. The court informed Sothman she would be sentenced to an indeterminate fifty-year prison term with no mandatory minimum. Although Sothman's attorney had told her she would be immediately eligible for parole, the court informed her that "[i]t 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."

The court found that her plea was made voluntarily and intelligently and that Sothman had provided a sufficient factual basis for the crime charged. The court accepted her guilty plea, ordered a presentencing investigation, and set a date for sentencing. The court advised Sothman that she could file a motion in arrest of judgment if she wanted to challenge the plea. Sothman was incarcerated in the Marion County Jail and her surviving children were allowed to return to the family's home under their father's care.

The prosecutor and Sothman's attorney realized within a few days that she was ineligible for a suspended sentence because she pleaded guilty to a forcible felony. On August 9, her attorney met with her in jail to explain that a motion to reconsider could not result in her release from prison. They discussed setting aside her guilty plea through a motion in arrest of judgment, which the State would not resist. Alternatively, they discussed maintaining her guilty plea and seeking her release through parole. The State promised to write a letter on her behalf to the Iowa Board of Parole (BOP) recommending parole if she maintained her guilty plea.

Meanwhile, Sothman's attorney located a fiscal note from Iowa's Fiscal Services Division of the Legislative Services Agency (LSA) that stated that "[t]he average length of stay for a person convicted of child endangerment resulting in the death of a child or minor under current law is 55.4 months, or 4.6 years." H.F. 2064, 86th G.A., 1st Sess., fiscal note (Iowa Mar. 17, 2016), https://www.legis.iowa.gov/docs/publications/FN/770356.pdf[https://perma.cc/44WG-U9LD]. He shared that information with Sothman and identified his source. On August 16, Sothman's attorney wrote her a letter documenting his advice. The letter stated in full,

I've had some more conversations with [the] Marion County Attorney, regarding sentencing in this case. As we've discussed previously, Child Endangerment Resulting in Death of a Child is a Forcible Felony under Iowa Code Section 702.11. As a result, the State's position is that you are not eligible to have your sentence reconsidered, since the Judge cannot impose a suspended sentence on a Forcible Felony. With a Forcible Felony, you must be committed to the custody of the Director of the Department of Corrections, and then paroled. The County Attorney has indicated that if you agree not to file a Motion in Arrest of Judgment, seeking to have your guilty plea set aside in this case, he will write a letter of recommendation in support of your parole after 6 months in prison. As we've discussed, having a letter from the County Attorney would definitely be of assistance to us in trying to secure your early release on parole.

The purpose of this letter is to confirm the discussions that I've had with the County Attorney in this regard, so that you are aware of what has been going on, and further to explain your legal rights in

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