State v. Macke

933 N.W.2d 226

STATE of Iowa, Appellee,

v.Erin MACKE, Appellant.

No. 18-0839

Supreme Court of Iowa.

Filed September 13, 2019

Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.

WATERMAN, Justice.

This case is among dozens of pending appeals presenting the question whether amendments to Iowa Code sections 814.6 and 814.7 enacted in Senate File 589 (the Omnibus Crime Bill) govern our review of an appeal from a final judgment and sentence entered before the new statute’s effective date of July 1, 2019. Amended section 814.6 limits direct appeals from guilty pleas, and amended section 814.7 requires ineffective-assistance claims to be brought in postconviction proceedings rather than by direct appeal.

In 2018, defendant, Erin Macke, entered an Alford plea to four counts of child endangerment pursuant to an alleged plea agreement she contends obligated the State to jointly recommend a deferred judgment. At the sentencing hearing, the State instead recommended, and the court imposed, a two-year suspended prison sentence without objection from defense counsel. The defendant appealed with new counsel, claiming the State had breached the plea agreement and her defense counsel was ineffective for failing to object. On March 20, 2019, the court of appeals affirmed her conviction and sentence while preserving her ineffective-assistance claim for postconviction proceedings. Senate File 589 subsequently was signed into law and became effective July 1 of this year. We granted Macke’s application for further review and directed the parties to file supplemental briefs on whether the new law applies. The State argues Senate File 589 forecloses relief in this direct appeal while Macke argues the amendments are inapplicable.

On our review, we hold Iowa Code sections 814.6 and 814.7, as amended, do not apply to a direct appeal from a judgment and sentence entered before July 1, 2019. We have long held that "unless the legislature clearly indicates otherwise, ‘statutes controlling appeals are those that were in effect at the time the judgment or order appealed from was rendered.’ " James v. State , 479 N.W.2d 287, 290 (Iowa 1991) (quoting Ontjes v. McNider , 224 Iowa 115, 118, 275 N.W. 328, 330 (1937) ). Senate File 589 lacks language indicating the legislature intended the amendments to sections 814.6 or 814.7 to apply to appeals from judgments entered before its effective date. We decline the State’s invitation to overrule James or follow arguably contrary federal authority. On the merits, we determine the State breached the plea agreement and Macke’s original counsel was ineffective for failing to object. We vacate her sentence and remand the case for the State’s specific performance of the plea agreement and resentencing by a different judge.

I. Background Facts and Proceedings.

In 2017, Erin Macke, age thirty-one, lived with her four children, ages six, seven, and twelve (twins), in their Johnston apartment. On September 20, Macke departed for Germany. Macke had arranged for her building’s maintenance technician to check on the children at bedtime. The next day, Matt McQuary, Erin’s ex-husband and father of the twins, called Johnston police from his home in Texas and requested a welfare check, reporting to the dispatcher that the children "were left alone by their mother with an unsecured firearm in the residence" after she left for Germany without arranging for adult supervision. The responding police officer found the four children alone in the apartment that evening. They said their mother was in Germany, and when asked about guns, the oldest boy led the officer "to his mother’s bedroom and pointed to a pink pistol case sitting on a shelf" containing an unloaded Glock pistol next to two magazines holding "9 mm Speer hollow point bullets." A department of human services child protective assessment worker placed the children in temporary custody with nearby relatives and later with their respective fathers.

On October 31, the State charged Erin Macke by trial information with four counts of child endangerment in violation of Iowa Code section 726.6(1)(a ) (2018) and one count of violating section 724.22(2) (transfer of pistol to a minor). On February 26, 2018, Macke’s defense attorney filed a "Petition to Plead Guilty (Alford)," which recited a plea agreement with the State as follows: "Alford plea to Counts 1–4 of TI; joint Recommendation of Deferred Judgment and Probation. State will dismiss Ct. 5." The document was signed by Macke and her counsel but lacked a signature line for the State and was not signed by the prosecutor. The district court conducted a plea hearing the same morning. Defense counsel stated on the record that the plea agreement included dismissal of "the gun charge, in this case, as well as the recommendation—joint recommendation of a deferred judgment to the charges" of child endangerment. The State did not object to that description of the plea agreement or assert different terms. The court did not ask the State to confirm the terms of the plea agreement recited by defense counsel. The court on the record accepted Macke’s Alford plea to the four counts of child endangerment and ordered a PSI (presentence investigation). Within minutes, the court entered a written order accepting the Alford plea, which set forth an inconsistent plea agreement.

Barring any new criminal activity or violation of this order, at sentencing the parties will recommend: The Defendant will ask for a deferred judgement and probation. The State reserves its recommendations until it has an opportunity to review the PSI. The State will recommend dismissal of Count V . On any new criminal charge or violation of this order, established by a preponderance of evidence, the State is not bound by this agreement.

This order, on a form apparently provided by the Polk County Attorney’s Office, was not read aloud in court, nor was Macke questioned about its terms during the plea hearing. Macke’s counsel filed no objection.

The department of correctional services completed the PSI on April 10 and included a sentencing recommendation of "supervised probation." The same judge who accepted Macke’s Alford plea conducted the sentencing hearing on April 19. Macke attended with her counsel, and the same prosecutor represented the State. Macke’s counsel requested a deferred judgment. When the court asked for the State’s sentencing recommendation, the prosecutor responded by criticizing Macke’s conduct and recommending a suspended sentence and probation, not a deferred judgment.

As you recall, this is the case where four children were left alone for a period of time while the defendant left the country and went to Germany. And although there was a superintendent of the building where the children lived asked by the defendant to check on them, at the end of the day, they really had no supervision. They were required to make meals, get on the school bus, get dressed, and take care of themselves.

The hazard to the children is immense. Aside from the fact that it’s a dangerous world, there was no adult living in the house that could have been available should there have been a medical emergency, a fire, or the possibility of an injury. It’s just a dangerous situation for children.

The children have been removed from the defendant. They have dads who are protective. Two went to live in Texas. Two have lived in Cedar Rapids. And their dads are very protective of them. And it’s the State’s position that those children are in settings where their best interests will be watched, because of how precious they are, Your Honor.

Our position is that the defendant should receive a suspended sentence and probation, that as a condition of probation, and in accordance with what the PSI sets out, she should have whatever therapy and/or counseling is available to her through the Department of Corrections, and that she'd agree to do — at least with the children in Cedar Rapids, that she and her ex-husband in Cedar Rapids have agreed to counseling for these children in a setting that would be best for them. But I think she needs counseling too. Her behavior was immature and reckless.

The State has agreed to dismiss Count V.

So, Your Honor, we're asking that she receive a suspended sentence and probation. I'm not arguing for consecutive sentences, Your Honor. I think it’s okay for these counts to run concurrently. But to do something less than place her on probation and give a suspended sentence, I think, would diminish the nature of this crime.

Macke’s counsel asked to "take a break for a moment" to step into the hallway before the court resumed the hearing with a victim-impact statement. Macke’s defense counsel never objected to the State’s sentencing recommendation. The sentencing judge stated, "I will follow the State’s recommendation in this circumstance" and sentenced Macke to two-year concurrent suspended sentences and two years' probation. The sentencing order and judgment of conviction was entered April 19, 2018, over a year before Senate File 589 was enacted.

Macke, through new counsel, filed this direct appeal on May 14, 2018. Her appellate counsel argued that the State breached the plea agreement by recommending a suspended sentence instead of a deferred judgment and that Macke’s prior counsel was ineffective in failing to object to the State’s breach of the plea agreement. We transferred the case to the court of appeals. On March 20, 2019, a three-judge panel of the court of appeals affirmed Macke’s convictions and sentences but preserved her ineffective-assistance claims for postconviction relief. The court of appeals determined the record was insufficient to resolve the ineffective-assistance claims on direct appeal. The legislature subsequently enacted Senate File 589,...