Opinion
No. 4-715 / 03-1303
Filed January 13, 2005
Appeal from the Iowa District Court for Union County, Darrell J. Goodhue, Judge.
Barry Keith Chubick, Jr. appeals the district court ruling granting the State's motion for summary judgment and dismissing his application for postconviction relief. AFFIRMED.
Scott Sobel of Sobel Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, and Timothy R. Kenyon, County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, and Eisenhauer, JJ.
Barry Keith Chubick, Jr. appeals the district court ruling granting the State's motion for summary judgment and dismissing his application for postconviction relief. He contends genuine issues of material fact exist on his claims that his trial and appellate attorneys were ineffective. We affirm.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS.
The underlying facts of this case are undisputed. On February 6, 2000, Chubick was involved in a domestic dispute with his girlfriend Jane Marie Ruby and her daughter, Dana Ruby. The dispute ended with Chubick stabbing Jane in the back with a kitchen knife. Jane died from the stab wound due to uncontrollable bleeding from her punctured pulmonary artery. Chubick also attacked and stabbed Dana, inflicting serious injury on her. After the attacks Chubick went to his friend Mitchell Gaiser's residence and, with blood still on his chin, admitted to killing Jane. Randall Woosley was also present at Gaiser's residence and heard Chubick admit to killing Jane. Gaiser testified that when Chubick arrived at his residence Chubick told him that Jane and Dana had awakened him and "started cutting him down" so he "walked in the kitchen and grabbed a knife and stuck her [Jane]." Gaiser testified Chubick said he stuck her, "In the middle, stuck it clear through her." Chubick also told Gaiser and Woosley that he "had to run" because he knew if he was caught he "was going to spend the rest of his life in jail."
On March 17, 2000, Chubick was charged with murder in the first degree in violation of Iowa Code sections 707.1, 707.2(1), and 707.2(2) (1999) and willful injury in violation of section 708.4(1). Attorneys Todd Miler and Karen Emerson were appointed by the court to represent Chubick. During the course of representation Chubick raised concerns about his court-appointed counsel. As a result, on May 26, 2000, the district court appointed a third attorney, Stuart Neilsen, as independent counsel in order to meet with Chubick, discuss substantive and procedural issues associated with the case, and prepare a report to the court which the court would review in camera and then seal.
Chubick negotiated a plea agreement in which he agreed to plead guilty to the lesser offenses of murder in the second degree (Count I), in violation of Iowa Code section 707.3, and willful injury (Count II), in violation of section 708.4(2). During the plea colloquy the court questioned Chubick regarding the elements of the offense of second-degree murder. Chubick readily agreed he stabbed Jane and that her death resulted from his actions. The court then asked him if he stabbed Jane with malice aforethought, to which Chubick replied, "I guess." The court then began to question Chubick in more depth concerning the malice aforethought element, and explain the concept of malice aforethought to him more fully. Chubick admitted that when he stabbed Jane it was done to cause her physical harm. The court asked if he actually had "that fixed purpose or design or that thought immediately before you stabbed her." Chubick replied, "No." When then asked if he had given thought or made purposeful thought to stab her he replied, "I didn't know what I was doing, sir."
The district court then went off the record and a discussion ensued. The court went back on the record, resumed its colloquy with Chubick, and apparently became satisfied there was a factual basis in the record for the guilty plea based on the following additional colloquy:
THE COURT: The fact that you used a dangerous weapon, and in this case a knife, and you used it against the victim, Jane Marie Ruby, do you understand that if you went to trial, that the jury could infer that you had malice aforethought in the act that you did? THE DEFENDANT: That part I do understand.
Q: All right. You understand that with all of the evidence that's available to a jury, that and all of the surrounding circumstances, that if this were presented to a jury, that they would have the opportunity and they would be likely to find that you acted with malice aforethought, even though in reflection you feel that if you had deliberated longer that you would not have done the act? Is that a fair statement?
A: Yes.
Q: All right. And because the jury can infer that malice aforethought, based upon all of the evidence that's available to the State, you are accepting the amendments and entering your guilty pleas based upon that knowledge because you gain an advantage in the sentencing from doing so? Is that a fair statement?
A: Yes.
The district court found Chubick guilty as charged. The court informed Chubick that if he wanted to challenge his guilty plea he would have to file a motion in arrest of judgment not later than forty-five days after that date and at least five days from to the date set for sentencing. Sentencing was set for November 9, 2000. No motion in arrest of judgment was filed by Chubick.
When Chubick appeared for sentencing he told the court, "I do not wish to go through with this plea." The court asked Chubick if he filed a motion in arrest of judgment and Chubick stated he had not but that was what he was trying to get in touch with attorney Karen Emerson about. Chubick also told the court he had tried to contact attorney Miler regarding the matter but the phone in the jail was not working the day he tried. However, when the court asked Chubick if he had indicated to attorney Emerson that he wanted to file a motion in arrest of judgment when he wrote a letter to her after his guilty plea asking her to withdraw, Chubick stated he had not. The court continued, "You didn't make any indication to [Emerson] or to Mr. Miler at anytime since the guilty plea was entered that you wished to challenge your guilty plea with a motion in arrest of judgment?" Chubick indicated that although he had communicated with them in writing he had not mentioned to either attorney any desire to file a motion in arrest of judgment. Based on his alleged inability to communicate with his attorneys after his guilty plea Chubick requested that they withdraw from representing him.
The court asked Chubick what his "grounds or reasons" were for wanting his attorneys to withdraw. Chubick agreed there was no misconduct on the part of his attorneys that he knew of, but he just felt "like they weren't there really to present me in the way that they should," that they "were not even prepared to go to trial," and that his concerns were "the right to have a fair trial and the right to have fair counsel to represent me in this trial." The court denied Chubick's application to have Miler and Emerson withdraw as his attorneys. It then noted the record did not reflect any motion in arrest of judgment and thus proceeded with sentencing. The district court sentenced Chubick to a period of incarceration of not more than fifty years on Count I, subject to the "eighty-five percent rule" of Iowa Code sections 903.12 and 903A.2(1)(b), and a period of not more than five years on Count II. The sentences were ordered to run concurrently.
Chubick appealed his convictions and the State Appellate Defender was appointed by the court to represent him on appeal. Appellate counsel filed a motion for permission to withdraw pursuant to Iowa Rule of Appellate Procedure 6.104. Chubick filed a response within the thirty-day period provided in rule 6.104(4). On September 5, 2001, the Iowa Supreme Court concluded that Chubick's appeal was frivolous and therefore granted appellate counsel's motion to withdraw.
Chubick then filed the current application for postconviction relief on June 17, 2002, and was appointed postconviction counsel by the district court. Chubick argued he had received ineffective assistance of counsel at both the trial and appellate levels. He claimed his plea of guilty to murder in the second degree was not intelligently made because he did not understand the "malice aforethought" element, trial counsel was therefore ineffective for failing to file a motion in arrest of judgment challenging his plea of guilty, and appellate counsel was ineffective for failing to raise on direct appeal the issue of ineffective assistance of trial counsel. On May 15, 2003, the State filed a motion for summary judgment, arguing it was entitled to judgment as a matter of law because there were no disputed issues of material fact and Chubick had in fact received effective assistance from both trial and appellate counsel. Chubick filed a resistance and cross-motion for summary judgment.
The postconviction court held a hearing on the cross-motions for summary judgment. It granted the State's motion and dismissed Chubick's application for postconviction relief. The court found there was overwhelming evidence upon which the trial court could and did find a factual basis for the guilty plea. It found that the plea was entered after the court had carefully and accurately explained to Chubick the legal definition of malice aforethought. The postconviction court also found the record contained nothing showing ineffective assistance of counsel at the trial, appellate, or postconviction level.
Chubick appeals from the postconviction court's grant of the State's motion for summary judgment and dismissal of his postconviction application. Despite having filed a cross-motion for summary judgment and thus having implicitly asserted there were no genuine issues of material fact, he now contends the court erred in finding no genuine issue of material fact existed. More specifically, we read Chubick's first claim to be that his guilty plea was not intelligently made because he did not understand the malice aforethought element of second-degree murder. Therefore, he argues his trial attorneys were ineffective in failing to file a motion in arrest of judgment challenging his guilty plea on this ground. He argues there exists a material issue of fact and thus summary judgment was inappropriate. Chubick also claims that the trial court's "confusion" over the correct filing deadline for a motion in arrest of judgment constituted a disputed issue of material fact precluding a grant of summary judgment.
II. STANDARDS OF REVIEW.
Postconviction proceedings are law actions ordinarily reviewed for errors of law. Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). When summary judgment is granted in a postconviction relief action, we examine the record to determine if a genuine issue of material fact exists and whether the moving party is entitled to a judgment as a matter of law. Id. However, when there is an alleged denial of constitutional rights our review is de novo. Id. We apply de novo review to claims of ineffective assistance of counsel. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. MERITS.
As set forth above, Chubick did not file a motion in arrest of judgment challenging his guilty plea. This precludes him from directly attacking his plea of guilty. Iowa R. Crim. P. 2.24(3)( a); State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999). He may, however, challenge his guilty plea through a claim of ineffective assistance of counsel. Miller, 590 N.W.2d at 725. Chubick first claims his guilty plea was not intelligently made because he did not understand the meaning of malice aforethought. He contends that if he had fully understood the concept of malice aforethought his plea may have been different or he may have chosen not to enter a plea and instead gone to trial. Thus, he claims counsel was ineffective in failing to file a motion in arrest of judgment challenging his guilty plea to second-degree murder. Therefore, there is no procedural bar to Chubick's claim regarding his guilty plea on this charge and we will proceed to address the merits of this claim, whether a genuine issue of material fact concerning his alleged lack of understanding of the malice aforethought element precluded summary judgment.
To prevail on an ineffective assistance claim an applicant must prove both that counsel failed in an essential duty and that prejudice resulted. Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). We judge ineffective assistance claims, whether of appellate counsel or trial counsel, against the same two-pronged test, deficient performance and resulting prejudice. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Summary judgment in a postconviction relief proceeding is analogous to summary judgment procedure under our rules of civil procedure. Ridinger v. State, 341 N.W.2d 734, 736 (Iowa 1983). The burden of showing the nonexistence of a material fact is on the moving party. See Knapp v. Simmons, 345 N.W.2d 118, 121 (Iowa 1984) (holding burden is on moving party in summary judgment proceeding under Iowa Rule of Civil Procedure 237). As presented to the postconviction trial court, in order to be entitled to summary judgment on Chubick's underlying claims of ineffective assistance the State was required to show that there was no genuine issue of material fact concerning deficient performance, resulting prejudice, or both.
We agree with the postconviction court that during the plea colloquy the district court correctly and thoroughly explained to Chubick what malice aforethought meant. The court correctly informed Chubick that the jury could infer it existed based on the evidence in the record. Such evidence included Chubick's admission, confirmed by at least two witnesses, that he went into the kitchen, got a knife, came back out, and stabbed Jane Ruby resulting in her death. In addition, the court correctly informed Chubick that the jury could infer malice aforethought based on his use of a deadly weapon. See State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001) (noting that an inference of malice arises from the intentional use of deadly weapon in second-degree murder cases). Furthermore, the district court's language stating the jury "could" or "can" infer malice shows that the court left open the possibility a jury could find the opposite. After having listened to the court's proper explanations regarding malice aforethought, Chubick acknowledged that a jury would be likely to find that he acted with malice aforethought in killing Jane.
We conclude the postconviction court did not err in finding there was no genuine issue of material fact concerning Chubick's understanding of malice aforethought, or any of the other elements of the second-degree murder charge, and thus his plea was intelligently made. Chubick's trial attorneys therefore did not fail to perform any essential duty by not filing a motion in arrest of judgment claiming his plea of guilty was not intelligently made. Counsel is not ineffective for failing to raise meritless issues. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
"To prove appellate counsel's deficient performance resulted in prejudice, the applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal." Ledezma, 626 N.W.2d at 141. We have determined there was no genuine issue of material fact concerning Chubick's claim trial counsel was ineffective for not asserting Chubick did not understand the malice aforethought element. We therefore need not address his related claim of ineffective assistance of appellate counsel concerning the malice aforethought element. Id. at 145.
We conclude the postconviction court did not err in finding there was no genuine issue of material fact concerning Chubick's claims of ineffective assistance of any counsel involved based on trial counsel not filing a motion in arrest of judgment.
Chubick also claims summary judgment was precluded by a genuine issue of material fact concerning whether the district court incorrectly advised him of the deadline for filing a motion in arrest of judgment. Under Iowa Rule of Criminal Procedure 2.24(3)( b) a motion in arrest of judgment must be filed not later than forty-five days after the guilty plea, "but in any case not later than five days before the date set for pronouncing judgment." The district court scheduled sentencing for November 9, 2000. The court informed Chubick, that means that if you file a motion in arrest of judgment, it must be filed five days before that date, which is November 4, which is a Saturday, so actually your deadline for filing would be November 3, 2000, which is the Friday preceding your sentencing.
Chubick argues that under Iowa Rule of Civil Procedure 1.1801 and Iowa Code section 4.1(34) the correct deadline for filing a motion in arrest of judgment was the following Monday, November 6, 2000. In granting the State's motion for summary judgment the postconviction court found on this issue that "the general rule was correctly stated" by the district court and "[w]hether or not the Court correctly specified the correct date for filing, no such motion was ever filed, nor was trial counsel ever requested to file one."
We agree with the postconviction court's second reason for granting summary judgment on this claim. There is no evidence in the record Chubick ever requested that his trial attorneys file a motion in arrest of judgment, and no evidence that such a motion was ever filed at or before sentencing. Accordingly, whether the district court stated the correct deadline for filing such a motion does not create any genuine issue of material fact that would preclude summary disposition of Chubick's postconviction application. Furthermore, and more importantly, having decided the only ground urged by Chubick on which a motion in arrest of judgment could have been based (the fact his guilty plea was not intelligently made) is without merit, we need not and do not address the question of whether the district court correctly stated the deadline for filing such a motion, as Chubick could not have been prejudiced by the absence of such a motion.
IV. CONCLUSION.
For all of the reasons set forth above, we conclude the postconviction court did not err in determining there were no genuine issues of material fact regarding Chubick's claims of ineffective assistance of counsel. We need not determine whether the district court specified the correct deadline for filing a motion in arrest of judgment, because Chubick did not ask his trial attorneys to file such a motion, no such motion was ever filed at any time, and the only ground suggested by Chubick for such a motion is without merit. The postconviction court did not err in granting the State's motion for summary judgment and dismissing Chubick's application for postconviction relief.
AFFIRMED.