Jeffrey Daniel Krone v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-1433
Filed January 12, 2022

JEFFREY DANIEL KRONE,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Duane F.

Hoffmeyer, Judge.

An applicant challenges the denial of postconviction relief. REVERSED

AND REMANDED.

Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,

for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.

Considered by Tabor, P.J., and Greer and Badding, JJ.
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TABOR, Presiding Judge.

Jeffrey Krone appeals the denial of his application for postconviction relief.

His conviction followed submission of a written guilty plea to possession of

methamphetamine. On appeal, he contends the district court erred by not reaching

the merits of his claim that plea counsel was ineffective. According to Krone,

effective counsel would have moved in arrest of judgment because the plea

agreement was not disclosed on the record.

The State now agrees the court wrongly decided Krone waived his

ineffective-assistance claim. But it insists the court “did briefly reject” the

substance of that claim. In the alternative, the State argues Krone cannot show

plea counsel’s performance prejudiced him.

As both parties recognize, the district court should have reached the merits

of Krone’s claim. Because we do not read the postconviction ruling as doing so,

even briefly, we remand for that to happen. See McKnight v. State, 356 N.W.2d

532, 536 (Iowa 1984) (declining to resolve substantive issues presented in

application because district court did not reach the merits).

I. Facts and Prior Proceedings

In August 2017, a Sioux City police officer arrested Krone after finding a

baggie containing .4 grams of methamphetamine on the floorboard of the Ford

Explorer he was driving. The State charged Krone with possessing a controlled

substance, in violation of Iowa Code section 124.401(5) (2017).

Four months later, Krone’s attorney, Heidi Rouse, negotiated a plea deal.

Krone told Rouse that he would accept a deferred judgment in exchange for his
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guilty plea. According to Rouse, on either December 5 or December 8, Krone

signed a written guilty plea and waiver-of-rights form.1

On December 8, Rouse contacted the prosecutor asking for a deferred

judgment on Krone’s behalf. Prosecutor Athena Ladeas responded that she would

“check on it.” But when Ladeas discovered that Krone received a deferred

judgment in 2011, she refused Rouse’s request. At 8:55 a.m. on December 12,

Ladeas sent this email: “He used one prior to this case so I’m not offering the

second one. He can certainly argue for it.”

At the postconviction hearing, attorney Rouse testified that she relayed the

prosecutor’s position to her client. Her notes from that conversation showed that

Krone agreed to submit the plea form and “request open sentencing.” In other

words, Krone would plead guilty and could “argue to the court for what the outcome

should be, including he could argue for a deferred judgment.” In his postconviction

testimony, Krone denied consenting to a plea deal that did not involve the

prosecution’s recommendation of a deferred judgment. At 10:17 a.m. on

December 12, Rouse filed the pre-signed waiver of rights and guilty plea. The

court accepted the guilty plea that same day and set sentencing for January 2018.

On the day of sentencing, Rouse and Ladeas had an informal meeting with

Judge Todd Henlsey in chambers. Krone was not present. Prosecutor Ladeas

originally had offered to recommend five days in jail, or ten days on electronic

monitoring. But during the conversation, she agreed to reduce jail time to three

days with seven days electronic monitoring. Judge Hensley told the attorneys he

1Krone testified at the postconviction hearing that he did not sign the form. He
asserted Rouse copied his signature from another document.
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was not inclined to grant a deferred judgment. Rouse recalled that the judge was

open to argument but, “unless we had something other than what was in the file,

that Mr. Krone would be likely looking at more than the three days jail time.” Rouse

then told her client that he could still request a deferred judgment, but she “did not

believe going in and arguing for a deferred would result in him getting the deferred

at that point and that [she] had gotten the new offer from the prosecutor.” So Krone

left without attending the sentencing hearing.

In a written ruling, the court imposed judgment and sentenced Krone to 180

days in jail, all but three suspended and ten days of electronic monitoring. Krone

filed a direct appeal from judgment and sentence.

In February 2020, our court affirmed his conviction but remanded for

resentencing because we could not tell whether the district court properly

exercised its discretion. State v. Krone, No. 18-0139, 2020 WL 821935, at *5 (Iowa

Ct. App. Feb. 19, 2020) (“The record is devoid of any details of a plea agreement.”).

We cited State v. Thacker, in which our supreme court vacated a sentence

because it was unclear if the district court was giving effect to the parties’ plea

agreement or independently exercising its discretion. 862 N.W.2d 402, 410 (Iowa

2015). Plus, we preserved Krone’s claims of ineffective assistance of plea counsel

for a possible postconviction-relief action.

Krone represented himself at the resentencing hearing in April 2020. The

district court denied his request to withdraw his guilty plea. Then the court

sentenced Krone to two days in jail with credit for time served.

Meanwhile, in September 2018, Krone applied for postconviction relief. The

district court stayed the action until the direct appeal ended. Then in May 2020,
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Krone amended his petition, alleging plea counsel was ineffective for not moving

in arrest of judgment when the guilty plea failed to disclose the plea agreement.

In November 2020, the district court denied relief. In doing so, the court

rejected Krone’s claim that his attorney forged his signature. “The court finds and

concludes Krone did sign a written plea of guilty as asserted by defense attorney

Rouse.” Beyond that credibility finding, the court decided Krone could not pursue

his claim of ineffective assistance of plea counsel in the postconviction case

because he failed “to raise claims related to the validity of his guilty plea during his

pro se representation” on direct appeal and at resentencing.

Despite bypassing Krone’s attack on the legitimacy of his plea, the court

was critical of plea counsel’s process of having Krone sign the plea form before

securing an agreement from the prosecution:

[T]he court would be less than remiss to say the signing of a written
plea of guilty which references a plea agreement without an agreed
upon plea agreement is not best practice. With an appropriate
factual record, a court could conclude the signing of the written plea
of guilty was not knowingly, voluntarily, or intelligently made. In this
case, a disputed phone call is the sole affirmation a plea agreement
(open sentence) existed.

The court also questioned counsel’s advice to Krone that he did not need

to appear at sentencing to argue for a deferred judgment.

What transpired at the Law Enforcement Center without a court
appearance under the circumstances creates concerns. Was a
purported statement by District Associate Judge Hensley presented
to [Krone] as conclusive when the judge made clear a hearing could
be held if the defendant so desired? The signing of a written plea of
guilty without a plea agreement as a matter of convenience is a bad
practice.

Krone now appeals, alleging the court erred in denying him relief without reaching

the merits of his ineffective-assistance-of-counsel claim.
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II. Scope and Standards of Review

We typically review postconviction-relief proceedings for correction of legal

error. Ruiz v. State, 912 N.W.2d 435, 439 (Iowa 2018). But when the applicant

alleges ineffective assistance of counsel, we switch to de novo review. Id.

III. Analysis

To prevail on his claim of ineffective assistance, Krone must prove attorney

Rouse performed deficiently and prejudice resulted. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). We measure counsel’s performance

against the standard of a reasonably competent practitioner. State v. Clay, 824

N.W.2d 488, 495 (Iowa 2012). On the prejudice prong, because Krone pleaded

guilty, he must show that but for Rouse’s omission he would have insisted on going

to trial. See State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009).

Starting with the performance prong, Krone points to two rules of criminal

procedure requiring the plea-taking court to explore the influence of plea

negotiations on the defendant’s decision to plead guilty. Iowa Rule of Criminal

Procedure 2.8(2)(c) requires court “inquir[y] as to whether the defendant’s

willingness to plead guilty results from prior discussions between the attorney for

the state and the defendant or the defendant’s attorney.” Rule 2.10(2), in turn,

“require[s] the disclosure of the [plea] agreement in open court at the time the plea

is offered.” Iowa R. Crim. P. 2.10(2).

Krone contends the document that his attorney submitted to the court—“an

undated, written plea that contained multiple vague references to a plea agreement

that may or may not exist”—did not comply with these rules. He argues Rouse

was ineffective for failing to challenge that noncompliance by moving in arrest of
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judgment. But the district court did not address that argument, opting instead to

deny relief on waiver grounds.

Out of the gate, the State concedes that the district court erred in deciding

Krone waived his challenge to counsel’s handling of the guilty plea during direct

appeal and at resentencing. The State acknowledges: “although Krone filed a pro

se supplemental appellate brief, he was represented by counsel on direct appeal—

contrary to the postconviction court’s observation—and the Court of Appeals

specifically preserved his ineffective assistance claims for postconviction

proceedings.” The State continues: “Moreover, as the resentencing court correctly

recognized, its only task was to resentence [Krone] in light of the Court of Appeals

decision finding a Thacker sentencing violation.”

Yet the State contends the district court “ultimately ruled—albeit

succinctly—on the substance of Krone’s claim when it accepted the credible

testimony of defense counsel Heidi Rouse, which was in direct contradiction to

Krone’s claims that he did not intend to plead guilty.”

We read the court’s credibility determination more narrowly. True, the court

rejected Krone’s assertion that his attorney forged his signature on the plea form.

But it did not reach Krone’s underlying claim that Rouse was ineffective for not

moving in arrest of judgment.

Expecting that we might disagree, the State argues that “because there was

no valid basis to arrest judgment, [Rouse] was not ineffective.” It adds, “even if the

court concludes that the trial court should have inquired about any plea agreement

in open court and counsel should have challenged that failure, Krone still cannot

show resulting prejudice.” In reply, Krone points to his testimony that “had he
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known that the State was not in agreement with a deferred judgment, he would

have gone to trial.” He notes that even if he lost at trial, he still could have

requested a deferred judgment at sentencing.

While we appreciate the parties’ spirited arguments, we decline to reach the

substance of Krone’s ineffective-assistance claim when the district court has not

yet ruled on the merits. See McKnight, 356 N.W.2d at 536; see also Hoosman v.

State, No. 14-1870, 2016 WL 1704013, at *2 (Iowa Ct. App. Apr. 27, 2016) (“We

decline the State’s invitation to address the merits of Hoosman’s claims for the first

time on appeal. The district court is in a better position to make the necessary

credibility assessments, having heard the evidence first hand.”). Instead, we

reverse the postconviction order and remand for a ruling on the merits from the

record already created. We do not retain jurisdiction.

REVERSED AND REMANDED.