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[T] Norem v. State5/29/2003
Applicant appeals from the district court's denial of his application for post-conviction relief from his conviction for vehicular homicide following his plea of guilty. AFFIRMED.
Stephen Norem appeals from the district court's denial of his application for post-conviction relief from his conviction for vehicular homicide following his plea of guilty. He contends appellate counsel was ineffective by failing to argue on direct appeal that trial counsel was ineffective in failing to object to the sentencing court's violation of the plea agreement. We review an appeal from the denial of an application for post-conviction relief for errors of law. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
In December 1998, Norem was giving his friend, Eric Robbins, a ride home when an accident occurred, killing Robbins. Norem's blood alcohol level following the accident was .115. Norem was charged with homicide by vehicle in violation of Iowa Code sections 707.6A and 707.6A(1)(a) (1997). Because Norem was a juvenile, he was eligible, upon conviction, for deferred judgment.
The State and Norem entered into a plea agreement pursuant to Iowa Rule of Criminal Procedure 2.10. The plea agreement provided as follows:
Defendant to make an open plea to the charge and request a deferred sentence; State to request a PSI and will remain silent at sentencing. Pending case No. 98 CF-90 in Carroll County, Illinois shall have no affect (sic) on deferred status of this case. State to dismiss Count II.
At sentencing, the district court made mention of the pending Illinois charge in addressing Norem's argument in favor of deferred judgment. The court denied Norem's request for a deferred judgment and imposed a sentence of incarceration of twenty-five years.
Norem appealed his sentence to this court. His appellate counsel argued the district court improperly considered the pending Illinois charge as an unproven charge that had not been admitted by Norem. This court affirmed Norem's sentence.
Norem filed an application for post-conviction relief, alleging in part that appellate counsel was ineffective by failing to argue on direct appeal that trial counsel was ineffective in failing to object when the sentencing court violated the plea agreement by referring to the Illinois charge. Norem contends the portion of the plea agreement stating the Illinois case "shall have no affect on deferred status of this case" precluded any reference to that offense by the sentencing judge. However, the district court disagreed, finding the statement meant the charge did not preclude the sentencing court's consideration of a deferred judgment. We concur with the district court's analysis. The plea agreement required the State to remain silent at sentencing and simply reflected the law contained in section 232.8(3), which allows a court to defer judgment for juveniles prosecuted as adults. Accordingly, trial counsel had no duty to object to the district court's mention of Norem's Illinois charge, and appellate counsel had no duty to raise an ineffective assistance claim with respect to the same. See State v. Owens, 635 N.W.2d 478, 482 (Iowa 2001) ("Ineffectiveness may not be premised . . . on failure to raise an issue having no merit.") We affirm the district court's denial of Norem's application for post-conviction relief.
AFFIRMED.
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