IN THE COURT OF APPEALS OF IOWA

No. 3-1132 / 12-1332

Filed February 5, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ERWIN SHAQUAN KING JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark J. Smith, 

Judge.

Defendant appeals the judgment against him, based on his guilty pleas, to 

two counts of theft in the first degree. CONVICTIONS AFFIRMED;

SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, and Rachel C. Regenold, 

Assistant Appellate Defender.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney 

General, Michael J. Walton, County Attorney, and Amy Devine, Assistant County 

Attorney, for appellee.

Considered by Danilson, C.J., Vaitheswaran, J., and Miller, S.J.*

Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2

MILLER, S.J.

Erwin King appeals his convictions, based on his guilty pleas, to two 

counts of first-degree theft. He raises claims of ineffective assistance of counsel, 

the court’s denial of his motion in arrest of judgment, the amount of restitution 

ordered for court-appointed attorney fees, and prosecutorial misconduct. Two of 

his claims of ineffective assistance of counsel, regarding the mandatory minimum 

sentence and failure to defend, to investigate, and to be an advocate, are 

preserved for possible postconviction proceedings. The remainder of his claims 

of ineffective assistance are without merit. The district court properly denied his 

motion in arrest of judgment. His claim of prosecutorial misconduct has not been 

preserved for our review. We affirm King’s convictions to two counts of firstdegree theft. We vacate that part of the sentencing order concerning 

reimbursement of attorney fees and remand for a new order determining the 

proper amount for his court-appointed attorney fees, which may not exceed 

$1800. The other parts of the sentencing order are affirmed.

I. Background Facts & Proceedings

Erwin King was charged with two counts of second-degree robbery as an

habitual offender. King gave notice of an alibi defense. The jury trial 

commenced on April 30, 2012, and continued on May 1, 2012. 

While the jury was deliberating on the afternoon of May 1, 2012, King 

entered into a plea agreement with the State in which he agreed to plead guilty to 

two counts of first-degree theft as an habitual offender and the State agreed to 

dismiss the two charges of second-degree robbery. The State also agreed not to 
3

resist concurrent sentences on the two theft charges.1 The district court engaged 

in a plea colloquy with King and accepted his guilty pleas to two counts of firstdegree theft, in violation of Iowa Code section 714.2(1) (2011), class “C” felonies. 

The court then discharged the jury.

King filed a motion in arrest of judgment alleging that while he was 

entering guilty pleas the jury had acquitted him of the charges of second-degree 

robbery. The district court determined no verdict on the second-degree robbery 

charges had been rendered under Iowa Rule of Criminal Procedure 2.22(5) 

because the jury’s decision had not been read in open court and there was no 

polling of the jurors. The court denied the motion in arrest of judgment.

The court sentenced King to no more than fifteen years in prison on each 

count of first-degree theft, to be served consecutively. King appeals his 

convictions and sentences.

II. Ineffective Assistance

We review claims of ineffective assistance of counsel de novo. Ennenga 

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective 

assistance of counsel, a defendant must show (1) the attorney failed to perform 

an essential duty, and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “In determining 

whether an attorney failed in performance of an essential duty, we avoid secondguessing reasonable trial strategy.” Everett v. State, 789 N.W.2d 151, 158 (Iowa 

 

1

 The State also agreed not to resist the sentences in the present case running 

concurrently to a sentence to be served as a result of a parole violation. This part of the 

plea agreement has not been challenged on appeal.
4

2010). In order to show prejudice in guilty plea proceedings, a defendant is 

required to show a reasonable probability that, but for counsel’s error, he would 

not have pleaded guilty and would have insisted on going to trial. See State v. 

Straw, 709 N.W.2d 128, 138 (Iowa 2006).

A. King contends he received ineffective assistance because his 

defense counsel did not object when the court refused to be bound by the plea 

agreement at sentencing. He asserts that under the plea agreement he should 

have been given concurrent sentences rather than consecutive sentences. He 

asserts counsel should have argued that because the court determined it was not 

bound by the plea agreement, King should have been permitted to withdraw his 

plea.

At the plea proceeding, the court set forth the terms of the plea agreement 

as follows:

[T]he State and the defense have agreed upon a plea agreement, 

which indicates the defendant will plead guilty to an Amended and 

Substituted Trial Information adding Counts 3 and 4, Theft in the 

First Degree, and he’ll plead to those as an habitual offender. The 

State will dismiss Counts 1 and 2 at the time of sentencing, which, 

again, is Robbery in the Second Degree in two counts. The State 

recommends incarceration as an habitual offender. The State will 

not resist Counts 3 and 4 running concurrently to each other.

When asked if this was his understanding of the plea agreement, King answered 

affirmatively.

The court also stated,

Pleading guilty as an habitual offender provides a penalty of 

confinement not to exceed 15 years on each count. That means 

the Court could impose a sentence of 30 years. Do you understand 

that?
5

I understand what the plea agreement is, and the State 

doesn’t resist concurrent terms. I’m just telling you what the 

maximum penalty is.

Again, King answered affirmatively. The court further asked King, “Have there

been any predictions made or promises made by anyone concerning what the 

sentence will be if you plead guilty?” and he answered, “No, sir.”

At the sentencing hearing the court noted that under the terms of the plea 

agreement the State would not resist concurrent sentences.2 The court asserted 

it was not bound by the State’s position. The court determined King should serve 

consecutive sentences.

We conclude the record does not support King’s claim the plea agreement 

provided he would receive concurrent sentences and the court breached the 

terms of the agreement. King agreed on the record with the court’s recitation of 

the plea agreement and indicated he understood he could receive up to thirty 

years in prison on the two charges. King also stated no promises had been 

made to him about sentencing. We conclude King has failed to show he 

received ineffective assistance on this issue. See State v. Brothern, 832 N.W.2d 

187, 192 (Iowa 2013) (noting counsel should not be determined incompetent for 

failing to pursue a meritless issue).

B. King makes a related claim that he received ineffective assistance 

because defense counsel did not object when during the sentencing hearing the 

prosecutor did not specifically assert the State was not resisting concurrent 

 

2

 The sentencing judge was quite familiar with the case and the terms of the guilty 

pleas, being the same judge who had presided at the two days of trial and at the guilty 

plea proceeding.
6

sentences. The prosecutor recommended incarceration but did not make any 

statement concerning consecutive or concurrent sentences.

“[W]hen a plea rests in any significant degree on a promise or agreement 

of the prosecutor, so that it can be said to be part of the inducement or 

consideration [for the plea], such promise must be fulfilled.” State v. Horness, 

600 N.W.2d 294, 298 (Iowa 1999). When the State agrees to recommend a 

particular sentence the prosecutor must commend the recommended sentences 

to the court or otherwise inform the court the State supported the suggested 

sentences. Id. at 300. If the State agrees to be silent, however, the prosecutor 

must not recommend or suggest a particular sentence. State v. Carrillo, 597 

N.W.2d 497, 500 (Iowa 1999).

We conclude the prosecutor’s silence on the issue of concurrent or 

consecutive sentences is the same as not resisting concurrent sentences. The 

record does not support King’s assertion the prosecutor breached the plea 

agreement. For this reason, there was no basis for an objection by defense 

counsel, and King has failed to show he received ineffective assistance due to 

counsel’s failure to object. See Brothern, 832 N.W.2d at 192.

C. King claims he received ineffective assistance because defense 

counsel did not object on the ground there was an insufficient factual basis for his 

guilty plea to one of the charges of first-degree theft. The amended trial 

information alleged King had committed theft in the first degree under the 

alternative of theft from the person of another. See Iowa Code § 714.2(1). He 

asserts the minutes of evidence and attached police reports regarding a theft 
7

from Anna Handsaker on October 21, 2011, stated her purse was taken from her 

house after a person had thrown her to the ground in her garage. He argues 

there was not a sufficient factual basis to show Handsaker’s purse was taken 

from her person or from her immediate vicinity. See State v. Washington, 308 

N.W.2d 422, 423 (Iowa 1981) (noting theft from a person “means from her 

immediate presence and possession of or from her immediate charge and 

custody”).

Under Iowa Rule of Criminal Procedure 2.8(2)(b), a factual basis for a plea 

should be stated on the record. State v. Finney, 834 N.W.2d 46, 61 (Iowa 2013). 

“On a claim that a plea bargain is invalid because of a lack of accuracy on the 

factual-basis issue, the entire record before the district court may be examined.” 

Id. at 62. A factual basis may be provided by statements made by a defendant at 

a guilty plea hearing. State v. Velez, 829 N.W.2d 572, 578 (Iowa 2013) (noting 

we may examine the statements made by the defendant and the prosecutor at a 

guilty plea proceeding to determine whether a factual basis has been 

established).

Here, during the plea colloquy, King was asked whether he had taken 

property from the person of Handsaker, and he answered, “Right.” He also 

stated he had taken property from Handsaker, did not have permission to take it, 

and intended to keep the property. We conclude King’s statement on the record 

provides an adequate factual basis for his guilty plea to first-degree theft.3 We 

 

3

 The State additionally asserts the minutes of evidence provide a factual basis to show 

a theft “from the person of another.” See Iowa Code § 714.2(1). The minutes state 

Handsaker had gone on an errand and the following occurred:
8

conclude he has failed to show he received ineffective assistance on his claim 

regarding a factual basis for his guilty plea.

D. Under rule 2.8(2)(b)(2), a court should inform a defendant of the 

mandatory minimum punishment for an offense. King asserts the district court 

did not inform him of the three-year mandatory minimum sentence found in 

section 902.8 for an habitual offender convicted of a class “C” or “D” felony. He 

contends he received ineffective assistance because his defense counsel did not 

object to the court’s failure to inform him of the mandatory minimum sentence.

The State acknowledges the court did not inform King of the three-year 

mandatory minimum sentence and defense counsel did not bring this problem to 

the court’s attention.4 In order to show ineffective assistance of counsel, 

however, King is required to show a reasonable probability that, but for counsel’s 

error, he would not have pleaded guilty and would have insisted on going to trial. 

See Straw, 709 N.W.2d at 138. “In only rare cases will the defendant be able to 

muster enough evidence to prove prejudice without a postconviction relief 

 

Once she arrived home she went into the garage, and then began 

unloading groceries inside her house. When she went back out to the 

garage a [ ] male approached her demanding money. She told him her 

purse was in the house. At that time, the suspect grabbed her by the 

back of the shirt and flung her to the ground. The suspect then went into 

the house, grabbed her purse, and fled from the scene.

Because King acknowledged on the record he had taken property from the person of 

Handsaker, we do not address whether the minutes of evidence themselves provide a 

sufficient factual basis to show theft from her immediate presence and possession or 

from her immediate charge and custody. See Washington, 308 N.W.2d at 423.

4

 In the defendant’s version of events in the pre-sentence investigation (PSI) report King 

states there is a three-year mandatory minimum for his sentence. It is not clear, 

however, whether King knew of the three-year mandatory minimum sentence at the time 

he entered his guilty plea.
9

hearing.” Id. We conclude this issue should be preserved for a possible 

postconviction proceeding.

E. King contends that due to cumulative errors by defense counsel we 

should determine he received ineffective assistance. We may look to the 

cumulative effect of counsel’s errors to determine whether a defendant has 

satisfied the prejudice prong of the test for ineffective assistance. State v. Clay, 

824 N.W.2d 488, 500 (Iowa 2012). King has not shown multiple failures by 

defense counsel to perform an essential duty. Therefore, he has not shown a 

cumulative prejudicial effect due to errors by defense counsel. We conclude 

King has not shown he received ineffective assistance based on cumulative 

error.

III. Motion in Arrest of Judgment

King contends the district court abused its discretion by denying his

motion in arrest of judgment. He asserts that based on his acquittal by the jury 

on the charges of second-degree robbery he should have been permitted to 

withdraw his guilty pleas. He claims he was acquitted at the time the jury voted 

to find him not guilty and the district court improperly determined the jury had not 

rendered a verdict because it had not been formally returned in open court and 

the jury was not polled.

We review a district court’s decision on a motion in arrest of judgment for 

an abuse of discretion. State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008). “An 

abuse of discretion will only be found where the trial court’s discretion was 
10

exercised on clearly untenable or unreasonable grounds.” Id. A court’s decision 

is untenable when it is based on an erroneous application of the law. Id.

Rule 2.22(5) provides:

The jury, agreeing upon a verdict unanimously, shall bring 

the verdict into court, where it shall be read to them, and inquiry 

made if it is their verdict. A party may then require a poll asking 

each juror if it is the juror’s verdict. If any juror expresses 

disagreement on such poll or inquiry, the jury shall be sent out for 

further deliberation; otherwise, the verdict is complete and the jury 

shall be discharged. When the verdict is given and is such as the 

court may receive, the clerk shall enter it in full upon the record.

At the beginning of the plea proceedings the court noted the jury was 

deliberating at that time, but King had decided to enter guilty pleas to two 

charges of first-degree theft as an habitual offender.5 The plea proceedings 

concluded prior to any indication the jury had reached a verdict.6 In addressing 

the motion in arrest of judgment, the district court determined the verdict on the 

charges of second-degree robbery had never been entered. The court stated it 

“called in the jury and indicated that the defendant had pled guilty and therefore 

there was no need to enter the verdict, in that the plea of guilty had been entered 

prior to the verdict being rendered in open court.”

 

5

 The plea proceedings began at 4:42 p.m. on May 1, 2012. The court noted the jury 

was deliberating at that time. The plea concluded at 4:53 p.m. The court called the jury 

into the courtroom and discharged them at 4:57 p.m. There is an instruction in the 

record temporarily releasing the jurors at 4:30 p.m. on May 1, 2012, and asking them to 

continue deliberations the next day, but it is unknown whether this instruction was ever 

given. It is clear from the plea proceeding transcript the jury was still present in the 

courthouse until 4:57 p.m.

6

 At the sentencing hearing the court noted the court attendant had put her head in the 

door during the plea proceedings, but the circumstances were unclear. As the court 

stated, “It could have been a jury question for all I knew.” The transcript of the plea 

proceedings do not give any indication that this incident occurred.
11

Under rule 2.22(5) the verdict is complete after it is read in court, the jury 

is asked if that is its verdict, and if any party requests, each juror is asked if that 

is the juror’s verdict. As the court correctly noted, none of these steps were 

taken. After King entered a plea of guilty the court called the jurors into the 

courtroom and discharged them.

In the case of State v. Bell, 322 N.W.2d 93, 94 (Iowa 1982), a jury found 

the defendant guilty of second-degree murder. When the jury was polled in the 

courtroom, however, one of the jurors stated she disagreed with the verdict, and 

the court granted the defendant’s motion for a mistrial. Bell, 322 N.W.2d at 94. 

Prior to retrial, the defendant argued the jury had acquitted him of first-degree 

murder and he could not be retried on that charge. Id. The supreme court 

determined, “Because the polling showed the jury did not agree on the verdict 

and the jury was discharged on defendant’s motion for mistrial, the jury did not 

decide the case.” Id. at 95. The court also stated, “there was no verdict. 

Without a verdict there was no acquittal.” Id.

In this case, the jury did not enter a verdict acquitting King of seconddegree robbery because he pled guilty to first-degree theft and the jury was 

discharged before the verdict could be completed—that is, before the jury’s 

verdict was read in court, the jury asked it that was its verdict, and if any party 

had requested, the individual jurors asked it that was the juror’s verdict.7 The 

district court correctly found no verdict had been entered on the charges of 

 

7

 King relies upon case law from other jurisdictions to support his argument, but we find 

these cases inapplicable based on the language of rule 2.22(5) specifically stating when 

a verdict is complete in Iowa. 
12

second-degree robbery, and therefore, King was not acquitted of second-degree 

robbery. See id. We conclude the district court did not abuse its discretion by 

denying the motion in arrest of judgment.

IV. Attorney Fees

At the sentencing hearing, the court stated King would be required to pay 

court-appointed attorney fees not to exceed $3500. The sentencing order did not 

set an amount for attorney fees but stated King would be required to pay attorney 

fees pursuant to section 815.9. King asserts that under Iowa Administrative 

Code rule 493-12.6(1), the fee limitation set for a class “C” felony was $1800. 

The fee limitations for public defenders and court-appointed attorneys are the 

same. See State v. Dudley, 766 N.W.2d 606, 622 (Iowa 2009).

The State agrees the amount King should be required to pay in restitution 

for court-appointed attorney fees should not exceed $1800.8 Where a sentence 

is severable and the valid part is distinct from the invalid part, the valid part need 

not be disturbed. State v. Krivolavy, 258 N.W.2d 157, 158 (Iowa 1977). We 

vacate that part of the sentencing order concerning reimbursement of attorney 

fees and remand for a new order determining the proper amount for his courtappointed attorney fees, which may not exceed $1800. The other parts of the 

sentencing order are affirmed.

 

8

 The statute concerning fees for public defenders was amended in 2012. 2012 Iowa 

Acts ch. 1063, § 12. This provision became effective July 1, 2012. See Iowa Code §

3.7(1). The parties agreed the amended provisions do not apply to this case, where the 

offenses occurred in October 2011.
13

V. Pro Se Issues

A. In a pro se brief, King claims he should be able to withdraw his 

guilty pleas due to prosecutorial misconduct. A defendant may not obtain relief 

based on a claim of prosecutorial misconduct without moving for a mistrial at the 

time of the alleged misconduct. State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 

2011); see also State v. Duncan, 710 N.W.2d 34, 45 (Iowa 2006) (noting on an 

issue of prosecutorial misconduct, “[b]ecause no such objection was made to this 

testimony, the claimed error was not preserved”). King did not raise the issue of 

prosecutorial misconduct before the district court. His claims on this issue have 

not been preserved for our review, and we do not address them. “When a party 

fails to alert the district court to its contentions, that party cannot thereafter rely 

on those contentions to seek a reversal on appeal.” State v. Halliburton, 539 

N.W.2d 339, 342 (Iowa 1995).

B. King claims he received ineffective assistance because of defense 

counsel’s failure to defend, to investigate, and to be an advocate. In particular, 

he claims defense counsel improperly encouraged him to plead guilty to two 

counts of first-degree theft while the jury was simultaneously finding him not 

guilty of two counts of second-degree robbery.

We determine the record in this direct appeal is not sufficient for us to 

address King’s pro se claims of ineffective assistance of counsel. We conclude 

the issue should be preserved a possible postconviction proceeding. See State 

v. Reyes, 744 N.W.2d 95, 103-04 (Iowa 2008) (noting issue should be preserved 
14

for postconviction relief proceedings when the record was not sufficiently 

developed to permit disposition of the issue on direct appeal).

VI. Disposition

We affirm King’s convictions, based on his guilty pleas, to two counts of 

first-degree theft. Two of his claims of ineffective assistance of counsel, 

regarding the mandatory minimum sentence and failure to defend, to investigate, 

and to be an advocate, are preserved for a possible postconviction proceeding. 

The remainder of his claims of ineffective assistance are without merit. The 

district court properly denied his motion in arrest of judgment. His claim of 

prosecutorial misconduct has not been preserved for our review. We vacate that 

part of the sentencing order concerning reimbursement of attorney fees and 

remand for a new order determining the proper amount for his court-appointed 

attorney fees, which may not exceed $1800. The other parts of the sentencing 

order are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, 

VACATED IN PART, AND REMANDED.

Danilson, C.J., concurs; Vaitheswaran, J., concurs specially.
15

VAITHESWARAN, J. (concurring specially)

I specially concur. The majority states, “the prosecutor’s silence on the 

issue of concurrent or consecutive sentences is the same as not resisting 

concurrent sentences.” I disagree with this statement. I believe that if a 

prosecutor agrees not to resist concurrent sentences, the prosecutor should tell 

the judge that before sentence is pronounced, whether or not the plea agreement 

is written and whether or not the judge already knows its terms. In my view, 

anything less is a violation of “the spirit of the agreement.” Horness, 600 N.W.2d 

at 298.

At sentencing, the prosecutor stated she was recommending incarceration 

as an habitual offender as well as restitution. She omitted reference to her 

agreement not to resist the imposition of concurrent, as opposed to consecutive, 

sentences. This was a crucial part of the plea agreement, and it should have 

been disclosed by her prior to imposition of sentence.

I nonetheless concur in the result because the district court expressed an 

awareness of this portion of the plea agreement.