State of Iowa v. Gregory Stanley O'Neal Tolson Sr.

IN THE COURT OF APPEALS OF IOWA

No. 14-2141
Filed November 25, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

GREGORY STANLEY O’NEAL TOLSON SR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.

Gregory Stanley O’Neal Tolson appeals his convictions following a guilty

plea to four counts of lascivious conduct with a minor. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Linda Hines, Assistant Attorney

General, for appellee.

Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.

Gregory Stanley O’Neal Tolson appeals his convictions following a guilty

plea to four counts of lascivious conduct with a minor. He argues his plea was

not knowing and voluntary because the district court did not adequately advise

him of the special sentence that would be imposed pursuant to Iowa Code

section 903B.2 (2013), as required by Iowa Rule of Criminal Procedure

2.8(2)(b)(2). Alternatively, he claims trial counsel was ineffective for failing to

challenge his guilty plea on this basis. We conclude Tolson failed to preserve

error with regard to the merits of his argument. Nonetheless, counsel was not

ineffective for failing to challenge the guilty plea on the basis of the court’s failure

to advise Tolson of the maximum penalties, given the court substantially

complied with Iowa Rule of Criminal Procedure 2.8(2)(b)(2) and informed him of

the consequences of Iowa Code section 903B.2. Consequently, we affirm

Tolson’s convictions.

The State charged Tolson—as amended—with four counts of lascivious

conduct with a minor, a serious misdemeanor in violation of Iowa Code section

709.14. On October 29, 2014, Tolson admitted to having his daughters—T.T.

(age six) and A.T. (age twelve)—partially disrobe in order to satisfy his sexual

desires. He stated this happened with each of the girls on at least two

occasions.

On November 13, 2014, Tolson filed a motion in arrest of judgment

challenging his plea, asserting he “did not understand the plea colloquy and

process.” The State orally resisted. On December 12, 2014, Tolson took the

stand, asserting his innocence and proclaiming he was generally confused by the
3

plea process. The district court found Tolson had simply “changed his mind,”

which was not sufficient to require his otherwise knowing-and-voluntarily-entered

guilty plea set aside. Tolson was then sentenced to one year on each count, to

run consecutively, and a no-contact order was issued in favor of the minor

children for a period of five years. The court also imposed the special sentence

pursuant to Iowa Code section 903B.2, ordering Tolson to register as a sex

offender and placing him under supervision as if on parole for a period of ten

years following completion of his incarceration. Tolson appeals.

We review challenges to the guilty plea for correction of errors at law.

State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006). We review ineffective-

assistance-of-counsel claims de novo. Id.

Tolson first argues the district court failed comply with Iowa Rule of

Criminal Procedure 2.8(2)(b)(2)1 when it did not advise him of the special

sentence it was required to impose pursuant to Iowa Code section 903B.2. The

State responds Tolson failed to preserve error, and we agree. Though Tolson

filed a motion in arrest of judgment, the rule 2.8(2)(b)(2) argument he urges on

appeal was not presented to the district court.2 Therefore, the court did not

address this issue, and we need not address the merits on appeal. See

Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (holding that, for error to

be preserved, the party must present the argument to the district court, which

must then rule on the issue).

1
This section requires the district court to inform the defendant of “[t]he mandatory
minimum punishment, if any, and the maximum possible punishment provided by the
statute defining the offense to which the plea is offered.” Iowa R. Crim. P. 2.8(2)(b)(2).
2
Tolson’s written motion in arrest of judgment asserted he “did not understand the plea
colloquy and process” and “no longer desires to enter a guilty plea.”
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Alternatively, Tolson reframes this argument as an ineffective-assistance

claim, asserting trial counsel should have included in the motion in arrest of

judgment the asserted deficiency of the court’s deficiency regarding the Iowa

Code section 903B.2 portion of the sentence. To succeed on this claim, Tolson

must show counsel breached an essential duty and that he was prejudiced by

counsel’s error. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

Iowa Code section 903B.2 states, in part, that:

A person convicted of a misdemeanor or a class “D” felony offense
under chapter 709, section 726.2, or section 728.12 shall also be
sentenced, in addition to any other punishment provided by law, to
a special sentence committing the person into the custody of the
director of the Iowa department of corrections for a period of ten
years, with eligibility for parole as provided in chapter 906. The
board of parole shall determine whether the person should be
released on parole or placed in a work release program. The
special sentence imposed under this section shall commence upon
completion of the sentence imposed under any applicable criminal
sentencing provisions for the underlying criminal offense and the
person shall begin the sentence under supervision as if on parole
or work release . . . . The revocation of release shall not be for a
period greater than two years upon any first revocation, and five
years upon any second or subsequent revocation.

When advising Tolson of the penalties associated with his plea, the district

court stated:

There are what we call collateral consequences to a guilty
plea for this type of crime I am going to go through those collateral
consequences with you. They are as follows: First of all, you will be
subject to an additional special sentence after the expiration of this
sentence during which you can be supervised as though you are on
probation for ten years. You will be subject to the requirements of
the Iowa Sex Offender Registry law and you will be subject to
certain restrictions about where you can reside under that law.
. . . If you are required to and fail to complete the sexual
offender treatment program, you will be required to serve 100
percent of your sentence before you could be released from jail.
You are subject to, potentially because of the conviction, civil
commitment as a sexually violent predator and this charge is what
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is defined under the law as sexual predator offense. The
significance of that is that if you are convicted in the future of
another similar offense, the punishment for the subsequent future
offense will be enhanced, in other words, it would be more severe
than the punishment for this charge.

Following this colloquy, Tolson indicated he understood the consequences of a

guilty plea.

We “apply a substantial compliance standard in assessing whether the

trial court has adequately informed the defendant of the items listed in” rule

2.8(2)(b). State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003). The record on

appeal demonstrates the court satisfied this requirement, as it informed Tolson of

the correct, maximum penalties following a plea of guilty. Tolson then indicated

he understood. Though the precise language of section 903B.2 was not used, its

penalties were nonetheless conveyed to Tolson. Consequently, his plea was

entered knowingly and voluntarily, as the record demonstrates the court

substantially complied with the requirement that Tolson be informed of the

penalties imposed by Iowa Code section 903B.2. See id.; see also Iowa R. Crim.

P. 2.8(2)(b)(2).

Trial counsel is not ineffective for failing to pursue a meritless issue. State

v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Pursuant to the above analysis,

counsel had no duty to present the rule 2.8(2)(b)(2) claim, given it was a

meritless argument. Consequently, we affirm Tolson’s convictions.

AFFIRMED.