State of Iowa v. Kimberly Kurka

IN THE COURT OF APPEALS OF IOWA

No. 14-0776
Filed March 25, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KIMBERLY KURKA,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Marsha M.

Beckelman (motions) and Mitchell E. Turner (sentencing), Judges.

Kimberly Kurka appeals the judgment and sentence entered following her

plea of guilty to first degree theft. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Robert H. Sand and Laura N. Roan, Assistant Attorneys General, for

appellee.

Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2

DOYLE, J.

Kimberly Kurka appeals the district court’s order denying her motions in

arrest of judgment and granting the State’s motion to dismiss one of the two

counts to which she pled guilty. Kurka also appeals her sentence, asserting the

district court improperly considered unproven crimes. We affirm Kurka’s

conviction and sentence.

I. Background Facts and Proceedings

The State charged Kimberly Kurka with five counts of theft in the first

degree and one count of tampering with records following alleged conduct by

Kurka taking place between January 2008 and December 2010 while she worked

as the officer manager for an Iowa City law firm. The State alleged Kurka stole

money from the firm in various ways, including paying herself increased wages,

taking client funds for herself rather than depositing them in the bank, and using

the firm credit card for personal purchases.

On March 28, 2013, Kurka appeared before the district court with her

attorney Zachary Crowdes and entered guilty pleas to two counts of first-degree

theft (counts I and IV) in exchange for the State’s dismissal of the other four

counts. Kurka also agreed she would pay restitution as proven on all counts.

The court accepted Kurka’s pleas and scheduled sentencing for May 20.

The State thereafter filed a sentencing memorandum requesting

incarceration “for a period not to exceed ten years” and a statement of pecuniary

damages, with attached exhibits, seeking approximately $300,000 in restitution

from Kurka.
3

Shortly before sentencing, Kurka retained new counsel, Victoria Cole, who

entered an appearance on May 16.1 That day, attorney Cole filed a motion to

continue sentencing and a motion to extend deadline for the filing of post-plea

motions, which had expired on May 13.2 Following hearing, the district court

denied the motions, concluding the deadline for a motion in arrest of judgment

had passed, as it was more than forty-five days after Kurka’s guilty pleas and

less than five days before the sentencing hearing, see Iowa R. Crim. P.

2.24(3)(b) (providing a motion in arrest of judgment “must be made not later than

45 days after plea of guilty . . . upon which judgment of conviction may be

rendered, but in any case not later than five days before the date set for

pronouncing judgment”), and there were no specific grounds asserted

challenging the guilty plea proceeding.

Meanwhile, on May 17, attorney Cole filed a motion in arrest of judgment,

alleging attorney Crowdes had failed to file a motion in arrest of judgment to

claim Kurka “is innocent of the charges against her, that she was pressured into

pleading guilty, that she was concerned of going to trial with an inexperienced

attorney, and that but for his errors and advice, she would not have plead guilty

and would have insisted on going to trial.” On May 20, attorney Cole filed a

supplemental motion in arrest of judgment, claiming Kurka’s guilty pleas were not

knowing or voluntary because she was not informed of the “possibility of being

sentenced to consecutive terms of incarceration.”

1
The court granted attorney Crowdes’s motion to withdraw on May 17.
2
Kurka’s guilty plea was entered on March 28; the forty-five day deadline for filing a
motion in arrest of judgment was May 13, and the five-day deadline before sentencing
was May 15. See Iowa R. Crim. P. 2.24(3)(b).
4

The court acknowledged the pending motions in arrest of judgment at the

sentencing hearing on May 20. Attorney Cole asked the court to reconsider its

ruling on Kurka’s motion to extend the deadline for the filing of post-plea motions

“in order to hear the motions in arrest of judgment that [Kurka] filed with the

Court,” and claiming the failure of attorney Crowdes to file a timely motion in

arrest of judgment was good cause to extend time. The court declined to rule on

the merits of Kurka’s motions in arrest of judgment but heard Kurka’s statements

about her final contacts with her attorney Crowdes, including Kurka’s testimony

that she told Crowdes on May 9 that she wanted to withdraw her guilty plea and

he told her the motion was “prepared and ready to be filed.” Ultimately, the court

granted Kurka’s motion to reconsider, scheduled a hearing on the motions in

arrest of judgment, and continued sentencing.

Meanwhile, the State filed a motion to dismiss count IV and deny Kurka’s

motion in arrest of judgment, alleging dismissal of one count would cure the

alleged defect in the plea proceeding (i.e., the failure to advise Kurka of the

possibility of consecutive sentences). The court took these motions up during

the hearing on the motions in arrest of judgment.

In ruling on the pending motions, the court reviewed the plea transcript,

Kurka’s May 20 testimony, and attorney Crowdes’s deposition testimony. The

court granted the State’s motion to dismiss count IV and denied Kurka’s motions

in arrest of judgment.3 Judgment was entered on count I and Kurka was

3
In its ruling, the court also granted the State’s motion to reconsider its prior ruling on
Kurka’s motion to reconsider the court’s denial of her motion to extend deadlines,
concluding Kurka “did not have good cause for an extension to extend the deadline for
filing post-plea motions at the time [her] Motion to Extend Deadlines was filed.”
5

sentenced to serve a term of imprisonment not to exceed ten years and pay

restitution. Kurka now appeals.

II. Guilty Plea

Kurka contends the district court abused its discretion in denying her

motions in arrest of judgment, which challenged the knowing and voluntary

nature of her guilty pleas. Kurka acknowledges her motions in arrest of judgment

“were not timely filed.” Kurka’s failure to timely pursue her motions would

normally prevent her from contesting her guilty plea on appeal. See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). But Kurka is not precluded from

challenging the validity of her plea under a claim of ineffective assistance of

counsel, a claim that she also raises. See id. (“Ineffective-assistance claims are

an exception to our normal rules of error preservation.”).

We review claims of ineffective assistance of counsel de novo. See State

v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). Ineffective-assistance-of-counsel

claims are generally preserved for postconviction proceedings “unless there is a

satisfactory record upon which to draw a conclusion.” See Rodriguez, 804

N.W.2d at 848. Here, the record is sufficient for resolution on direct appeal.

Due process requires the defendant enter his guilty plea voluntarily
and intelligently. If a plea is not intelligently and voluntarily made,
the failure by counsel to file a motion in arrest of judgment to
challenge the plea constitutes a breach of an essential duty. In
order to ensure a guilty plea is voluntarily and intelligently made,
the court must articulate the consequences of the plea to the
defendant.

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citations and quotation marks

omitted). Specifically, Kurka contends attorney Crowdes was ineffective “by

failing to file a motion in arrest of judgment where the court had not informed
6

[her] of the maximum possible punishment.” This claim implicates a failure of the

district court to comply with Iowa Rule of Criminal Procedure 2.8(2). That rule

provides, in relevant part:

2.8(2) Pleas to the indictment or information.
....
b. Pleas of guilty. The court may refuse to accept a plea of
guilty, and shall not accept a plea of guilty without first determining
that the plea is made voluntarily and intelligently and has a factual
basis. Before accepting a plea of guilty, the court must address the
defendant personally in open court and inform the defendant of,
and determine that the defendant understands, the following:
....
(2) [T]he maximum possible punishment provided by
the statute defining the offense to which the plea is offered.

Iowa R. Crim. P. 2.8(2). Substantial compliance with this rule is required. See

State v. Myers, 653 N.W.2d 574, 577-78 (Iowa 2002).

We have reviewed the guilty plea colloquy and it is apparent Kurka was

not advised of the possibility of consecutive sentences. The parties agree on this

issue. Attorney Crowdes did not bring this matter to the court’s attention or file a

motion in arrest of judgment on this ground. In this situation, attorney Crowdes

held a duty to correct this omission of the court. See Straw, 709 N.W.2d at 134;

State v. Hallock, 765 N.W.2d 598, 606 (Iowa Ct. App. 2009) (recognizing

counsel’s duty to correct any omission by the court during plea proceedings so

that the defendant may be fully informed when entering a guilty plea).

Kurka can succeed on her ineffective-assistance claim only by

establishing both that her counsel failed to perform an essential duty and that

prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Here, Kurka’s primary challenge to the guilty plea proceeding (the failure to be

informed of the possibility of consecutive sentences) was effectively cured when
7

the court granted the State’s motion to dismiss count IV, such that Kurka pled

guilty only to count I.4 Indeed, Kurka received an even more favorable plea

agreement than she had bargained for—one that resulted in her guilty plea to

count I and the State’s dismissal of counts II, III, IV, V, and VI. This is despite the

fact that the minutes provided a strong case against Kurka on the charges

against her. Further, considering Kurka’s May 20 testimony and attorney

Crowdes’s deposition testimony, we do not find the additional grounds set forth

by Kurka in her initial motion in arrest of judgment (innocence, pressure, lack of

investigation) to be persuasive.

Upon our review of the record, we conclude Kurka has failed to show “a

reasonable probability that, but for counsel’s errors, [s]he would not have

pleaded guilty and would have insisted on going to trial.” See Hill v. Lockhart,

4
Kurka claims the district court abused its discretion in granting the State’s motion to
dismiss. In the motion, the State noted in part:
2. At her guilty plea hearing, proper procedure and due process
was followed, with one possible alleged exception. The judge told the
defendant that “each” Theft 1” Count was punishable by up to ten years
imprisonment, but did not specifically inform the defendant of the
possibility of “consecutive sentences.”
3. After pleading guilty, the defendant decided that she wanted her
plea withdrawn. The only alleged defect in her guilty plea is that the
judge did not inform her of the possibility of consecutive sentences.
4. The State entered the plea agreement in good faith and wishes
the court to follow its sentencing recommendation of up to ten years
imprisonment. The State does not wish the Court to exceed that
sentence. The State discussed this matter with the victims in the case,
and they wish to see the plea agreement followed as well.
5. Thus, as a demonstration of good faith on its part of the plea
agreement, and in the interest of justice and judicial economy, the State
moves the Court to dismiss Count 4, one of the counts to which the
defendant pled guilty. Dismissing Count 4 cures any alleged defect in the
plea by making the maximum incarceration of the defendant ten years,
matching the information the judge clearly gave her at her plea hearing.
Upon our review, we conclude the State’s motion to dismiss was made in good faith, see
State v. Taeger, 781 N.W.2d 560, 566 (Iowa 2010); see also Iowa R. Crim. P. 2.33(1),
and the court acted within its discretion to grant the motion.
8

474 U.S. 52, 59 (1985) (setting forth prejudice standard to show counsel was

ineffective in the context of a guilty plea). Kurka’s claim fails on the prejudice

prong. See Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008) (noting a claim

of ineffective assistance of counsel fails if either element is lacking).

III. Sentencing

Kurka also contends the district court improperly considered “evidence of

the other crimes that were dismissed,” including the victims’ statements referring

to hundreds of acts of theft committed by Kurka over several years, which went

beyond the offense she pled guilty to. According to Kurka, “The court sentenced

her to prison because of the ongoing nature of the crimes.”

In delivering Kurka’s sentence, the court stated:

Okay. Ms. Kurka, this conduct went on for a period of three
years. Were you promising me that you had made a mistake and
that you were sorry for it, and you had made only one mistake, I
would probably believe you. If you told me that you had made 20
mistakes, and that you were sorry for it, I would probably believe
you. While I’m not taking this as written in stone, Mr. Foster has
indicated that you made 182 mistakes just in 2010. And this wasn’t
a case where you self-disclosed. This was a case that went on for
a long time. Every single day I see people who are sitting where
you’re sitting telling me when I’m sitting here where I’m sitting how
sorry they are and how it’s never going to happen again. Your
attorney has talked about the trust in the community that you have
lost. You betrayed trust of people who believed in you, who knew
you, not strangers; people that knew you. You can’t go back and
undo the mistakes that you made. But there comes a point in time
where saying I’m sorry after the fact simply isn’t good enough.
....
Ms. Kurka, the reason for my sentence are the facts and
circumstances as set forth in the Presentence Investigation.
Please believe me, I read every single one of your statements that
folks—your friends were good enough to submit on your behalf.
Many of them were impressive, I will say that. Apparently you had
a reputation in the community or from people—other people that
you care about that was very good and honorable. But what you
did in this case, the violation of the trust, not once, not twice, not
9

even a hundred times, but hundreds of times is simply
unconscionable.

Our review is for correction of errors at law. State v. Thomas, 547 N.W.2d

223, 225 (Iowa 1996). The decision to impose a sentence within statutory limits

is “cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002). The sentence will not be upset on appeal “unless the

defendant demonstrates an abuse of trial court discretion or a defect in the

sentencing procedure.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

An abuse of discretion is found only when the sentencing court exercises its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable. Thomas, 547 N.W.2d at 225. The consideration by the trial court

of impermissible factors constitutes a defect in the sentencing procedure. Id. If a

court considers unprosecuted and unproven charges, we remand for

resentencing. Formaro, 638 N.W.2d at 725.

Sentencing courts may not consider an unproven or unprosecuted offense

when sentencing a defendant unless (1) the facts before the court show the

defendant committed the offense or (2) the defendant admits it. State v. Jose,

636 N.W.2d 38, 41 (Iowa 2001). In somewhat different phraseology, our

supreme court has stated, “It is a well-established rule that a sentencing court

may not rely upon additional, unproven, and unprosecuted charges unless the

defendant admits to the charges or there are facts presented to show the

defendant committed the offenses.” Formaro, 638 N.W.2d at 725 (emphasis

added).
10

When a sentence is challenged on the basis of improperly considered,

unproven criminal activity, “the issue presented is simply one of the sufficiency of

the record to establish the matters relied on. There is no general prohibition

against considering other criminal activities by a defendant as factors that bear

on the sentence to be imposed.” State v. Longo, 608 N.W.2d 471, 474 (Iowa

2000). However, if a court uses any improper consideration in determining a

sentence, resentencing is required. Grandberry, 619 N.W.2d at 401. This is true

even if the improper factors are a “secondary consideration.” Id. We are not free

to “speculate about the weight the trial court mentally assigned to [the improper

factors].” State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981).

Kurka pled guilty to counts I and IV, which covered two forms of theft over

a period of three years, covering numerous acts. In referencing the “182

mistakes just in 2010,” the sentencing court was referencing the victim’s impact

statement made at the hearing, which the court stated it was “not taking this as

written in stone.” We view this merely as an acknowledgment of the victim

impact statement. Our supreme court has stated:

We construe the district court’s statement regarding the
financial loss to the victim to be merely a reference to consideration
of the victim’s impact statement in general as required by Iowa
Code section 901.5. We do not believe, as Sailer urges, that this
statement reveals the district court improperly considered unproven
offenses in determining the sentence. As we noted in the previous
section, it is essential to the purpose of the victim impact statement
that the victim be given an opportunity to fully convey the impact a
crime has had. Although this may at times result in the airing of
allegations which are unproven, we trust that our district courts,
when weighing such statements, as part of the sentencing
determination, will filter out improper or irrelevant evidence.
Without clear evidence to the contrary, we assume the district court
did so in the case at bar.
11

State v. Sailer, 587 N.W.2d 756, 764 (Iowa 1998). With no clear evidence to the

contrary, we assume the district court did not improperly consider the victim

impact statement.

Furthermore, at the outset of the sentencing hearing, Kurka did not object

to the presentence investigation report (PSI) and accepted it without corrections,

additions, or deletions. Attached to the PSI were a number of exhibits including

an investigative report describing the various forms of theft Kurka committed

against the law firm, and a statement of pecuniary damages exceeding

$300,000. A sentencing court is permitted to consider the contents of a PSI in its

sentencing decision where the defendant does not object to the portion of the

PSI being considered. See State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998).

The court did not abuse its discretion in considering this information.

A sentencing court has discretion in choosing statutorily authorized

sentences. See Iowa Code § 901.5 (2013). Under the circumstances presented

to us in this appeal, we do not find the district court considered improper factors

in imposing Kurka’s sentence. Finding no defect in the procedure, nor any abuse

of discretion, we affirm on this issue.

IV. Conclusion

We affirm the district court’s order denying Kurka’s motions in arrest of

judgment and granting the State’s motion to dismiss one of the two counts to

which Kurka pled guilty. We also affirm Kurka’s conviction and sentence.

AFFIRMED.