State of Iowa v. Frank John Nucaro

IN THE COURT OF APPEALS OF IOWA

No. 18-1304
Filed December 18, 2019

FRANK JOHN NUCARO,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.

Frank Nucaro appeals the denial of his application for postconviction relief.

AFFIRMED.

Nicholas Einwalter, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.

Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.
2

BOWER, Chief Judge.

Frank John Nucaro appeals the denial of his application for postconviction

relief (PCR). He claims the postconviction court erred in finding his trial counsel

did not provide ineffective assistance and his probation revocation hearing violated

his procedural due process rights. We find Nucaro waived any notice requirement

and he failed to establish ineffective assistance of counsel. We affirm.

I. Background Facts & Proceedings

On September 8, 2016, Nucaro pleaded guilty to seven criminal offenses

arising from six separate criminal cases.1 The court sentenced Nucaro to

consecutive sentences for a total of eighteen years of incarceration, but the court

suspended all the sentences and placed him on probation at a residential facility.

Nucaro’s probation officer filed a report of probation violation on

December 13, stating Nucaro had left the residential facility program, failed to

complete required programming, and failed to make payments on his court costs

and fees. On December 30, Nucaro stipulated to violating his probation by

absenting himself from the residential treatment program. The court ordered

Nucaro to report to his probation officer by January 4, 2017, to reside at a

residential facility as scheduled by the probation officer, and pay all case-related

financial obligations. Nucaro states he tried to report to his probation officer on

January 4 and 5 and called several times, but never connected with the officer.

1
The offenses included five theft charges of varying degrees, domestic abuse
assault causing bodily injury, and first-degree harassment. The charges were all
filed between March and July 2016.
3

A second violation report was filed on February 9, 2017. This violation

report specified Nucaro had not made any payments on his court-ordered fines

and costs, a home visit by the probation officer on January 11 revealed Nucaro did

not live at the address provided, and Nucaro failed to complete residential

treatment or to enroll in a domestic abuse program.

On April 4, Nucaro was charged with an additional criminal offense. The

court addressed both the new charge and Nucaro’s probation violation at a May 10

hearing. In its July 13, 2018 ruling, the postconviction court summarized the

underlying proceedings as follows:

At that hearing, an agreement was reached that Nucaro would plead
guilty to the [operating a motor vehicle without owner’s consent
(OMVOC)] charge, and that he would agree to have his probation
revoked and be sentenced to a total of [ten] years ([two] felonies
consecutive to each other, with the other charges concurrent). At the
time this agreement was reached, the new OMVOC charge had not
been made a part of the written report of violations filed by Nucaro’s
probation officer. Likewise, no written stipulation was executed
specifying which terms of Nucaro’s probation were agreed had been
violated. During the hearing that ensued, the terms of the global
resolution were dictated into the record by the prosecutor. When
offered his right of allocution on all matters, Nucaro addressed the
court as follows:
Well, Your Honor, I have to be honest because
I’m a pastor, and I screwed up. I had [thirteen] years,
nine months clean. I was a pastor for seven years. I
went through a rough divorce, and my kids haven’t
spoken to me in a couple of years. My wife has cancer,
and I’ve had a lot on my plate. . . .
It’s been a rough couple years. And I just want
to say I take responsibility. I’m sorry for my actions. I
contacted my [probation officer] nine times, went and
saw him on two of my appointments, and he wasn’t
available. Never contacted me back within that two-
week period. I told him my wife has cancer, and I have
to take her to appointments. Plus, I drive a semi, and
I’m a part-time pastor, so I have a pretty busy schedule.
4

And I don’t know why these things happened,
but the last message I left him was that when you find
time or you think you can find time for me, you call me
because I’m busy, after two times of going to the
appointments and calling him nine times.
But this is very rough on me right now. Like I
said, I’m responsible for my own actions. I can be
honest and tell you that. I just think—wish things were
different, but we’re all responsible for our own
behaviors.

When the court asked during the plea and revocation hearing if Nucaro

wanted to accept the plea agreement, Nucaro clearly stated he did. Nucaro then

asked for mercy in the court’s sentencing decision and requested time served on

the misdemeanors. The court again asked if he wanted the plea deal, and Nucaro

said, “Yes, Your Honor.”

The resulting revocation sentencing order stated Nucaro stipulated his

probation violation was “leaving treatment at the Fort Des Moines residential facility

without completing programming, new conviction.” Nucaro, who had never started

treatment at Fort Des Moines, filed an application for a nunc pro tunc order, asking

for the order to “correctly represent which terms of the defendant’s probation he

violated.”

During a July 27, 2017 hearing on the application for nunc pro tunc, Nucaro

challenged the stipulation of leaving Fort Des Moines. Nucaro also argued that

because the February violation report did not include the new offense, the court

should not have allowed a stipulation to the April offense as a probation violation.

The court ruled against Nucaro, finding the offense could be used as a basis for

probation revocation because Nucaro stipulated to having committed and pleaded

guilty to the new offense. The court entered an order amending the probation
5

revocation stipulation to state “[Nucaro] violated his probation by committing the

new offense. . . . The defendant does not stipulate that he violated probation in

any other way.”

On September 4, 2017, Nucaro filed an application for postconviction relief.

After several amendments, the final application alleged three types of claims: (1)

ineffective assistance of trial counsel for failing to adequately investigate defenses,

pressuring Nucaro into stipulating to probation violations, and failing to object to

inclusion of the new charge as a violation of probation; (2) unlawful probation

revocation and illegal custody; and (3) violation of Nucaro’s due process rights in

the probation revocation and disposition.

Nucaro’s postconviction trial was held May 31, 2018. Nucaro testified and

a deposition of his trial counsel was admitted into evidence. Nucaro did not offer

any new evidence of the defenses he claimed trial counsel should have

investigated. The postconviction court found Nucaro stipulated to the allegations

within the violation report, understood the benefit he was receiving from the State,

and chose to accept the offer. The court found Nucaro’s counsel did not violate

his duty by failing to investigate defenses, of which Nucaro failed to present

evidence at the postconviction trial. The court denied Nucaro’s application for

postconviction relief. Nucaro appeals.

II. Standard of Review

We generally review postconviction proceedings for correction of errors at

law. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011). We review constitutional

claims de novo. Id.
6

III. Analysis

The Supreme Court has set out the procedural due process that must be

afforded to a defendant in a probation revocation proceeding. See Morrissey v.

Brewer, 408 U.S. 471, 489 (1972) (listing the minimum requirements for procedural

due process to be afforded a parolee at a parole revocation hearing); see also

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (holding that “a probationer, like a

parolee, is entitled to a preliminary and a final revocation hearing, under the

conditions specified in Morrissey”). Written notice of the claimed probation

violation is one requirement. Morrissey, 408 U.S. at 489. On appeal, Nucaro

claims he was not provided with written notice that his April 4, 2017 charge and

subsequent plea would be used against him in the probation revocation.

Nucaro entered into a plea agreement with the State encompassing both

his new charge and the probation revocation. As part of the agreement, the parties

agreed Nucaro would plead guilty to a lesser-included offense, receive credit for

time served for the new charge, and several of Nucaro’s misdemeanor

sentences—which had previously been ordered to run consecutively—would run

concurrent to the felony sentences, reducing his prison sentence from eighteen–

to–twenty years to ten years.2 Nucaro now claims he would not have entered into

the plea agreement had his counsel investigated mitigating factors relating to his

probation violations. At his postconviction trial, Nucaro stated he felt counsel

“bullied” him into accepting the plea deal.

2
The offense Nucaro pleaded guilty to has a two-year sentence. Due to the plea
agreement reached, the sentence—which may have run consecutively without the
agreement—was ordered to run concurrently.
7

Nucaro entered into and received the benefit from the global plea

agreement encompassing both the new offense and his probation revocation. He

had notice of the hearing, which would address his probation violations. Nucaro

was aware of his new offense and agreed to plead guilty to it before the revocation

hearing. The purposes of providing a probationer with notice of a violation are to

inform the probationer of the “inquiry, its purpose, and the alleged violations,” and

to provide the person time to present relevant information and question adverse

informants. See Morrissey, 408 U.S. at 486–87. Those purposes were met here.

Moreover, Nucaro has failed to establish any prejudice resulted from the notice of

violation not being amended prior to his entering his plea. See Univ. of Iowa

Hosps. & Clinics v. Waters, 674 N.W.2d 92, 98 (Iowa 2004) (“A showing of

prejudice is essential to establishing a due process violation.” (citation omitted)).

Nucaro also claims his trial counsel provided ineffective assistance during

his probation revocation hearing. “To establish an ineffective-assistance-of-

counsel claim, a claimant must demonstrate ‘(1) his trial counsel failed to perform

an essential duty, and (2) this failure resulted in prejudice.’” State v. Madsen, 813

N.W.2d 714, 723 (Iowa 2012) (citation omitted)). “The claimant must prove both

elements by a preponderance of the evidence.” Id. at 724. Counsel’s performance

is presumed competent, and we measure it “against the standard of a reasonably

competent practitioner.” Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015)

(citation omitted). To prove prejudice, the claimant must establish by a

preponderance of evidence that counsel’s unprofessional errors undermine

confidence in the outcome of the proceeding. Id. at 868–69.
8

In particular, Nucaro claims counsel failed to adequately investigate

potential defenses and mitigation to the probation violations, and counsel was

ineffective for allowing him to enter a stipulation to violation of probation relating to

a new charge. His claims relate to the plea agreement he entered at the plea and

revocation hearing. “[T]o demonstrate prejudice in the plea-bargaining process, ‘a

claimant must show the outcome of the plea process would have been different

with competent advice.’” Dempsey, 860 N.W.2d at 869 (citation omitted). Nucaro

has failed to prove the result of the plea process would have been different.

The record leaves no doubt Nucaro violated the terms of his probation.

Nucaro was facing his second revocation hearing within six months, having failed

to comply with any of the conditions imposed by the court at his first revocation

hearing. He told the court he initially attempted to contact his probation officer, but

then was “too busy” to continue communication attempts for placement in a

residential facility. In addition to his continued violation of probation conditions,

Nucaro had committed a new offense after the report of violation had been filed.

Without the plea agreement, Nucaro faced trial on a felony-level vehicle offense

and imposition of the entire eighteen year sentence previously suspended. Nucaro

has presented no evidence any mitigating factors exist or that they would have

resulted in a reduced sentence or the court not revoking his probation.

Based on the record before us, we cannot conclude that, even if counsel

committed an error, it rose to the level of undermining our confidence in the

resulting probation revocation and sentencing. See id. at 870–71. Nucaro has not
9

established the requisite prejudice. We affirm the dismissal of Nucaro’s PCR

application.

AFFIRMED.