Anthony Tiberius Ferre v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-0391
Filed November 3, 2021

ANTHONY TIBERIUS FERRE,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Warren County, Brad McCall, Judge.

Anthony Ferre appeals the district court’s ruling on his application for

postconviction relief. AFFIRMED AS MODIFIED AND REMANDED.

Raya D. Dimitrova of the Carr Law Firm P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered by Bower, C.J. and Tabor and Ahlers, JJ.
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AHLERS, Judge.

Anthony Ferre was initially charged with sexual abuse in the third degree

and lascivious acts with a minor. At the time he was arrested on those charges,

Ferre’s cell phone was seized and retained by law enforcement. Ferre posted bail

a few weeks later and was released from jail.

While he was out of custody, law enforcement obtained a search warrant

and extracted data from Ferre’s cell phone, which included photos of minor

children engaged in sex acts. Based on the information extracted from his phone

and other unrelated sources, a new criminal case was opened and complaints

were filed charging Ferre with three counts of sexual exploitation of a minor, three

counts of forgery, three counts of tampering with records, and three counts of

identity theft. A warrant for Ferre’s arrest was issued accordingly, and the warrant

was executed.

Upon his second arrest, Ferre was in possession of another cell phone.

Law enforcement seized this phone as well and extracted data from it, revealing

six more photos of nude minor children, resulting in six additional charges for

sexual exploitation of a minor.

Within one month of his second arrest, at Ferre’s insistence, Ferre’s

attorney made an offer to the State for Ferre to plead guilty to all twenty charges

in both cases and agree the sentences would be ordered to be served

consecutively.1 In return, the sentences would be suspended and Ferre would be

1 Agreeing to run the sentences consecutively was an agreement to an
indeterminate term of incarceration not to exceed forty-seven years, as he pleaded
guilty to one class “C” felony (ten years), one serious misdemeanor (one year),
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placed on probation. The State accepted the offer, and Ferre pleaded guilty

pursuant to the agreement. Ferre received the sentence for which he bargained—

an indeterminate term not to exceed forty-seven years, with the sentence

suspended and Ferre placed on probation for five years. Less than one year after

being sentenced, Ferre violated probation, had his probation revoked, and was

sent to prison to serve the original sentence.

A few months after being sent to prison, Ferre initiated this postconviction-

relief (PCR) action. After multiple amendments to his PCR application, Ferre’s

claims were all based on allegations of ineffective assistance of counsel. The case

proceeded to trial. The district court rejected all but one of Ferre’s claims. The

claim accepted by the district court was the claim that Ferre’s counsel was

ineffective for allowing him to plead guilty to five of the sexual-exploitation-of-a-

minor charges, as there was no factual basis for the charges. Based on its finding,

the district court vacated the judgment and sentences for those five charges and

ordered further proceedings on them. The district court left the judgment and

sentences for the remaining fifteen charges intact. Ferre appeals.

I. Standard of Review

PCR proceedings are usually reviewed for corrections of errors at law.

Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). However, when an application

for PCR alleges constitutional violations—such as ineffective assistance of

counsel—the claims are reviewed de novo. Ledezma v. State, 626 N.W.2d 134,

141 (Iowa 2001).

and eighteen aggravated misdemeanors (two years on each charge for a total of
thirty-six years).
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II. Discussion of the Issues.

Ferre raises three issues. First, he asserts the district court provided the

wrong remedy with regard to the five charges for which there was no factual basis.

He contends the proper remedy was to invalidate the entire plea agreement, which

requires vacating the judgment and sentence and setting aside the guilty plea for

all twenty charges, with all charges set for further proceedings. Second, he asserts

the district court erred by failing to find Ferre’s counsel ineffective for failing to seek

to suppress the evidence extracted from the first cell phone. He claims the search

warrant permitting the extraction had expired and was therefore void. Third, he

asserts the district court erred by failing to find his counsel ineffective for failing to

seek to suppress the evidence extracted from the second cell phone. He claims

there was no search warrant and no warrant exception that permitted such

extraction.

A. Proper Remedy.

Neither party challenges the district court’s finding that counsel was

ineffective for permitting Ferre to plead guilty without a factual basis to five of the

nine sexual-exploitation-of-a-minor charges. However, both parties contend the

district court granted the wrong remedy. Ferre contends the only proper remedy

was to invalidate the plea agreement in its entirety, vacate the judgments and

sentences on all charges, set aside the guilty pleas on all charges, and order

further proceedings on all charges. The State contends the proper remedy is to

allow the State to choose between two options. One option would be to vacate the

five charges for which there was no factual basis and order resentencing on the

remaining fifteen charges. The second option would be the option cited by Ferre.
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In support of his position, Ferre cites State v. Allen, 708 N.W.2d 361 (Iowa

2006), and cases that follow it.2 The State relies on State v. Ceretti, 871 N.W.2d

88 (Iowa 2015), and Noble v. Iowa Dist. Ct., 919 N.W.2d 625 (Iowa Ct. App. 2018),

to support its position.3

The cases relied upon by the parties appear to form related, but separate,

threads within the fabric of our case law on the topic of remedy when pieces of a

plea agreement are discarded. Allen and its progeny address the specific scenario

we have here—plea counsel fails to challenge a plea for lack of factual basis as

part of a plea bargain. 708 N.W.2d at 365–69. In that scenario, Allen holds that

the remedy is to invalidate the entire plea bargain and proceed accordingly. Id. at

369.

In contrast, the cases relied upon by the State involve a different scenario—

setting aside a sentence as illegal when an attempt is made to punish for both a

homicide and attempted murder. In Ceretti, the supreme court recognized the

alternative remedies available in this scenario. 871 N.W.2d at 97. It rejected the

remedy of reversing the conviction and remanding for resentencing to eliminate

the offending portion of the sentence, choosing instead to follow Allen and select

the remedy of vacating all convictions and the entire plea agreement with a remand

to the district court. Id. Choosing this remedy prevents a defendant from

2 Cases that have followed Allen include Dockery v. State, No. 17-1226, 2018 WL
6123021, at *4 (Iowa Ct. App. Nov. 21, 2018); State v. Olson, No. 15-2114, 2017
WL 362597, at *2 (Iowa Ct. App. Jan. 25, 2017); and State v. Blanchard, No. 13-
0342, 2013 WL 6405373, at *2–3 (Iowa Ct. App. Dec. 5, 2013).
3 Ceretti also cites Allen favorably. See 871 N.W.2d at 97.
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“transform[ing] what was a favorable plea bargain in the district court to an even

better deal on appeal.” Id.

Three years after Ceretti, our court addressed the same issue and

recognized the two potential remedies identified in Ceretti. Noble, 919 N.W.2d at

633. After identifying the two remedies and the pitfalls of both, the court added a

new wrinkle, which was to allow the prosecutor to choose between the two options.

Id. at 633–34.

We recognize the attractiveness of the “prosecutor gets to choose the

option” approach of Noble, and we would follow that approach if we were faced

with the same situation (i.e., an illegal sentence due to dual punishment for

attempted murder and a homicide based on the same conduct with the same

victim). We would also consider adopting this approach in the situation at hand if

we were writing on a blank slate. However, we are not writing on a blank slate,

and we are duty-bound to follow controlling supreme court precedent. See State

v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). Allen proclaims a clear rule:

“The proper remedy when counsel fails to perform an essential duty by not

challenging a plea for lack of a factual basis when the plea is a result of a plea

bargain is to invalidate the entire plea bargain . . . and remand the case to the

district court.” 708 N.W.2d at 369. That is exactly the situation we have here.

Neither Ceretti nor Noble, nor any other case cited by the State, suggests Allen

has been overruled, and both Ceretti and Noble involve a scenario that does not

exist here. As the situation that forms the foundation for the holding in Allen is the

situation we have in this case, we are obligated to follow Allen’s direction rather

than the “prosecutor’s choice” option of Noble. Therefore, we affirm the district
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court’s decision to vacate the convictions and sentences for the five charges for

which there was no factual basis. However, we modify the remedy by directing

that the entire plea agreement is invalidated and the case is remanded to the

district court. In invalidating the plea agreement, we vacate the convictions and

sentences on all charges, set aside the guilty pleas on all charges, and remand to

the district court for further proceedings on all charges. Consistent with the

directives of Allen, on remand, the State may proceed as though the plea

agreement did not exist. Id. Further, on remand, “the State may reinstate any

charges dismissed in contemplation of a valid plea bargain, if it so desires, and file

any additional charges supportable by the available evidence.” Id.

B. Other Claims of Ineffective Assistance of Counsel

As suggested by Ferre, we need not address the other claims of ineffective-

assistance-of-counsel he raises on appeal. The resolution outlined above results

in putting the parties back in the same position they were in before they reached

their plea agreement and Ferre entered his guilty pleas, so there is no need to

address whether prior counsel was otherwise ineffective in letting Ferre enter guilty

pleas.

III. Conclusion.

We affirm the district court’s ruling as modified, vacate the convictions and

sentences on all charges, set aside the guilty pleas on all charges, and remand for

further proceedings consistent with the directives in this opinion.

AFFIRMED AS MODIFIED AND REMANDED.