Opinion
No. 2-465 / 01-1804.
Filed July 3, 2002.
Appeal from the Iowa District Court for Bremer County, PAUL W. RIFFEL, Judge.
Jeffrey Bowerman appeals his conviction based on his guilty plea to theft in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Kasey Wadding, County Attorney, for appellee.
Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
Jeffrey Bowerman appeals his conviction based on his guilty plea to theft in the second degree, in violation of Iowa Code sections 714.1 and 714.2 (2001). He claims his attorney provided ineffective assistance because he failed to file a motion in arrest of judgment alleging an inadequate factual basis for the plea. We affirm.
In early April 2001 Bowerman stole a car in Minnesota and drove it to Tripoli, Iowa. He abandoned that car and broke into a Jeep, taking several musical CDs. He then took a 1994 Buick LeSabre owned by Darrel Cox and drove it to Texas. Bowerman was stopped by police officers in Texas on April 9, 2001. He first gave a false name. He then told officers a friend loaned him the Buick and he did not know it was stolen. He later admitted he had taken the car.
In Iowa, Bowerman was charged with second-degree theft (for stealing the Buick) and third-degree burglary (for breaking into the Jeep). He agreed to plead guilty to the charges. In a plea hearing on September 4, 2001, Bowerman stated he planned to return the Buick to the owner. The court refused to accept the plea, finding Bowerman had failed to establish a factual basis for second-degree theft.
Bowerman still wanted to plead guilty to the charges, and a second plea hearing was held on October 3, 2001, where the following exchange took place:
THE COURT: All right. All right. What did you intend to do with the vehicle?
DEFENDANT: I intended to drive to Texas with it.
THE COURT: Pardon me.
DEFENDANT: I intended to drive to Texas with it.
THE COURT: All right. Did you have any thought about what you would do after getting to Texas with it?
DEFENDANT: At the time, Your Honor, I was not thinking of what I was going to do. It was just, you know , split — I have to do this right now, you know.
The court accepted Bowerman's guilty plea after the second hearing. He was sentenced to a term of imprisonment not to exceed five years on the theft charge.
Bowerman does not appeal the judgment and sentence on the burglary charge.
On appeal, Bowerman contends he received ineffective assistance of counsel. He asserts his attorney should have filed a motion in arrest of judgment because there was an insufficient factual basis for the guilty plea to second-degree theft. He believes the second plea hearing did not address the issue of whether he intended to permanently deprive the owner of his vehicle. Bowerman claims his prior statement that he intended to return the car to its owner should be considered in determining whether there was a sufficient factual basis for the plea.
We review claims of ineffective assistance of counsel de novo, making an independent evaluation of the circumstances as shown by the entire record. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that trial counsel failed to perform an essential duty and that this failure resulted in prejudice. State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001). We affirm if either element is absent. Id.
Under Iowa Rule of Criminal Procedure 2.8(2)(b), a guilty plea should be accepted only if it "is made voluntarily and intelligently and has a factual basis." Ineffective assistance is established if a defendant enters a guilty plea and the record fails to disclose a factual basis. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). Our supreme court has stated:
The record to support a factual basis for a guilty plea includes the minutes of testimony, statements made by defendant and the prosecutor at the guilty plea proceeding, and the presentence investigation report. This record, as a whole, must disclose facts to satisfy the elements of the crime. However, the trial court is not required to extract a confession from the defendant. Instead, it must only be satisfied that the facts support the crime, "not necessarily that the defendant is guilty."Id. (citations omitted).
The offense of theft requires a showing that the defendant intended to permanently deprive the owner of the object stolen. State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999). Intent is seldom capable of being proven with direct evidence, and therefore, "the facts and circumstances surrounding the act, as well as any reasonable inferences to be drawn from those facts and circumstances, may be relied upon to ascertain the defendant's intent." Id.
The present case is factually distinguishable from Schminkey, where the defendant crashed the stolen vehicle in the same area the car was stolen. In that case, the supreme court determined there was insufficient evidence the defendant intended to permanently deprive the owner of the vehicle. Id. at 790. In the present case, however, Bowerman drove the Buick to Texas, which would make it much more difficult to return the car. In addition, on the issue on intent, we consider that Bowerman had previously stolen a car in Minnesota and abandoned it in Iowa without returning it to its owner. Furthermore, when Bowerman was stopped he first gave a false name, then claimed he had borrowed the vehicle, before admitting he had taken it. We find this shows an intent to retain the car, rather than return it to its owner.
We give little weight to Bowerman's statements at the first plea hearing, because even after the court explained that he had not given a sufficient factual basis for the plea, Bowerman persisted in his desire to plead guilty to second-degree theft. Thus, we give greater consideration to Bowerman's statements at the second plea hearing.
Based on all of these factors, we determine there was a factual basis for Bowerman's plea to second-degree theft. We conclude Bowerman's claim of ineffective assistance of counsel must fail. We affirm Bowerman's conviction.
AFFIRMED.