Opinion
No. 3-449 / 02-2064
Filed July 10, 2003
Appeal from the Iowa District Court for Polk County, Michael Huppert, Judge.
Defendant appeals from the judgment and sentence entered following his guilty pleas to second-degree theft and failure to appear. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and James Ward and Jacki Livingston, Assistant County Attorneys, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
William Bartlett, II, pled guilty to second-degree theft in violation of Iowa Code sections 714.1(1) and 714.2(2) (2001) and failure to appear in violation of section 811.2(8), both class "D" felonies. On appeal he contends his trial counsel was ineffective for permitting him to plead guilty to charges which were not supported by a factual basis. We affirm the judgment and sentence of the district court.
I. Background Facts and Proceedings.
Between March 28 and April 16 of 2001, Bartlett fraudulently obtained funds from Firstar Bank. He opened two bank accounts and then made a series of fictitious deposits followed by withdrawals of funds using ATM machines and a debit card. On December 11, 2001, the State filed a trial information charging Bartlett with second-degree theft in violation of sections 714.1(1) and 714.2(2). On March 18, 2002, Bartlett failed to appear for his trial on the theft charge and the State filed another trial information charging him with felony failure to appear.
On November 26, 2002, Bartlett pled guilty to both felony charges pursuant to the terms of a plea agreement. As requested by Bartlett, the district court immediately sentenced him to an indeterminate term of incarceration not to exceed five years for the crime of second-degree theft to be served concurrently with another theft conviction, and a term not to exceed five years for the crime of failure to appear, to be served consecutively. Bartlett appeals. He argues his convictions were improperly classified as felonies rather than misdemeanors because he took less than $1000 from the bank. He claims no factual basis existed to support his pleas and that his trial counsel was ineffective for permitting him to plead guilty under the circumstances.
II. Scope of Review.
Generally, we review challenges to guilty pleas for correction of errors at law. Iowa R.App.P. 6.4. However, because Bartlett claims his trial counsel was ineffective for permitting him to plead guilty to charges not supported by a factual basis, our review is de novo. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
III. Preservation of Error.
Under Iowa Rule of Criminal Procedure 2.24(3)( a), a defendant may not challenge a guilty plea on appeal unless he has filed a motion in arrest of judgment prior to sentencing. In this case, Bartlett's counsel did not file such a motion. However, when a defendant's counsel does not challenge the entry of a guilty plea to an offense for which no factual basis is shown, we may review the resulting challenge to the plea notwithstanding a failure to file a motion in arrest of judgment. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
IV. Discussion.
Iowa Rule of Criminal Procedure 2.8(2)( b) provides that a guilty plea should be accepted only if it "is made voluntarily and intelligently and has a factual basis." State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990). In deciding whether a factual basis exists, the district court may consider the entire record, including statements by the defendant, facts related by the prosecutor, the presentence investigation report, and the minutes of testimony. State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). Viewing the record as a whole, it must disclose facts sufficient to satisfy the elements of the crime. Keene, 630 N.W.2d at 581. "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 property taken. Iowa Code § 714.1(1). Theft of property exceeding $1000 but less than $10,000 in value is theft in the second degree, a class "D" felony. Iowa Code § 714.2(2). Theft of property exceeding $500 but not exceeding $1000 in value is theft in the third degree, an aggravated misdemeanor. Iowa Code § 714.2(3). A person who willfully fails to appear before a court is guilty of a class "D" felony if the underlying crime is a felony. Iowa Code § 811.2(8). If the underlying crime is not a felony, the person is guilty of a serious misdemeanor. Id.
Bartlett contends the record is insufficient to establish second-degree theft. He concedes he committed theft, but claims he only stole $956.25 in property from the bank. Therefore, he argues he is only guilty of third-degree theft, an aggravated misdemeanor. As a result, he claims there is no factual basis to support his guilty plea to the class "D" felony of failure to appear. He admits he failed to appear for trial on the theft charge, but contends he is guilty only of a serious misdemeanor because the underlying theft offense was improperly classified as a felony.
After admitting to a theft of more than $1000, Bartlett now claims the bank is getting "ghost" deposits mixed up with what was actually taken.
The record reveals the district court relied on the minutes of testimony and its in-court colloquy with Bartlett in establishing a factual basis for his pleas. The minutes reflect Bartlett made over $2700 in false deposits and that he ultimately obtained over $1700 from the bank by fraudulent means. At the plea hearing, Bartlett admitted that he took out $900 in cash from ATM's and "used the rest on the debit card." When asked if he had any dispute with the allegation that the amount of money taken was more than $1000, he replied, "No, sir."
Viewing the record as a whole, we conclude the minutes of testimony along with the defendant's own statements establish a factual basis for his pleas of guilty to second-degree theft and felony failure to appear. Accordingly, trial counsel was not ineffective for permitting Bartlett to plead guilty and for not filing a motion in arrest of judgment.