Opinion
No. 04-1869
Filed September 14, 2005
Appeal from the Iowa District Court for Black Hawk County, K.D. Briner (plea) and Thomas Bower (sentence), Judges.
John Becker appeals from his conviction and sentence following the entry of his guilty plea for criminal mischief in the first degree and burglary in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Black Hawk County, and Thomas J. Ferguson, County Attorney, and Joel Dalrymple and Linda Meyers, Assistant County Attorneys for appellee.
Considered by Zimmer, P.J., and Hecht and Vaitheswaran, JJ.
John Becker appeals from his conviction and sentence following the entry of his guilty plea for criminal mischief in the first degree and burglary in the third degree. We now affirm.
I. Background Facts and Proceedings.
In the early morning hours of December 24, 2003, Amvets Post 49 (Post) in Cedar Falls was burglarized and ransacked. Outside windows were broken to gain entry, and an inner door had been kicked in to gain access to the Post's office. Liquor and beer bottles were broken, display cases were smashed, and the contents of a fire extinguisher were discharged about the premises. Money and coins from the cash register and from video games were stolen, as was the Post's safe and its contents. Shoeprints were found at the scene both on the broken door and in the residue remaining from the fire extinguisher's discharge. Police were called to investigate and were later informed that John Becker, a former employee of the Post, had been drinking with two friends at the Post near closing time the previous evening.
Police became suspicious of Becker and went to his grandmother's home to investigate. After receiving consent from the grandmother to search the van that was parked in her garage, police were able to locate a pair of shoes inside that made footwear impressions that were very similar if not identical to the footprints found at the scene. Police also learned Becker had recently exchanged $75.31 in change at the Cedar Falls Community Credit Union.
Police also received consent from Becker's girlfriend to search a safe she jointly owned and used with Becker. Inside the safe, police found a canvas U.S. Mint bag that was consistent with the type reported stolen from the Post. Game tokens used to play video games at the Post were also inside the safe. On the basis of the foregoing evidence, Becker was arrested.
On August 19, 2004, Becker, with counsel, entered a guilty plea to criminal mischief in the first degree and burglary in the third degree. The plea was accepted by the district court pursuant to a plea agreement with the State in which the State agreed to recommend (1) a suspended sentence not to exceed ten years for the criminal mischief count, and (2) a five-year suspended sentence for the burglary count. The State also agreed to recommend that Becker be placed on probation for a period of five years, with one of those years to be served at a residential facility. The State further agreed to recommend the district court suspend the fines associated with both counts to allow Becker a better opportunity to make full restitution for the items he either stole or destroyed. However, the record does not confirm that plea negotiations led to an agreement that Becker's guilty plea would be expressly conditioned upon the court's acceptance of the plea agreement's terms.
The State in fact made the sentencing recommendations it had agreed to make when Becker appeared at the sentencing hearing on October 28, 2004. The district court also received victim impact statements from the Post's commander and its manager detailing the harm Becker's actions had caused. Noting the egregious nature of the criminal acts Becker had admitted along with his prior criminal record, the district court disregarded the State's recommendations and instead sentenced Becker to concurrent terms of incarceration of ten and five years. Becker now appeals, contending plea counsel was ineffective in failing to inform Becker that the terms of the plea agreement reached with the State were not binding on the sentencing court.
II. Scope and Standard of Review.
Normally, our review of a challenge to the entry of a guilty plea is for corrections of errors at law. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). However, where the ineffectiveness of counsel is alleged in connection with the entry of the guilty plea, we perform de novo review of the entire record. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective assistance of counsel raised on direct appeal are generally preserved for postconviction relief proceedings so that a sufficient record can be developed, and so attorneys whose ineffectiveness is alleged may have an opportunity to defend their actions. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). We note claims of ineffective assistance of counsel need not be raised on direct appeal to preserve them for postconviction proceedings. Iowa Code § 814.7 (2005). But where the defendant so chooses, and where the record on appeal is adequate to review the actions of trial counsel, or where the record permits us to determine whether prejudice resulted from counsel's alleged unprofessional error, we may decide the ineffectiveness claim on direct appeal. Allen, 348 N.W.2d at 248.
III. Discussion.
In order to prevail on his claim of ineffective assistance of counsel, Becker must demonstrate plea counsel's failure to perform an essential duty resulted in prejudice. State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999). If either prong of an ineffective assistance of counsel claim is not met by the defendant, we may dispose of the claim. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Because we find the evidence of prejudice lacking in this case, we need not address in detail plea counsel's alleged breach.
Whether Becker's guilty plea was conditioned on the district court's acceptance of the plea agreement's terms was not made explicit in this case. We are therefore unable to determine whether Becker was informed before his plea was entered that the State's sentencing recommendation was not binding on the court. Although we resolve this appeal on the ground that Becker failed to prove prejudice, we note that a defendant should be informed whether a proposed plea agreement which includes a sentencing recommendation from the State is conditioned on the court's acceptance of such recommendation. The defendant should also be informed that, if not so conditioned, he will have no right to withdraw the plea if the sentencing court rejects the State's recommendation and imposes a less favorable sentence. See Iowa R. Crim. P. 2.10(4) (where plea agreement is not conditioned on district court's approval, defendant has no absolute right to withdraw his guilty plea upon receiving a sentence less favorable than recommended by the State). We encourage counsel for parties and district courts to clarify on the record, before sentence is imposed, whether plea agreements may be withdrawn if the court imposes a less favorable sentence than contemplated by the parties.
Where counsel's alleged breach of an essential duty calls into question the validity of a guilty plea, the defendant claiming ineffective assistance of counsel must prove that but for counsel's breach, there is a reasonable probability the defendant would have insisted on going to trial. State v. Myers, 653 N.W.2d 574, 578-79 (Iowa 2002). Self-serving statements indicating a desire to await trial are alone insufficient to meet this prejudice standard. Id. Rather we look for objective evidence of that desire consisting of some showing by Becker that he would have been better off to reject the plea offer and proceed to trial, based on either a defense waived or the vulnerability of the State's case against him. United States v. Gordon, 156 F.3d 376, 380-81 (2nd Cir. 1998). Having reviewed the record and the elements necessary to convict Becker of the crimes charged, we conclude the evidence supporting a finding of Becker's guilt is overwhelming. Thus, we believe Becker is unable to show by objective evidence a reasonable probability he would have chosen to go to trial but for plea counsel's breach, and has thus failed to establish prejudice. We therefore affirm Becker's convictions and sentences for the crimes of criminal mischief in the first degree and burglary in the third degree.
As was outlined above, Becker, a former employee at the Post, was at the Post shortly before the burglary. Shoes in his possession matched footprints found at the scene, and items stolen from the Post were also found in Becker's personal safe. Soon after the burglary, Becker was shown to have exchanged over seventy-five dollars in change at a local credit union.