Opinion
No. 1-866 / 01-0713.
Filed March 13, 2002.
Appeal from the Iowa District Court for Warren County, DARRELL GOODHUE and DALE B. HAGEN, Judges.
Defendant appeals his judgment following a guilty plea to second-degree theft. AFFIRMED AND REMANDED.
Mark D. Reed, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant Attorney General, Kevin Parker, Warren County Attorney, and Patricia Notch, Assistant County Attorney, for appellee-State.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Tony Bone appeals his judgment and sentence for second-degree theft, following entry of a guilty plea. He essentially argues that trial counsel was ineffective in failing to challenge the factual basis for his plea. We affirm, but noting a sentencing error, remand for issuance of a nunc pro tunc order.
I. Background Facts and Proceedings .
The minutes of testimony reflect that the State intended to prove the following facts. A Warren County deputy sheriff saw a van pull into a parking lot. Bone was the driver. The deputy had information that the license plates on the van corresponded to a pickup truck. The deputy approached Bone and asked for his driver's license. A computer check revealed Bone's license was suspended and there was a warrant for his arrest in Polk County. The deputy also learned that the van had been stolen.
The State charged Bone with second-degree theft. Iowa Code §§ 714.1(4) and 714.2(2) (1999). Bone ultimately pled guilty to the charge in exchange for the State's recommendation that his sentence be suspended and that he be placed on probation for two years. At the sentencing hearing, the district court sentenced Bone to the custody of the Department of Corrections for a prison term not exceeding five years, but suspended the sentence and placed him on probation for two years. The court subsequently filed a written order that referred to charges and sentencing terms not contained in the trial information or the court's verbal sentencing order. This appeal followed.
II. Factual Basis for Plea .
On appeal, Bone claims he "was not adequately advised of the elements of knowledge and value," rendering his plea to second-degree theft "uninformed and involuntary". He further maintains trial counsel was ineffective in failing to challenge the plea on this basis. We believe Bone is really challenging the factual basis for his plea. See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
As a preliminary matter, the State correctly notes that Bone did not file a motion in arrest of judgment to challenge his plea and to preserve this issue for direct review. See State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999). The State also correctly points out that we may nevertheless review the issue under an ineffective assistance of counsel rubric. Id. Given the constitutional dimensions of this claim, our scope of review is de novo. State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987). To prevail, Bone must show counsel breached an essential duty and prejudice resulted. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). "We will find a breach where defense counsel allows the defendant to plead guilty to a charge that lacks a factual basis and then fails to file a motion in arrest of judgment challenging the plea." Id. at 449. "On the other hand, where a factual basis exists for the plea, counsel usually will not be found ineffective for allowing the defendant to plead guilty." Id.
A. Knowledge . A person commits one form of theft if the person "[e]xercises control over stolen property, knowing such property to have been stolen, or having reasonable cause to believe that such property has been stolen. . . ." Iowa Code § 714.1(4). This provision "requires proof that a defendant actually believed the property was stolen." State v. Stephen, 537 N.W.2d 792, 793-4 (Iowa Ct. App. 1995). This element may be met by showing that the "facts and circumstances known to defendant were sufficient to satisfy him or cause him to believe the goods were stolen." Id. at 794.
The record reveals a factual basis for the knowledge element of the theft charge. Although Bone maintained at the plea proceedings that he purchased the van and was on his way to try to obtain the title when he was arrested, he later admitted that he believed the van was stolen. Additionally, the record reflects that more than a month had elapsed from the date of the claimed purchase to the date of arrest. During this period, Bone did not take steps to transfer title to his name, electing instead to adorn the van with plates from another vehicle. See State v. Schomaker, 338 N.W.2d 874, 879 (Iowa 1983). As there was a factual basis supporting the knowledge element, Bone's attorney did not breach an essential duty in failing to challenge this element.
B. Vehicle Value . Bone next argues trial counsel should have pointed out that the State failed to establish the vehicle's value pursuant to section 714.2(2). We disagree. Iowa Code section 714.2(2) classifies theft of any motor vehicle not exceeding a value of $10,000 as second-degree theft. Therefore, the value of the van was immaterial. As trial counsel was not obligated to raise a meritless issue, we reject this challenge to his conduct. See State v. Ramirez, 597 N.W.2d 795, 799 (Iowa 1999).
Defining second-degree theft as the theft of property with a value in excess of $1,000 but less than $10,000 or "theft of a motor vehicle not exceeding ten thousand dollars in value."
III. Written Sentencing Order .
Although Bone does not raise a challenge to the court's sentencing order, we note that the written judgment entry contains some terms that are not consistent with the filings in this action or the court's verbal sentencing order. Based on our review of the order, we believe the errors are purely clerical. Accordingly, we remand for entry of a corrected judgment entry. See State v. Hess, 533 N.W.2d 525, 529 (Iowa 1995).
The order stated:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED: That the Defendant herein is guilty of the crimes of Forgery in Count III and the Defendant is ordered to perform the following:
The Defendant is hereby committed into the custody of the Director of the Iowa Department of Corrections for an indeterminate term not to exceed five years. It is further ordered that this sentence is suspended and the Defendant is placed on probation for a period of five years to the Department of Correctional Services, pursuant to their terms and conditions.
The Defendant is hereby ordered to the Fort Des Moines Correctional Facility and shall remain at the facility until maximum benefits have been obtained. The Defendant shall remain in custody until bed space is available at the Fort Des Moines Correctional Facility.
The Defendant shall contact his probation officer within 48 hours of the date of this order at 515-961-3095.
The Defendant shall pay the costs of this action.
Bond on appeal is $9,750.00
Counts I II are hereby dismissed.
All simple misdemeanor citations are dismissed upon payment of Court costs [sic] by Defendant. (emphasis added).
AFFIRMED AND REMANDED.