Opinion
No. 4-842 / 04-0155
Filed January 13, 2005
Appeal from the Iowa District Court for Scott County, Mary E. Howes, District Associate Judge.
Teresa Lynn Dumerauf appeals her conviction and sentence for third-degree theft. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, William E. Davis, County Attorney, and Rex Ridenour, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
The State charged Teresa Lynn Dumerauf with third-degree theft. Iowa Code §§ 714.1(1), (3), 714.2(3) (2003). The charge, an aggravated misdemeanor, was based in part on an allegation that Dumerauf had "before been twice convicted of theft." After a jury found Dumerauf guilty, the district court asked defense counsel about a stipulation to the prior convictions. Following counsel's response, the court imposed sentence, which included a $500 fine.
On appeal, Dumerauf claims she did not stipulate to the prior convictions and trial counsel was ineffective in failing "to object to the improper procedure concerning her purported stipulation." She also challenges the district court's sentencing order, contending the court erroneously assumed it lacked discretion to suspend the $500 fine.
I. Stipulation.
Dumerauf raises three questions concerning her stipulation: 1) whether the record revealed a stipulation to prior convictions, 2) whether trial counsel had a duty to object to the court's failure to engage in a discussion regarding the stipulation, and 3) whether she knowingly and voluntarily entered into the stipulation. This court recently addressed all three questions on direct appeal, under an ineffective-assistance-of-counsel rubric. See State v. McBride, 625 N.W.2d 372 (Iowa Ct.App. 2001). We now do the same.
Turning to the first question, it is clear that Dumerauf entered into a stipulation. An order filed after a pretrial conference stated the defendant "will stipulate to prior [two] theft convictions." Following the jury's finding of guilt, the district court engaged in the following exchange with defense counsel:
Court: [T]he defendant had previously stipulated that if she was convicted, that she'd stipulate that this was her third offense, that she's previously been convicted of theft twice — at least twice before in the State of Iowa. Is that correct, [defense counsel]?
Defense Counsel: Yes, that's correct.
Although the pre-trial stipulation was not reported, its existence was recorded in the pretrial conference order and confirmed by defense counsel. Under these circumstances, counsel had no duty to object to the court's finding of a stipulation. McBride, 625 N.W.2d at 373 (finding no breach of essential duty in counsel's failure to object to finding of stipulation in face of virtually identical colloquy).
As for the second question, McBride held that trial counsel had no duty to object to the district court's failure to engage a defendant in a guilty plea-style colloquy about the stipulation. The court stated "no authority requires a full rule 8(2)(b) colloquy when such stipulations are made." Id. at 374. We see no reason to depart from McBride.
Finally, as in Mcbride, the record is unclear as to whether Dumerauf entered into the stipulation knowingly and voluntarily. Id. at 375 (stating "defendant should have an adequate grasp of the implications of his or her stipulation"). However, as in McBride, the minutes of testimony reveal that the State was prepared to prove the existence of the prior convictions. Therefore, Dumeraufdid not establish a "reasonable probability" that the outcome would have been different had she prevailed on her argument that the stipulation was involuntary. Strickland v. Washington, 446 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
II. Fine.
Dumerauf next argues that the applicable sentencing statute afforded the district court discretion to suspend the $500 fine, but the court, believing it lacked discretion, declined to do so. See Iowa Code § 903.1(2). The State concedes the fine may be suspended, but argues that the court exercised its discretion in declining to suspend it. We agree with the State.
Although the court used the language, "I can't waive the fine," the court explained that its decision not to waive the fine was based on Dumerauf's "previous criminal history." The court expounded on that criminal history. Then, the court stated, "you can't seem to get the message that you can't be doing this kind of behavior." When the disputed statement is read in context, it is clear that the court exercised its discretion not to suspend the fine.
III. Disposition.
We affirm Dumerauf's conviction and sentence for third-degree theft.