Opinion
No. 4-755 / 03-1784
Filed December 22, 2004
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Warren English appeals the judgment and sentence entered upon his conviction for theft in the second degree as an habitual offender. CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and George Karnas, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Warren English appeals the judgment and sentence entered upon his conviction for theft in the second degree as an habitual offender in violation of Iowa Code sections 714.1, 714.2(2), and 902.8 (2003). Specifically, he contends the evidence was insufficient to support his conviction and he received ineffective assistance of counsel. He further avers the district court imposed an illegal sentence. We affirm his conviction, vacate his sentence, and remand for resentencing.
I. Background Facts Proceedings.
At approximately 5 a.m. on April 8, 2003, Warren English drove Otha Jordan to Henry Drake's residence in order to retrieve a television set and a computer from underneath the porch. English assisted Otha in transporting the television set and loading it into the vehicle. While English waited in the driver's seat of the car, Otha returned to the yard to retrieve the computer. Upon returning to the yard, Henry, the owner of the residence, came out and asked Otha what he was doing. Henry and Otha began arguing, and shortly thereafter, a police officer arrived at the residence. A few moments later, another officer arrived at the scene with Douglas Griffith. Douglas had called the police at approximately the same time that morning to report a burglary had occurred at his business. Douglas identified the television and the computer as belonging to him.
English was charged by trial information with burglary and second-degree theft. A jury trial commenced August 12, 2003. The jury returned a verdict of not guilty of burglary, but guilty of second-degree theft. English admitted to two prior felony convictions. Based on these two prior convictions, the court found English to be an habitual offender and sentenced him to a term of incarceration not to exceed fifteen years. English appeals.
II. Sufficiency of the Evidence.
English first contends the State did not present sufficient evidence to support his conviction of second-degree theft. He claims the evidence was insufficient to show he exercised control over the computer. He points out he was waiting in the car when Otha returned to the house to retrieve the computer.
We review challenges to the sufficiency of evidence for errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). A verdict of guilty is binding on appeal unless no substantial evidence exists to support it, or it is clearly against the weight of the evidence. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Substantial evidence means evidence that could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id. In deciding whether there is substantial evidence, we view the record in a light most favorable to the State. Id.
Under Iowa law, a person is guilty of aiding and abetting in a crime when that person assents to or lends countenance and approval to another's criminal act either by active participation or by encouraging it in some manner prior to or at the time of commission. State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct.App. 1999). A person who aids and abets another in the commission of a criminal offense is charged, tried, and punished as a principal. Iowa Code § 703.1. An aider and abettor is not required to possess the intent to commit the crime, but is only required to have knowledge that the perpetrator possesses such intent. State v. Hustead, 538 N.W.2d 867, 870 (Iowa Ct.App. 1995). Thus, it generally follows that an aider and abettor is liable for any criminal act, which in the ordinary course of events, was the natural and probable consequence of the criminal act encouraged. Id.
Here, the record demonstrates English willingly drove Otha to a residence in the early hours of the morning to retrieve electronics from underneath a porch. English went to the porch, where both of the items were located, and assisted Otha in loading the television set into his vehicle. Due to the close proximity of the television and the computer, a rational jury could have found English knew about the computer and was waiting for Otha to retrieve it and load it into the car. Viewing the evidence in the light most favorable to the verdict, we conclude sufficient evidence existed to support the conclusion that, at the very least, English knew about the computer and aided and abetted Otha's control over the stolen items.
III. Ineffective Assistance of Counsel.
English next claims he received ineffective assistance of counsel in several respects. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied the defendant a fair trial. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). English must prove that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceedings would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
English first argues he received ineffective assistance of counsel because counsel failed to specifically challenge the sufficiency of the State's evidence on aiding and abetting the theft of the computer. He further claims counsel was ineffective for not specifically challenging the State's evidence regarding his knowledge the computer was stolen. We have already determined in the preceding discussion the State presented ample evidence regarding English's aiding and abetting the theft of the computer. Therefore, we deny English's claim of ineffective assistance of counsel with respect to this issue. Furthermore, we conclude counsel was not ineffective for failing to challenge the sufficiency of the evidence regarding English's knowledge the property was stolen. Based on the highly suspicious circumstances of driving to a stranger's house during the early morning hours to retrieve electronics from underneath a porch, a rational fact finder could conclude English knew the property was stolen.
English further avers counsel was ineffective for failing to (1) object to the owner's testimony concerning the value of the computer; (2) enter into evidence records that demonstrated his hours of employment; (3) inquire about the conversation that took place between English and Otha; and (4) request a jury instruction defining the term "control." We determine the remainder of English's claims of ineffective assistance of counsel should be preserved for possible postconviction proceedings.
IV. Legality of Sentence.
Finally, English challenges the legality of his sentence. He avers he should not have been sentenced as an habitual offender because his two prior offenses did not occur in the particular sequence required under Iowa Code section 902.8. Section 902.8 defines an habitual offender as any person convicted of a class "C" or a class "D" felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. Section 902.8 is a recidivist statute designed "to punish violators who have not responded to the restraining influence of conviction and punishment." Hajek v. Iowa State Bd. of Parole, 414 N.W.2d 122, 123 (Iowa 1987). For this reason, such statutes apply only when the previous convictions precede the commission of the current offense. State v. Hollins, 310 N.W.2d 216, 217-18 (Iowa 1981) (interpreting Iowa Code section 902.8); State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974) (holding under predecessor statute that the first conviction and imposition of sentence must precede the second offense, and that both of the prior convictions and impositions of sentences must precede the third conviction).
Here, English was convicted of two prior offenses. He first pled guilty to possession of marijuana with intent to deliver on April 25, 2000. He was sentenced for this first offense on June 13, 2000. English committed his second offense of fraudulent practices between March and April 1999. He was charged by trial information on June 1, 2000, and pled guilty to this offense on August 14, 2000. The proper sequence does not exist here because his first conviction did not precede the commission of the second offense, which occurred in 1999. See Hollins, 310 N.W.2d at 217. The State concedes this point in its brief. Because the enhanced sentence was not appropriate under Iowa Code section 902.8, we remand for resentencing in accordance with the views expressed in this opinion.
The guilty plea was filed on May 1, 2000.
The guilty plea was filed on August 15, 2000.