Opinion
No. 2-958 / 02-0536
Filed January 29, 2003
Appeal from the Iowa District Court for Keokuk County, Richard J. Vogel and Daniel P. Wilson, Judges.
Douglas Gee appeals his conviction, based on a guilty plea, for conspiracy to possess and/or possession of anhydrous ammonia, a precursor, with the intent to manufacture methamphetamine in violation of Iowa Code section 124.401(4) (2001). JUDGMENT ENTRY AND SENTENCE VACATED; REMANDED FOR CORRECTION OF JUDGMENT ENTRY AND RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John Schroeder, County Attorney, and Ed Harvey, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Douglas Gee appeals his conviction, based on a guilty plea, for conspiracy to possess and/or possession of anhydrous ammonia, a precursor, with the intent to manufacture methamphetamine in violation of Iowa Code section 124.401(4) (2001). Specifically, Gee contends: (1) his trial counsel was ineffective in failing to challenge the factual basis on the guilty plea and (2) the district court erred in sentencing him pursuant to section 124.401(4). We vacate the judgment entry and sentence and remand for correction of judgment entry and resentencing.
Background Facts and Proceedings. On January 13, 2002, Deputy Eric Stein was watching the Cenex Land O' Lakes Fertilizer Plant due to prior thefts of anhydrous ammonia. At approximately 2:35 a.m., Deputy Stein noticed a small, dark, pickup truck drive by the entrance of the plant and stop for approximately fifteen seconds. He was unable to see if anyone exited the vehicle. The deputy contacted other law enforcement officers in the area because he believed it was customary for individuals to drop someone off to steal anhydrous ammonia and return fifteen to twenty minutes later to pick up that person.
At approximately 3:05 a.m., another officer in the area noticed the truck about one and a half miles north of the plant. Then Deputy Stein observed the truck drive by the plant again and it appeared to be stopping at the entrance. However, the truck sped up and traveled away from the plant when a Wapello County deputy turned on his emergency lights to respond to an unrelated incident. About thirty minutes later, the truck returned to the plant and stopped at the entrance for approximately thirty seconds. Again Deputy Stein was unable to see if anyone got into the truck.
At this time, all of the officers approached the plant. When Deputy Stein turned on his emergency lights and siren the truck accelerated to a high rate of speed. Deputy Stein accelerated to eighty miles per hour, yet he was unable to catch up to the truck. Eventually the truck came to a stop after running a stop sign. Officers requested all occupants to exit the vehicle. Douglas Gee was the driver of the truck and there were also two male passengers in the truck. Gee was wearing blue jeans and a coat while the two passengers were wearing insulated coveralls and sweatshirts. The group admitted to stopping at the entrance of the plant but claimed they stopped to urinate.
The officers searched the truck and found a large canvas bag in the bed of the truck. Deputy Stein noted he had seen this type of bag used in the past to cover containers used to steal anhydrous ammonia. Apparently, the very low temperature of the anhydrous ammonia makes the containers very cold. In the cab of the truck, officers found a tan suede glove containing a pipe with marijuana residue and odor. The officers also found two other pairs of gloves with rubber textured palms, marijuana roaches, a roach clip, a package of Zig Zag papers, two portable radios set on the same channel, and a wooden board that can be used to hold controlled substances. Further, one of the officers located a metal cylinder in the ditch along the same road where the plant is located and the defendant had accelerated. The tank was covered with frost and gave off a strong odor of anhydrous ammonia.
On January 18, 2002, Gee was charged with conspiracy to possess and/or possession of anhydrous ammonia, a precursor, with the intent to manufacture methamphetamine in violation of Iowa Code section 124.401(4) (count I) and eluding law enforcement in violation of Iowa Code section 321.279(3)(a) (count II). He agreed to plead guilty to the charge in count I. At the guilty plea, the following colloquy occurred:
THE COURT: Before we go any further, Mr. Gee, I want you to tell me just briefly what you did or what happened January 13, 2002 that brought about the filing of this charge?
DEFENDANT: I was along the country road of 120th, I do believe. It was there by the fertilizer plant. And I was planning on stealing some anhydrous ammonia.
THE COURT: Were you with some other people or had you been?
DEFENDANT: Yes, I was with two other people who were with me in the vehicle.
THE COURT: And you had entered into a plan or a scheme to get the anhydrous ammonia for the purpose of using that to manufacture methamphetamine?THE DEFENDANT: Yes, sir.
The district court found Gee had established a factual basis for the plea and sentenced him to a term of incarceration not to exceed five years. The district court suspended the sentence and placed Gee on probation for three years. The district court also ordered Gee to pay a $750 fine, a $10 DARE charge, and a $125 law enforcement initiative surcharge. Further, Gee's driving privileges were revoked for one hundred eighty days. Gee appeals.
The Issues. Gee was charged by trial information with the crime of conspiracy to possess and/or possession of anhydrous ammonia, a precursor, with the intent to manufacture methamphetamine in violation of Iowa Code section 124.401(4). The charge is a Class D felony. Iowa Code section 124.401(4) provides in relevant part:
A person who possesses any product containing any of the following commits a class "D" felony, if the person possessed with the intent to use the product to manufacture any controlled substance:
. . . .
d. Anhydrous ammonia
Gee indicated at several stages of the plea taking procedure he wanted to enter a plea of guilty and agreed to the minutes of evidence being considered by the court.
On appeal, both parties agree that there is no conspiracy component to section 124.401(4). The conspiracy component is instead included in section 124.401(1). Both parties also agree that there is a general conspiracy charge available under section 706.1 and 706.3. After a careful review of the record, we conclude that two issues are presented for review:
(1) Did Gee plead guilty under section 124.401(4) to possession of a precursor with the intent to manufacture methamphetamine and, if so, was there a factual basis for the plea? If not, was his attorney ineffective?
(2) Did Gee instead plead guilty to conspiracy under section 706.1 and 706.3 even though this section was not charged in the trial information? If so, does the case need to be remanded for resentencing?Conspiracy. We will deal with the second issue first because of the record on appeal. We conclude it is not possible to determine the issue of a factual basis under Iowa Code section 124.401(4) because of the flawed nature of the plea colloquy on this charge. It was never established in the colloquy that Gee possessed the precursor. In addition, the court addressed Gee as follows:
THE COURT: Mr. Gee, keeping in mind all of the things we just discussed, do you still wish to enter a plea of guilty to the crime of conspiracy to manufacture methamphetamine?
Both Gee and the State, in its alternative argument, agree that the colloquy does provide a factual basis for a plea to conspiracy to commit a felony under sections 706.1 and 706.3. This is so even though it was an uncharged offense or an offense not technically charged in the trial information. State v. Hochmuth, 585 N.w.2d 234, 236 (Iowa 1998). We conclude the case should be remanded to allow the judgment entry to reflect the proper Iowa Code sections and to allow for resentencing under those sections. The issues of inclusion of the drug resistance surcharge, law initiative surcharge, and the license revocation should be determined by the district court at the time of resentencing.