Opinion
No. 2-969 / 02-1057
Filed January 29, 2003
Appeal from the Iowa District Court for Harrison County, J.C. Irvin (guilty plea) and James Heckerman (sentencing), Judges.
Defendant appeals from the judgment and sentence imposed following his guilty plea to theft in the second degree. SENTENCE VACATED; REMANDED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, and Judson Frisk, County Attorney, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Jack Leroy Hammers appeals from the sentence imposed by the district court following his plea of guilty to second-degree theft in violation of Iowa Code sections 714.1(1) and 714.2(2) (2001). He contends the district court erred in accepting his guilty plea because it lacked a factual basis. He also contends the sentencing court abused its discretion by relying on improper sentencing considerations. He also raises an ineffective assistance of counsel claim. We vacate the sentence of the district court and remand for further proceedings to give the State an opportunity to establish a factual basis for the defendant's plea of guilty.
I. Background Facts and Proceedings.
On July 6, 2001 the State filed a trial information charging Hammers with third-degree burglary in violation of section 713.6A and second-degree theft in violation of sections 714.1(1) and 714.2(2). The State alleged the defendant was involved in the theft of a motorcycle from a barn located on the property of David Staben on June 23, 2001.
On September 10, 2001, Hammers pled guilty to theft in the second degree pursuant to the terms of a plea agreement. In exchange for his plea of guilty, the State agreed to dismiss the burglary charge. Hammers appeared for sentencing on September 29, 2001, but left without permission during a recess. Hammers was eventually sentenced on June 3, 2002. The court sentenced him to an indeterminate term of incarceration not to exceed five years. Hammers appeals.
II. Scope of Review.
Hammers first contends the district court failed to establish a factual basis for his guilty plea as required by Iowa Rule of Criminal Procedure 2.8(2)( b). We review the district court's application of a rule of criminal procedure for correction of errors at law. Iowa R.App.P. 6.4; State v. Hook, 623 N.W.2d 865, 867 (Iowa 2001); State v. Henning, 299 N.W.2d 909, 910 (Iowa Ct.App. 1980). Normally, we review a challenge to the factual basis of a guilty plea from the district court's denial of a motion in arrest of judgment. In this case, Hammers's counsel did not file a motion in arrest of judgment before sentencing. However, when a defendant's counsel does not challenge the entry of a guilty plea to an offense for which no factual basis is shown, we may review the resulting challenge to the plea notwithstanding a failure to file a motion in arrest of judgment. State v. Royer, 632 N.W.2d 905, 909 (Iowa 2001) (citing State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999); State v. Miller, 590 N.W.2d 724, 726 (Iowa 1999); State v. Allison, 576 N.W.2d 371, 374 (Iowa 1998); State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996); State v. Galbreath, 525 N.W.2d 424, 427 (Iowa 1994)).
III. Discussion.
Hammers contends the record is insufficient to establish that he possessed the stolen motorcycle or that he intended to permanently deprive Mr. Staben of his vehicle. Iowa Rule of Criminal Procedure 2.8(2)( b) provides that a guilty plea should be accepted only if it "is made voluntarily and intelligently and has a factual basis." State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990). In deciding whether a factual basis exists, the district court may consider the entire record, including statements by the defendant, facts related by the prosecutor, the presentence investigation report, and the minutes of testimony. State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). "Whatever the source, the record must disclose the factual basis relied on." State v. Johnson, 234 N.W.2d 878, 879 (Iowa 1983). Viewing the record as a whole, it must disclose facts sufficient to satisfy the elements of the crime. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). "However, the trial court is not required to extract a confession from the defendant. Instead, it must only be satisfied that the facts support the crime, `not necessarily that the defendant is guilty.'" Id. (citations omitted).
Theft occurs when a person "[t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof." Iowa Code § 714.1. The intent required for the commission of theft is an intent to permanently deprive the owner of the stolen object. Schminkey, 597 N.W.2d at 789. It is seldom capable of being established with direct evidence. Id. Instead, it must often be established from "the facts and circumstances surrounding the act, as well as any reasonable inferences to be drawn from those facts and circumstances." Id. (citing State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995)).
During the colloquy between Hammers and the district court at the plea proceedings, Hammers admitted going into Staben's barn with four friends. However, he denied that he personally took the motorcycle or ever had possession of it. He also failed to admit that he intended to permanently deprive Staben of his motorcycle. See Schminkey, 597 N.W.2d at 790-92. The record reveals that Hammers was unable or unwilling to personally admit all the elements of the offense of theft during his conversation with the trial court. The defendant did agree that a jury might conclude that he and his friends intended to steal the motorcycle. He also agreed that the plea agreement was in his best interests.
"It is essential, whatever source is used, that the factual basis be identified and disclosed in the record." State v. Greene, 226 N.W.2d 829, 831 (Iowa 1975). In this case, Hammers's own statements clearly did not establish a factual basis for his guilty plea. Perhaps recognizing this, the county attorney asked the court to consider the minutes of testimony. The court did not respond to this request and the record does not reveal whether the court reviewed the minutes and took them into consideration in determining there was a factual basis for the defendant's plea. Neither the county attorney nor defense counsel made any statements regarding a factual basis for the offense and the presentence investigation report had not been completed when Hammers's plea was entered. Under these circumstances, we conclude that the record is inadequate to show a factual basis for Hammers's guilty plea.
When it is possible a factual basis for an offense exists but was not shown, we may vacate the sentence and provide the State with an opportunity to establish the factual basis in further proceedings before the district court. Schminkey, 597 N.W.2d at 792. We conclude that procedure is appropriate here. Accordingly, we vacate the defendant's sentence and remand to the district court for further proceedings to allow the State an opportunity to establish a factual basis for the offense of theft in the second degree. If the State is unable to establish a factual basis for the offense, the defendant's guilty plea shall be set aside.