Opinion
No. 4-688 / 04-0069
Filed December 22, 2004
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Defendant appeals from a judgment and conviction entered following his plea of guilty to the offense of theft in the first degree in violation of Iowa Code sections 714.1(1) and 714.2(1) (2003) and his Alford plea to eluding in violation of Iowa Code section 321.279(3). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John Sarcone, County Attorney, and James Ward, Assistant County Attorney, for State-appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Defendant-appellant, Kevin Howard, appeals from a judgment and conviction following his plea of guilty to theft in the first degree in violation of Iowa Code sections 714.1(1) and 714.2(1) (2003) and his Alford plea to eluding in violation of Iowa Code section 321.279(3). Howard broke into a display case and took jewelry at a jewelry store in a shopping mall during business hours. Howard fled but was arrested sometime later that same evening following a brief police chase. The charge of robbery in the second degree and some traffic citations were dismissed. The district court sentenced the defendant to a term of imprisonment not exceeding ten years for theft in the first degree and not exceeding five years for eluding. The district court ordered that the sentences run consecutively. In his appeal Howard argues (1) improper factors were considered in sentencing, (2) the sentencing judge was an improper judge because she was not the same judge that accepted his plea, (3) he received ineffective assistance of counsel, and (4) prosecutorial misconduct. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
From the minutes of testimony the following facts emerge. On the evening of July 26, 2003 Kevin Howard entered a jewelry store at Valley West Mall. He asked about and was shown several rings, but he left without making a purchase. He returned later. He again made no purchase, but left with a credit application. Once more, Howard returned. At first he just waited around, and then he suddenly began pounding on a display case with a screwdriver until the glass broke. He grabbed jewelry and display boxes and fled.
A customer at the mall heard a call for help and chased Howard. In the parking lot Howard turned to the customer chasing him and allegedly said, "Let's get it on." A couple in the parking lot saw several people trying to stop Howard from getting into his car. After Howard drove away the couple followed him in their vehicle and saw Howard throw a jewelry box from his car.
Howard was eventually located by a police officer. Howard swerved around the police officer's vehicle and the officer then gave chase with sirens and lights. The chase went for about six to ten city blocks, during which Howard allegedly exceeded the speed limit by over twenty-five miles per hour. To end the chase three police vehicles boxed in Howard's vehicle. Howard was arrested. Officers reported Howard threw jewelry from his car during the chase. Two rings, each valued at near $8,000, were recovered immediately after Howard's arrest. The remainder of the jewelry was recovered later. Employees of the jewelry store would testify the retail value of the jewelry taken was in excess of $50,000.
Howard pled guilty to the offense of theft in the first degree, in violation of Iowa Code sections 714.1(1) and 714.2(1) (2003), and to eluding, in violation of Iowa Code 321.279(3) pursuant to North Carolina v. Alford, 400 U.S. 25, 32-38; 91 S. Ct. 160, 164-68; 27 L. Ed. 2d 162, 168-72 (1970). The district court sentenced Howard to a term of imprisonment not exceeding ten years for theft in the first degree and not exceeding five years for eluding. The court ordered that the sentences run consecutively.
An Alford plea allows a defendant to voluntarily and intelligently plead guilty even if he is unwilling or unable to admit his participation in the acts constituting the crime.
II. ANALYSIS.
A. Consecutive Sentences.
Howard first argues that the district court considered improper factors in ordering that he serve consecutive sentences. We may address challenges to the legality of a sentence for the first time on appeal. State v. Dann, 591 N.W.2d 635, 637 (Iowa 1999); see also State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). We review sentencing for correction of errors at law. Iowa R. App. P. 6.4; State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). Where a challenged sentence does not fall outside statutory limits, we review the trial court's decision for abuse of discretion; reversal on this ground is warranted only if the court's discretion has been exercised "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
Iowa essentially employs a two-prong approach for imposing consecutive sentences. First, imposition of consecutive sentences may be made where the offenses are separate and distinct.
[I]f accused . . . is convicted on several counts of an indictment, and each count is for a separate and distinct offense, a separate sentence may be pronounced on each count, and the court may pronounce separate and distinct sentences which are cumulative, and are to run consecutively. This is true, even though the several offenses were committed in the course of a single transaction."
State v. Criswell, 242 N.W.2d 259, 260 (Iowa 1976) (emphasis added).
Secondly, after determining that separate and distinct offenses are present, the district court must provide specific reasoning regarding why consecutive sentences are warranted in the particular case. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). The district court must "state on the record its reason for selecting the particular sentence." Iowa R. Crim. P. 2.23(3)( d). "Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action" of imposing consecutive sentences. Jacobs, 607 N.W.2d at 690. The reasons, however, are not required to be specifically tied to the imposition of consecutive sentences, but may be found from the particular reasons expressed for the overall sentencing plan. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989). Thus, we look to all parts of the record to find the supporting reasons. Id.
Certain factors are to be considered by the district court in exercising its sentencing discretion. In exercising its discretion, "the district court is to weigh all pertinent matters in determining a proper sentence, including the nature of the offense, the attending circumstances, the defendant's age, character, and propensities or chances for reform." State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995) (quoting State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994)).
In ordering consecutive sentences in this case the district court judge stated, "I'm also going to run these two sentences consecutively to each other. They are separate offenses, they're serious offenses, and I think that is the appropriate sentence in this case." The sentencing order entered by the district court stated, "The sentences are consecutive based on the separate and serious nature of the offenses." In the sentencing order, the district court also stated that it "considered the age of the defendant, as well as defendant's prior criminal record."
Howard asserts the district court improperly relied upon the "separate" nature of the offenses. However, as we set out above, under Criswell the first finding that a district court must make before imposing consecutive sentences is that the offenses are separate and distinct. It was not error for the district court to find the offenses were separate in ordering consecutive sentences.
In addition to finding that the offenses are separate, the district court must provide specific reasons for imposing consecutive sentences that are sufficient to allow appellate review of the discretionary action. Jacobs, 607 N.W.2d at 690. The district court has satisfied this requirement in the present case. As reasons for the sentence imposed, the district court cited the seriousness of the offenses, the age of the defendant, and the prior criminal record of the defendant. The district court's reasons for the sentence need not be detailed, a cursory explanation is sufficient. Id. Howard's challenge to the sentence imposed is rejected.
B. Ineffective Assistance.
Howard also claims ineffective assistance of counsel. We review claims of ineffective assistance of counsel de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). Generally, ineffective assistance of counsel claims are preserved for postconviction to allow the facts to be developed and to allow trial counsel an opportunity to defend the charge. State v. Mulder, 313 N.W.2d 885, 890 (Iowa 1981); State v. Nebinger, 412 N.W.2d 180, 191-92 (Iowa Ct.App. 1987); State v. Koenighain, 356 N.W.2d 237, 238 (Iowa Ct.App. 1984). We depart from this preference only if the record on direct appeal is sufficient to evaluate the merits of a defendant's ineffective assistance of counsel claim. Nebinger, 412 N.W.2d at 191-92.
To establish a claim of ineffective assistance of counsel, a criminal defendant carries the burden of showing by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) the defendant experienced prejudice as a result of counsel's performance. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
Following a defendant's guilty plea, we will only hear an ineffective assistance claim that "bears on the knowing and voluntary nature of the plea." State v. Speed, 616 N.W.2d 158, 159 (Iowa 2000); see also State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000). Where "the undercurrent of the ineffective assistance claim is an issue designed to question the validity of the conviction" the claim is waived by the plea agreement and conviction. Id. at 398. Challenges attacking the evidentiary basis for the conviction do not survive the entry of a guilty plea. Id.
First, Howard alleges ineffective assistance of counsel as to the eluding charge to which he made an Alford plea. By his Alford plea the defendant voluntarily and intelligently pled guilty even though he was unwilling or unable to admit his participation in the acts constituting the crime. Alford, 400 U.S. at 32-38, 91 S. Ct. at 164-68, L. Ed. 2d 168-72 (1970). In contesting the eluding charge now, Howard pertinently argues that his attorney should have made the following arguments: (1) there was no speeding charge, (2) he was a substantial distance from the scene of the theft, (3) he does not recall a chase, (4) that he did not see a uniformed officer attempting stop him, which he swerved around, and (5) he had completed the crime of theft by hiding the merchandise, so the felony eluding charge was inappropriate. Essentially, Howard contends his attorney was ineffective in failing to depose the officers involved in his arrest regarding these facts he now points out. He contends that had his attorney discovered the facts there would have been no basis for an eluding charge.
Howard's arguments do not challenge the knowing or voluntary nature of his plea. All of the facts Howard alleges here were known to him at the time he entered his Alford plea. Yet, Howard went forth with his Alford plea, stating that he believed it was in his best interests to proceed with the plea. By entering the plea Howard waived the arguments he now raises as to the eluding charge. Howard cannot raise these arguments now as part of an ineffective assistance claim.
Also, as part of his ineffective assistance of counsel claim, Howard argues that his attorney failed to gain an appropriate valuation of the rings stolen. Howard now claims the rings stolen should be valued according to their wholesale value, which he argues is less than $10,000. Employees of the jewelry store reported that the total value of the rings was in excess of $50,000. Howard argues his attorney was ineffective in not obtaining a valuation of the rings. This argument does have bearing on the knowing and voluntary nature of the plea. However, Howard's claim that the jewelry should be valued at wholesale is without merit. The Iowa Code defines value for the purposes of determining the grade of theft as the " highest possible value by any reasonable standard" including, but not limited to, "market value within the community, actual value, or replacement value." Iowa Code § 714.3 (emphasis added). It cannot be said that counsel failed in an essential duty by not raising the meritless argument that the jewelry should be valued at wholesale price.
C. Improper Judge for Sentencing.
Next, Howard claims that Judge Ovrom should not have sentenced him because a different judge accepted his plea. We may address challenges to the legality of a sentence for the first time on appeal. Dann, 591 N.W.2d at 637; see also Thomas, 520 N.W.2d at 313. We find no merit in appellant's claim that Judge Ovrom should have recused herself from sentencing because she was not the judge who accepted Howard's plea. The fact that the same judge was unavailable on the sentencing date did not affect Howard's rights.
[T]he court remains the same although the judges change. The court is impersonal, and if the outgoing judge was legally authorized to make the decision and file it, it was perfectly competent for the incoming judge to take up the case as [she] found it, and cause a formal decree to be entered in accord with the decision.
State v. Kulish, 260 Iowa 138, 144, 148 N.W.2d 428, 432-33 (1967); accord State v. Wrage, 279 N.W.2d 4, 6 (Iowa 1979).
D. Prosecutorial Misconduct.
Finally, Howard alleges prosecutorial misconduct. We determine that error was not preserved on this issue. Howard argues that the assistant county attorney violated Brady v. Maryland in failing to disclose that the stolen rings had been recovered and in what manner they had been recovered. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963). Howard did not file a motion to arrest judgment in accordance with Iowa Rule of Criminal Procedure 2.24(3). Any challenges to a guilty plea based on alleged defects in the plea proceedings must be raised in a motion to arrest judgment. Iowa R. Crim. P. 2.8(2)( d), 2.24(3)( a). Howard was personally informed of the necessity of filing such a motion at the time his plea was accepted. Failure to raise such challenges in a motion to arrest judgment precludes the right to assert them on appeal. Iowa R. Crim. P. 2.8(2)( d), 2.24(3)( a).
AFFIRMED.
Sackett, C.J. dissents in part.
I agree with the majority in all respects except I would preserve the ineffective assistance of counsel claim for postconviction relief.