Opinion
No. 04-0657.
March 16, 2005.
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire (plea proceeding) and C.H. Pelton (sentencing), Judges.
A defendant appeals following judgment and sentence for criminal mischief in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Donald Frank, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Brenton Miller appeals following his guilty plea to and judgment and sentence for criminal mischief in the second degree. We affirm.
I. Background Facts and Proceedings.
In December 2003 the State filed a trial information which alleged that Miller and his friend, Nicolass Moulton, committed criminal acts on November 11, 2003. The information alleged the two men committed criminal mischief in the second degree by damaging, defacing, altering, or destroying property valued in excess of $1,000 but not exceeding $10,000, in violation of Iowa Code sections 716.1 and 716.4 (2003). The information also alleged that Miller and Moulton committed the offense of assault while displaying a dangerous weapon, in violation of Iowa Code section 708.2(3).
The minutes of testimony filed with the trial information reveal the following facts. On November 11, 2003, two individuals — Dorothy Fullmer and Stephanie Murray — were traveling eastbound on Interstate 80 when, at approximately mile marker 303, their vehicles were struck by paintballs. Both vehicles had visible paintball marks. When officers investigated they discovered a disabled vehicle at mile marker 303, owned by Sean Bambic. The vehicle had been hit by multiple paintballs, the tires had been slashed, two windows had been broken, the stereo had been removed, and the interior of the car appeared to have been ransacked.
One of the investigating officers observed two men lying in the grass near the disabled vehicle. The men fled when an officer activated the emergency lights on his patrol car. The police arrested Moulton near the scene of the crime, but the second person escaped. Police officers recovered two paintball guns during a search of the area. An examination of the Tippmann 98 paintball gun, used by Moulton, revealed visible paint damage to a cylinder attached to the butt end of the gun. Trace evidence recovered from the cylinder contained glass or plastic particles. The other gun, a HEAT gun, had minor paint damage to the bottom of its cylinder.
Moulton admitted he and another individual had gone to a location near the interstate with the intention of shooting vehicles with their paintball guns, and that "they" were responsible for the damage to the Bambic vehicle. Moulton refused to identify his accomplice; however, the next day Moulton's attorney informed the police that Miller was Moulton's accomplice, and had assisted with smashing the windows and slashing the tires of the disabled vehicle.
When interviewed by police Miller admitted he and Moulton shot paintballs at about fifty cars which were traveling along Interstate 80, and that he had used the HEAT gun. Miller stated that, after he and Moulton ran out of paintballs, Moulton slashed the tires of the Bambic vehicle, and broke "the rear passenger side window with the tank of the air gun." Miller denied involvement in the damage to the Bambic vehicle, but admitted that after the vehicle had been vandalized he leaned into the vehicle to see what was inside.
Miller was not sure how many vehicles had actually been hit.
Miller entered a guilty plea to criminal mischief in the second degree pursuant to a plea agreement. At the plea proceeding Miller stated:
Under the terms of the agreement the State agreed to recommend a suspended sentence and to dismiss the charge of assault while displaying a dangerous weapon. The State also agreed that it would not resist Miller's request for a deferred judgment.
Me and my buddy had just got brand new paint ball guns. . . . Me and him went by the interstate, and he shot a few cars and stuff, so we both did it. We both shot a few cars, and he kind of took it to an extreme, and there was a car on the highway there, and he busted out windows and slashed tires and stuff. I had no part in that. But I shot a few cars, so I'm guilty of that. And I was with him when he broke the windows on that car.
The court asked Miller if the cost of repairing or replacing the damaged property was over $1,000 but less than $10,000. Miller answered, "Yeah. Yes, sir." The court accepted Miller's plea, concluding there was factual basis in the record.
At the sentencing hearing the court declined to grant a deferred sentence, instead imposing and suspending a five-year indeterminate sentence. Miller was further ordered to pay a fine and make restitution to Sean Bambic, the only one of the three victims to seek restitution. The amount of restitution, $900, was the amount Bambic certified in his victim registration statement of pecuniary damages. When providing reasons for the sentence imposed the court stated, in relevant part, "Moreover, he's also tied in, I think, to the damage to the other motor vehicle along with another, which is senseless criminal mischief. . . ." Miller appeals. He contends trial counsel was ineffective for allowing him to enter to guilty plea to a charge for which there was no factual basis. He further contends that in imposing sentence the district court improperly considered his alleged involvement in the damage to the Bambic vehicle.
II. Scope of Review.
Miller's ineffective assistance of counsel claim is reviewed de novo. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). We review the challenge to Miller's sentence for the correction of errors at law. Iowa R. App. P. 6.4.
III. Discussion.
Miller contends that counsel was ineffective for allowing him to enter a guilty plea to criminal mischief in the second degree because the record does not establish that the cost to repair the damaged property exceeded $1,000. See Iowa Code § 716.4 (providing that criminal mischief in the second degree occurs when the cost to repair, replace, or restore the damaged property exceeds $1,000 but does not exceed $10,000). He contends the record does not establish his involvement in the damage to the Bambic vehicle, and that there is no evidence of the cost to repair any damage to the Murray or Fullmer vehicles.
To establish his claim of ineffective assistance of counsel, Miller must prove that the record did not contain a factual basis for his plea. See Schminkey, 597 N.W.2d at 788; see also Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In assessing whether there was a factual basis for the plea we look to the entire record before the court at the plea proceedings, including the minutes of testimony and any statements made by the defendant. Id. When we do so, we conclude the record does contain a factual basis for a guilty plea to criminal mischief in the second degree.
The presentence investigation report (PSI) was not prepared until after the plea proceedings. We do not consider any information that was not available to the court at the time it accepted the plea. See State v. Fluhr, 287 N.W.2d 857, 868 (Iowa 1980) (overruled on other grounds by State v. Kirchoff, 452 N.W.2d 801, 805 (Iowa 1990)).
A factual basis exists when the record, as whole, discloses facts to satisfy the elements of the crime. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). The court is not required to extract a confession from Miller, or even believe he is guilty. Id. The court need only be satisfied that the facts support the crime. Id.
Despite Miller's denial that he damaged the Bambic vehicle, the record contained facts indicating his direct involvement, including Moulton's implication of Miller in the vandalism, and the damage to the HEAT paint ball gun, which Miller admitted using. In addition, Miller admitted his willing participation in a criminal scheme to damage vehicles by shooting them with paintballs, and the record indicates the Bambic vehicle was damaged by multiple paintballs before the tires were slashed and the windows broken. Given evidence of Miller's involvement in the overall criminal enterprise, the record contained facts to support a finding that Miller shared responsibility for damaging the Bambic vehicle.
The record also contained facts to support a finding that the damage to all three vehicles exceeded $1,000. The minutes of testimony asserted several witnesses would testify that the combined damage to the vehicles at issue exceeded $1,000. Miller confirmed the damage exceeded $1,000 during the plea proceedings. Both the assertion in the minutes and Miller's statement are properly considered in assessing the existence of a factual basis. Schminkey, 597 N.W.2d at 788. The extensive damage to the Bambic vehicle described in the minutes lends additional support to the damage amount. Id.
Miller seeks to detract from these facts by pointing out that only Bambic filed a statement of pecuniary damages, and that Bambic only alleged damages in the amount of $900. Assuming we can rely on the victim registration filings in this matter, we note that Fullmer's victim impact statement indicated her vehicle had suffered paint chip damage. The damage is not de minimis merely because Fullmer did not attach a monetary value. Moreover, Bambic's certification of damages is not viewed in isolation, but in light of the totality of the record.
There is no evidence that the court or Miller was aware of the victim registrations and appended statements at the time of the plea proceeding. The documents appear in the file as attachments to the PSI and, as we have already observed, the PSI was not available to the court at the time it accepted Miller's plea. We note, however, that each registration was filed with the clerk of court prior to the plea hearing. We also note that the PSI makes reference to police reports indicating Fullmer's vehicle suffered damage of approximately $200 and Bambic's vehicle suffered damage of approximately $1,400.
When we view the entirety of the record before the district court during the plea proceedings, it establishes a factual basis for Miller's guilty plea to criminal mischief in the second degree. We therefore turn to Miller's assertion that the district court improperly considered his involvement in the damage to the Bambic vehicle when imposing sentence.
Miller correctly points out that a sentencing court may not rely on an offense that was neither admitted by a defendant nor otherwise proven. See State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). However, Miller's argument presupposes that his involvement in damaging the Bambic vehicle was neither shown by the record nor constituted part of the factual basis for his plea. We have already determined the record contains facts which support a finding that Miller and Moulton were responsible for the damage to the Bambic vehicle, and that the damage to the Bambic vehicle properly constituted part of the factual basis for Miller's plea. Accordingly, we find no error in the district court's consideration of the damage to the Bambic vehicle when imposing sentence. See id. AFFIRMED.