Opinion
No. 3-048 / 02-0903
Filed March 26, 2003
Appeal from the Iowa District Court for Pottawattamie County, Keith E. Burgett and James S. Heckerman, Judges.
Greta Nyamari, a.k.a. Greta Martin (hereinafter Nyamari), appeals from the judgment and sentence entered following her guilty pleas to forgery, in violation of Iowa Code sections 715A.2(1)(c) and 715A.2(2)(a)(3) (2001) and theft in the third degree in violation of Iowa Code sections 714.1(1) and 714.2(3). FORGERY SENTENCE VACATED; THEFT CONVICTION REVERSED; REMANDED FOR FURTHER PROCEEDINGS.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Richard Crowl, County Attorney, and Dan McGinn and Chris Wilson, Assistant County Attorneys, for appellee.
Heard by Huitink, P.J., and Miller and Eisenhauer, JJ.
Greta Nyamari, a.k.a. Greta Martin (hereinafter Nyamari), appeals from the judgment and sentence entered following her guilty pleas to forgery, in violation of Iowa Code sections 715A.2(1)(c) and 715A.2(2)(a)(3) (2001) and theft in the third degree in violation of Iowa Code sections 714.1(1) and 714.2(3). She contends her attorney provided ineffective assistance of counsel by allowing her to plead guilty where the record failed to establish a factual basis for the offenses. We vacate the forgery conviction, reverse the theft conviction, and remand for further proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
On January 23, 2002 Nyamari was charged by trial information with four counts of forgery and one count of theft in the third degree for acts occurring on October 14, 21 and November 11 of 2001. According to the minutes of testimony the defendant wrote checks to Wal-Mart on each of these dates and received merchandise in exchange for the checks. On October 14 and 21, 2001 she wrote three different checks to Wal-Mart under the name of Greta Martin. The checks were on two different bank account numbers from Bankers Federal Credit Union. For all three of these checks she provided a Nebraska driver's license #H12874767 as identification. On November 11, 2001 defendant wrote another check to Wal-Mart under the name of Greta Nyamari from a third bank account number at Bankers Federal Credit Union. She provided a different Nebraska driver's license, #H12894709, as identification for this check.
Although not explicitly stated in the record, we presume this license was issued in the name of Greta Nyamari and the other in the name of Greta Martin.
Detective Dawson of the Council Bluffs' Police Department ran both the Nebraska driver's license numbers used by Nyamari. He found license #H12874767 was a valid license and the other was not. He also ran Nyamari's criminal history and found she also had a criminal record under the name Greta Martin, and had used that name as well as numerous others as aliases in the past. Dawson spoke with the vice president of Bankers Federal Credit Union and she informed him that none of the accounts Nyamari wrote the checks on were valid with that institution.
It appears the valid license was the one issued in the name of Greta Martin.
Pursuant to a plea agreement Nyamari plead guilty to one count of forgery, in violation of sections 715A.2(1)(c) (2001) and 715A.2(2)(a)(3) and one count of third degree theft, in violation of sections 714.1(1) and 714.2(3). The other three counts of forgery were dismissed. The court sentenced Nyamari to a term of incarceration not to exceed five years on the forgery count and a term not to exceed two years on the theft count. The sentences were ordered to be served concurrently.
The forgery count to which Nyamari plead guilty (Count I) was based on the October 14 check which was signed Greta Martin.
II. MERITS
Nyamari challenges her convictions and sentences contending the record does not establish a factual basis for her guilty pleas. Nyamari's failure to timely file a motion in arrest of judgment after entry of her guilty pleas bars a direct appeal of her conviction. Iowa R.Crim.P. 2.24(3)( a). She may however, and does on this appeal, challenge the guilty plea through an ineffective assistance of counsel claim. State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999). When a defendant claims trial counsel was ineffective for permitting a guilty plea to a charge not supported by a factual basis our review is de novo. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142-45 (Iowa 2001). While we often preserve ineffective assistance claims for a possible postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Neither party suggests we preserve Nyamari's ineffective assistance claim for a postconviction proceeding and we find the record adequate to address the claim on direct appeal.
It is axiomatic that a trial court may not accept a guilty plea without first determining that the plea has a factual basis, and that factual basis must be disclosed by the record. Keene, 630 N.W.2d at 581. "Where a factual basis for a charge does not exist, and trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an essential duty." State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (citing State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996)); see also Keene, 630 N.W.2d at 581 ("If a defendant enters a plea of guilty to a crime and the record fails to disclose a factual basis, defense counsel fails to provide effective assistance."). Prejudice is inherent under such circumstances. Keene, 630 N.W.2d at 581; Schminkey, 597 N.W.2d at 788. Accordingly, if a factual basis existed, counsel was not ineffective for allowing Nyamari to plead guilty and failing to file a motion in arrest of judgment; if a factual basis does not exist, counsel was ineffective. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).
Our first and only inquiry here is whether a factual basis existed in the record to support Nyamari's guilty pleas to forgery and third-degree theft under the specific sections charged. Schminkey, 597 N.W.2d at 788. We determine whether a factual basis exists by considering the entire record before the district court at the guilty plea hearing, including any statements made by the defendant, facts related by the prosecutor, and the minutes of testimony. Id. Nyamari argues there is no factual basis for either of the offenses to which she pled guilty. We will address each charge separately.
A. Forgery
Iowa Code section 715A.2 provides in relevant part:
1. A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetuated by anyone, the person does any of the following:
a. Alters a writing of another without the other's permission.
b. Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act . . .
c. Utters a writing which the person knows to be forged in a manner specified in paragraph " a" or " b".
. . .
2. a. Forgery is a class "D" felony if the writing is or purports to be any of the following:
. . .
(3) A check, draft, or other writing which ostensibly evidences an obligation of the person who has purportedly executed it or authorized its execution.
Iowa Code § 715A.2(1), (2)(a)(3) (2001).
Nyamari contends her actions do not constitute forgery under this Code provision because nothing she did with respect to the check in question was done "so that it purports to be the act of another who did not authorize that act." She contends the record demonstrates her maiden or birth name is Greta Martin and thus she was merely signing her own name on the check in question.
At the plea proceeding the court asked the defendant her name and she stated it was Greta Nyamari. The court then asked, "Were these checks yours or were they somebody else's or what was it?" Nyamari answered, "They were checks that were made up so they had my name on it but it was a bogus account." In answering a further question by the court as to what she had done, Nyamari stated, "No, they were in my name," presumably referring to the checks. These statements make it unclear what the defendant's true and legal name was at the time she wrote the check in question and thus whether she signed the check in her own name or someone else's. Accordingly, it is also unclear whether her actions in fact constituted forgery under section 715A.2(1)(c). See State v. Phillips, 569 N.W.2d 816, 819 (Iowa 1997) (holding that Iowa's forgery provisions, adopted from the Model Penal Code, "were not intended to avoid the long-recognized rule that the writing of a check signed in the defendant-drawee's own name and drawn on a bank where the defendant had no account is not considered forgery."); State v. Schoelerman, 315 N.W.2d 67, 74 (Iowa 1982) ("[T]he writing of a check signed in the defendant-maker's own name, but drawing on a bank where the defendant has no account, is not considered forgery.").
In our search of the record for other facts or circumstances that might reveal or clarify whether the defendant signed the check in her own or someone else's name, we find the remainder of the relevant record before the court at the plea proceeding to be equally unclear. The minutes of evidence seem to indicate the driver's license issued in Greta Martin's name was "valid" while the one in the name of Greta Nyamari was not. In addition, the criminal record obtained by Detective Dawson, and apparently before the court at the time of the plea, indicated the defendant had a prior criminal record under the name of Greta Martin, but had also used several aliases in the past. However, nothing in the record indicates with any certainty what the defendant's legal name was as of the time of the incident leading to the forgery charge, or whether she in fact signed the check in her own name rather than a former name or alias.
Accordingly, under the facts and circumstances before us, we cannot determine the record establishes a factual basis for the forgery charge and subsequent guilty plea to that charge. "Where . . . it is possible that a factual basis could be shown, it is more appropriate merely to vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis." Schminkey, 597 N.W.2d at 792; see also State v. Burtlow, 299 N.W.2d 665, 670 (Iowa 1980) (holding that unless the record excludes the possibility of conviction on the charge to which the defendant plead we should merely vacate the judgment and remand to permit the State to attempt to make the necessary showing). We believe this is such a case. There may be additional facts and circumstances that do not appear in the minutes of evidence that would clearly establish the defendant's legal name when she issued the check in question was Greta Nyamari. See Schminkey, 597 N.W.2d at 792. Therefore, we vacate the sentence entered on the forgery charge and remand for further proceedings at which time the State may supplement the record to establish a factual basis for the crime of forgery under section 715A.2(1)(c). If a factual basis is not shown, the defendant's guilty plea must be set aside. See id.
We again note that the only forgery count to which the defendant pled guilty was based on her issuing a check in the name of Greta Martin. The count based on the check issued in the name of Greta Nyamari was dismissed pursuant to the plea agreement.
B. Theft
Nyamari's third-degree theft charge, plea and sentence were pursuant to Iowa Code section 714.1(1), or theft by "taking." Under this Code provision a person commits theft when the 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(1). Nyamari argues, and the State concedes, there is no factual basis in the record for a "taking" theory of theft as charged. However, the State asserts there is a factual basis for theft by check under section 714.1(6). This section provides that a person commits theft when they draw a check on any bank and obtain property in exchange for the check, knowing the check will not be paid when presented. Iowa Code § 714.1(6). Nyamari agrees in her brief that her actions may constitute theft in violation of section 714.1(6).
We conclude there is no factual basis in the record for the theft charge under section 714.1(1). As a result, Nyamari was allowed to plead guilty to a charge for which there existed no factual basis. However, the record does appear to support a theft charge under section 714.1(6). Thus, if indeed guilty of theft, Nyamari has been charged with the wrong offense. See State v. Galbreath, 525 N.W.2d 424, 427 (Iowa 1994); see also State v. Burgess, 639 N.W.2d 564, 570 (Iowa 2001) (holding theft by misappropriation under section 714.1(2) and theft by deception under section 714.1(3) are not the same offense).
Where a guilty plea has no factual basis in the record, and the record indicates the defendant was charged with the wrong crime, the judgment of conviction and sentence based on that plea must be vacated and the case remanded for dismissal of the charge. Schminkey, 597 N.W.2d at 792; State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996); Galbreath, 525 N.W.2d at 427; Schoelerman, 315 N.W.2d at 75. Accordingly, we reverse the conviction for theft and remand for dismissal of that charge, without prejudice to the State's right to re-indict Nyamari under a Code section supportable by the available evidence. See Galbreath, 525 N.W.2d at 427.
III. DISPOSITION
For all of the reasons set forth above, we conclude it cannot be determined based on the record before us whether a factual basis existed for a charge of forgery under section 715A.2(1)(c) or Nyamari's guilty plea to that charge. Therefore, we vacate the sentence entered by the district court on the forgery charge and remand for further proceedings at which time the State may supplement the record to establish a proper factual basis for this charge. If a factual basis cannot be shown by the State on remand, the defendant's guilty plea on the forgery charge must be set aside. See Schminkey, 597 N.W.2d at 792.
We further conclude no factual basis exists in the record on the charge of theft by "taking" under section 714.1(1) and as a result Nyamari was allowed to plead guilty to a charge for which there existed no factual basis. Accordingly, we reverse the conviction for theft and remand for dismissal of that charge without prejudice to the State's right to re-indict Nyamari under a Code section supportable by the available evidence. See Galbreath, 525 N.W.2d at 427.