STATE OF IOWA, Plaintiff-Appellee, vs. MARK RAYMOND SORTER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-853 / 07-0144
Filed December 28, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK RAYMOND SORTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carol L. Coppola
(trial) and Gregory Brandt (sentencing), Judges.
Defendant appeals his sentence and conviction for forgery as an habitual
offender. REVERSED AND REMANDED FOR ORDER OF DISMISSAL.
Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, John P. Sarcone, County Attorney, and James P. Ward, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., Vaitheswaran and Baker, JJ.
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SACKETT, C.J.
Defendant, Mark Raymond Sorter, was convicted of forgery as an habitual
offender in violation of Iowa Code sections 715A.2 and 902.8 (2005).
The
defendant appeals his conviction and sentence claiming, (1) there was
insufficient evidence to support the conviction, (2) he received ineffective
assistance of counsel, and (3) the court had no authority to impose a fine on the
defendant’s forgery conviction as an habitual offender.
We reverse the
conviction and remand for an order of dismissal.
BACKGROUND. In the middle of May 2006 someone stole several boxes
of checks from Barbara Ann Smith’s home in Des Moines. Smith reported the
theft to police and cancelled the checking account. On June 1, 2006, Connie
Dobberthein and the defendant went to New Impressions Spa and Salon in Des
Moines to receive haircuts. As they waited, they were each asked to complete
welcome forms. On the forms Connie identified herself as Barbara Ann Smith
and the defendant identified himself as Mark Smith. Connie used one of the
checks stolen from Barbara Ann Smith to pay for haircuts and styling products for
herself and the defendant. Connie signed the check as Barbara A. Smith. The
salon owner learned the check bounced and called the police. The stylists and
spa employees identified Connie as the person who wrote the check and the
defendant as the man with her in the salon.
After a jury trial, the defendant was convicted of forgery. Defendant’s
counsel moved for a directed verdict and judgment of acquittal based on
insufficient evidence and the court overruled these motions.
The defendant
stipulated to having two prior felony convictions and thus was sentenced as an
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habitual offender. The court sentenced the defendant to an indeterminate term
of imprisonment not to exceed fifteen years.
The court also imposed but
suspended a $750 fine.
STANDARD OF REVIEW. We review a court’s ruling on challenges to
sufficiency of the evidence, such as motions for judgment of acquittal, for
correction of errors at law. Iowa R. App. P. 6.4; State v. Hutchinson, 721 N.W.2d
776, 780 (Iowa 2006). Ineffective assistance of counsel claims are analyzed by a
de novo review. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
ERROR PRESERVATION.
The defendant first argues there was
insufficient evidence for the jury to convict him of forgery under the instructions
submitted to the jury. “To preserve error on a claim of insufficient evidence for
appellate review in a criminal case, the defendant must make a motion for
judgment of acquittal at trial that identifies the specific grounds raised on appeal.”
State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004). Even if a motion for
judgment of acquittal is filed, error is not preserved if the specific claim is not
included. Id. The defendant’s trial counsel moved for a directed verdict and filed
a motion for a new trial and a motion in arrest of judgment challenging the
sufficiency of the evidence.
However, defendant’s counsel did not state the
specific grounds of error that defendant claims here. Therefore, error was not
preserved.
Defendant claims that if error is not preserved on this claim, he
received ineffective assistance of counsel when counsel failed to object on this
specific ground. Errors due to ineffective counsel do not need to be preserved
for appeal. State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006).
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FORGERY.
Defendant contends he received ineffective assistance of
counsel when his attorney did not argue that there was insufficient evidence that
the defendant or Connie “altered a writing” to support a forgery conviction. There
are several means of committing forgery under the applicable statute. It states 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 perpetrated 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, or so that it purports to have
been executed at a time or place or in a numbered sequence other
than was in fact the case, or so that it purports to be a copy of an
original when no such original existed.
c.
Utters a writing which the person knows to be
forged in a manner specified in paragraph "a" or "b".
d.
Possesses a writing which the person knows to
be forged in a manner specified in paragraph "a" or "b".
Iowa Code § 715A.2(1) (emphasis added). The jury was not instructed on each
method of committing forgery. The forgery instruction the jury received stated
only that the State must prove all of the following elements to find the defendant
guilty:
1.
On or about the first day of June, 2006, the defendant or
someone he aided and abetted, uttered a check to the New
Impressions Spa and Salon.
2.
At the time, the defendant knew the check had been altered
without the permission of the owner, Barbara Smith.
3.
At the time, the defendant, or someone he aided and abetted
a.
Specifically intended to defraud Barbara Smith and/or New
Impressions Spa and Salon and/or
b.
Knew he or she was committing a fraud.
(Emphasis added). The defendant argues the evidence is insufficient to prove
the second element, that defendant knew the check had been altered without the
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permission of the owner. The defense claims that “altering” requires changing
the writing of another as opposed to just completing a blank check that belongs
to someone else.
The defendant argues that since there was no evidence
presented at trial showing that anyone altered an existing writing by Barbara Ann
Smith, the evidence was insufficient to support his conviction.
The defense cites State v. White, 563 N.W.2d 615 (Iowa 1997) for the
definition of “alter” in the forgery statute. In White, the defendant attempted to
cash a check made payable to himself and drawn from the account of another
that had been closed. White, 563 N.W.2d at 616. At the jury trial, the State
focused on prosecuting White on the theory he “uttered an altered check” and the
jury was instructed accordingly.
Id.
On appeal, the Iowa Supreme Court
explained that “in the context of forgery, an alteration occurs when an existing
document is changed or modified.” Id. at 617. The court clarified what the State
is required to show for a conviction of forgery by alteration:
Clearly, the legislature envisioned that a writing of another already
exists, which is then changed or altered by the defendant. The mere
fact a check has preprinted information on it does not make it “the
writing of another.” If it were otherwise, the fabrication of a document
on stationary containing someone else’s letterhead would be the
alteration of a writing. This interpretation of the statute is not
consistent with the common meaning of the words used in section
715A.2(1)(a).
Id. (emphasis in original).
The State urges White is not controlling because the record as a whole
shows the prosecution was not focused solely on the “alteration” means of
forgery. The problem with this argument is that the jury was not instructed on the
other methods of committing forgery in the statute. As instructed, the jury could
have only found the defendant guilty if there was an “alteration.” The White case
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makes explicit that there can be no alteration as a matter of law when someone
merely fills out a blank check. Id. at 617-18. The record shows no evidence that
Connie or the defendant altered the check. We are left to conclude the jury was
erroneously instructed on the law applicable to this case. However, we must
determine whether the defendant received ineffective assistance of counsel
when his attorney failed to challenge the conviction on the ground there was
insufficient evidence of alteration.
Ineffective assistance of counsel claims are generally not considered on
direct appeal so the attorney can respond to the claim. State v. Hopkins, 576
N.W.2d 374, 378 (Iowa 1994). However, “we do consider such claims when the
record is clear and plausible strategy and tactical considerations do not explain
counsel’s actions.” Id. Claims involving counsel’s failure to challenge sufficiency
of the evidence can often be addressed on direct appeal. See State v. Scalise,
660 N.W.2d 58, 62 (Iowa 2003). “To prove a claim of ineffective assistance of
counsel, [the defendant] must show by a preponderance of the evidence that his
trial counsel failed to perform an essential duty and prejudice resulted.”
Ondayog, 722 N.W.2d at 784.
Counsel breaches an essential duty if his representation falls below the
normal range of competency. Hopkins, 576 N.W.2d at 379. Normal competency
“includes being familiar with the current state of the law.” Id. at 379-80. In
Hopkins, the Supreme Court considered on direct appeal whether counsel
breached an essential duty by failing to object to an instruction that improperly
defined “operating” for purposes of an operating while intoxicated charge. Id. at
378-80. The court concluded that the record showed counsel did not know that
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the definition of “operating” under the applicable statute had been changed by
case law. Id. at 380. The court held counsel’s failure to object to the instruction
and preserve error was due to being unfamiliar with current law and was a
breach of an essential duty to his client. Id. Similarly, in this case, obviously
both the State and defense counsel were unaware of how the Supreme Court
has defined “alter” for purposes of forgery.
While the evidence may have
supported a conviction for forgery under Iowa Code section 715A.2(1)(b) for
making or executing a writing so that it purports to be the act of another who did
not authorize that act, the State chose to proceed under section 715A.2(1)(a) for
altering a writing of another.
The jury instruction mimicked one of the Iowa
uniform instructions on forgery, but did not conform to the evidence. As a result
of counsel’s lack of knowledge about how the definition of “alter” had been
changed by case law, the jury was instructed on an element that was not
supported by any evidence presented at trial. Since counsel did not challenge
the sufficiency of the evidence on this ground at any stage, he failed to perform
an essential duty.
The defendant also must prove prejudice by showing that there is “a
reasonable probability the outcome of the proceeding would have been different
had counsel not erred.” State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004).
“[A]n instruction submitting an issue unsubstantiated by evidence is generally
prejudicial.” Id. at 754-55 (Iowa 2004) (citing State v. Mays, 204 N.W.2d 862,
865 (Iowa 1973); State v. Smith, 129 Iowa 709, 717, 106 N.W. 187, 190 (1906)).
Material misstatements of the law in jury instructions also constitutes prejudicial
error. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v.
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Shell Oil Co., 606 N.W.2d 376, 379 (Iowa 2000). We find prejudice occurred due
to counsel’s error.
The instruction required the jury to find an “alteration”
occurred in order to convict the defendant of forgery. There was no evidence
presented to support such a finding and yet the defendant was convicted. Had
counsel objected to the sufficiency of the evidence based on the State’s lack of
evidence that any “alteration” occurred, the instructions would have been
properly revised prior to trial or the court would have granted the motion for
judgment of acquittal. Defendant was prejudiced by counsel’s failure and we
reverse his conviction and remand for an order of dismissal.
REVERSED AND REMANDED FOR ORDER OF DISMISSAL.
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