STATE OF IOWA, Plaintiff-Appellee, vs. KELLY TYRONE MARTIN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-798 / 09-0057
Filed November 12, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KELLY TYRONE MARTIN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,
Judge.
A defendant appeals from his conviction of first-degree theft. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Trout, Assistant Attorney
General, John P. Sarcone, County Attorney, and Justin Allen, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., Doyle and Mansfield, JJ.
2
VOGEL, P.J.
Kelly Martin appeals his conviction for first-degree theft in violation of Iowa
Code sections 714.1 and 714.2(1) (2007).
On appeal, Martin argues that a
factual basis does not support his Alford plea because the record does not
establish that he had an intent to permanently deprive the owner of her property.
Additionally, if he failed to preserve this claim for appellate review, he raises it in
an ineffective-assistance-of-counsel context.
We find that a factual basis
supported his plea and therefore, his claims must fail. We affirm his conviction.
I. Background Facts and Proceedings.
According to the minutes of testimony, a woman reported that her 2005
Ford Escape was missing from her driveway on September 25, 2008.
The
vehicle had been parked in the woman’s driveway with another vehicle parked
behind it. The vehicle had been driven over landscaping in the yard to move it
out of the driveway. On September 26, 2008, an officer observed the vehicle in a
parking lot. The officer pulled into the lot to verify it was the stolen vehicle when
Martin walked out of a building and entered the driver’s side of the vehicle. The
officer drew his gun and ordered Martin to exit the vehicle, but Martin refused and
fled in the vehicle.
Martin led several officers on a high-speed chase, with
vehicle speeds in excess of seventy miles per hour.
control of the vehicle and crashed.
Eventually Martin lost
Martin fled the vehicle on foot, but was
pursued by the officers and soon apprehended.
On October 24, 2008, the State charged Martin with first-degree theft in
violation of Iowa Code sections 714.1 and 714.2(1) and eluding a law
enforcement vehicle in violation of Iowa Code section 321.279. The State and
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Martin reached an agreement whereby the State would not pursue a habitual
offender enhancement for either charge, and Martin would enter an Alford1 plea
to the first-degree theft charge and a guilty plea to the eluding charge. See Iowa
R. Crim. P. 2.8(2) (allowing the district court to accept a guilty plea). At the plea
hearing on December 11, 2008, the district court determined that a factual basis
for the pleas appeared in the record, including “each and every element of the
crime of Theft in the First Degree,” and then accepted Martin’s pleas.
Martin appeals. He challenges only his first-degree theft conviction and
argues that the district court erred in accepting his plea because a factual basis
does not support his plea. Further, if he failed to preserve this claim for appellate
review, he raises it in an ineffective-assistance-of-counsel context asserting that
his counsel was ineffective for failing to advise him of the lack of a factual basis.
The State argues that Martin did not preserve his claim for direct appeal because
he failed to file a motion in arrest of judgment. In addition, the State asserts
there is a factual basis to support Martin’s plea and thus, Martin’s counsel was
not ineffective for failing to raise a meritless claim.
II. Standard of Review.
We review a lack-of-a-factual-basis challenge to a guilty plea for errors of
law. State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004). However, we review this
claim raised in an ineffective-assistance-of-counsel context de novo. Id.
1
See North Carolina v. Alford, 400 U.S. 25, 32-38, 91 S. Ct. 160, 164-68, 27 L. Ed. 2d
162, 168-72 (1970) (holding that an accused may consent to the imposition of a
sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime).
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III. Analysis.
According to Iowa Rules of Criminal Procedure 2.8(2)(d) and 2.24(3), a
defendant who pleads guilty must raise any challenges to the guilty plea
proceedings by a motion in arrest of judgment. If a defendant does not file a
motion in arrest of judgment, the defendant is precluded from asserting such
challenges on appeal. Iowa R. Crim. P. 2.8(2)(d), 2.24(3). In the present case,
the district court advised Martin of his right to challenge his guilty plea
proceedings by filing a motion in arrest of judgment and that unless he filed such
a motion, Martin could not challenge the guilty plea proceedings in the district
court or on appeal. Further, the district court informed Martin that by requesting
immediate sentencing, Martin was giving up his ability to file a motion in arrest of
judgment. Thus, it would appear that Martin has waived any claim the record
lacked a factual basis. See State v. Miller, 590 N.W.2d 724, 726 (Iowa 1999)
(stating the defendant’s failure to file a motion in arrest of judgment precluded her
from attacking her guilty plea directly and declining “to abrogate this longstanding error preservation rule”).
However, our supreme court has stated,
When a defendant’s counsel does not challenge the entry of a
guilty plea to an offense for which no factual basis is shown and a
strong possibility exists that there was no factual basis, we have
consistently held that this court 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); Miller, 590 N.W.2d at 726; State v. Allison, 576
N.W.2d 371, 374 (Iowa 1998); State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996);
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State v. Galbreath, 525 N.W.2d 424, 427 (Iowa 1994)). In all of the cases cited
in Royer except Galbreath, our supreme court examined a lack-of-a-factual-basis
challenge, where the defendant did not preserve the claim by filing a motion in
arrest of judgment, in an ineffective-assistance-of-counsel context. Schminkey,
597 N.W.2d at 788; Miller, 590 N.W.2d at 725; Allison, 576 N.W.2d at 373-74;
Hack, 545 N.W.2d at 262-63. In Galbreath, the defendant did preserve his claim
by filing a motion in arrest of judgment.
Galbreath, 525 N.W.2d at 425.
Ultimately, the analysis does not differ. In an ineffective-assistance-of-counsel
context, the first inquiry is whether a factual basis existed; if it did not, counsel is
deemed ineffective. Schminkey, 597 N.W.2d at 788. Upon determining a factual
basis does not exist, our supreme court has applied the same remedy regardless
of the context in which the claim was made.2 Royer, 632 N.W.2d at 910. We
conclude that we need not determine whether Martin preserved his claim for
appellate review or whether his claim should be treated as ineffective-assistanceof-counsel because the ultimate analysis is the same.
In either case, we
consider whether a factual basis is shown in the record.
We find Martin’s plea was supported by a factual basis and therefore, his
claims must fail. “The district court may not accept a guilty plea without first
determining that the plea has a factual basis.
2
This requirement exists even
Our supreme court explained the remedies:
When a guilty plea has no factual basis in the record, two possible
remedies exist. When the record establishes that the defendant was
charged with the wrong crime, we have vacated a judgment of conviction
and sentence and remanded for dismissal of the charge. If, however, it is
possible that a factual basis could be shown, it is more appropriate to
vacate the sentence and remand for further proceedings in which the
State might have an opportunity to establish a factual basis.
Royer, 632 N.W.2d at 910-11.
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where the plea is an Alford plea.” Schminkey, 597 N.W.2d at 788. A person
commits first-degree theft when he “takes 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).
An essential element of theft under
section 714.1(1) is an intent to permanently deprive the owner of her property.
Schminkey, 597 N.W.2d at 788-89 (distinguishing the crime of theft under Iowa
Code section 714.1(1) from the lesser included offense of operating a vehicle
without an owner’s consent under Iowa Code section 714.7).
Because proof that the defendant acted with the specific purpose of
depriving the owner of his property requires a determination of what
the defendant was thinking when an act was done, it is seldom
capable of being established with direct evidence. Therefore, the
facts and circumstances surrounding the act, as well as any
reasonable inferences to be drawn from those facts and
circumstances, may be relied upon to ascertain the defendant’s
intent.
Id. at 789.
Martin specifically argues that the minutes of testimony did not provide a
factual basis for this element because the “facts in the instant matter include a
relatively short period of time of deprivation of the vehicle, and defendant’s
attempt to escape law enforcement.” Although Martin argues that it was only a
short amount of time that he kept the vehicle, it was not simply the length of time
he possessed the vehicle that demonstrated his intent, but also his actions once
discovered. Cf. id. at 792 (finding no intent to permanently deprive where the
defendant took a vehicle and minutes later crashed the vehicle and stating “we
do not have the typical inferences that can be drawn from a defendant’s actions
subsequent to the taking”).
Hours after Martin took the vehicle, the officers
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discovered the vehicle and ordered Martin out of it at gunpoint, but Martin
refused to turn over the vehicle. He then led the officers on a high speed chase
and only after crashing the vehicle, did Martin exit the vehicle and flee on foot.
Cf. State v. Morris, 677 N.W.2d 787, 788 (Iowa 2004) (finding no intent to
permanently deprive where immediately after an officer began to pursue the
vehicle, the defendant stopped and abandoned the vehicle, and fled on foot).
When the officer, at gunpoint, ordered Martin out of the vehicle, Martin’s actions
of speeding away from the scene demonstrate he had no intent to relinquish the
vehicle to the officer, and hence to the rightful owner. Instead, Martin’s actions
and the surrounding circumstances establish the intent to permanently deprive
the owner of her property. We agree with the district court that the minutes of
testimony, which Martin acknowledged as the basis for his Alford plea, are
sufficient to establish a factual basis for the element of an intent to permanently
deprive for first-degree theft. Therefore, we affirm his conviction.
AFFIRMED.
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