STATE OF IOWA, Plaintiff-Appellee, vs. RICARDO ORTIZ, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-983 / 09-0895
Filed December 30, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RICARDO ORTIZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary,
Judge.
Ricardo Ortiz appeals his conviction and sentence entered on a plea of
guilty to first-degree robbery. SENTENCE VACATED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney
General, Darin J. Raymond, County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
2
MANSFIELD, J.
Ricardo Ortiz appeals the conviction and sentence entered upon his plea
of guilty to first-degree robbery in violation of Iowa Code sections 711.1 and
711.2 (2009). He claims that his counsel was ineffective because his plea lacked
a sufficient factual basis. We agree and therefore vacate the sentence and
remand for further proceedings.
I. Factual and Procedural Background.
According to the minutes of evidence, K.S. was in her home at around
9:30 p.m. on January 18, 2009, when three individuals barged into the house
through the door between the garage and the house.
All were wearing ski
masks. The first intruder was wielding a box cutter type knife that contained a
razor blade. K.S. was extremely frightened and started yelling. F.T., a male who
also lived in the home, was in the master bedroom at the time. K.S. tried to push
the door of the bedroom closed while the first intruder got in between the door
and the room and kept pushing the door open.
F.T. made an emergency call, and two deputies quickly arrived on the
scene. The intruders had left by then, but the deputies were able to pursue their
car until it got stuck in the snow.
Two persons, Ivan Flores and Armando
Valentin, were apprehended in the car. Three other individuals, Ortiz, Michael
Carson, and David Zamora, were caught after they fled into the snow. Ortiz‟s
footprints matched one of the three sets of footprints found at K.S. and F.T.‟s
home. Carson‟s and Flores‟s footprints matched the other two.
3
Under questioning, Ortiz admitted he was one of the persons who entered
the house “to see what they could get.” Ortiz admitted wearing a black stocking
cap and a red bandanna.
Zamora was also questioned. He stated that Ortiz, Carson, and Flores
had entered the house while Zamora and Valentin waited in the car. According
to Zamora, Ortiz, Carson, and Flores all belonged to the “Latin Kings” gang of
Sioux City. Zamora stated that he was at a friend‟s house when Ortiz, Carson,
and Flores were in a backroom planning a job.
According to Zamora, Ortiz, Carson, and Flores carried black trash bags
into the house with them for placing stolen items. While the group was trying to
get away in the car, Carson threw something out. One of the sheriff‟s deputies
later found a fixed blade five-inch knife with a black rubber handle and a silver
metal hatchet with a black rubber handle in the same ditch along the road where
the car ultimately got stuck. Black ski masks and black trash bags were also
recovered.
Subsequently, K.S. examined photographs of Carson and stated that he
appeared to be the same person who brandished the box cutter knife in her
residence.
Ortiz, who had just turned seventeen when these acts were committed,
was initially charged with robbery in the first degree, burglary in the first degree,
conspiracy to commit robbery, and conspiracy to commit burglary in the first
degree. On April 3, 2009, Ortiz pled guilty to the robbery charge only. See Iowa
Code §§ 711.1 & 711.2. Ortiz was sentenced to an indeterminate term of twentyfive years in prison with a mandatory minimum of seventy percent.
See id.
4
§ 902.12. Ortiz subsequently filed a notice of appeal, claiming a factual basis for
his plea was not established.
The record shows that, during the guilty plea colloquy, the district court
initially explained the elements of robbery to Ortiz, and Ortiz acknowledged he
understood them. The district court characterized them as the elements of first
degree robbery, but they were actually only the elements of second degree
robbery.
Thus, Ortiz specifically admitted on the record that on January 18,
2009, he “purposely put someone in fear of a serious injury” and “had the intent
to commit a theft.” The district court then asked the prosecutor if he was satisfied
with the factual basis, and the prosecutor responded that there was an additional
element for first degree robbery that the defendant “purposely inflict serious injury
or attempt to inflict serious injury or is armed with a dangerous weapon.” See
Iowa Code § 711.2 (setting forth these alternatives).
The court then addressed defense counsel:
Mr. Sloan, I don‟t know which one you might be prepared to talk about
with regard to that, but would you want to visit with your client as to which
element there is established, if you believe one has been established.
After Ortiz and his defense counsel consulted briefly off the record, the following
dialogue occurred:
THE COURT: All right. Uh, I think my last question, Mr.
Sloan, was are you prepared to address which one of those options
under 711.2 might apply to this particular case?
MR. SLOAN: I—I believe it is armed with a dangerous
weapon, Your Honor.
THE COURT: All right. Uh, Mr. Ortiz, do you agree that
either you or someone with whom you were, uh, participating in this
robbery with was armed with a dangerous weapon?
DEFENDANT: Yes.
5
THE COURT: All right. Have, uh, you, uh, visited with Mr.
Sloan about what‟s involved and what the definition of a dangerous
weapon is?
DEFENDANT: Yes.
The court thereupon accepted the plea. Ortiz now argues that his counsel was
ineffective for failing to file a motion in arrest of judgment because there was no
factual basis for the accusation that anyone participating in the offense was
armed with a dangerous weapon.1
II. Analysis.
To prevail on an ineffective assistance of counsel claim, a defendant must
prove by a preponderance of evidence that (1) counsel failed to perform an
essential duty and (2) prejudice resulted therefrom. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An
attorney breaches an essential duty if the attorney allows a defendant to plead
guilty to an offense for which there is no factual basis.
N.W.2d 481, 485 (Iowa 2005).
State v. Philo, 697
Also, prejudice is inherent in those
circumstances. Id. at 488.
We believe the record is not sufficient to establish a factual basis for the
first-degree robbery plea. In determining whether a factual basis existed, we
consider the entire record, including the minutes of testimony. State v. Hallock,
765 N.W.2d 598, 603 (Iowa Ct. App. 2009). The minutes of testimony establish
1
See Iowa R. Crim. P. 2.8(2)(b) (“The court . . . shall not accept a plea of guilty
without first determining that the plea is made voluntarily and intelligently and has a
factual basis.”).
6
that potentially three weapons were used in the robbery: a knife with a five-inch
blade, a hatchet, and a box cutter type knife with a razor blade.2
According to Iowa Code section 702.7, there are three paths under which
a weapon may be deemed “dangerous.” First, a dangerous weapon is “any
instrument or device designed primarily for use in inflicting death or injury upon a
human being or animal, which is capable of inflicting death upon a human being
when used in the manner for which it was designed.” Second, a dangerous
weapon is:
any instrument or device of any sort whatsoever which is actually
used in such a manner as to indicate that the defendant intends to
inflict death or serious injury upon the other, and which, when so
used, is capable of inflicting death upon a human being.
Third, dangerous weapons “include but are not limited to any offensive weapon,
pistol, revolver, or other firearm, dagger, razor, stiletto, switchblade knife, [or]
knife having a blade exceeding five inches in length.” The third category is
known as “per se” dangerous weapons; they are deemed dangerous regardless
of circumstances. Other items will be considered dangerous weapons if they
meet the first or second circumstance. See State v. Tusing, 344 N.W.2d 253,
254-55 (Iowa 1984) (holding that brass knuckles were a dangerous weapon
because they met the first standard, even though they did not meet the third).
We agree with Ortiz that none of the weapons described in the minutes of
testimony met the definition of a “per se” dangerous weapon.
2
See State v.
We think a plausible inference can be drawn from the minutes that there were
three weapons and that each intruder had his own weapon. A box cutter has a
significantly different appearance from a fixed blade five-inch knife. On the other hand, it
is also possible that the box cutter and the five inch knife were one and the same, since
no “box cutter” was found, at least according to the minutes. Moreover, Carson was
apparently the lead intruder and the person whom K.S. saw with a box cutter, yet the
minutes indicate he was the only person seen throwing anything out of the car.
7
Durham, 323 N.W.2d 242, 245 (Iowa 1982).
In Durham, the supreme court
stated that “the term „razor‟ as used in the former statute and in section 702.7 is
limited to the straight razor, a common shaving instrument before invention of the
safety razor but now used for shaving mainly in barber shops.”
Id. at 245.
Regardless of our personal views of the dangers presented by box cutters, we
are bound to follow the supreme court‟s prior interpretation of the statute. Thus,
to find a factual basis for the plea, the district court had to have a basis for
determining that one of the weapons was either “designed primarily for use in
inflicting death or injury” or “used in such a manner as to indicate that the
defendant intends to inflict death or serious injury upon the other.” We note that
the trial court “is not required to extract a confession from the defendant.” State
v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). Rather, it “must only be satisfied
that the facts support the crime, „not necessarily that the defendant is guilty.‟” Id.
(quoting 1A Charles Alan Wright, Federal Practice and Procedure § 174, at 199
(1999)).
From the minutes of testimony alone we cannot say that any of the
weapons was “designed primarily for use in inflicting injury.” Knives, box cutters,
and hatchets generally have legitimate uses other than causing death or injury to
human beings or animals. Cf. State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990)
(holding that the trial evidence sufficiently established that a BB gun was a
dangerous weapon under this branch of the section 702.7 definition). One or
more of these weapons might be able to meet the second prong of section 702.7,
but from the minutes before us we cannot say.
8
Similarly, from the minutes alone we cannot draw the conclusion that any
of the weapons was “actually used in such a manner as to indicate [an intent] to
inflict death or serious injury.” Three masked men, possibly carrying multiple
weapons, broke into a house they had staked out. The lead intruder, who had a
box cutter in his hand, attempted to charge into the master bedroom where the
occupants of the house were holed up. However, the minutes do not indicate the
intruder threatened to use the box cutter against K.S. or F.T. personally. See
State v. Greene, 709 N.W.2d 535, 538 (Iowa 2006) (reversing a verdict that steel
shards used to cut the tires on the victim‟s car were a “dangerous weapon,” while
noting that “[i]f the shards were held in the defendant‟s hand in a personal
confrontation with a victim, there would be little doubt that they were dangerous
weapons, as they would have been used in a manner indicating an intent to kill or
injure”). The minutes of testimony would support the inference that the box cutter
was intended to deter potential resistance from anyone who happened to be in
the house.
However, inferring more from these minutes would involve
“conjecture.” Id. As we read sections 702.7 and 711.2, they do not cover the
situation where a robber simply carries a weapon but never threatens to use it,
unless the weapon falls into one of the other two section 702.7 categories.
It is true that in this case we have more than just the minutes. Ortiz
admitted early in the colloquy that he “purposely put someone in fear of a serious
injury.”
This was when the district court was going through the elements of
second degree robbery, under the mistaken impression that these were the
elements of first degree robbery.
We believe there is a difference between
putting someone in fear of a serious injury, and using a weapon in such a
9
manner as to indicate an intent to inflict serious injury. That difference is the
distinction between first and second degree robbery.
The prosecutor and the district court recognized that the colloquy was
incomplete, and the court gave Ortiz an opportunity to consult privately with his
counsel. After a brief off-the-record discussion, defense counsel explained that
the “dangerous weapon” alternative of section 711.2 was the applicable provision
in this case. The court then asked Ortiz to confirm on the record whether he or
one of the other participants had a “dangerous weapon”3 and whether he had
had “visited” with his counsel concerning the definition of a dangerous weapon.
Ortiz answered “yes” to both inquiries.
Yet, as we have already discussed, “dangerous weapon” is a term of art
with a specific set of meanings under section 702.7. When Ortiz admitted that a
“dangerous weapon” was involved in the robbery, he was really making a legal
admission rather than a factual one.
One cannot simply assume that a
seventeen-year-old‟s understanding of a “dangerous weapon” will match the
statutory definition. This is different from the situation, for example, where a
defendant is asked (as Ortiz was) whether he “had the intent to commit a theft.”
There, an individual‟s common sense understanding of the question is likely to
correspond with what the statute requires, so a district court can safely rely on
the defendant‟s admission to help establish the needed factual basis for the plea.
3
Whether Ortiz personally had a dangerous weapon or not, he could be
punished as if he had one if he aided and abetted the crime. See Iowa Code § 703.1;
State v. Sanders, 280 N.W.2d 375, 377 (Iowa 1979).
10
The district court implicitly recognized this point; that is why it went on to
ask Ortiz whether he had “visited” with his counsel about the definition of a
dangerous weapon. But this leads to another problem. The district court
may not abrogate or delegate to anyone, including the attorney for
the accused, the duty to determine defendant‟s knowledge of the
charge, appreciation of legal consequences of a guilty plea,
whether it is voluntarily entered, or [the] existence of facts
supporting it.
State v. Loye, 670 N.W.2d 141, 152 (Iowa 2003) (quoting State v. Ludemann,
484 N.W.2d 611, 613 (Iowa Ct. App. 1992) (in turn quoting State v. Sisco, 169
N.W.2d 542, 548 (Iowa 1969))) (emphasis added).
In essence, the district court delegated to Ortiz‟s counsel the task of
explaining what a “dangerous weapon” was and verifying that such a weapon
was involved. Counsel‟s off-the-record discussion with Ortiz was used to fill a
gap in the on-the-record factual basis. Presumably counsel did his job, although
the term “visited” is somewhat loose and would allow for the possibility that
defense counsel provided something less than a full explanation of section
702.7‟s different permutations.
Regardless, the relevant duty rested with the
district court, not counsel.
We believe the situation here is in some respects analogous to that in
Ludemann. There the district court did not itself explain the elements of seconddegree burglary to the defendant, but instead asked for and received
confirmation from defense counsel that he had explained those elements. We
set aside the plea, because counsel had “failed to personally and fully inform
Ludemann of the nature of the charge against him.” Ludemann, 484 N.W.2d at
613. Ludemann did not involve a factual basis question, because the minutes of
11
testimony were adequate to establish that the offense had been committed
(unlike here), but we think the basic non-delegation principle is the same.
Even more directly on point is our supreme court‟s earlier decision in State
v. Fluhr, 287 N.W.2d 857 (Iowa 1980). In that case, the supreme court found
fault with several aspects of a guilty plea, including its lack of a factual basis.
The court observed,
Nor do the facts that the plea form indicated that defendant had
discussed the elements and facts of the crime with his attorney and
that the attorney certified, on a separate form, that he was satisfied
that the plea was factually justified overcome any of the plea‟s
deficiencies.
Fluhr, 287 N.W.2d at 867. The court then went on to quote the non-delegation
language from Sisco. Id. It is true that in State v. Kirchoff, 452 N.W.2d 801, 80405 (Iowa 1990), the supreme court overruled Fluhr to the extent it held that
informing a defendant of the defendant‟s rights and possible punishment by the
use of written forms, rather than orally, requires automatic reversal. However,
Kirchoff did not involve an issue of factual basis, see 452 N.W.2d at 804
(“Kirchoff does not even claim that his pleas of guilty were . . . lacking factual
basis”), and we do not read it as disturbing that aspect of Fluhr.
Thus, we hold that the minutes of evidence did not establish a sufficient
factual basis in themselves for first-degree robbery, that the district court‟s
colloquy with Ortiz was not sufficient to plug the hole, and that Ortiz‟s counsel
failed to discharge an essential duty when he allowed his client to plead guilty to
first-degree robbery despite the absence of a sufficient factual basis in the
record. As noted, prejudice is presumed. See State v. Straw, 709 N.W.2d 128,
137 n.4 (Iowa 2006) (“We also presume prejudice when there was no factual
12
basis for the plea because we do not want to convict people for crimes they did
not commit.”). We therefore turn to the question of remedy.
Ortiz urges that he was charged with the “wrong crime,” and therefore his
guilty plea should be set aside.
See Philo, 697 N.W.2d at 488.
The State
argues, on the other hand, that if the existing record falls short, it may be
possible to show a factual basis for the plea based on additional facts and
circumstances that do not appear in the minutes of testimony. Thus, the State
asks us to vacate the sentence and remand if necessary. This would allow the
State an opportunity to supplement the record to establish a factual basis for firstdegree robbery. Id.; see also Hallock, 765 N.W.2d at 604.
Upon our review, we agree with the State‟s position that it may be possible
to develop a factual basis for first-degree robbery. Accordingly, we vacate the
sentence and remand.
SENTENCE VACATED AND REMANDED.
Doyle, J., concurs; Vogel, P.J., dissents.
13
VOGEL, P.J. (dissenting)
I respectfully dissent and would find that his counsel was not ineffective as
there was a factual basis to support Ortiz‟s guilty plea.
As the majority set forth, the minutes of testimony state that all three who
entered the home were wearing ski masks. One was brandishing a box cutter
type knife that contained a razor blade.
During his plea proceedings, Ortiz
specifically admitted that, while having the intent to commit a theft, he
“threaten[ed] another person” and “purposely put someone in fear of a serious
injury.” After consulting with his attorney, Ortiz further admitted either he or one
of the other intruders was armed with a dangerous weapon.
However, the
majority then goes on to conclude that none of the weapons described in the
minutes of testimony met the definition of a “per se” dangerous weapon.
Because box cutters have a purpose other than to inflict serious injury or death,
and there was no proof “the intruder threatened to use the box cutter against K.S.
or F.T. personally,” the majority concludes the box cutter was not a dangerous
weapon. Thus, the record lacked a factual basis for Ortiz‟s plea.
I would find that under Iowa Code section 702.7 (2007), a box cutter
meets two of the definitions for a dangerous weapon.
First, it is common
knowledge that a box cutter is a razor blade with a handle, which is simply a safe
way for the user to hold a razor blade. It should easily fall within the statute as a
“razor”—a per se dangerous weapon.
See Iowa Code § 702.7 (providing a
“razor” is a dangerous weapon); State v. Durham, 323 N.W.2d 243, 245 (Iowa
1982) (holding that a straight razor is a per se dangerous weapon).
14
Additionally, even if a box cutter would not qualify as a per se dangerous
weapon, it clearly is an
instrument or device of any sort whatsoever which is actually used
in such a manner as to indicate that the defendant intends to inflict
death or serious injury upon the other, and which, when so used is
capable of inflicting death upon a human being, is a dangerous
weapon.
Id.4 Masked intruders barged into an occupied home in order to commit a theft,
with one brandishing a box cutter who then struggled with a victim to get into the
bedroom where the victims sought refuge. When deciding whether any object is
a dangerous weapon, our supreme court has stated,
If the [steel] shards were held in the defendant‟s hand in a personal
confrontation with a victim, there would be little doubt that they
were dangerous weapons, as they would have been used in a
manner indicating an intent to kill or injure.
State v. Greene, 709 N.W.2d 535, 538 (Iowa 2006). That is the case here—the
box cutter was held in the hand of an intruder as the intruders confronted their
victim. Furthermore, Ortiz admitted that he, with the intent to commit a theft,
“purposely put someone in fear of a serious injury.”
The majority finds the box cutter was not “used in such a manner as to
indicate that the defendant intends to inflict death or serious injury.” Iowa Code
§ 707.2. Yet the majority states, the “minutes of testimony would support the
inference that the box cutter was intended to deter potential resistance from
anyone in the house.” (Emphasis added). I would agree that simply having a
4
Box cutters were the weapons used to threaten the passengers on the
airplanes hijacked in the September 11, 2001 terrorist attacks. See U.S. v. Aukai, 440
F.3d 1168 1181 (9th Cir. 2006) (noting that terrorists “turned [four planes] into deadly
guided missiles” using only “small knives, box cutters, and cans of Mace or pepper
spray”) (citing National Commission on Terrorist Attacks upon the United States, The
9/11 Commission Report: Executive Summary (2004)).
15
box cutter does not deter potential resistance. Rather, having a box cutter and
displaying it in a manner indicating an intent to injure or kill does have the desired
effect of deterring potential resistance. This clearly meets the requirement of
using the box cutter “in such a manner as to indicate that the defendant intends
to inflict death or serious injury upon the other.” Finally, a box cutter “is capable
of inflicting death upon a human being.” See id.; Durham, 323 N.W.2d at 245
(noting that straight razors “have a well documented history or use as weapons”).
As the minutes of testimony demonstrate that one of the intruders was
armed with a weapon fitting the description of a box cutter type knife, I would
affirm the district court and find Ortiz‟s counsel breached no essential duty as
Ortiz‟s plea was supported by a factual basis.
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