State of Iowa v. Daniel Blain Pierce ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1511
Filed July 6, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DANIEL BLAIN PIERCE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Greene County, Gary L.
McMinimee, Judge.
A defendant challenges his plea of guilty to theft in the first degree.
AFFIRMED.
Charles J. Kenville of Kenville Law Firm, P.C., Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.
Daniel Pierce wants to “take back” his plea of guilty to first-degree theft for
stealing a Chevy Silverado pickup from the parking lot of the Wild Rose Casino in
Jefferson. Pierce argues he should be allowed to plead anew because of two
errors by defense counsel: (1) allowing Pierce to plead guilty when the record did
not reveal his intent to permanently deprive the owner of the truck and
(2) misadvising Pierce that he could be released on his own recognizance after
entering his guilty plea in Greene County without realizing Polk County
authorities had issued a warrant for his arrest. Because we find counsel
performed with reasonable competence in regard to the factual-basis issue, we
affirm. But we preserve Pierce’s second claim for possible postconviction-relief
proceedings.
I. Facts and Prior Proceedings
Pierce was accused of a spree of vehicle thefts in a trial information filed
by the Greene County Attorney. The information alleged one count of ongoing
criminal conduct, a class “B” felony, and three counts of first-degree theft, class
“C” felonies. According to the minutes of evidence, witnesses were expected to
testify a Dodge Caravan was stolen from a Pleasant Hill residence on April 26,
2016, and recovered in the Wild Rose parking lot on May 1. The Silverado truck
was reported missing from the same lot on May 1 and was recovered in a farm
field outside of Dawson two days later. Also on May 3, a Rippey resident
reported his Ford F-150 pickup missing; it was recovered by Baxter police on
May 5.
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Pierce reached a plea bargain with the State on June 22, 2016. At the
July 5 plea hearing, the county attorney offered the following summary of the
agreement:
The defendant is to plead guilty to one count of theft second
degree, a [class] “C” felony. I believe that will be Count III of the
Information. I will dismiss the remaining charges pending against
him . . . . I have agreed to go along with whatever sentencing
recommendation may be contained in his presentence investigation
report . . . I am asking that the sentence run concurrently with the
sentence he receives in Jasper County on an operating motor
vehicle without owner’s consent charge. I will be asking that he be
ordered to pay victim restitution to all victims, including the
dismissed charges. Will be asking he be ordered to pay attorney
fees and court costs. I will be recommending suspension of the
minimum fine, and I will be agreeing to his release on his own
recognizance after guilty plea proceedings here this morning.
At that same hearing, Pierce admitted taking possession of the 2008
Chevy Silverado on May 1 in Jefferson. Pierce told the court the key was in the
ignition when he “climbed into the truck, started it, and took off with it.” Pierce
acknowledged, when he took possession of the truck, he had the specific intent
to deprive the owner of the vehicle. The district court accepted the guilty plea
and informed Pierce of his right to file a motion in arrest of judgment.
As soon as Pierce returned to the Greene County jail following the plea
hearing, a jailer informed him “there was a warrant for [his] arrest in Polk County”
and a detainer had been pending for “the whole month and a half” he had been in
jail. When Pierce asked the jailer why he had not been notified earlier, she
stated he “didn’t ask.”
In response to learning about the detainer, Pierce filed a handwritten
motion in arrest of judgment on July 22, 2016. He expressed his desire to “take
back his former plea of guilty,” alleging “the major reason” he entered the guilty
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plea was because he “would be released on OR [own recognizance] when in fact
the county attorney knew Polk County would file theft [first] charges and [he]
would not be released thus violating the terms of the plea agreement.”
On August 15, the court held a hearing on Pierce’s motion in arrest of
judgment. Pierce testified he was not aware a charge was pending against him
in Polk County when he entered his guilty plea, though the Polk County arrest
warrant had issued on May 17, 2016—more than one month before he reached
an agreement with the Greene County Attorney. Pierce was adamant that had
he known he would not be released on his own recognizance pending
sentencing, he would not have agreed to enter the guilty plea:
If I’d have known I wasn’t going home to see my daughter, I would
have never made that plea. I ended up having to call her, my ten-
year-old daughter then I turned around to call her and tell her I
wasn’t coming home.
Pierce also testified he did not provide truthful information at his plea hearing:
I admitted to stealing the truck with the intention to sell it or to
deprive the individual of his vehicle and I had no intentions of
depriving anybody of their vehicle. I was stranded up here and I
was trying to get home. I was scared. My daughter was at home
with my girlfriend. . . . I was panicking so I jumped in the truck to
get close to Colfax so I would have a way home. I left the key in
the truck. The key was in the truck when I took it, and I left the key
in the truck.
Both the defense counsel and county attorney made professional statements at
the hearing that they were not aware of the Polk County detainer pending for
Pierce. Defense counsel blamed the county attorney for reneging on the plea
agreement, asserting “he should be aware . . . when he’s making that plea offer”
of the defendant’s status when the defendant is being held at the county jail.
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Ten days after the hearing, the district court denied Pierce’s motion in
arrest of judgment. The court found “no violation of the plea agreement” because
Pierce “got what he bargained for, a recommendation by the county attorney that
he be released O/R in Greene County.” The court further stated: “[T]his court
has no doubt that at the time of the plea agreement, all parties assumed that the
defendant following his plea hearing would be able to return to his home to await
his sentencing hearing.” But the court declined to set aside the plea “based on
the contract doctrine of mutual mistake of fact.”
The district court sentenced Pierce to an indeterminate ten-year term of
incarceration and suspended his $1000 fine. Pierce appeals his judgment and
sentence, seeking to plead anew.
II. Preservation of Error and Standard of Review
Generally, a motion in arrest of judgment would preserve error for a
defendant’s challenge to the guilty plea on appeal. See Iowa R. Crim. P.
2.24(3)(a). But in this case, Pierce raises two issues on appeal that were not
squarely addressed in the court’s ruling on the motion in arrest of judgment.
First, Pierce’s motion did not challenge the factual basis for the theft charge. And
although Pierce denied his intent to deprive the owner of the vehicle in his
testimony at the motion-in-arrest hearing, the court did not mention a factual-
basis challenge in its order denying Pierce’s request to withdraw his plea.
Accordingly, we find Pierce must raise his challenge to the factual basis as a
claim of ineffective assistance of counsel. Second, Pierce’s motion alleged the
State violated the plea agreement by not ensuring his release from custody
between the plea and sentencing hearings. On appeal, Pierce shifts gears,
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contending “the framing of error in this case as ineffective assistance of counsel
is appropriate.” According we also analyze the issue concerning the Polk County
warrant to see if Pierce received competent representation.
Because ineffective-assistance claims are grounded in the Sixth
Amendment, our review is de novo. See State v. Clay, 824 N.W.2d 488, 494
(Iowa 2012). Pierce bears the burden to prove by a preponderance of the
evidence his plea counsel breached an essential duty and the breach resulted in
prejudice. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). The first element is
satisfied when the defendant shows the attorney performed “below the standard
of a ‘reasonably competent attorney.’” State v. Brothern, 832 N.W.2d 187, 192
(Iowa 2013) (quoting Strickland, 466 U.S. at 687). On the second element, when
the record reveals no factual basis for a guilty plea, we presume prejudice. See
State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
III. Analysis of Plea Claims
A. Factual Basis
Pierce alleges his counsel failed to ensure a factual basis existed for his
plea of guilty to first-degree theft. More specifically, Pierce claims the record at
the plea hearing did not demonstrate he had the intent to permanently deprive
the truck’s owner of the property. See Iowa Code § 714.1(1) (2016); see also
Schminkey, 597 N.W.2d at 789 (holding intent to permanently deprive the owner
of his property is an essential element of theft under section 714.1(1) 1). Pierce
1
The court vacated the sentence in Schminkey because the defendant entered an Alford
plea, making no admissions with respect to his intent, and the minutes of evidence
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points to the plea colloquy where he admitted only an intent to “deprive” the
owner of the truck, without any reference to the permanency of that deprivation.
In addition to Pierce’s statements at the plea hearing, we may consider
the minutes of testimony when deciding if the record supports a factual basis for
the guilty plea. See State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). Here,
the minutes stated the Silverado was taken from a casino parking lot. The owner
did not give Pierce permission “to take or use his truck in any manner.” The truck
was found two days later in a farm field north of Dawson. The circumstantial
evidence that Pierce drove the truck some twenty miles before abandoning it at a
remote location supports Pierce’s intent to deprive the owner of his truck on more
than a temporary basis. See State v. McCarty, No. 03-1151, 2004 WL 894553,
at *5 (Iowa Ct. App. Apr. 28, 2004) (distinguishing Schminkey because “McCarty
took the truck to a different town a significant distance from where it was stolen
and it was not recovered for several days”).
Because the plea record reflects a factual basis for the theft charge,
counsel was not ineffective in allowing Pierce to plead guilty.
B. Polk County Arrest Warrant
We next turn to Pierce’s complaint about his pre-sentence custody status.
Pierce contends defense counsel was remiss in not seeking information on
outstanding arrest warrants. According to Pierce, with adequate investigation,
counsel would have learned from jail personnel that Polk County authorities
showed the defendant had been drinking alcohol the evening of the incident. 597
N.W.2d at 790–91 (“In our search for other facts or circumstances that might reveal
Schminkey’s intent in taking the pickup, we find none indicating that he intended to do
anything more than temporarily use the vehicle to go home or to another bar.”).
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stood poised to detain Pierce after he was released from custody in Greene
County. Pierce asserts he would not have accepted the State’s plea offer but for
the misinformation from his attorney that Pierce would be allowed to go home
between the plea and sentencing hearings. Pierce contends he received faulty
advice about a collateral consequence of his guilty plea.
The State counters that the warrant and detainer out of Polk County were
not collateral consequences of his plea to the Greene County charge. The State
argues: “[I]n fact, the record does not show that these charges were related at
all.”2 Citing Saadiq v. State, 387 N.W.2d 315, 325 (Iowa 1986), the State further
contends, even if Pierce’s detention on the Polk County warrant was “something
akin to a collateral consequence,” Pierce’s ineffective-assistance claim fails
because the question was not whether Pierce received “misinformation” about
his custody status before sentencing but, rather, the extent of information that he
was entitled to receive before entering his guilty plea.
In Saadiq, our supreme court explained: “Counsel’s duties in connection
with a defendant’s guilty plea include advising the defendant of available
alternatives and considerations important to counsel or the defendant in reaching
a plea decision.”3 387 N.W.2d at 325. In this case, Pierce stressed that being
released on his own recognizance and spending time with his daughter between
the guilty plea and sentencing was an important consideration in his decision to
2
We do not have information in our record concerning the substance of the Polk County
charge or whether it involved the allegation that Pierce stole a van from Pleasant Hill and
then abandoned that vehicle in Jefferson before taking the truck from the casino lot.
3
Saadiq relied on State v. Christensen, 201 N.W.2d 457, 459 (Iowa 1972), which in turn
quoted the ABA Standards relating to pleas of guilty, section 3.2(b), providing: “To aid
the defendant in reaching a decision, defense counsel, after appropriate investigation,
should advise the defendant of the alternatives available and of considerations deemed
important by [counsel] or the defendant in reaching a decision.”
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plead guilty. We disagree with the State’s contention that Pierce’s true pre-
sentencing status was not information he was entitled to receive before deciding
whether to plead guilty. When asked to recite the plea agreement on the record,
the county attorney included the following promise: “I will be agreeing to his
release on his own recognizance after guilty plea proceedings here this morning.”
Because the State enshrined pre-sentence release as an element of the plea
agreement, Pierce was entitled to rely on that promise when entering his guilty
plea.4
We are also skeptical of the State’s argument that Piece negotiated only
for “his release from the Greene County jail, which he received.” The county
attorney stated he had no knowledge of the pending Polk County detainer, but
the county attorney’s lack of personal knowledge does not mean the State
fulfilled its promise that as part of the plea agreement Pierce would be released
on his own recognizance until the sentencing hearing—given that the information
held by the county jailers defeated Pierce’s expectation of going home. Cf. Kyles
v. Whitley, 514 U.S. 419, 437 (1995) (holding, in the context of exculpatory
material, “individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the
4
Where the promise of presentencing release is important to a defendant’s decision to
enter a guilty plea, the denial of that release may be grounds for withdrawal of the guilty
plea. See United States v. Tindell, No. 3:06-cr-30, 2007 WL 208527, at *6 (E.D. Tenn.
Jan. 24, 2007) (granting Tindell’s motion to withdraw his guilty plea when he bargained
for presentencing release, so he could cooperate with the investigation in exchange for a
recommended reduction in his sentence, but the court declined to grant pretrial release,
thereby depriving Tindell of the benefit of his bargain).
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police”). But Pierce does not argue on appeal that the State reneged on the plea
agreement.
Instead, the question is whether defense counsel breached a material duty
in not investigating the possibility that a warrant was pending for Pierce from
another jurisdiction, which would impede Pierce’s ability to be released on his
own recognizance pending sentencing. The State asserts “counsel would have
been required to call each of the ninety-nine county sheriffs’ offices to conclude
whether it had a pending warrant against his client.” But the State also
acknowledges “there is no indication in the record . . . what steps, if any, trial
counsel took to determine whether [Pierce] would be detained by another
county.” As an alternative argument, the State suggests we could preserve this
issue for postconviction relief to allow further development of the facts.
We find preservation for possible postconviction relief to be the
appropriate course here. The current record is inadequate for us to resolve
whether material omissions by counsel induced Pierce to plead guilty. See State
v. Philo, 697 N.W.2d 481, 489 (Iowa 2005). Accordingly, we affirm Pierce’s
conviction and preserve his ineffective-assistance-of-counsel claim concerning
the Polk County warrant for development in further proceedings.
AFFIRMED.