State of Iowa v. Clifford Lee Puckett ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1836
Filed June 24, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CLIFFORD LEE PUCKETT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James C.
Bauch (plea) and Joel A. Dalrymple (sentencing), Judges.
Clifford Puckett appeals from his convictions and sentences for two counts
of forgery and one count of second-degree theft. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Joseph A. Fraioli, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, until withdrawal,
and Kevin Cmelik, Assistant Attorneys General, Thomas J. Ferguson, County
Attorney, and James J. Katcher, Assistant County Attorney, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
Clifford Puckett challenges his convictions and sentences following his
Alford1 pleas to two counts of forgery and one count of second-degree theft. He
claims his attorney was ineffective in failing to object or file a motion in arrest of
judgment because the record failed to provide a factual basis to support his
pleas. He also contends the district court abused its discretion in sentencing for
failing to state a reason for imposing consecutive sentences. We affirm.
I. Background Facts and Proceedings.
In 2013, law enforcement officials were contacted by a store owner
seeking to press charges against Clifford Puckett and his then-girlfriend, now-
wife, Brittany, for their failure to return or pay for a loaned Kirby vacuum cleaner.
Both were subsequently charged by an amended trial information with second-
degree theft, in violation of Iowa Code sections 714.1(1), and .2(2) (2013), as
habitual offenders pursuant to section 902.8 (FECR190447).2
Additionally, in 2014, Clifford, Brittany, and another person that lived with
the Pucketts were each charged by trial information, as later amended, with
second-degree theft, in violation of the sections 714.1(1), .1(3), and .2(2), two
counts of forgery, in violation of section 715A.2, and as habitual offenders
pursuant to section 902.8 (FECR195345). According to the minutes of testimony
in that case, a car dealership reported Brittany and the Pucketts’ roommate had
purchased a van with counterfeit money. Law enforcement officers went to the
Pucketts’ residence and saw the van parked in the driveway. The officers spoke
1
An Alford plea allows a defendant to consent to the imposition of a sentence
without expressly admitting guilt. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
2
This charge and ultimate conviction are not challenged on appeal.
3
with Clifford, Brittany, and their roommate, and all three persons consented to a
search of the residence. Officers found several fake bills inside Clifford’s wallet.
Several wadded-up fake bills were found in the roommate’s room, along with a
wallet containing her ID and several fake bills. Also found there was some
wadded-up paper; one piece had the front of a $100 bill printed on it, and another
piece had the back of a $100 bill printed on it. Additional fake bills were found in
the room. A torn-up fake bill was found in the residence’s kitchen, and “handfuls
of clippings from printer paper with the edges of the fake bills still visible on them”
were found in another garbage can in the residence. Another fake bill was found
in the living room. A printer and paper were found in a spare bedroom.
Additional printers were found in the Pucketts’ bedroom. It was determined that
all the serial numbers on the fake printed bills matched authentic U.S. currency
found in Clifford’s wallet.
Thereafter, Clifford entered into a plea agreement wherein he would enter
Alford pleas to all four charges—two counts of second-degree theft (one in
FECR190447, the other in FECR195345) and two counts of forgery (both in
FECR195345)—in exchange for the State withdrawing the habitual-offender
enhancement on each count. Additionally, the parties agreed Clifford would
receive five-year sentences for all four counts, with the three counts in
FECR195345 to run consecutively for a total fifteen-year sentence in that case.
The parties further agreed they would argue before the sentencing court whether
Clifford’s fourth five-year sentence in FECR190447 would be run consecutively
or concurrently with the fifteen-year sentence, thus entertaining the possibility of
a total twenty-year sentence.
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In his colloquy with the court concerning the plea agreements, Clifford
agreed that his “chances at trial might be somewhat limited and there [was] a
high likelihood that [he] could be convicted of these charges.” Clifford also
agreed the court could rely upon the minutes of testimony in each case as
forming the factual bases of his pleas. The court then accepted Clifford’s Alford
pleas, finding factual bases existed in the record based upon the minutes of
testimony, which “more than substantially corroborate[d] or substantiate[d] the
charges” against Clifford. The court further determined Clifford’s pleas were
entered knowingly, intelligently, and voluntarily. Sentencing was set for a later
date.
At the subsequent sentencing hearing, the State and Clifford presented
arguments concerning whether Clifford’s conviction in FECR190447 should run
consecutively or concurrently with his fifteen-year sentence in FECR195345, as
well as whether Clifford should be sentenced to prison-time or be placed on
probation. The court sentenced Clifford to a term of imprisonment not to exceed
five years on each count (two counts of forgery and one count theft of the van),
with the terms in FECR195345 to run concurrently and to run consecutively to
the five-year term in FECR190447 (theft of vacuum cleaner), for a total term of
imprisonment not to exceed ten years. The court explained:
I find that your prior criminal history is atrocious to say the least.
There’s been—you’re not an old individual by any means, and in
the recent past you have been afforded a variety of services
throughout your stints with the criminal justice system going as far
back as your juvenile history and being to the State Training
School.
You then punched your ticket as a felon in the adult court
twice. You’ve been in the facility. You’ve had that opportunity
blown. You’ve had probation to the extent that you’re on street
5
probation and blew it. You had facility and you blew it. You’ve
been to prison, you’ve been out on parole, and you blew that as
well. You’ve . . . basically violated all opportunities through
supervision.
Albeit since June of this year you were on probation, I
cannot imagine, certainly not questioning the sentencing court
there, but you were given probation. That’s certainly their
prerogative and their discretion. I’m just simply not willing to do that
at this time given your history, given the lack of success you’ve had
thus far.
The court further explained to Clifford it deviated from the plea agreement
because, first and foremost, I don’t mean to trivialize what you did,
but in the grand scheme of things a vacuum cleaner, albeit a very
expensive vacuum cleaner, and the amount of money that we’re
talking about that was being manufactured, and the theft of the
vehicle used, . . . I do find that that find that that is somewhat
mitigating from the nature of the plea agreement that the parties
had reached as far as the terms between fifteen and twenty.
However, on the other side of that particular coin, the court
does consider your prior criminal history and the number of felonies
that you have, your lack of success while on supervision, the fact
that you have another case as an adult, albeit you’re on probation,
but nonetheless, that is a conviction for the court to consider as a
basis for the entry of this particular sentence. I have also
considered your age and the sentencing goals and objectives of
this court.
The court noted it had “considered the factors set out in Iowa Code section
907.5,” and it found the sentence it imposed “to be appropriate.”
Clifford now appeals.
II. Discussion.
On appeal, Clifford asserts his attorney rendered ineffective assistance of
counsel by failing to object or file a motion in arrest of judgment because the
record failed to provide a factual basis to support his pleas. He also contends
the sentencing court abused its discretion because it failed to state a reason for
imposing consecutive sentences. We address his arguments in turn.
6
A. Factual Basis for Plea.
Clifford did not file a motion in arrest of judgment, which is ordinarily
required to challenge the validity of a guilty plea. See Iowa Rs. Crim. P.
2.8(2)(d), .24(3)(a); State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). However,
an exception to our normal rules of error preservation exists “when a defendant
alleges trial counsel was ineffective for permitting him to plead guilty to a charge
for which there is no factual basis and for failing to thereafter file a motion in
arrest of judgment.” Finney, 834 N.W.2d at 49. Consequently, because Clifford
raises his claim as one of ineffective assistance, we may consider his claim on
direct appeal if “the record is sufficient to permit a ruling.” See id. We find the
record here is sufficient for resolution on direct appeal, and our review is de
novo. See id.
In order to prove trial counsel was ineffective, Clifford must establish his
counsel breached an essential duty and prejudice resulted therefrom. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Rhoades v. State, 848
N.W.2d 22, 28 (Iowa 2014). “If trial counsel permits a defendant to plead guilty
and waives the defendant’s right to file a motion in arrest of judgment when there
is no factual basis to support the defendant’s . . . plea, trial counsel breaches an
essential duty,” and the law is well-settled that prejudice is presumed under these
circumstances. Rhoades, 848 N.W.2d at 29. “[W]hether there is a factual basis
in the record to support the charge to which the defendant seeks to plead guilty is
an objective inquiry that has nothing to do with the state of mind of the accused,
but everything to do with the state of the record evidence.” Finney, 834 N.W.2d
at 55. Generally, a factual basis may be gleaned from “(1) the prosecutor’s
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statements, (2) the defendant’s statements, (3) the minutes of testimony, and
(4) the presentence report, if available at the time of the plea.” Rhoades, 848
N.W.2d at 29. The record need only demonstrate the facts to support the
offense’s elements; “the totality of evidence necessary to support a guilty
conviction” is not required. Id. Stated another way, it is not required that “the
district court have before it evidence that the crime was committed beyond a
reasonable doubt, but only that there be a factual basis to support the charge.”
Finney, 834 N.W.2d at 62. Insofar as intent “is seldom capable of direct proof,” a
court may “infer intent from the normal consequences of one’s actions.” State v.
Evans, 671 N.W .2d 720, 725 (Iowa 2003).
1. Forgery.
Iowa Code section 715A.2(1) provides:
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.
....
d. Possesses a writing which the person knows to be forged
in a manner specified in paragraph “a” or “b.”
Here, fake currency was found in Clifford’s wallet, its serial numbers
matching the authentic currency also found in his wallet. The paper from which
the fake bills were clipped was found in the residence’s kitchen. Fake bills were
found throughout the Puckett residence—all having serial numbers that matched
8
the authentic currency found in Clifford’s wallet. Printers were found in Clifford’s
bedroom and in a spare bedroom. Clifford’s wife and their roommate used fake
currency with the same serial numbers to purchase a van, which Clifford’s wife
and their roommate returned to their residence. Clifford’s knowledge that he
possessed forged currency can be inferred from all of these circumstances.
Though not necessarily evidence to overcome the reasonable doubt standard,
the minutes of testimony clearly provide sufficient evidence from which a
factfinder could infer that Clifford knew he possessed forged currency, supporting
the factual bases for his forgery pleas. Consequently, Clifford has not proven his
trial counsel failed to perform an essential duty. See State v. Carroll, 767 N.W.2d
638, 645 (Iowa 2009) (“[C]ounsel has no duty to pursue a meritless issue.”).
Thus, Clifford’s trial attorney did not breach an essential duty, and we need not
address the prejudice element of ineffective assistance. See Everett v. State,
789 N.W.2d 151, 159 (Iowa 2010). We affirm on this issue.
2. Second-Degree Theft.
For the same reasons, we find the minutes of testimony provide the
factual basis for Clifford’s second-degree theft conviction concerning the van’s
theft. Under Iowa Code section 714.1:
A person commits theft when the person does any of the
following:
1. Takes possession or control of the property of another, or
property in the possession of another, with the intent to deprive the
other thereof.
....
3. Obtains the labor or services of another, or a transfer of
possession, control, or ownership of the property of another, or the
beneficial use of property of another, by deception.
To support a conviction under an aiding-and-abetting theory,
9
[t]he record must contain substantial evidence to show that the
accused assented to or lent countenance and approval to the
criminal act either by active participation in it or in some manner
encouraging it prior to or at the time of its commission. Although
the accused’s mere presence is not enough, the requisite
participation can be inferred “from circumstantial evidence including
presence, companionship or conduct before and after the offense is
committed.”
State v. Miles, 346 N.W.2d 517, 520 (Iowa 1984) (citation omitted); see also
State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000). And when, as here, specific
intent is an element of the crime charged, a defendant may be guilty under a
theory of aiding and abetting if he participates with either the requisite intent, or
with knowledge the principal possesses the required intent. Tangie, 616 N.W.2d
at 574.
Under the facts presented in the minutes of testimony, fake currency was
found in Clifford’s wallet with serial numbers matching the real currency in his
wallet. Fake bills with those serial numbers were used by Clifford’s wife and their
roommate to purchase the van, which they brought back to their residence
thereafter. Fake bills were found throughout the Puckett residence—all having
serial numbers that matched the authentic currency found in Clifford’s wallet.
Printers were found in Clifford’s bedroom and in a spare bedroom. Paper
clippings left over from the production of the fake currency were found in the
residence’s kitchen. Clifford and the van were present at the residence when the
officials spoke with the parties about the theft. Clifford’s knowledge and
participation in the theft can be inferred from all of these circumstances. We find
the minutes of testimony provide at least minimally sufficient evidence from which
a factfinder could conclude from all of the evidence that Clifford aided and
10
abetted the theft. Consequently, Clifford has not proven his trial counsel failed to
perform an essential duty, and we need not address the second prong of
ineffective assistance. See Everett, 789 N.W.2d at 159; Carroll, 767 N.W.2d at
645. We therefore affirm on this issue.
B. Sentencing.
The court sentenced Clifford to a term of imprisonment not to exceed five
years on each of the forgery and van theft counts, to run concurrently with one
another, and that they would run consecutively to the five-year term imposed for
the vacuum cleaner theft count, for a total term of imprisonment not to exceed
ten years. Clifford contends the sentencing court abused its discretion in failing
to articulate specific reasons for imposing consecutive sentences. We review
sentencing decisions for abuse of discretion, which will only be found if the court
acted “on grounds clearly untenable or to an extent clearly unreasonable.” State
v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015) (internal quotation marks and
citations omitted). “We give sentencing decisions by a trial court a strong
presumption in their favor.” Id.
“If a person is sentenced for two or more separate offenses, the
sentencing judge may order the second or further sentence to begin at the
expiration of the first or succeeding sentence.” Iowa Code § 901.8. A
sentencing court must state, on the record, its reason for selecting a particular
sentence. State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010) (citing Iowa R.
Crim. P. 2.23(3)(d)). The court must also provide reasons for imposing
consecutive sentences. Id. “A statement may be sufficient, even if terse and
succinct, so long as the brevity of the court’s statement does not prevent review
11
of the exercise of the trial court’s sentencing discretion.” State v. Hennings, 791
N.W.2d 828, 838 (Iowa 2010). We may look to the court’s overall sentencing
rationale to glean the reasoning for imposing consecutive sentences. See id.
(“[I]t is apparent to us that the district court ordered the defendant to serve his
sentences consecutively as part of an overall sentencing plan.”).
Here, the district court explicitly stated on the record why it ran Clifford’s
two five-year sentences consecutively. It reviewed Clifford’s past criminal history
and the chances he had been given. The court found Clifford “blew” the
opportunities he had been given. The court was not willing to give Clifford
another chance. Moreover, the court explained it was not only sentencing
Clifford to less time recommended by the State, it sentenced him to less time
than the amount of time he agreed to serve in his plea agreement. The court
gave a thorough explanation of all the factors it considered in making its decision,
and its reasoning is apparent from the overall sentencing rationale. Accordingly,
we find the sentencing court did not abuse its discretion in running Clifford’s two
five-year sentences consecutively, and we affirm on this issue.
IV. Conclusion.
For the foregoing reasons, we affirm Clifford’s convictions and sentences
for two counts of forgery and one count of second-degree theft.
AFFIRMED.