Document Info

DocketNumber: 14-0549

Filed Date: 12/10/2014

Status: Precedential

Modified Date: 12/10/2014

  •                     IN THE COURT OF APPEALS OF IOWA
    No. 14-0549
    Filed December 10, 2014
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    TAMMY JENE WRIGHT,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Karen A. Romano,
    Judge.
    Tammy Wright appeals following the district court’s sentencing on her plea
    of guilty to one count of second-degree robbery. AFFIRMED.
    Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
    Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
    General, John P. Sarcone, County Attorney, and Nan M. Horvat and Olu Salami,
    Assistant County Attorneys, for appellee.
    Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
    2
    POTTERFIELD, J.
    Tammy Wright appeals following the district court’s sentencing on her plea
    of guilty to one count of second-degree robbery.
    I. Factual and Procedural Background
    On July 17, 2013, Wright drove her adult son to a local pharmacy for the
    purpose of obtaining pain medication by placing the pharmacy employees in fear.
    She dropped her son off in front of the pharmacy. He entered the store wearing
    a hooded sweatshirt and latex gloves and gave the clerk a note which read,
    “Oxycodone 15s 30s quickly & quietly no one gets hurt.” The clerk complied, and
    the son left the store. Wright was waiting to pick him up after the robbery was
    completed.
    On September 23, 2013, Wright again drove her son to the same
    pharmacy for the same purpose.          The son entered the pharmacy wearing a
    hooded sweatshirt, gloves, and a mask. He announced, “I told you I’d be back.”
    He handed the clerk another note which read, “Oxycodone 30 and 15. Rush.”
    The clerk again complied, and the son left the store. Again, Wright was waiting
    to pick him up.
    On November 11, 2013, the State charged Wright by trial information with
    two counts of aiding and abetting second-degree robbery,1 one count for each
    1
    “A person commits a robbery when, having the intent to commit a theft, the
    person . . . to assist or further the commission of the intended theft or the person’s
    escape from the scene thereof . . . [t]hreatens another with or purposely puts another in
    fear of immediate serious injury.” Iowa Code § 711.1 (2013). “All persons concerned in
    the commission of a public offense, whether they directly commit the act constituting the
    offense or aid and abet its commission, shall be charged, tried and punished as
    principals.” 
    Id. § 703.1.
    “Robbery in the second degree is a class ‘C’ felony.” 
    Id. § 711.3.
                                                   3
    incident in July and September. Pursuant to a plea negotiation, Wright agreed to
    plead guilty to the second count in exchange for the dismissal of the first.
    On February 11, 2014, the district court conducted a colloquy and
    accepted Wright’s guilty plea.           The court explicitly informed Wright of the
    elements of the offense and the mandatory sentence of incarceration. On March
    26, 2014, the district court sentenced Wright to the mandatory indeterminate ten-
    year sentence under Iowa Code sections 902.9(1)(d), 702.11, and 907.3.2
    Pursuant to Iowa Code section 902.12(5), the court imposed the mandatory
    minimum sentence of seven years, during which Wright is not eligible for parole
    or work release.3
    Wright appeals. She claims she suffered ineffective assistance of counsel
    during the negotiations and entry of her guilty plea.                 She also claims her
    sentence is an unconstitutionally cruel and unusual punishment.
    II. Standard and Scope of Review
    We review ineffective-assistance-of-counsel claims de novo.                    State v.
    Finney, 
    834 N.W.2d 46
    , 49 (Iowa 2013). We review claims of cruel and unusual
    punishment, in violation of the United States Constitution and the Iowa
    Constitution, de novo. State v. Bruegger, 
    773 N.W.2d 862
    , 869 (Iowa 2009).
    2
    “A class ‘C’ felon, not an habitual offender, shall be confined for no more than ten
    years . . . .” Iowa Code § 902.9(d). “A ‘forcible felony’ is any felonious . . . robbery . . . .”
    
    Id. § 702.11.
    A trial court’s discretion to defer judgment or defer or suspend a sentence
    “does not apply to a forcible felony.” 
    Id. § 907.3.
    3
    “A person serving a sentence for conviction of [second-degree robbery] . . . shall be
    denied parole or work release unless the person has served at least seven-tenths of the
    maximum term of the person’s sentence . . . .” Iowa Code § 902.12.
    4
    III. Discussion
    A. Guilty Plea
    “Although   we    normally   preserve    ineffective-assistance   claims   for
    postconviction-relief actions, we will address such claims on direct appeal when
    the record is sufficient to permit a ruling.” 
    Finney, 834 N.W.2d at 49
    . We find
    this record is sufficient to address the issue on direct appeal.
    Wright must show that (1) counsel breached an essential duty and
    (2) prejudice resulted. See Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984).
    We begin by presuming counsel rendered competent representation, and the
    challenging defendant bears the burden of overcoming that presumption. See
    Millam v. State, 
    745 N.W.2d 719
    , 721 (Iowa 2008).
    Even if Wright overcomes our presumption that counsel did not breach an
    essential duty, she must then satisfy the prejudice requirement by demonstrating
    “there is a reasonable probability that, but for the counsel’s unprofessional errors,
    the result of the proceeding would have been different.” 
    Strickland, 466 U.S. at 694
    ; see State v. Reynolds, 
    746 N.W.2d 837
    , 845 (Iowa 2008). If either prong is
    not satisfied, we will reject the ineffective-assistance claim. Anfinson v. State,
    
    758 N.W.2d 496
    , 499 (Iowa 2008).
    Wright claims her counsel was required either to prevent her from
    pleading guilty or to move in arrest of judgment prior to sentencing. She believes
    these steps were required of her counsel for two reasons: first, there was not a
    5
    factual basis to support her plea of guilty; second, the plea was not voluntarily
    made.4
    “The law requires that the factual basis for [a guilty] plea be disclosed in
    the record.”     State v. Rodriguez, 
    804 N.W.2d 844
    , 849 (Iowa 2011).                   Each
    element of the offense must be supported. State v. Ortiz, 
    789 N.W.2d 761
    , 768
    (Iowa 2010). However, “[o]ur cases do not require . . . 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
    .
    Wright argues one essential element of the crime is not supported by the
    record: her son’s appearance and threatening note placed the employees of the
    pharmacy in fear of immediate serious injury.5 We disagree. The record shows
    during the first robbery, Wright’s son gave the victims a note which read,
    “Oxycodone 15s 30s quickly & quietly no one gets hurt.” When they returned
    and perpetrated the second robbery, the son—wearing a hooded sweatshirt,
    gloves, and a mask—told the victims, “I told you I’d be back.” The implication
    clearly intended by Wright’s son in addressing the victims during both incidences
    is that he would seriously injure the victims if they failed to comply.6
    4
    “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.” Iowa R. Crim. P. 2.8(b).
    5
    The relevant statute reads: “A person commits a robbery when, having the intent to
    commit a theft, the person . . . to assist or further the commission of the intended
    theft . . . [t]hreatens another with or purposely puts another in fear of immediate serious
    injury.” Iowa Code § 711.1(b).
    6
    An inference may stand as a sufficient factual basis. See State v. Heard, 
    636 N.W.2d 227
    , 232 (Iowa 2001) (holding a fact finder may infer the necessary elements of robbery
    by placing another in fear of injury from both verbal and nonverbal actions). We are not
    persuaded by Wright’s argument that Heard’s use of inference does not apply here. As
    in Heard, a robber in disguise entered a place of business and demanded an employee
    hand over money or drugs. The Heard court contemplates the evidentiary value of
    inferences derived from a robber’s demand of compliance from the victim. 
    Id. at 231–32.
                                               6
    There is a sufficient factual basis for Wright’s guilty plea. Her counsel
    therefore was under no duty to prevent her from pleading guilty or to move in
    arrest of judgment.
    Wright argues her plea was involuntary because the trial information was
    deficient. The trial information cited to Iowa Code section 711.1, alleged the
    victims were placed in fear, but failed to include the phrase “immediate serious
    injury” from the statute. Based on her perceived deficiency in the State’s charge,
    Wright asserts she did not realize “her conduct did not actually fall within the
    crime charge[d]” and she did not have “an understanding of the law in relation to
    the facts.”
    However, the trial information was sufficient to charge Wright with the
    crime. “Iowa courts consider both the . . . information and the minutes filed when
    determining the adequacy of the allegations to apprise the accused of the crime
    charged.”7 State v. Grice, 
    515 N.W.2d 20
    , 23 (Iowa 1994). The minutes of
    testimony contain statements by Eric and Libby VanHeukelom, the owners of the
    pharmacy, and Kelly Gunderson, one of their employees. The VanHeukeloms
    were present for both robberies and would testify “that they were in fear of their
    physical safety and felt they had no choice but to turn over the narcotics.”
    Heard does not limit the inferential value of the act of demanding compliance to assault.
    See 
    id. 7 We
    recognize our supreme court has held, “Reference to the minutes of testimony is
    irrelevant for the purposes of the voluntariness inquiry if the record does not show that
    the minutes were reviewed and accepted as true on the record by the defendant.”
    
    Finney, 834 N.W.2d at 55
    . However, in our analysis, we do not use the minutes to
    establish the voluntary nature of Wright’s plea. We refer to the minutes to establish the
    crime was properly charged, the charge matched Wright’s conduct, and the State
    provided adequate notice to Wright of both the law and the facts.
    7
    Gunderson, who was present during the July robbery, would testify “that she was
    in fear of immediate serious injury to herself or her colleagues.”
    Taken together, the two charges included in the trial information and the
    minutes of testimony properly “apprise the accused of the crime charged.” 
    Id. Wright’s conduct
    did fall within the crime charged, so she may not rely on an
    alleged deficiency in the charging documents to claim she was unaware the
    crime included the element that the victims were placed in fear of serious injury.
    Her claim that she did not voluntarily plead guilty is further belied by the
    record: there is a factual basis for the victims’ fear of “immediate serious injury,”
    and such injury was expressly discussed prior to the district court’s acceptance of
    the plea. Wright’s counsel included the statutory language at the outset of his
    statements to the court,8 and Wright herself admitted that her son’s actions would
    have put the victims “in fear of serious injury.” 9 Based on the sufficient factual
    basis for the charge in this case, the district court properly found Wright
    “possesse[d] an understanding of the law in relation to facts.” See 
    Finney, 834 N.W.2d at 61
    . Based on the record of the plea colloquy, Wright’s subjective state
    of mind renders her guilty plea knowing and voluntary. See 
    id. at 55.
    8
    Wright’s counsel stated to the court:
    [Wright] would acknowledge that on or about September 23, 2013, while
    in Polk County, Iowa, she did aid and abet her son, her co-defendant, in
    the commission of second degree robbery, that she did drive her son to a
    Medicap pharmacy . . . knowing that her son would go into the pharmacy
    while having the specific intent to commit a theft and that during the
    commission of this theft, he did don guise and place the employees at the
    Medicap pharmacy in fear of immediate serious injury.
    9
    The plea colloquy included the following exchange between the court and Wright:
    Q: Would you agree that by going in, trying to disguise himself
    and demanding prescription medication, not paying for it from the
    Medicap employees would have placed them in fear of serious injury?
    A: Yes.
    8
    Because Wright’s guilty plea is supported by a factual basis and because
    she pleaded voluntarily, her counsel was under no duty to prevent her from doing
    so or to move in arrest of judgment. “[C]ounsel has no duty to raise an issue that
    has no merit.” State v. Dudley, 
    766 N.W.2d 606
    , 620 (Iowa 2009). Wright has
    not met her burden to show a breach of an essential duty by her counsel and is
    therefore not entitled to the corresponding relief.
    B. Sentence
    Both the United States Constitution and the Iowa Constitution prohibit the
    infliction of cruel and unusual punishment. See U.S. Const. amend. VIII; Iowa
    Const. art. 1, § 17.     Wright contends her ten-year sentence coupled with a
    seventy-percent mandatory minimum is cruel and unusual as applied to her
    unique circumstances.10
    For a sentence of years to be considered cruel and unusual, it must be
    grossly disproportionate to the crime for which it is imposed.11 
    Bruegger, 773 N.W.2d at 873
    (citing Rummel v. Estelle, 
    445 U.S. 263
    , 271 (1980)).                 “[A]
    sentence for a term of years within the bounds authorized by statute is not likely
    to be ‘grossly disproportionate’ . . . .” 
    Id. (citing Ewing
    v. California, 
    538 U.S. 11
    (2003); Harmelin v. Michigan, 
    501 U.S. 957
    (1991); Solem v. Helm, 
    463 U.S. 227
    10
    “Under an as-applied attack, a criminal statute imposing a certain sentence is not
    facially invalid in all circumstances, but only as applied under the facts and
    circumstances in a particular case.” 
    Bruegger, 773 N.W.2d at 880
    .
    11
    If the reviewing court makes a preliminary determination that a sentence casts an
    impression of gross disproportionality, it will then go on to evaluate whether that
    impression is borne out by comparison to other sentences within the same state—an
    intrajurisdictional analysis—and to sentences for the same crime in other jurisdictions—
    an interjurisdictional analysis. 
    Bruegger, 773 N.W.2d at 873
    . If the sentence does not
    pass the threshold of potentially grossly disproportionate, we need not undertake these
    additional analyses. See 
    id. 9 (1983)).
       “[L]egislative determinations of punishment are entitled to great
    deference.” 
    Id. at 872–73.
    Wright claims her seven-year mandatory minimum sentence is grossly
    disproportionate to her crime. In support of her claim, she notes the statutory
    provisions applicable to her case are extremely broad, which has caused her
    offense to be statutorily equated to more egregious offenses.         The robbery
    provision of Iowa Code section 711.1, she claims, could apply to a shoplifter
    hurriedly pushing past a clerk or a team of bank robbers causing major physical
    injuries to tellers.   The mandatory minimum provision of section 902.12, she
    notes, applies to severe offenses like second-degree murder, attempted murder,
    and vehicular homicide. The forcible felony provisions of sections 702.11 and
    907.3, which make a term of imprisonment for Wright mandatory, put second-
    degree robbery in the same category as child endangerment, murder, and sexual
    abuse.
    However, the breadth of these provisions does not render their application
    to Wright’s case grossly disproportionate to her crime.       To the contrary, the
    interplay of these provisions demonstrates our legislature’s policy determination
    that perpetrators of second-degree robbery—and their aiders and abettors—are
    subject to harsh penalties to deter those who would consider engaging in such
    societally harmful behaviors. Further, our supreme court has acknowledged that
    mandatory minimums do not create grossly disproportionate sentences even for
    second-degree robbery. State v. Phillips, 
    610 N.W.2d 840
    , 843–44 (Iowa 2000).
    Wright’s lack of criminal history and her motivation for assisting her son in
    the crime—i.e. drug addiction—are not sufficient mitigating circumstances to
    10
    overcome the deference we give our legislature in crafting proper sentencing
    provisions. Wright has not persuaded us that her sentence should satisfy the
    threshold determination of gross disproportionality to warrant further analysis.
    See 
    Bruegger, 773 N.W.2d at 873
    . We therefore affirm her sentence.
    IV. Conclusion
    Our record is sufficient to determine whether Wright’s counsel rendered
    ineffective assistance. It shows Wright’s guilty plea was supported by a factual
    basis and was voluntarily made after Wright was given explicit notice of the
    elements of the crime. Her counsel did not breach an essential duty, and she is
    not entitled to relief under her ineffective-counsel claim.
    Wright’s ten-year sentence coupled with a seventy percent mandatory
    minimum is not grossly disproportionate to the crime of aiding and abetting
    second-degree robbery.       The sentence is therefore not cruel and unusual
    punishment. We affirm the sentence.
    AFFIRMED.