Opinion
No. 1-968 / 01-0692
Filed April 10, 2002
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge.
Brent Allen Higgins appeals his conviction and sentence, pursuant to a guilty plea, for going armed with intent, in violation of Iowa Code section 708.8 (1999). AFFIRMED.
Frank Burnette, Burnette Kelley, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Brent Allen Higgins appeals his conviction and sentence for going armed with intent in violation of Iowa Code section 708.8 (1999) following guilty pleas to second-degree robbery and going armed with intent. Higgins contends the court erred in (1) failing to merge Count I (second-degree robbery) and Count III (going armed with intent) pursuant to Iowa Code section 701.9 and (2) sentencing him on both Counts I and III in violation of the double jeopardy clause of the federal and Iowa constitutions. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Brent Allen Higgins and four co-defendants were originally charged by trial information with three counts of first-degree robbery stemming from a series of robberies of Des Moines area businesses in September of 2000. As part of a plea agreement the State agreed to amend the trial information as to Higgins to charge him with two counts of robbery in the second degree (Counts I and II), going armed with intent (Count III), and assault while participating in a felony (Count IV) in violation of Iowa Code sections 711.1 and 711.3, 708.8, and 708.3 (1999) respectively. Count III involved events occurring earlier on the same day as the events involved in the robbery charged in Count I. Under the terms of the plea agreement Higgins agreed to plead guilty to these charges and the State agreed to recommend consecutive sentences for the two second-degree robbery charges with the other sentences to run concurrently with the robbery sentences. Higgins agreed with the State's sentencing recommendation.
The court sentenced Higgins to ten-year indeterminate terms of incarceration on Counts I and II, a five-year indeterminate term on Count III, and a five-year indeterminate term on Count IV. In accordance with the State's recommendation and the defendant's agreement the court ordered the sentences on Counts I, III and IV to run concurrently with each other, but consecutively to the sentence on Count II. Higgins appeals his conviction and sentence for going armed with intent, alleging the court erred in sentencing him on both Count I (robbery second) and Count III (going armed with intent) in violation of Iowa Code section 701.9. He asserts section 701.9 requires merger of these two counts because Count III is necessarily included within Count I as a lesser included offense. Higgins further contends sentencing him on both Count I and Count III constituted double jeopardy in violation of the Fifth Amendment to the United States Constitution and the equivalent provision of the Iowa Constitution. Higgins acknowledges, and the State agrees, that error was not preserved for appeal on the double jeopardy issue. However, Higgins asserts he is raising it on appeal to preserve any claim of ineffective assistance of counsel that may be raised in a later postconviction relief action.
II. SCOPE OF REVIEW
Our review of an alleged violation of Iowa Code section 701.9 is for correction of errors at law. State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999). Error preservation rules do not apply to a statutory claim of an illegal sentence under section 701.9. Id. To the extent this case involves constitutional protections against violation of the double jeopardy clause of the United States and Iowa Constitutions our review is de novo. State v. Lange, 495 N.W.2d 105, 106 (Iowa 1992).
III. MERITS A. Section 701.9 merger
Iowa Code section 701.9 requires the sentencing court to merge lesser-included offenses:
No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.
Iowa Code § 701.9 (1999). This statute codifies the double jeopardy protection against cumulative punishments. State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). In order to determine lesser-included offenses we compare the elements of the two offenses to determine whether it is possible to commit the greater offense without also committing the lesser offense. Mulvany, 600 N.W.2d at 293; Halliburton, 539 N.W.2d at 344. The lesser offense is necessarily included in the greater if the greater offense cannot be committed without also committing the lesser. Mulvany, 600 N.W.2d at 293. "If the lesser offense contains an element that is not part of the greater offense, the lesser cannot be included in the greater." Id.
Robbery in the second degree, the greater offense here, is defined as all robbery which is not robbery in the first degree. Iowa Code § 711.3. A person commits robbery in the first degree when, while perpetrating a robbery, that person purposely inflicts or attempts to inflict serious injury or is armed with a dangerous weapon. Iowa Code § 711.2. "Thus, robbery in the second degree occurs when (1) a person intends to commit a theft and, (2) in order to accomplish the theft or an escape from the crime scene, (3) the person commits an assault (4) without purposely inflicting or attempting to inflict serious injury and when not armed with a dangerous weapon." State v. Ceaser, 585 N.W.2d 192, 197 (Iowa 1998); see alsoIowa Code §§ 711.1, 711.2 and 711.3. The elements of going armed with intent, the lesser offense here, are that (1) a person was armed with a dangerous weapon (2) with the intent to use the weapon against another person without justification. Iowa Code § 708.8.
Comparing these statutes side by side it is clear there are elements in the offense of going armed with intent which are not part of second-degree robbery and that second-degree robbery can be committed without also committing going armed with intent. Robbery in the second degree does not require being armed with a weapon, as does going armed with intent. Nor does second-degree robbery require the intent to use a weapon against another that is required for going armed with intent. Here Higgins could have committed second-degree robbery by committing or attempting to commit any assault, and assault does not require use of or being armed with a dangerous weapon or for that matter any weapon.
Furthermore, based on the minutes of evidence and the record made at the plea proceeding it is clear the crime of going armed with intent was complete and punishable before the robbery took place. Higgins was involved in planning the robbery, gave a co-defendant a handgun to use, and knew weapons were going to be used in the robbery, all before he and his co-defendants proceeded to go to the store they intended to rob. Therefore, the robbery was a separate and distinct violation. State v. Arioso, 218 N.W.2d 920, 920 (Iowa 1974). Where the sentences imposed are based on separate and distinct acts there is no double jeopardy violation. State v. Jacobs, 607 N.W.2d 679, 688 (Iowa 2000); see also State v. Smith, 573 N.W.2d 14, 19 (Iowa 1997) (holding multiple punishments can be assessed after a defendant is convicted of two offenses that are not the same). Merger would thus be inappropriate. Because going armed with intent is not a lesser-included offense of second-degree robbery, the trial court was correct in not merging Counts I and III.
B. Double jeopardy
Higgins also argues on appeal that sentencing him on both Count I and Count III constituted double jeopardy in violation of the federal and Iowa constitutions. Higgins acknowledges, and the State agrees, that this issue was not preserved. Error preservation is required even on constitutional issues. Mulvany, 600 N.W.2d at 293; Halliburton, 539 N.W.2d at 343. We agree error was not preserved on this issue and it thus is not properly before us on appeal.
C. Ineffective assistance
Although Higgins acknowledges the double jeopardy issue was not preserved he states in a footnote that he raises this issue on appeal "to preserve any claim of ineffective assistance of counsel [for a] post conviction action." Nowhere, however, does he assert that trial counsel was ineffective in not raising the double jeopardy claim. We thus have no claim of ineffective assistance to address or preserve for a possible postconviction proceeding.
Even if we assume Higgins is attempting to raise a claim of ineffective assistance of trial counsel in this direct appeal, he has not done so in a manner that would allow us to address or preserve the claim. In complaining of the adequacy of an attorney's representation, it is not enough to simply claim counsel should have done a better job. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citing State v. White, 337 N.W.2d 517, 519 (Iowa 1983)). Higgins has a duty to state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. Id.; State v. Astello, 602 N.W.2d 190, 198 (Iowa Ct.App. 1999). Higgins does not in any manner state where he believes trial counsel's performance was deficient or how competent representation would have changed the outcome. Any claim of ineffective assistance of trial counsel that he purports or attempts to raise herein is therefore too general and lacking in specifics to allow us to address it or preserve it for a possible postconviction proceeding. Dunbar, 515 N.W.2d at 15; State v. White, 337 N.W.2d 517, 519-20 (Iowa 1983); Astello, 602 N.W.2d at 197-98.
IV. CONCLUSION
We conclude the trial court did not err in failing to merge the offenses of robbery in the second degree and going armed with intent. Iowa Code section 701.9 does not require merger because going armed with intent is not a lesser-included offense of second-degree robbery and was a separate and distinct crime. We further find Higgins did not preserve error on his double jeopardy claim, and any attempted claim of ineffective assistance related to the double jeopardy claim is too general to allow us to either address it or preserve it for a possible postconviction proceeding.
AFFIRMED.