Opinion
No. 2-939 / 02-0955.
Filed February 28, 2003.
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor and J. Hobart Darbyshire, Judges.
Patrick appeals from judgment and conviction entered following a plea of guilty for theft in the first degree in violation of Iowa Code section 714.2(2) (1999). SENTENCE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William Davis, County Attorney, and Rob Cusack and Don Frank, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Patrick appeals from judgment and conviction entered following a plea of guilty for theft in the first degree in violation of Iowa Code section 714.2(2) (1999). We reverse and remand with instructions.
I. Background Facts and Proceedings. On March 25, 2001, Trimale Patrick entered a Walgreen's store and placed a box of condoms in his jacket pocket. As he walked toward the exit, he was confronted by the store manager, who attempted to pull the condoms out of Patrick's jacket. The two struggled, and Patrick shoved the manager and escaped without his jacket.
Patrick was charged with first-degree theft, under the theft from the person alternative, and second-degree robbery. Patrick initially pled not guilty to both charges, but later withdrew his plea and pled guilty to first-degree theft pursuant to a plea agreement. The court conducted a colloquy and found there was a factual basis for the plea of guilty. Patrick was subsequently sentenced to an indefinite term not to exceed ten years.
Patrick appeals, alleging (1) his counsel was ineffective for failing to file a motion in arrest of judgment; and (2) the district court considered unproved facts and unprosecuted offenses during sentencing.
II. Ineffective Assistance of Counsel. We review claims of constitutional violations, including ineffective assistance of counsel, de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). We prefer to resolve claims of ineffective assistance of counsel in postconviction relief proceedings, State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986), but such claims may be resolved on direct appeal if counsel's acts, or lack thereof, cannot be explained by plausible strategic or tactical considerations. State v. Goff, 342 N.W.2d 830, 838 (Iowa 1983).
Patrick alleges his trial counsel was ineffective for failing to file a motion in arrest of judgment challenging the factual basis supporting the plea of guilty to theft from the person. The district court may not accept a guilty plea without first determining that the plea has a factual basis. See Iowa R.Crim.P. 2.8(2)( b); State v. Burlow, 299 N.W.2d 665, 668 (Iowa 1980). "Where a factual basis for a charge does not exist, and trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an essential duty." State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Patrick argues he cannot be guilty of theft from the person unless the property stolen was in close proximity to the victim. He contends the facts admitted during the plea colloquy and in the minutes of testimony do not establish a close proximity between the store manager and the box of condoms Patrick pocketed. Patrick cites several Iowa theft from the person cases which hold that, while the property does not have to be taken from the body of the victim, it must be taken from the immediate presence of the victim. See State v. Washington, 308 N.W.2d 422, 423 (Iowa 1981) (holding billfold taken from victim's purse in grocery cart, when victim's hand was still on cart, was theft from the person); State v. Marsan, 221 N.W.2d 278, 280 (Iowa 1974) (holding a billfold picked up after falling out of the victim's coat and lying on sidewalk at victim's feet constituted theft from the person); State v. Kobylasz, 47 N.W.2d 167, 170 (Iowa 1951) (holding a pocketbook snatched from the car seat next to victim was theft from the person).
The State counters that a factual basis clearly existed for the plea because the words "from the person" should be interpreted much more broadly than urged by Patrick. The State argues "from the person" in the theft context should be construed as it was in a robbery context in the 1887 case of State v. Calhoun, 72 Iowa 432, 34 N.W. 194 (Iowa 1887). In Calhoun, the court determined that a defendant who took property from a room, while the victim was bound and gagged in an adjacent room, committed robbery. Id. at 435-436, 34 N.W. at 195-196. The State notes that the court in Kobylasz referred to Calhoun when deciding to extend theft from the person to include theft not only of property from the victim's person, but also property in the victim's immediate presence. While the interpretation of "from the person" in the context of robbery can be instructive, we conclude it is not controlling in the context of theft. The State provides no authority supporting the argument that theft from the person may involve a taking of property not in the immediate presence of the victim.
To convict Calhoun of robbery under the law then prevailing, the State had the burden to prove the defendant "with force or violence, or by putting in fear, [stole] and [took] from the person of another any property that is the subject of larceny." Iowa Code § 3858 (1873).
"Theft from the victim's area of control, because of its potential for physical confrontation with the thief, could logically be seen as justifying" the classification of theft from the person as first-degree theft, a class C felony. Washington, 308 N.W.2d at 423; Iowa Code § 714.2(1). Theft of property valued at not more than two hundred dollars would otherwise be classified under Iowa law as a simple misdemeanor. See Iowa Code § 714.2(5). The rationale supporting the greater punishment for theft from the person is the invasion suffered by the victim and the increased potential for harm to the victim created by the thief's close physical proximity to the victim when the theft occurs. See 50 Am. Jur.2d Larceny § 55, at 65-66 (1995). Thus, the policy considerations sustaining the prosecution of theft from the person as first-degree theft support a narrow interpretation of "from the person" requiring the victim and the property to be in close proximity. During the plea colloquy, Patrick admitted he took the box of condoms and placed them in his pocket. The minutes of testimony allege that Schumacher watched Patrick select a box of condoms, open it, remove some of its contents and attempt to conceal them up his sleeve. The minutes further asserted that Schumacher observed Patrick place the condoms in his pocket and walk toward the front doors. Although the record indicates Schumacher confronted Patrick "in the main aisle," it is unclear where Schumacher was positioned when he observed Patrick pocket the condoms. The State urges us to infer Schumacher was in close proximity to Patrick and the condoms when he made the observation, but we could just as easily infer Schumacher was on the other side of the store and observed Patrick's actions in a security mirror or on closed circuit television. In fact, the district court expressed reservations about the factual basis for the guilty plea. We conclude the record does not contain a factual basis to support Patrick's guilty plea to theft in the first degree. A plea not supported by the record made violates the letter and spirit of Iowa Rule of Criminal Procedure 2.8(2)( b) and cannot be permitted. State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996). Where a guilty plea has no factual basis in the record, but it is possible that a factual basis could be shown, the appropriate remedy is to vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis. Schminkey, 597 N.W.2d at 792. Therefore, we vacate the sentence entered on the first degree theft charge and remand for further proceedings at which time the State may supplement the record to establish a factual basis for the crime of theft from the person. If a factual basis is not shown, the defendant's plea must be set aside. Id.
During the plea colloquy, after Patrick described his version of events, the district court addressed counsel and said, "I'm having trouble with from the person," and "I haven't really heard that the store employee was in the immediate area when [Patrick] was taking [the condoms]."