Opinion
No. 2-767 / 02-0122.
Filed December 11, 2002.
Appeal from the Iowa District Court for Polk County, MICHAEL D. HUPPERT, Judge.
Defendant appeals the convictions and sentences entered upon his guilty plea to various drug-related charges. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, John Sarcone, County Attorney, and Jaki Livingston, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and VOGEL, and MAHAN, JJ.
Dennis Young appeals the convictions and sentences entered upon his guilty pleas to manufacturing more than five grams of methamphetamine, eluding, conspiracy to manufacture more than five grams of methamphetamine, and possession of a controlled substance with intent to deliver. We affirm in part, vacate in part, and remand.
I. Background facts and proceedings.
Young pled guilty to a number of crimes in three separate district court cases. In case number FECR140443, Young pled guilty to second-degree theft, in violation of Iowa Code sections 714.1 and 714.2(2) (1999), and eluding, in violation of section 321.279(3)(a). In case number FECR141168, he pled guilty to conspiracy to manufacture methamphetamine, in violation of section 124.401(1)(b)(7), manufacture of a controlled substance, in violation of section 124.401(1)(b)(7), possession of a controlled substance with intent to deliver, in violation of section 124.401(1)(c)(6), and possession of ephedrine or pseudoephedrine with the intent to use it as a precursor, in violation of section 124.401(4). In case number FECR 160040, he pled guilty to perjury, in violation of section 720.2 (2001), based on false statements in an application for a court-appointed attorney in the above cases. Young appeals.
II. Ineffective assistance of counsel.
Young first asserts the record does not establish a factual basis for his pleas to manufacturing more than five grams of methamphetamine and eluding. These challenges were not made at the trial court, and he thus asserts counsel provided ineffective assistance for failing to file a motion in arrest of judgment on these charges. We review claims of ineffective assistance de novo. State v. Weste, 591 N.W.2d 203, 207 (Iowa 1999).
A. Manufacturing more than five grams of methamphetamine. We find the record adequate to resolve this claim on direct appeal. See State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). The district court may not accept a guilty plea without first determining that the plea has a factual basis. See State v. Burtlow, 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. See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
The State agrees there was no factual basis for Young's plea of guilty to manufacturing more than five grams of methamphetamine. We concur. Neither Young's confession nor the minutes of testimony show that he manufactured more than five grams of methamphetamine, only that 4.8 grams were found in his possession. To establish a factual basis for the plea to manufacturing, the State must show the manufacturing process in fact yielded more than five grams of the drug. See State v. Royer, 632 N.W.2d 905, 909 (Iowa 2001). We therefore vacate Young's conviction and sentence and remand for dismissal of this charge.
B. Eluding. We also find the record adequate to address whether counsel was ineffective in failing to question the factual basis for the charge of eluding. In order to support Young's conviction for eluding, the State was required to establish Young "exceed[ed] the speed limit by twenty-five miles per hour or more." Iowa Code § 321.279(3) (1999). In his confession, which the court used to establish a factual basis, Young admitted: "I did go over the speed limit of 25 miles per hr several times." Young now asserts that he did not admit to having exceeded the speed limit by twenty-five miles per hour, but rather that he merely exceeded twenty-five miles per hour during the chase. A literal reading of the language of this confession supports Young's position.
However, the State invites us to read the confession's language in the context in which it was given. Because the speed of the defendant's motorcycle is only relevant to an eluding charge if it indicates the motorcycle exceeded the posted speed limit by twenty-five miles per hour, the State argues that is the only reasonable interpretation the confession can be given. Therefore, there would have been no reason to have mentioned the speed element if Young had simply driven a speed of over twenty-five miles per hour. We agree. The confession was handwritten and clearly given in the voice of Young, not necessarily his attorney, replete with grammatical and other errors. It was not a model of clarity or precision. We conclude that when read in the context of both the charges he was pleading to and the manner in which the confession was given, Young confessed to all necessary elements of eluding as a class "D" felony. As such, the record discloses a factual basis for the plea to eluding.
A speed exceeding the posted speed limit by twenty-five miles per hour elevates the eluding conviction from serious misdemeanor to a class "D" felony.
Moreover, the State asserts Young cannot prove he was prejudiced by this error in that the minutes of testimony indicate that several West Des Moines police officers would testify the motorcycle "exceeded the speed limit by more than 25 miles over the posted speed limit." See State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (noting the record to support a factual basis for a guilty plea includes the minutes of testimony). Accordingly, we also conclude Young could not have been prejudiced by counsel's failure to object to the factual basis for the guilty plea. See State v. Thornton, 498 N.W.2d 670, 675 (Iowa 1993) (noting that in order to prove prejudice, the defendant must show that, but for counsel's unprofessional errors, the result of the proceeding would have been different).
III. Merger.
Young argues the district court erred in entering judgment for both conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to deliver. He urges these two convictions should have merged into the substantive offense of manufacturing methamphetamine. This specific claim was not raised at the trial court level. However, because Young claims an illegal sentence, it is not subject to the usual error preservation rules. See Overton v. State, 493 N.W.2d 857, 859 (Iowa 1992) (stating error preservation rules are not applicable to illegal sentences).
The State counters that the convictions were not for alternative means of committing the same offense. Rather, it asserts that different factual elements support both the conspiracy to manufacture and possession with intent to deliver charges. First, we have already concluded no factual basis exists to support the plea to manufacturing more than five grams of methamphetamine. Thus, the factual bases for the conspiracy charge under Iowa Code section 124.401(1)(b)(7) must be based on his acts in conspiring to manufacture, not in actually manufacturing over five grams of the drug. This was supported in part by Young's confession where he stated, "The stuff that I bought was to make over 5 grams of meth." His confession to actually possessing 4.8 grams of methamphetamine serves to support a factual basis for the charge of possession of a controlled substance, five grams or less, with intent to deliver. Iowa Code § 124.401(1)(c)(6). We therefore affirm the convictions and sentences entered upon his guilty pleas to conspiracy to manufacture methamphetamine and possession of a controlled substance with intent to deliver.
"I also had 4.8 grams of Ready made meth."