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State of Iowa v. Gary David Mooney Jr

January 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
GARY DAVID MOONEY JR., DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Wapello County, Dan F. Morrison, Judge.

The opinion of the court was delivered by: Vogel, J.

A defendant appeals from his conviction and sentence for first degree theft. AFFIRMED.

Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.

The defendant, Gary David Mooney Jr., appeals from the judgment, conviction, and sentence following a jury trial and a verdict of guilty for the offense of theft in the first degree in violation of Iowa Code sections 714.1 and 714.2(1) (2011). He claims his attorney provided him ineffective assistance for failing to object to certain evidence, the district court erred by not allowing his attorney to make a statement at sentencing, and the district court imposed an illegal sentence by ordering him to pay reimbursement of attorney fees in an amount exceeding the fee limitation, in violation of State v. Dudley, 766 N.W.2d 606, 620-22 (Iowa 2009).

I. Background Facts and Proceedings

A reasonable juror could have found the following facts as true: in November 2010, two Cub Cadet brand all-terrain utility vehicles (ATVs)*fn1 were stolen from Greiner Implement in Ottumwa. The ATVs had a retail value of $12,500 each. Michael Lehenbauer, Mooney's brother-in-law, informed the sheriff's office of a potential location of the stolen ATVs. On November 17, deputies went to the location provided by Lehenbauer, which was the residence of Gary Mooney Sr. and Diane Mooney, Mooney's parents. With permission, the deputies searched a detached garage and found painting equipment, cans of black paint, items with green paint on them, pamphlets for a John Deere Gator, and John Deere stickers. In a nearby trailer, the deputies found a Cub Cadet ATV that had been disassembled. The main serial number had been removed from the disassembled Cub Cadet ATV. The deputies did not find any John Deere vehicles on the Mooney property.

Also in November 2010, a couple interested in purchasing a car responded to Mooney's radio advertisement. When they went to look at the vehicle at Mooney's parents' home, they also saw an ATV. Mooney assured them the ATV was a John Deere Gator and sold the couple both the car and the ATV.

On November 18, the deputies went to the purchasers' home and after inspecting the ATV, concluded it had been repainted green as the original color could be seen in unpainted areas. The tires on the ATV matched the tire tracks observed outside the detached garage at the Mooney residence. This ATV was also missing its main serial number.

The owner of Greiner Implement contacted Cub Cadet, which had on file the serial numbers for the differential, the transmission, the steering, the engine, as well as the product identification serial number. The owner of Greiner Implement received faxes from Cub Cadet with these various serial numbers for the stolen ATVs and they matched the serial numbers of the recovered ATVs. One of the deputies contacted Mooney on December 22, who indicated he did not steal the ATVs and law enforcement should instead focus its attention on Lehenbauer. Mooney later testified he restored some John Deere Gators for Lehenbauer in November 2010. Mooney also testified the Gator he sold to the couple was Lehenbauer's, but he sold it because he had not been paid by Lehenbauer for his restoration work.

Mooney was charged on January 31, 2011, with theft in the first degree, a class C felony, in violation of Iowa Code sections 714.1 and 714.2(1), and fraudulent practice in the first degree, a class C felony, in violation of Iowa Code sections 714.8(5) and 714.9. The trial information was amended multiple times but the charges remained the same. A jury trial commenced on July 12, and Mooney was found guilty of the theft charge but not guilty of the fraudulent practice charge. A sentencing hearing was held on September 12, and Mooney was sentenced to ten years incarceration and ordered to pay restitution "for attorney fees pursuant to section 815.9, not to exceed $3600, or shall reimburse the State of Iowa for court-appointed attorney's fees in the amount approved. Any costs not know at this time shall be assessed by the Clerk of Court at the time those costs are ascertained." Mooney appeals.*fn2

II. Ineffective Assistance

We first turn to Mooney's claim his counsel was ineffective for failing to object to the admission of, and testimony regarding, the State's exhibits sixty-three and sixty-four-the faxes from Cub Cadet with the various serial numbers. Our analysis of an ineffective-assistance claim is de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). To succeed on an ineffective-assistance-of-counsel claim, a defendant must show: "(1) counsel failed to perform an essential duty; and (2) prejudice resulted." State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). "[W]e measure counsel's performance against the standard of a reasonably competent practitioner." Id. In determining whether an attorney failed in performance of an essential duty, we avoid second-guessing reasonable trial strategy. Fullenwider v. State, 674 N.W.2d 73, 75 (Iowa 2004). If the defendant requests the court decide the claim on direct appeal, it is for the court to determine whether the record is adequate and, if so, to resolve the claim. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). If, however, the court determines the claim cannot be addressed on appeal, the court must preserve it for a post-conviction relief proceeding, regardless of the court's view of the potential viability of the claim. Id. The record before us on direct appeal is sufficient to address the issue.

Mooney claims his trial counsel was ineffective for failing to object to the admission of the faxes as they were inadmissible hearsay. Mooney claims the exhibits and the testimony surrounding the exhibits were offered to prove the truth of the matter asserted and the foundational elements to admit the exhibits as business records under the exception of Iowa Rule of Evidence 5.803(6) were not present. The State concedes the record does not show the foundational requirements of rule 5.803(6) were met when exhibits sixty-three and sixty-four were introduced. However, it claims this omission alone does not establish counsel breached a duty if counsel determined an objection was unnecessary as it did not impact the defense theory of the case. We agree with the State.

Mooney was adamant throughout his testimony he did not steal the ATVs nor did he know the ATVs he was working on for Lehenbauer were stolen. Naming several clients, he asserted he had a legitimate body-shop business, and it was customary for clients to bring various types of vehicles to him, whole or disassembled, for repair and paint work. He claimed Lehenbauer was going to pay him $1000 to repair/repaint each ATV, but when he finished the work on one and was not paid, decided to sell that one. At no time during the trial was the issue whether the ATVs were stolen, such that an ...


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