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State v. Burton

Court of Appeal of Iowa

October 2, 2013

STATE OF IOWA, Plaintiff-Appellant,
v.
JESSICA CHRISTINE BURTON, Defendant-Appellant.

Appeal from the Iowa District Court for Scott County, Mary E. Howes (guilty plea), Thomas G. Reidel (deferred judgment), and Joel W. Barrows (revocation and sentencing), Judges.

Burton appeals her conviction and sentence for theft in the second degree, alleging ineffective assistance of counsel at the plea hearing and improper sentence. .

Mark C. Smith, State Appellate Defender, and Melinda Nye, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Michael Walton, County Attorney, and Melisa Zaehringer, Jay Sommers, and Kimberly Shepherd, Assistant County Attorneys, for appellee.

Considered by Vogel, P.J., and Danilson and Tabor, JJ.

TABOR, J.

Jessica Christine Burton appeals her conviction and sentence for theft in the second degree. She alleges ineffective assistance of plea counsel and improper sentencing. Because the minutes of testimony and Burton's own statements show a factual basis supporting the value of the stolen merchandise, Burton cannot prove counsel was ineffective for allowing her to enter the guilty plea. Because the parties agree the district court erred in imposing a fine without the reduction required under Iowa Code section 908.11(5) (2009), we vacate that part of the sentence and remand for entry of an amended sentencing order.

I. BACKGROUND FACTS AND PROCEEDINGS

On October 12, 2010, a Gordman's department store loss-prevention officer, Eleanor Stout, saw on surveillance cameras two women removing bottles of perfume from store shelves and placing the bottles in their purses. When Stout approached the two women, they ran. Authorities later identified these women as Christina Castaneda and Jessica Burton. Castaneda struggled with employees of the store, while Burton was able to flee the scene in a car. Store personnel gave a description of the car to Davenport police officers, who were able to find it.

Police originally asked Burton to come down to the police station to help identify the woman with Castaneda at Gordman's. When the officer saw Burton, he realized she was the other woman in the surveillance video. Burton admitted to officers she had stolen the perfume. Officers recovered fourteen bottles of perfume valued at $689.86 from Castaneda. Loss-prevention officers determined Burton had taken thirteen bottles worth $634.82.

On November 30, 2010, the State charged Burton with theft in the second degree, in violation of Iowa Code section 714.2(2). She entered a guilty plea in court on April 13, 2011. The court accepted the plea. The court granted Burton a deferred judgment and placed her on probation for two years. The court also ordered her to pay a civil penalty of $750 and $634 in restitution. In November 2012, the court revoked her probation, imposed judgment, and sentenced Burton to a term of incarceration not to exceed five years. The court also imposed and suspended a fine of $750. Burton appeals.

II. STANDARD OF REVIEW

We review claims of ineffective assistance de novo. State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013). Although we often 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." State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). The record ...


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