Appeal from the Iowa District Court for Scott County, Marlita A. Greve (plea) and Joel W. Barrows (sentencing), Judges.
A defendant appeals his forgery conviction and sentence.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Michael J. Walton, County Attorney, Joseph Grubisich and Joel Barrows, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
The State charged Saunders Pike with theft in the fourth degree and forgery of a financial instrument. In return for Pike's guilty plea to forgery, the State agreed to dismiss the theft charge. Then the plea agreement took an unusual turn. If Pike deposited $685 in restitution into his attorney's client trust account by the date of sentencing, the State agreed not to pursue the habitual offender enhancement. If Pike did not make the deposit, he agreed to stipulate to his habitual offender status. Ultimately, Pike was unable to come up with the money and received an indeterminate fifteen-year sentence. Pike now appeals, alleging no factual basis for his guilty plea and constitutionally deficient representation in negotiating the plea agreement. He also contests the imposition and suspension of a fine on his habitual offender sentence.
Because the plea record provides a factual basis for forgery, we affirm Pike's conviction. As for his Sixth Amendment claim, we find the record inadequate to gauge the effectiveness of counsel's performance and preserve the issue for possible postconviction proceedings. We vacate the portion of his sentence imposing the fine and remand for entry of a revised sentencing order.
I. Background Facts and Proceedings
According to the minutes of testimony, Pike worked for KJS Janitorial. On April 3, 2012, he was cleaning the offices of Diotte Chiropractic Center in Davenport when he found checks belonging to the business. Chiropractor Ron Diotte was away on vacation in early April. When he returned to his office he noticed four checks were missing from his business accounts with Blue Grass Savings Bank. In checking with his bank, Dr. Diotte learned that so far only one of the checks had been cashed. Dr. Diotte told the police the amount of that check was approximately $300.
Ken Anderson, an employee of Sub Express gas station, recalled Pike coming into the station on a recent Sunday and asking him to cash a "pay check" from a doctor's office. Pike told Anderson he needed the money and all the banks were closed. Anderson said he checked with the owner of Sub Express and received approval to cash the check for Pike. On Monday Pike returned to the gas station and told Anderson the doctor's office had been broken into and the doctor was stopping payment on all the checks. Pike promised to repay Sub Express. Anderson submitted a restitution claim in the amount of $385 for the check cashed by Pike.
In response to Dr. Diotte's complaint, Davenport police officers interviewed Pike on April 13, 2012. Detective Brandon Noonan read Pike his Miranda warnings, and Pike signed a waiver form, agreeing to speak with the officer. Pike admitted stealing several checks and writing his name on them. The detective compared Pike's signature from the Miranda form and from the copy of the check provided by Dr. Diotte and "noticed the signatures were very similar in nature."
The Scott County Attorney filed a trial information charging Pike with theft in the fourth degree, a violation of Iowa Code sections 714.1(1), 714.1(6), and 714.2(4) (2011), and forgery of a financial instrument, a violation of Iowa Code section 715A.2(1)(b) or (c) and 715A.2(2)(a)(3). The trial information also alleged Pike was an habitual offender. Pike reached a plea agreement with the State and entered a plea of guilty to forgery on October 12, 2012. The court continued his sentencing hearing from November 29 to December 28, 2012. Pike stipulated to prior offenses qualifying him as an habitual offender. The court sentenced Pike to an indeterminate term of fifteen years with a mandatory minimum of three years under Iowa Code section 902.8. The court also fined Pike $750 but suspended his obligation to pay that fine. Pike challenges his plea and sentence.
II. Standards of Review
We review the guilty plea and sentencing issues for errors at law. State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004); Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). But Pike's claim of ineffective assistance of counsel calls for de novo ...