Appeal from the Iowa District Court for Linn County, Thomas L. Koehler (guilty plea) and Robert E. Sosalla (sentencing), Judges.
Spencer Horak appeals from a judgment and sentence following his pleas of guilty to forgery, false use of a credit card, and second-degree theft.
Mark C. Smith, State Appellate Defender, and Stephen J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Jason Burns, Assistant County Attorney, for appellee.
Considered by Doyle, P.J., and Bower, J., and Mahan, S.J. [*]
Spencer Horak appeals from a judgment and sentence following his plea of guilty to false use of a credit card, claiming his plea counsel was ineffective in permitting him to plead guilty where the record fails to disclose a factual basis for that crime. Because Horak entered a plea of guilty to a crime and the record failed to disclose a factual basis, his attorney failed to provide effective assistance, and prejudice is presumed. We therefore vacate the sentence entered on the false-use-of-a-credit-card charge and remand for further proceedings at which time the State may supplement the record to establish a factual basis for that crime. If a factual basis is not shown, Horak's plea must be set aside.
I. Background Facts and Proceedings
On November 16, 2012, Sara Haugland's car was burglarized in Cedar Rapids. Her driver's license, checkbook, and credit cards were taken from her car. Later that same day, Haugland's cards were used at Wal-Mart, Road Ranger, and Casey's. Haugland did not authorize any of these transactions.
An investigation of these transactions led police to Horak and his wife, Heather Bennett. Horak admitted he attempted to cash one of Haugland's checks at Hill's Bank on November 16. He admitted Bennett wrote the check out to him. Bennett admitted she forged the checks and stole the credit cards.
Horak was charged with two counts of forgery and two counts of false use of a credit card (FECR101659). Horak was also charged with second-degree theft for separate conduct unrelated to Haugland's property (FECR101897). Pursuant to a plea agreement, Horak pled guilty to one count of forgery, one count of false use of a credit card, and one count of theft in the second degree. Horak pled guilty in person before the court on the forgery and theft charges. A plea by paper was entered on the false-use-of-A-credit-card charge.
Horak was sentenced to a five-year term of imprisonment on the forgery charge, and a five-year term of imprisonment on the theft charge, with the terms to run consecutively. He was fined $625 on the false-use-of-a-credit-card charge and the fine was suspended.
Horak now appeals from his judgment and sentence on the false-use-of-a-credit-card conviction. He asserts his counsel was ineffective for allowing him to plead guilty to an ...