from the Iowa District Court for Polk County, William P.
appeals his convictions for second-degree theft, operating
while intoxicated, first-degree harassment, second-degree
criminal mischief, and two counts of eluding.
S. Fishman of Nelsen & Feitelson Law Group, P.L.C., West
Des Moines, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
Overton Jr. appeals his convictions for second-degree theft,
operating while intoxicated (OWI), first-degree harassment,
second-degree criminal mischief, and two counts of eluding,
claiming ineffective assistance of counsel. We find Overton
has not shown he received ineffective assistance on his
claims defense counsel should have (1) informed him of the
intoxication defense to the criminal mischief and harassment
charges; (2) objected when the court did not explain the
specific intent elements of criminal mischief and harassment;
(3) explained the intent element of theft; and (4) advised
him not to plead guilty to first-degree harassment or
second-degree theft because there was not a factual basis for
the pleas. We determine the record is not adequate to address
Overton's claim defense counsel should have informed him
of the surcharges he would be assessed and preserve this
issue for possible postconviction proceedings. We affirm
Background Facts & Proceedings
October 20, 2015, Overton stole a 2005 Cadillac from Town and
Country Motors, a car dealership in Des Moines. On November
1, 2015, an officer noticed the vehicle on the shoulder of
Interstate 80. After talking to the driver, Overton, the
officer briefly returned to his vehicle, and Overton drove
away. The officer pursued Overton, who drove at excessive
speeds. When Overton was apprehended, he appeared to be under
the influence of a controlled substance. He told medical
personnel he was a methamphetamine and heroin user. Overton
was charged with theft in the second degree, in violation of
Iowa Code section 714.2(2) (2015), eluding, in violation of
section 321.279(3), and OWI, in violation of section 321J.2.
March 8, 2016, Overton entered guilty pleas to those three
charges. The court accepted Overton's guilty pleas and
set the sentencing hearing for a later date.
March 30, 2016, Overton was visiting his girlfriend, Candace
Jacobs, at the apartment of Maranda Mills, and Mills asked
him to leave. From outside, Overton shouted to Mills he had a
gun and threatened Mills and Jacobs. A few hours later, Mills
received a text from Overton about her vehicle. She
discovered the windows of her Nissan Altima had been cracked
and broken. Overton was charged with harassment in the first
degree, in violation of section 708.7(2), and criminal
mischief in the second degree, in violation of section 716.4.
on March 30, 2016, an officer observed Overton driving in Des
Moines and attempted to stop him based on the incidents
earlier that day.Overton did not stop after the officer
activated his lights and siren; instead he drove away at a
high rate of speed. He was apprehended after he was involved
in an accident with another vehicle. Overton was charged with
eluding, in violation of section 321.279(3), and driving
while revoked, in violation of section 321J.21.
entered into a comprehensive plea agreement, which recognized
his earlier guilty pleas, and he agreed to plead guilty to
first-degree harassment and eluding, as well as enter an
Alford plea to second-degree criminal
mischief.The State agreed to recommend consecutive
sentences for all of the offenses, but have the sentences
suspended, with Overton placed on probation with the
condition he attend a substance abuse treatment program. The
State also agreed to dismiss all other pending charges
hearing was held on July 7, 2016, for the charges of
first-degree harassment, second-degree criminal mischief, and
the charge of eluding arising from Overton's actions on
March 30, 2016. Defense counsel stated he was not aware of
any affirmative defenses available to Overton for the charges
of first-degree harassment and second-degree criminal
mischief. The court accepted Overton's guilty pleas to
first-degree harassment and eluding and his Alford
plea to second-degree criminal mischief.
sentencing hearing was held following the plea proceedings on
July 7, 2016. The State and the defendant both recommended
consecutive, suspended sentences, with Overton placed on
probation, and ordered to attend a substance abuse treatment
program. The district court sentenced Overton to a total term
of imprisonment not to exceed twenty-three years, suspended
the sentences, and placed him on probation for four years,
with the condition he attend a substance abuse treatment
program. Overton was informed a violation of the program
rules would be considered a violation of his probation.
Overton appeals his convictions.
in order to challenge the adequacy of a guilty plea
proceeding, a defendant must file a motion in arrest of
judgment. Iowa R. Crim. P. 2.24(3)(a). Although Overton was
informed in both plea proceedings of the need to file a
motion in arrest of judgment if he wanted to challenge his
guilty pleas, he did not file one. On appeal, he claims his
failure to file a motion in arrest of judgment was the result
of ineffective assistance of counsel. Thus, we consider
Overton's claims within the context of a claim of
ineffective assistance of counsel. See State v.
Bearse, 748 N.W.2d 211, 218-19 (Iowa 2008) (stating the
failure to file a motion in arrest of judgment does not bar a
defendant's claims if the failure was due to ineffective
assistance of counsel).
review claims of ineffective assistance of counsel de novo.
Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).
To establish a claim of ineffective assistance of counsel, a
defendant must show (1) the attorney failed to perform an
essential duty, and (2) prejudice. State v. Carroll,
767 N.W.2d 638, 641 (Iowa 2009). In guilty plea proceedings,
in order to show prejudice, a defendant must demonstrate a
reasonable probability the defendant would not have pleaded
guilty and would have insisted on going to trial, but for
counsel's alleged errors. State v. Straw, 709
N.W.2d 128, 138 (Iowa 2006). A defendant has the burden to
show by a preponderance of the evidence counsel was
ineffective. See State v. McKettrick, 480 N.W.2d 52,
55 (Iowa 1992).
Overton claims he received ineffective assistance because
defense counsel did not advise him of the availability of an
intoxication defense to the charges of first-degree
harassment and second-degree criminal mischief. He states if
he had been aware intoxication could have been raised as a
defense to the specific intent elements of harassment and
criminal mischief, he would not have pled guilty to
first-degree harassment or entered an Alford plea to
second-degree criminal mischief.
harassment is committed when a person threatens to commit a
forcible felony "with intent to intimidate, annoy, or
alarm another person." Iowa Code § 708.7(2).
Harassment is considered to be a specific intent crime.
State v. Evans, 671 N.W.2d 720, 724 (Iowa 2003). The
definition of criminal mischief states, "Any damage,
defacing, alteration, or destruction of property is criminal
mischief when done intentionally by one who has no right to
act." Iowa Code § 716.1. The statute requires the
specific intent to damage, deface, alter, or destroy
property. See State v. Chang, 587 N.W.2d 459, 461
(Iowa 1998). "While intoxication is not a complete
defense, it can establish diminished responsibility, thereby
negating specific intent." Foster v. State, 478
N.W.2d 884, 886 (Iowa Ct. App. 1991) (citing State v.
Caldwell, 385 N.W.2d 553, 557 (Iowa 1986)). Thus, if an
intoxication defense was established it could negate the
specific intent elements of the harassment and criminal
the plea proceeding on the charges of harassment, criminal
mischief, and ...