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State v. Overton

Court of Appeals of Iowa

June 21, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JAMES EARL OVERTON, JR. Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

         Defendant appeals his convictions for second-degree theft, operating while intoxicated, first-degree harassment, second-degree criminal mischief, and two counts of eluding. AFFIRMED.

          Edward S. Fishman of Nelsen & Feitelson Law Group, P.L.C., West Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          BOWER, Judge.

         James 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 Overton's convictions.

         I. Background Facts & Proceedings

         On 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.

         On 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.

         On 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.

         Later on March 30, 2016, an officer observed Overton driving in Des Moines and attempted to stop him based on the incidents earlier that day.[1]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.

         Overton 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.[2]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 against Overton.

         A plea 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.

         The 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.

         II. Ineffective Assistance

         Generally, 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).

         We 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).

         A. 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.

         First-degree 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 mischief charges.

         During the plea proceeding on the charges of harassment, criminal mischief, and ...


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