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State v. Barnes

Court of Appeals of Iowa

August 2, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
RANDY LEE BARNES JR., Defendant-Appellant.

         Appeal from the Iowa District Court for Madison County, Brad McCall, Judge.

         Randy Lee Barnes Jr. appeals following judgment and sentences entered upon his convictions for theft and eluding.

          Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, Assistant Appellate Defender, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J. [*]

          MAHAN, Senior Judge.

         Randy Lee Barnes Jr. appeals following judgment and sentences entered upon his convictions for second-degree theft by exercising control over stolen property, in violation of Iowa Code sections 714.1(4) and 714.2 (2015), and eluding while participating in a felony, in violation of section 321.279(3), each offense committed as a habitual offender, in violation of section 902.8.[1]

         While we find substantial evidence exists to support the jury's findings of guilt, the trial court misstated the maximum possible sentences Barnes faced pursuant to the habitual-offender enhancement, which undermines our confidence in the voluntary and knowing nature of the defendant's rejection of the State's plea offer, as well as the defendant's waiver of a trial on the habitual-offender allegations. In addition, the trial court did not provide any reasons for imposing consecutive sentences. We therefore conditionally affirm the convictions, vacate the sentences, and remand with instructions.

         I. Background Facts.

         On November 6, 2015, Madison County Sheriff Jason Barnes received a report that a truck with a man apparently asleep inside had been parked in front of storage units for more than two hours. The sheriff responded to the report and found the vehicle with Randy Lee Barnes Jr. inside.[2] Barnes and the sheriff briefly spoke, the sheriff went back to his vehicle, and Barnes pulled out of the storage unit's parking lot and left the area. In running the plates of the truck, the sheriff learned the vehicle had been reported taken on October 29 from a community about three hours away. The sheriff followed Barnes, and a chase ensued, eventually involving numerous law enforcement agencies, including the Madison County Sheriff's Office, Warren County Sheriff's Office, Dallas County Sheriff's Office, Iowa State Patrol (including a state patrol airplane), Iowa Department of Natural Resources, and Earlham Police Department. During the pursuit, the uniformed law enforcement officers were in marked patrol vehicles and their lights and sirens were activated. Barnes continued to fail to stop for the officers or for stop signs, and his vehicle reached speeds in excess of 110 miles per hour on gravel roads, which have a maximum speed limit of fifty-five miles per hour. Warren County deputies attempted to setup a roadblock with their vehicles, but Barnes drove down into a ditch to bypass the roadblock. Officers attempted to use stop sticks to deflate the truck's tires, two of which Barnes avoided. Barnes failed to slow down when approaching other vehicles (including a road grader) and when crossing highways or other roads. After more than thirty minutes, the police were successful in using stop sticks on the truck to deflate two of the truck's tires, and Barnes pulled off of the road and surrendered.

         Police confirmed the truck did not belong to Barnes, although Barnes had his property in the truck bed and inside the truck. During a recorded jail telephone call, Barnes told his former girlfriend that "the truck was hot" and "that's why [he] left" the storage units because he "wasn't going to sit there and let [the police] run the plates."

         Barnes was charged with second-degree theft by exercising control over stolen property, in violation of Iowa Code sections 714.1(4) and 714.2, and eluding while participating in a felony, in violation of section 321.279(3), [3] each offense committed as a habitual offender.

         In a pretrial filing seeking a partial judgment of acquittal, the defense argued in regard to the eluding while participating in a felony, "The only question that is left is whether or not the defendant was participating in a felony at this time." Relying on State v. Philo, 697 N.W.2d 481 (Iowa 2005), the defense noted the legislature, in Iowa Code section 702.13, has defined "participating in a public offense" as the period commencing with the first act done directly toward the commission of the offense and for the purpose of committing that offense and terminating when the person has been arrested or has withdrawn from the scene of the intended crime and has eluded pursuers, if there be any. He argued the offense of theft of a motor vehicle had been completed before the eluding occurred here, which required a dismissal of the charge. The district court denied the motion, noting the offense charged here-theft by possession or control of stolen property, pursuant to section 714.1(4)-was not under the same statutory provision as that in the Philo case-theft by taking, pursuant to section 714.1(1).

         Before trial began, a record was made as to the plea offered to Barnes by the State:

[PROSECUTOR] MR. ANDERSON: Mr. Barnes has been charged with theft in the second degree as a habitual offender and felony eluding as a habitual offender.
The State made a plea offer yesterday that if Mr. Barnes agreed to plead guilty to theft in the second degree without the habitual offender enhancement and eluding as an aggravated misdemeanor, if he agreed to prison terms on those sentences and that those sentences run consecutive, the State would be willing to make that offer to him. That offer was rejected yesterday.
THE COURT: All right. So the State has offered to have Mr. Barnes plead to one class "D" felony, one aggravated misdemeanor, and agree to consecutive prison terms?
MR. ANDERSON: Correct, for a total of seven years with no minimum on it.
THE COURT: All right. Okay. And, Mr. Hoover [defense attorney], have you had an opportunity to discuss that offer with your client?
MR. HOOVER: I went to the jail last night, Your Honor, and discussed that, that offer with my client. I discussed with him the benefits of taking the offer, as well as I guess what potentially could happen at trial.
After that discussion, I asked my client if he was willing to accept the plea offer and he indicated to me that he did not wish to accept that plea offer.
THE COURT: All right. Mr. Barnes, you understand the terms of the offer that's been made by the State?
THE DEFENDANT: Yes, I do.
THE COURT: And you understand that if you accepted this plea offer, you would be pleading guilty to one class "D" felony, one aggravated misdemeanor, and agreeing to a five-year prison sentence and a two-year prison sentence to be served consecutively to one another, in other words, a seven-year prison term. That prison term would not have any mandatory minimum sentence attached to it. You understand that?
THE DEFENDANT: Yes, I do.
THE COURT: You understand if you go forward and you are convicted of both offenses as charged and the jury determines that you are an habitual offender, you face the potential of being sentenced to five years in prison as to the theft in the second degree charge and five years in prison as to the eluding charge. Each of those sentences would carry with them a mandatory term of incarceration of three years prior to eligibility for parole. If those sentences are imposed consecutively, you would be sentenced to ten years in prison, and you would have a mandatory six-year sentence prior to being eligible for parole.[4] You understand that?
THE DEFENDANT: Yes.

(Emphasis added.)

         The trial proceeded. Barnes chose to testify. He stated several days before the chase with the sheriff his own vehicle had broken down in Winnebago County in northern Iowa. At about 2:00 a.m., Barnes decided to take a truck he found with the keys in it (the same truck law enforcement pursued).[5] The next day, Barnes drove the truck across Iowa and into Missouri to move some of his property. Barnes returned to Iowa in the truck, and he went to Des Moines. Barnes again drove south into Madison County, where he was ultimately questioned by the sheriff at the storage unit. Barnes testified he intended to return the truck when he went to retrieve his own: "I had every intention to park the truck back where I got it there in the street, and right around the corner is my truck. If I'm going to be there working on my truck, their truck is just going to basically re-appear." Barnes acknowledged he had exceeded the speed limit by more than twenty-five miles per hour and that the sheriff's vehicle "definitely" had its lights and siren on. He acknowledged he was "running away because [he] didn't want to be arrested." When approached by the sheriff, a topper had been removed from the truck. Barnes also acknowledged that at the time he took the truck, a topper had been in place; the topper "fell off"; and he left it in Des Moines.

         Because he was charged with eluding while participating in a public offense, i.e., possessing or controlling stolen property, the defense sought a jury instruction defining "stolen." The court responded: "I think stealing denotes a taking regardless of whether there is an intent to deprive or not. I think the defendant has admitted that taking." The court opined it was unnecessary to define the word "stolen."

         Defense counsel argued that felony eluding was not supported by the evidence under legal principles stating neither theft nor possession of stolen property is a continuing offense. Defense counsel argued that possession of stolen property does not apply to the person who has taken the property. The district court denied the motion for partial judgment of acquittal.

         With regard to the theft charge, the jury was instructed in Instruction No. 8:

The State must prove all of the following elements of theft in the second degree:
1.A 1991 Chevy pickup truck was stolen.
2. On or about the 6th day of November, 2015, the defendant exercised possession or control over the 1991 Chevy pickup truck.
3. At the time he exercised possession or control over the 1991 Chevy pickup truck, the defendant knew the property had been stolen.
4.The defendant did not intend to promptly return the stolen 1991 Chevy pickup truck to the owner or to deliver it to an appropriate public officer.
If the State has proved each of these elements, the defendant is guilty of theft. If the State has failed to prove any one of the elements, the Defendant is not guilty of theft.

         Instruction No. 9 provided: "In considering whether or not the 1991 Chevy pickup truck was previously stolen as in element 1 of Instruction No. 8, the State does not need to prove the person who stole the property has been convicted of the crime."

         Instruction No. 10 states, "'Possession or control' as used in element 2 of Instruction No. 8, means to secure dominion or exert control over an object or to use an object in a manner beyond the person's authority to do so."

         As for eluding, Instruction No. 11 provided the State was required to prove all of the following:

1.On or about the 6th day of November 2015, the defendant was driving a motor vehicle.
2.The defendant willfully failed to bring the motor vehicle to a stop, or otherwise eluded, a marked official law enforcement vehicle driven by a uniformed peace officer after ...

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