from the Iowa District Court for Madison County, Brad McCall,
Lee Barnes Jr. appeals following judgment and sentences
entered upon his convictions for theft and eluding.
C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, Des Moines, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Mullins, J., and Mahan,
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.
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.
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. 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
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."
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),  each offense
committed as a habitual offender.
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
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
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
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
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. You understand that?
THE DEFENDANT: Yes.
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). 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.
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."
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
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
3. At the time he exercised possession or control over the
1991 Chevy pickup truck, the defendant knew the property had
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.
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
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."
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