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State v. Love

Court of Appeals of Iowa

December 6, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JEMERIAL LOVE, Defendant-Appellant.

          Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.

         Jemerial Love appeals from her conviction by written guilty plea for theft in the third degree. AFFIRMED.

          Merrill C. Swartz of Swartz Law Firm, Marshalltown, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          DANILSON, Chief Judge.

         Jemerial Love appeals from her conviction by written guilty plea for theft in the third degree, in violation of Iowa Code sections 714.1 and .2(3) (2016). Love was alleged to have stolen items not exceeding $500 in value. Thus, to establish Love committed third-degree theft under section 714.2(3), [1] the State was required to show Love had "before been twice convicted of theft." Love's written guilty plea and the court's February 3, 2017 order accepting the plea do not include acknowledgment of Love's prior theft convictions. Love contends because the plea did not provide a factual basis[2] for the offense, it was not made intelligently or voluntarily, and defense counsel rendered ineffective assistance by failing to file a motion in arrest of judgment to contest the plea. We affirm.

         Our review of this ineffective-assistance-of-counsel claim is de novo. State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). To establish defense counsel rendered ineffective assistance, Love must show by a preponderance of the evidence both that defense counsel failed to perform an essential duty and the failure resulted in prejudice. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

         Although Love did not file a motion in arrest of judgment, she may challenge the entry of the guilty plea "under the rubric of ineffective assistance of counsel, which would require [her], among other things, to demonstrate 'a reasonable probability that, but for counsel's errors [she] would not have pleaded guilty and would have insisted on going to trial.'" State v. Fisher, 877 N.W.2d 676, 682 n.3 (Iowa 2016) (quoting Straw, 709 N.W.2d at 138).

         "It is a responsibility of defense counsel to ensure that a client does not plead guilty to a charge for which there is no objective factual basis." Finney, 834 N.W.2d at 54. "On a claim that a plea bargain is invalid because of a lack of accuracy on the factual-basis issue, the entire record before the district court may be examined." Id. at 62. The entire record includes the minutes of testimony. Id.

         Here, neither the guilty plea nor the court's order accepting the plea acknowledged the existence of at least two previous theft convictions-a required element of third-degree theft under section 714.2(3) here. Love maintains, therefore, that the plea was entered without a sufficient factual basis, in violation of rule 2.8(2)(b).

         However, the minutes of testimony clearly reflect Love has nine previous theft convictions occurring from 2006 to 2014. Additionally, at the sentencing hearing, Love acknowledged her lengthy criminal history. As such, we find there is a factual basis supporting Love's guilty plea for third-degree theft premised upon at least two prior convictions of theft.

         Love also asserts she "did not voluntarily and intelligently admit to: (1) prior theft convictions; (2) being represented by counsel at the prior theft convictions; [and] (3) a factual basis exists to support the admission to the prior convictions." To the extent Love is claiming that her plea was not voluntarily and intelligently entered, we view this contention as a claim the plea was not voluntary and intelligent as is constitutionally required. See id. at 54-55 (stating the United States Supreme Court's "caselaw recognizes two distinct strands of constitutional analysis related to guilty pleas": claims "rooted in the right to effective assistance of counsel under the Sixth Amendment, " and claims "based on the Due Process Clauses of the Fifth and Fourteenth Amendments requir[ing] the trial court to determine the defendant made a knowing and intelligent choice" to plead guilty to the underlying crime). However, Love failed to separately identify this claim as an issue. See Iowa R. App. P. 6.903(2)(g) ("The argument section shall be structured so that each issue raised on appeal is addressed in a separately numbered division.").

         To the extent Love is contending counsel was ineffective in permitting Love to enter a plea involuntarily or unintelligently, the record is not adequate to address this claim. As ...


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