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State v. Hill

Court of Appeals of Iowa

March 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
AMBER MARIE HILL, Defendant-Appellant.

         Appeal from the Iowa District Court for Wright County, Paul B. Ahlers, District Associate Judge.

         Amber Hill appeals her sentence for second-degree theft.

          Joanne M. Cook of Cook Law Firm, PLLC, Urbandale, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, JUDGE.

         Amber Hill appeals her sentence for second-degree theft. She claims the court abused its discretion in imposing sentence by considering untenable, unreasonable, or impermissible information. She also argues her counsel rendered ineffective assistance by failing to: (1) object to the court's consideration of impermissible factors; (2) enter a plea conditioned on the court's acceptance of the plea agreement; (3) procure her mental-health diagnosis and records; and (4) file a motion for reconsideration of the sentence.

         I. Background Facts and Proceedings

         During August and September of 2016, Hill worked at Casey's General Store in Belmond, as a cashier. On October 24, 2016, Hill was charged by trial information with theft in the second degree, a class "D" felony, in violation of Iowa Code sections 714.1, 714.2(2), and 714.3 (2016). The charge was based upon the allegation that she, while working at Casey's, would ring up products for customers, void the transaction, and then pocket the customer's money. During the relevant time frame, Hill unlawfully took $1027.

         On January 20, 2017, Hill filed a written plea of guilty that recited the plea agreement. In exchange for Hill's guilty plea, the State agreed to recommend a sentence not to exceed five years of incarceration with a joint recommendation that the sentence be suspended and Hill be placed on probation, in addition to paying fines, surcharges, and other fees. The State also agreed to dismiss any companion simple misdemeanor cases with costs to Hill. The written guilty plea recited that Hill understood the State's recommendations would not be binding on the court and the court would not accept her plea unless it was satisfied she was guilty and had sufficient knowledge of her rights. The Court held a hearing the same day, conducted the required guilty plea colloquy, and accepted Hill's plea of guilty. Hill did not file a motion in arrest of judgment. On March 17, after hearing the parties' recommendations and Hill's statements and reviewing the recommendation contained in the presentence investigation report, the district court stated:

Ms. Hill, my goals with respect to sentencing are to provide for your rehabilitation, as well as the protection of the community. In trying to achieve those goals, to the extent these details have been made known to me, I have taken into account your age, your employment history and circumstances, your educational background, your family circumstances and obligations, your extensive criminal history, your demeanor here at this hearing, any substance-abuse and/or mental-health issues you might have as addressed here today and in the Presentence Investigation Report, the facts and circumstances surrounding the offense, and the information contained in the Presentence Investigation Report. As is commonly the case in sentencing situations, Ms. Hill, there are factors on that list of factors that I have considered that are negative for you and there are factors on that list that are favorable to you. I have considered all those factors I mentioned, whether I go into detail about them or not.
Obviously, there are some favorable factors. The fact that you continue to maintain steady employment is a favorable factor. The fact that you have taken steps to address your mental-health issues and needs is a favorable factor and provide some hope that whatever drives you to engage in this type of criminal behavior can be corrected or redirected, and the fact that you have done that voluntarily is a positive thing. I'm also mindful as a favorable factor of your fulfilled obligations to your children in providing a home for them. Additionally, the volunteer work that you do is a favorable factor because it shows a willingness at least in that realm to be a productive member of your community that provides positive input into the community. All those positive factors are great, but they are also troubling from the standpoint of how does somebody that has all those favorable characteristics have what we have here in terms of your criminal history and nature of this offense?
On a favorable factors as well, I would note in terms of your demeanor, you are a very articulate person, which shows me that you have got some life skills that could be put to good use. But that's a double-edged sword in your case, Ms. Hill, because I sometimes-has caused me to question whether you use those skills to get away with your criminal behavior. I don't want to use the phrase "con artist, " but to some degree I question whether that's what's going on here, is that you are articulate enough to-to pitch the things that you have pitched here today, even though they may not be sincerely held. I don't know. I don't have a crystal ball or the ability to read minds, but that thought does occur to me; that maybe one of the reasons you are in here on your eleventh theft charge since 2002 is because your ability to articulate yourself and be somewhat charming has people go easy on you and just further enables you to continue to engage in this type of criminal behavior. Again, I don't know whether that's the case, but it does occur to me that that may be going on.
In terms of negative factors, obviously I have already touched on those. There is the fact that you have had seven Theft in the Fifth Degree convictions from 2002 to 2007. And since then you have apparently escalated the amount of-of the value of things that you are stealing because in '08 you went to a Theft in the Second Degree charge, and in '09 you had a Theft in the Third Degree charge, and in 2013 you had another Theft in the Third Degree charge, and now here you are on a Theft in the Second Degree charge again. Apparently whatever has happened to you in the past in terms of punishment has not convinced you or persuaded you to stop committing this type of crime. Additionally, as you touched on during your allocution, the facts and circumstances surrounding the offense was somewhat ...

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