from the Iowa District Court for Wright County, Paul B.
Ahlers, District Associate Judge.
Hill appeals her sentence for second-degree theft.
M. Cook of Cook Law Firm, PLLC, Urbandale, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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
Background Facts and Proceedings
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.
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
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 ...