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State v. Brown

Court of Appeals of Iowa

March 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
ERIC DEVON BROWN, Defendant-Appellant.

         Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman Salic, District Associate Judge.

         Defendant challenges his conviction and sentence for burglary in the third degree.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Doyle, P.J., and Tabor and McDonald, JJ.

          MCDONALD, JUDGE.

         Eric Brown pleaded guilty to burglary in the third degree, in violation of Iowa Code sections 713.1 and 713.6A (2017). In this direct appeal, he contends his guilty plea lacked a factual basis, the prosecutor breached the plea agreement, and the prosecutor had a disqualifying conflict of interest.


         Brown's first and second claims are presented as claims of ineffective assistance of counsel. Because a claim of ineffective assistance arises out of the constitutional guarantee to have the assistance of counsel for one's defense, our review is de novo. See Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). To succeed on an ineffective-assistance claim a defendant must show "(1) counsel failed to perform an essential duty; and (2) prejudice resulted." State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).


         We first address Brown's claim his guilty plea lacked a factual basis. "Where a factual basis for a charge does not exist, and trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an essential duty. Prejudice is inherent in such a case." State v. Nall, 894 N.W.2d 514, 525 (Iowa 2017). In establishing a factual basis for a guilty plea, the district court can "(1) inquir[e] of the defendant, (2) inquir[e] of the prosecutor, and (3) examin[e] the presentence report." State v. Finney, 834 N.W.2d 46, 56 (Iowa 2013). In addition, the district court may look to the minutes of testimony where the minutes are acknowledged during the plea colloquy. See id. at 57. When this court reviews whether there is a factual basis for the plea, the relevant inquiry is whether the record before the district court as a whole supports a factual basis for each element of the offense. See State v. Amadeo, No. 11-1426, 2012 WL 2122262, at *3-4 (Iowa Ct. App. June 13, 2012) (collecting cases).

         At issue here, to commit a burglary, one must enter an occupied structure with "no right, license, or privilege to do so." See Iowa Code § 713.1. Brown contends his counsel was ineffective in allowing to him plead guilty because Brown had permission to enter the occupied structure at issue. The plea record shows the occupied structure at issue is an apartment. In February 2017, the tenants returned to the apartment and noticed the back door ajar. They notified police. After some searching, the tenants found a mobile phone in the apartment belonging to neither of them. The police later determined the phone belonged to Brown. One of the tenants also discovered several bottles of her prescription drugs were missing. When the police contacted the landlord, the landlord reported that "someone by the name of Eric had contacted him saying that he was a really good friend of [one of the tenants] and that she wanted help moving her stuff out and he was going to take the stuff to a new location." The landlord explained he authorized Eric to enter the apartment for this purpose. The minutes of testimony establish Brown was not friends with the tenants, was not authorized by them to be in the apartment, and was not helping them move.

         Brown's entry into the apartment obtained by deceit of the landlord is sufficient to establish a constructive breaking and a factual basis for the guilty plea. See Judy E. Zelin, Annotation, Maintainability of Burglary Charge Where Entry into Building Is Made with Consent, 58 A.L.R.4th 335 (1987) ("It has been held that where the requisite consent for entry into premises is obtained by fraud or deceit, there is no true consent, and burglary charges are maintainable under a statutory scheme not requiring actual breaking and entering."). "Constructive breaking occurs when entry is obtained by any manner other than physical force, such as by fraud or trick." State v. Madison, No. 00-1859, 2002 WL 570714, *2 (Iowa Ct. App. Feb. 20, 2002); see State v. Schoo, No. 03-0999, 2004 WL 2173328, at *1 (Iowa Ct. App. Sept. 29, 2004) (relying on definition of constructive breaking). "The law is clear that entry to a home procured by means of fraud is the legal equivalent of entry by force and constitutes a constructive breaking." State v. Carey, 165 N.W.2d 27, 47 (Iowa 1969) (Garfield, C.J., dissenting). Other states have reached similar conclusions. See Commonwealth v. Labare, 416 N.E.2d 534, 536 n.3 (Mass. App. Ct. 1981) ("[C]onstructive breaking is also a breaking within the meaning of the law. And a constructive breaking is one that is accomplished by trick or threat."); Smallwood v. State, 930 So.2d 448, 451 (Miss. Ct. App. 2006) ("Evidence was presented to support a finding of constructive breaking in that Smallwood was deceptive in using the name of O'Harroll's friend for the purpose of gaining entry to the house."); State v. Ortiz, 584 P.2d 1306, 1308 (N.M. Ct. App. 1978) ("Where the consent to enter is obtained by fraud, deceit or pretense, the entry is trespassory because the entry is based on a false consent; that is, the entry is outside the consent that was given.").

         While our statute defines the offense in terms of entry without right, license, or privilege to do so rather than "breaking, " the same principle applies. Here, the right of entry was obtained by fraud and deceit and legally was no right of entry at all. See Johnson v. State, 921 So.2d 490, 508 (Fla. 2005) ("Consent obtained by trick or fraud is actually no consent at all and will not serve as a defense to burglary."). Counsel did not breach an essential duty in failing to raise a non-meritorious objection to the ...

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