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State v. Cordero

Court of Appeals of Iowa

June 20, 2018

STATE OF IOWA, Plaintiff-Appellee,
YOSLEY BAEZ CORDERO, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Arthur E. Gamble (guilty plea) and Robert J. Blink (sentencing), Judges.

         Yosley Cordero appeals from his conviction on one count of conspiracy to commit forgery.

          John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

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

          Considered by Vogel, P.J., and Doyle and Bower, JJ.

          DOYLE, Judge.

         Yosley Cordero appeals from his conviction on one count of conspiracy to commit forgery, a class "D" felony, in violation of Iowa Code sections 706.1, 706.3(2) (2016). Cordero contends his counsel rendered ineffective assistance by allowing him to plead guilty without a factual basis for the charge. Because the record establishes a sufficient factual basis for his plea, we affirm.

         An ineffective-assistance-of-counsel claim may be reviewed on direct appeal only if the record is sufficient to resolve the claim; otherwise, it is preserved for postconviction-relief purposes. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). The record here is sufficient to resolve Cordero's claim. We review claims of ineffective assistance of counsel de novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). To show his counsel was deficient, Cordero must prove by a preponderance of the evidence that counsel failed to perform an essential duty and prejudice resulted. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

         To determine if trial counsel failed in an essential duty by allowing a defendant to plead guilty when the charges lack a factual basis, the entire record before the district court may be examined. See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). The examination of the defendant's statements and the minutes of evidence is appropriate to determine whether there existed an objective factual basis for a guilty plea.[1] See id.; Schminkey, 597 N.W.2d at 788. "At the time of the guilty plea, the record must disclose facts to satisfy all elements of the offense." Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). If no factual basis is found in the record for the charges the defendant has pled guilty to, then an essential duty has been breached and "[p]rejudice is inherent." State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014).

         This case arises from an attempt to cash a forged check at a bank. The following can be gleaned from the minutes of evidence. Police were contacted by a bank employee who described a man attempting to cash a forged check. When police arrived at the bank, a man matching the bank employee's description was observed running in the parking lot and getting into a silver four-door sedan with Florida license plates. Police officers stopped the vehicle and detained the occupants, identified by their Florida driver's licenses as: Alfredo Penalver, Lazaro Taboada-Diaz, and Yosley Cordero. A subsequent search resulted in police discovering $1437.00 in cash on Taboada-Diaz. A hotel keycard was found on Cordero.

         Police recovered the forged check and a fake Texas driver's license from the bank. The driver's license was in the name of "Aldo Espinosa, " with a photo of Penalver. The forged check was on the account of "Ocean Moving and Storage Corp GA Account" and made payable to "Aldo Espinosa" in the amount of $6400. Bank employees stated that they had attempted to delay Penalver from leaving the bank once police had been contacted but that he had become suspicious and left the Texas license in the lobby when he ran outside prior to the police officers arriving.

         While Penalver, Taboada-Diaz, and Cordero were being detained, a blue mini-van with Florida plates drove up. The three occupants got out. Emilio De La Paz Jr. and Pedro Lopez, said they were friends of the detainees, and Alejandra Gonzalez-Lopez advised officers that she was Taboada-Diaz's wife. The three were identified by their Florida driver's licenses. They were also detained and subsequently searched, resulting in the discovery of $5186.50 in cash on De La Paz Jr. and a hotel key found on Lopez from the same hotel as the key found on Cordero.

         Police spoke to the owner of Ocean Moving and Storage Corp, who stated that he had not authorized the check in question. He also stated he had been the victim of several prior incidents of forged checks being cashed.

         Subsequent investigation showed the six had stayed at a nearby hotel in three rooms under Lopez's name. Search warrants were obtained for the three hotel rooms, the two vehicles, as well as all of the detained individuals' cell phones. Inside one of the hotel rooms, a notepad was found containing practice signatures for "Aldo E, " the same signature that was located on the fake Texas driver's license of "Aldo Espinosa." A separate notepad was found in one of the other rooms detailing what appeared to be a breakdown of the illicit proceeds from a forged check Alejandra Gonzalez-Lopez cashed in Minnesota. In the sedan's glove compartment, an additional five checks were found on the accounts of Ocean Moving and Storage Corp GA Account, Northstar Moving Transportation Co, and SERE LLC, all with the payee name of "Aldo Espinosa." The owners of Northstar and SERE were then contacted, and they also confirmed that the checks were fraudulent and had not been authorized. Police also searched the cell phones of the six individuals. That search yielded a photo of Cordero with Gonzalez-Lopez and De La Paz Jr. taken August 4, 2016, at the same hotel where the search warrants had been executed. All of the evidence seized revealed a multi-state forged check operation conducted by the six.

         Cordero was charged with five counts of forgery and one count of conspiracy to commit a felony (forgery)-all class "D" felonies. As a part of a plea deal, the State agreed to dismiss the five counts of forgery and the habitual offender enhancement in return for Cordero's guilty plea to the one count of conspiracy to commit forgery. At the plea hearing the district court engaged Cordero in a comprehensive colloquy. The relevant parts regarding the factual basis for Cordero's guilty plea follow:

THE COURT: Well, what did you do?
CORDERO: I accompanied Lazaro and Alfredo to the bank, and I helped them to ...

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