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State v. Mollo

Court of Appeals of Iowa

June 19, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
ARTHUR JAMES MOLLO III, Defendant-Appellant.

          Appeal from the Iowa District Court for Wright County, Paul B. Ahlers (plea) and Kim M. Riley (sentencing), District Associate Judges.

         Arthur Mollo III appeals from judgment and sentence entered upon his guilty plea.

          Dylan J. Thomas, Mason City, for appellant.

          Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., Bower, J., and Danilson, S.J. [*]

          DANILSON, SENIOR JUDGE.

         Arthur Mollo III appeals from judgment and sentence entered upon his guilty plea to identity theft, contending counsel was ineffective in allowing the plea where there was no factual basis that the victim was a "person" and in failing to object to the court's consideration of risk assessment tests in sentencing. He also asserts the court considered an improper factor when imposing sentence.

         In order to prevail on a claim of ineffective assistance of counsel, Mollo must prove by a preponderance of the evidence that counsel breached an essential duty and prejudice resulted. See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). If "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." Id. In deciding whether a factual basis exists, we consider the entire record before the district court at the guilty plea hearing, including any statements made by the defendant, facts related by the prosecutor, the minutes of testimony, and the presentence report. State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010).

         The minutes of testimony show the following: Alesha Sigmeth Roberts is a licensed attorney in Clarion and the proprietor of Sigmeth Roberts Law, PLC. In 2016, Sigmeth Roberts represented Mollo. During her representation, Mollo came into her office for appointments and she sent him correspondence through the mail.

         In February of 2017, Sigmeth Roberts received her bank statement from First Citizens Bank in Clarion for her law firm's business account. The bank statement showed three checks that appeared suspicious. Sigmeth Roberts checked her records against the bank statement and reported the questionable transactions to First Citizens Bank and to law enforcement.

          Sigmeth Roberts obtained copies of the three questionable checks; the numbers on the checks did not match the check numbers for Sigmeth Roberts's firm's checking account. Check number 3567 was written to "Arthur James Mollo" in the amount of $477.94. Check number 10359 was written to "Jill Kelly" in the amount of $491.94. Check number 10354 was written to "Charis Bodady" in the amount of $477.94. The account holder on all three checks was "Bio Tronics Security Systems." All three checks were cashed at a Hy-Vee grocery store in Ames.

         Police obtained video surveillance from Hy-Vee at the times the checks were cashed. Sigmeth Roberts watched the video and identified Mollo as one of the three people who cashed the checks. Sigmeth Roberts did not give Mollo, Kelly, or Bodady permission to use her checking account information or permission to withdraw money from her firm's checking account.

         Mollo was charged with identify theft, conspiracy, and being a habitual offender. Pursuant to a plea agreement, Mollo pled guilty to the charge of identity theft with no habitual-offender enhancement and the State agreed to dismiss the ...


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