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State v. Buenneke

Court of Appeals of Iowa

November 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
DANIEL JOSEPH BUENNEKE, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.

         Daniel Buenneke challenges the factual basis for two pleas entered as part of an agreement involving multiple charges.

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

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

          Considered by Bower, C.J., and Vaitheswaran and and Doyle, JJ.

          DOYLE, Judge.

         Daniel Buenneke entered Alford pleas[1] to second-degree robbery and first-degree theft as part of a plea agreement involving multiple charges.[2] In his first appeal, this court found that the record failed to establish Buenneke's "active participation in or encouragement" of the crimes and remanded the case to allow the State to establish a factual basis. State v. Buenneke, No. 17-1056, 2018 WL 1433748, at *3 (Iowa Ct. App. Mar. 21, 2018). On remand, the district court considered additional minutes of evidence, including surveillance video, and found a factual basis for Buenneke's pleas:

[Buenneke] entered the store prior to his codefendant, [Marlon] Harris, looked around with no legitimate purpose, and then left the store holding the door for Harris and another customer. [Buenneke] returned to the store a short time later and remained in the store for nearly 9 minutes without attempting to purchase any items. During this time, [Buenneke] intervened in an altercation between Harris and another customer and continually looked out the windows of the store. As Harris was leaving, [Buenneke] positioned himself between Harris and a customer in the store to allow Harris to leave without physical confrontation.
These acts of [Buenneke] establish a factual basis that [he] aided and abetted Harris who committed a robbery and a theft from the person.

         In this appeal, Buenneke again challenges the factual basis for his pleas to second-degree robbery and first-degree theft, alleging his counsel was ineffective by allowing him to plead guilty. We review his claim de novo. See State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).

         To succeed on his claim of ineffective assistance of counsel, Buenneke must prove by a preponderance of the evidence: (1) breach of an essential duty and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel breaches an essential duty by permitting a defendant to plead guilty and waive the right to move in arrest of judgment when no factual basis supports the plea. See Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). In such cases, we presume prejudice. Id. We look at the entire record before the district court at the time of the plea to determine whether a factual basis for the plea exists. See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). That includes inquiry of the defendant, inquiry of the prosecutor, examination of the presentence investigation report, and minutes of the evidence. See State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010). To determine a factual basis exists, the evidence need not show the defendant is guilty beyond a reasonable doubt, only that there is sufficient evidence by which a jury could find the defendant guilty. See Finney, 834 N.W.2d at 50.

         The parties and district court contemplated that Buenneke could have committed the offenses of second-degree robbery and first-degree theft as either a principal or as an aider and abettor. See Iowa Code § 703.1 (2017) (stating punishment for a person who aids or abets in the commission of a public offense is the same as that of a principal).

To sustain a conviction on the theory of aiding and abetting, the record must contain substantial evidence the accused assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission. The State must prove the accused knew of the crime at the time of or before its commission. However, ...

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