IN THE COURT OF APPEALS OF IOWA
No. 16-1301
Filed June 21, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES EARL OVERTON, JR.
Defendant-Appellant.
_____________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly,
Judge.
Defendant appeals his convictions for second-degree theft, operating
while intoxicated, first-degree harassment, second-degree criminal mischief, and
two counts of eluding. AFFIRMED.
Edward S. Fishman of Nelsen & Feitelson Law Group, P.L.C., West Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.
James Overton Jr. appeals his convictions for second-degree theft,
operating while intoxicated (OWI), first-degree harassment, second-degree
criminal mischief, and two counts of eluding, claiming ineffective assistance of
counsel. We find Overton has not shown he received ineffective assistance on
his claims defense counsel should have (1) informed him of the intoxication
defense to the criminal mischief and harassment charges; (2) objected when the
court did not explain the specific intent elements of criminal mischief and
harassment; (3) explained the intent element of theft; and (4) advised him not to
plead guilty to first-degree harassment or second-degree theft because there
was not a factual basis for the pleas. We determine the record is not adequate to
address Overton’s claim defense counsel should have informed him of the
surcharges he would be assessed and preserve this issue for possible
postconviction proceedings. We affirm Overton’s convictions.
I. Background Facts & Proceedings
On October 20, 2015, Overton stole a 2005 Cadillac from Town and
Country Motors, a car dealership in Des Moines. On November 1, 2015, an
officer noticed the vehicle on the shoulder of Interstate 80. After talking to the
driver, Overton, the officer briefly returned to his vehicle, and Overton drove
away. The officer pursued Overton, who drove at excessive speeds. When
Overton was apprehended, he appeared to be under the influence of a controlled
substance. He told medical personnel he was a methamphetamine and heroin
user. Overton was charged with theft in the second degree, in violation of Iowa
3
Code section 714.2(2) (2015), eluding, in violation of section 321.279(3), and
OWI, in violation of section 321J.2.
On March 8, 2016, Overton entered guilty pleas to those three charges.
The court accepted Overton’s guilty pleas and set the sentencing hearing for a
later date.
On March 30, 2016, Overton was visiting his girlfriend, Candace Jacobs,
at the apartment of Maranda Mills, and Mills asked him to leave. From outside,
Overton shouted to Mills he had a gun and threatened Mills and Jacobs. A few
hours later, Mills received a text from Overton about her vehicle. She discovered
the windows of her Nissan Altima had been cracked and broken. Overton was
charged with harassment in the first degree, in violation of section 708.7(2), and
criminal mischief in the second degree, in violation of section 716.4.
Later on March 30, 2016, an officer observed Overton driving in Des
Moines and attempted to stop him based on the incidents earlier that day.1
Overton did not stop after the officer activated his lights and siren; instead he
drove away at a high rate of speed. He was apprehended after he was involved
in an accident with another vehicle. Overton was charged with eluding, in
violation of section 321.279(3), and driving while revoked, in violation of section
321J.21.
Overton entered into a comprehensive plea agreement, which recognized
his earlier guilty pleas, and he agreed to plead guilty to first-degree harassment
1
Overton was then driving a vehicle owned by Jacobs.
4
and eluding, as well as enter an Alford plea to second-degree criminal mischief.2
The State agreed to recommend consecutive sentences for all of the offenses,
but have the sentences suspended, with Overton placed on probation with the
condition he attend a substance abuse treatment program. The State also
agreed to dismiss all other pending charges against Overton.
A plea hearing was held on July 7, 2016, for the charges of first-degree
harassment, second-degree criminal mischief, and the charge of eluding arising
from Overton’s actions on March 30, 2016. Defense counsel stated he was not
aware of any affirmative defenses available to Overton for the charges of first-
degree harassment and second-degree criminal mischief. The court accepted
Overton’s guilty pleas to first-degree harassment and eluding and his Alford plea
to second-degree criminal mischief.
The sentencing hearing was held following the plea proceedings on July 7,
2016. The State and the defendant both recommended consecutive, suspended
sentences, with Overton placed on probation, and ordered to attend a substance
abuse treatment program. The district court sentenced Overton to a total term of
imprisonment not to exceed twenty-three years, suspended the sentences, and
placed him on probation for four years, with the condition he attend a substance
abuse treatment program. Overton was informed a violation of the program rules
would be considered a violation of his probation. Overton appeals his
convictions.
2
In an Alford plea a defendant consents to the imposition of a sentence, even if the
defendant is unwilling to admit participation in the acts constituting the crime. See North
Carolina v. Alford, 400 U.S. 25, 37 (1970).
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II. Ineffective Assistance
Generally, in order to challenge the adequacy of a guilty plea proceeding,
a defendant must file a motion in arrest of judgment. Iowa R. Crim. P. 2.24(3)(a).
Although Overton was informed in both plea proceedings of the need to file a
motion in arrest of judgment if he wanted to challenge his guilty pleas, he did not
file one. On appeal, he claims his failure to file a motion in arrest of judgment
was the result of ineffective assistance of counsel. Thus, we consider Overton’s
claims within the context of a claim of ineffective assistance of counsel. See
State v. Bearse, 748 N.W.2d 211, 218-19 (Iowa 2008) (stating the failure to file a
motion in arrest of judgment does not bar a defendant’s claims if the failure was
due to ineffective assistance of counsel).
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, a defendant must show (1) the attorney failed to perform
an essential duty, and (2) prejudice. State v. Carroll, 767 N.W.2d 638, 641 (Iowa
2009). In guilty plea proceedings, in order to show prejudice, a defendant must
demonstrate a reasonable probability the defendant would not have pleaded
guilty and would have insisted on going to trial, but for counsel’s alleged errors.
State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). A defendant has the burden
to show by a preponderance of the evidence counsel was ineffective. See State
v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
A. Overton claims he received ineffective assistance because defense
counsel did not advise him of the availability of an intoxication defense to the
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charges of first-degree harassment and second-degree criminal mischief. He
states if he had been aware intoxication could have been raised as a defense to
the specific intent elements of harassment and criminal mischief, he would not
have pled guilty to first-degree harassment or entered an Alford plea to second-
degree criminal mischief.
First-degree harassment is committed when a person threatens to commit
a forcible felony “with intent to intimidate, annoy, or alarm another person.” Iowa
Code § 708.7(2). Harassment is considered to be a specific intent crime. State
v. Evans, 671 N.W.2d 720, 724 (Iowa 2003). The definition of criminal mischief
states, “Any damage, defacing, alteration, or destruction of property is criminal
mischief when done intentionally by one who has no right to act.” Iowa Code
§ 716.1. The statute requires the specific intent to damage, deface, alter, or
destroy property. See State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998). “While
intoxication is not a complete defense, it can establish diminished responsibility,
thereby negating specific intent.” Foster v. State, 478 N.W.2d 884, 886 (Iowa Ct.
App. 1991) (citing State v. Caldwell, 385 N.W.2d 553, 557 (Iowa 1986)). Thus, if
an intoxication defense was established it could negate the specific intent
elements of the harassment and criminal mischief charges.
During the plea proceeding on the charges of harassment, criminal
mischief, and eluding, the defense was questioned:
THE COURT: Have you and your attorneys had a chance to
discuss any possible defenses to those crimes?
THE DEFENDANT: Yes, sir.
THE COURT: [Defense Counsel], are you aware of any
possible defenses to those crimes other than a general denial
which could be asserted and affect the potential outcome of a trial?
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[DEFENSE COUNSEL]: Your Honor, I am aware of no
affirmative defenses. I have discussed with my client what a trial
strategy would look like and what the defenses we would be
raising, and he is electing to proceed in this fashion, Judge.
From the present record, it is unclear if defense counsel was stating he
was not aware of any affirmative defenses or if he was stating he was not aware
of any affirmative defenses meeting the criteria of the court’s question—defenses
“which could be asserted and affect the potential outcome of a trial.” Additionally,
while defense counsel discussed possible defenses with Overton, there is no
record as to whether an intoxication defense was discussed. It is possible
defense counsel was aware of an intoxication defense and discussed it with
Overton, but concluded the defense would not be successful. We determine the
present record is not sufficient to address the issue on appeal and conclude it
should be preserved for possible postconviction proceedings. See State v.
Thorndike, 860 N.W.2d 316, 319 (Iowa 2015) (noting we address claims of
ineffective assistance of counsel in a direct appeal only when the record is
adequate).
B. Overton also claims he received ineffective assistance because
defense counsel did not object when the district court failed to explain the
specific intent elements of harassment and criminal mischief. Iowa Rule of
Criminal Procedure 2.8(2)(b)(1) requires the court to inform a defendant of “[t]he
nature of the charge to which the plea is offered.” “[T]he element of specific
intent can be so significant that a guilty plea cannot stand where the accused
was not made aware of that element.” State v. Goff, 342 N.W.2d 830, 838 (Iowa
1983).
8
In describing first-degree harassment, the district court stated:
In regards to harassment in the first degree, the State of
Iowa would have to prove that on or about March 30th of 2016, in
Polk County, Iowa, that you did have personal contact with
Maranda Mills and Candice Jacobs purposefully and without a
legitimate purpose, with the intent to threaten, intimidate, or alarm
them, and with the communication involving a threat to commit a
forcible felony, specifically—I assume the threat was to “blow their
fucking heads off.”
Do you understand those elements?
For the charge of second-degree criminal mischief, the court stated:
In regards to criminal mischief in the second degree, the
State of Iowa would have to prove that in Polk County, Iowa, on or
about March 30th of 2016, you intentionally damaged or destroyed
the property of Maranda Mills by having no right to act, with the cost
of replacing, repairing, or restoring the damaged property
exceeding $1000.
Do you understand those elements?
Overton indicated on the record he understood the elements of the offenses. We
determine the district court adequately described the specific intent elements of
first-degree harassment and second-degree criminal mischief, and defense
counsel had no obligation to object. See State v. Halverson, 857 N.W.2d 632,
635 (Iowa 2015) (“Counsel, of course, does not provide ineffective assistance if
the underlying claim is meritless.”). Overton has not shown he received
ineffective assistance of counsel on this ground.
C. Overton claims he received ineffective assistance because defense
counsel permitted him to plead guilty to second-degree theft when the district
court did not adequately explain the offense required the intent to permanently
deprive the owner of the vehicle. He states he was not adequately apprised of
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“[t]he nature of the charge to which the plea is offered.” See Iowa R. Crim. P.
2.8(2)(b)(1).
An essential element of theft is the intent to permanently deprive the
owner of the property. See State v. Schminkey, 597 N.W.2d 785, 789 (Iowa
1999). “Under our case law, ‘the court need not review and explain each
element of the crime if it is “apparent in the circumstances the defendant
understood the nature of the charge.”’” State v. Null, 836 N.W.2d 41, 49 (Iowa
2013) (citations omitted). Furthermore, it is not necessary to “wring a confession
from defendant either to determine his understanding of the charge or to
establish a factual basis.” State v. Smith, 300 N.W.2d 90, 92 (Iowa 1981).
On the charge of second-degree theft, the court stated:
So in regards to theft in the second degree, the State would
have to prove that on October 20, in Polk County, Iowa, that you
committed theft in the second degree by taking possession of a
white 2005 Cadillac STS belonging to Town and Country Motors,
with the intent to deprive the owner of it, and you exercised control
over the vehicle while knowing the vehicle had been stolen.
Do you understand those elements?
Overton stated he understood the elements. He told the court, “I stole a white
Cadillac.” The colloquy continued:
THE COURT: Okay. And when you took possession of that
Cadillac, was it your intent to deprive the owner of that vehicle?
THE DEFENDANT: Yes, sir.
THE COURT: You were going to intentionally deprive them
of that vehicle?
THE DEFENDANT: Yes, sir.
Overton stated he “stole” the Cadillac, rather than stating he had borrowed
it. In addition, he agreed he was “going to intentionally deprive [the owner] of the
10
vehicle,” indicating he understood the court was asking if he was going to
continue his possession of the vehicle into the future.
Additionally, the trial information charged Overton with the alternative of
committing theft by “exercising control over the vehicle while knowing the vehicle
had been stolen.” See Iowa Code § 714.1(4). During the plea colloquy, the
district court informed Overton of this alternative means of committing the offense
of second-degree theft. Overton stated he had been driving the vehicle after
admitting he stole it, showing he exercised control over the vehicle while knowing
it had been stolen.
Under both of the alternative means of committing theft which were
alleged in the trial information, we conclude the circumstances show Overton
understood the nature of the offense. See Null, 836 N.W.2d 41, 49. We
conclude Overton has not shown he received ineffective assistant on this ground.
D. Overton claims he received ineffective assistance because defense
counsel permitted him to plead guilty to first-degree harassment and second-
degree theft when there was not a sufficient factual basis in the record to support
his pleas. “It is a responsibility of defense counsel to ensure that a client does
not plead guilty to a charge for which there is no objective factual basis.” State v.
Finney, 834 N.W.2d 46, 54 (Iowa 2013). We examine the entire record before
the district court. Id. at 62.
To establish the factual basis for the charge of first-degree harassment,
the following exchange occurred:
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THE COURT: All right. For the harassment in the first
degree, can you tell me in your own words what you did to commit
that crime.
THE DEFENDANT: Yes, sir. I was high on meth. And I was
outside her apartment, Maranda’s, and my girlfriend was inside.
And they wouldn’t let me in, so I went out back and I yelled.
Probably did threaten them, telling them I was going to kill them or
something, something along those lines.
THE COURT: Did you—would you dispute that you said you
would blow their fucking heads off?
THE DEFENDANT: I don't know if that’s exactly what I said,
but probably along them lines, yes, sir. Probably along them lines I
did say that, something to that effect.
....
THE COURT: And did you intend to threaten or alarm them?
THE DEFENDANT: Yes, sir.
THE COURT: And you had no purpose to do that, did you,
no legitimate purpose?
THE DEFENDANT: (Shakes head in the negative.)
We conclude there is a sufficient factual basis in the record to support
Overton’s guilty plea to first-degree harassment. Overton made a threat to
commit a forcible felony, murder, with the intent to threaten or alarm Mills and
Jacobs. See Iowa Code § 708.7(2). “Our cases do not require that the district
court have before it evidence that the crime was committed beyond a reasonable
doubt, but only that there be a factual basis to support the charge.” Finney, 834
N.W.2d at 62.
On the charge of second-degree theft, according to the minutes of
testimony, Overton went to Town and Country Motors on October 20, 2015, and
spent some time looking at cars in the lot. Eventually he drove off in a vehicle
bearing a dealer license plate without the right or permission to take the vehicle.
Overton stated, “I stole a white Cadillac.” As noted above, from Overton’s
statement he was “going to intentionally deprive [the owners] of that vehicle,” we
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can infer he was going to continue to intentionally deprive them of the vehicle into
the future. We note Overton took the Cadillac on October 20, 2015, and was
picked up while driving the vehicle on November 1, 2015, twelve days later. Cf.
Schminkey, 597 N.W.2d at 790 (finding there was insufficient evidence defendant
intended to permanently deprive the owner of a vehicle when he only had it a few
hours before he crashed the vehicle). We find there is a sufficient factual basis in
the record to support Overton’s guilty plea to second-degree theft.
Overton has not shown he received ineffective assistance on the ground
defense counsel permitted him to plead guilty to first-degree harassment or
second-degree theft when there was not a sufficient factual basis for the pleas.
E. Finally, Overton claims he received ineffective assistance because
defense counsel permitted him to plead guilty although the district court did not
adequately inform him of the surcharges to be assessed as a result of his guilty
pleas.
Under rule 2.8(2)(b), a defendant should be informed of the maximum and
mandatory minimum punishment for an offense. This includes all direct
consequences of a plea. State v. Fisher, 877 N.W.2d 676, 682 (Iowa 2016). A
defendant should be informed of “the mandatory minimum and maximum
possible fines, including surcharges.” Id. at 686. We utilize a substantial
compliance standard to determine whether a colloquy meets the requirements of
rule 2.8(2)(b). Id. at 682.
In the plea proceeding for the charges of second-degree theft, eluding,
and OWI, Overton was informed there would be associated surcharges to fines
13
assessed on the charges of second-decree theft and eluding. The court
informed Overton of the possible fines on the OWI charge but did not mention
any surcharges. At the later plea proceeding for the charges of first-degree
harassment, second-degree criminal mischief, and eluding, Overton was
informed of the surcharges for all three offenses.
We determine the record is not adequate to address this claim of
ineffective assistance of counsel on direct appeal. See State v. Johnson, 784
N.W.2d 192, 198 (Iowa 2010) (noting it is “for the court to determine whether the
record is adequate” to decide a claim of ineffective assistance of counsel on
direct appeal). Overton should be given the opportunity to develop the record in
postconviction proceedings to support his claim he would not have pleaded guilty
and would have insisted on going to trial if he had known of all the surcharges
associated with the offenses in this case. When the record on direct appeal is
not adequate, a claim should be preserved for possible postconviction
proceedings. See id.
We affirm Overton’s convictions.
AFFIRMED.