State of Iowa v. Dustin D. Gilliam

IN THE COURT OF APPEALS OF IOWA

No. 19-0940
Filed June 17, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DUSTIN D. GILLIAM,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Donna L. Paulsen,

Judge.

Dustin Gilliam appeals from a district court order sentencing him on a

number of cases. AFFIRMED.

Karmen Anderson, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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SCHUMACHER, Judge.

After several months of criminal activity, Dustin Gilliam was apprehended

and incarcerated. Over this period, Gilliam’s most severe crime involved breaking

into a storage unit containing his ex-girlfriend’s property and damaging appliances

and furniture therein. For his actions at the storage unit in late January 2019,

Gilliam was charged with criminal mischief in the second degree and burglary in

the third degree, although the charges were brought under different case numbers.

In April 2019, Gilliam submitted written pleas in several misdemeanor cases. At

plea and sentencing proceedings in June, the district court judge sought to achieve

a global resolution of Gilliam’s many pending cases, including the two felony

charges associated with the storage-unit break-in. The court granted the State’s

motion to consolidate the two felony charges into the case number previously

associated with the charge for criminal mischief in the second degree and another

lesser charge. The case number originally associated with the burglary matter no

longer held any charges. The court accepted pleas on the felony charges and

imposed sentence.

Gilliam appeals from the court’s order, contesting the court’s decision to

transfer the burglary charge between case numbers and arguing he received

ineffective assistance of counsel. He premises his ineffective-assistance claim on

an alleged lack of factual basis to support two of the misdemeanor cases and on

a lack of a verbatim record in one of the misdemeanor cases. We find that the

court’s grant of the motion to consolidate promoted significant judicial economy

and was therefore no abuse of discretion. With respect to Gilliam’s ineffective-

assistance-of-counsel claims, we disagree that a factual basis was lacking in the
 3

misdemeanor cases as he alleges, and we find he cannot prove he was prejudiced

by the lack of a verbatim record in SRCR321488. We affirm Gilliam’s convictions

and sentences.

I. Background Facts and Proceedings

On March 21, 2018, Officer Matthew Hadsall of the Polk County Sheriff’s

Office executed a traffic stop of Dustin Gilliam in the 5200 block of NE 14th street.

Dustin Gilliam identified himself as Joshua Gilliam, which is the name of his

brother. Officer Hadsall issued Dustin Gilliam citations under the name Joshua

Gilliam. Upon discovering that Dustin had misidentified himself as Joshua, Officer

Hadsall charged Dustin Gilliam with malicious prosecution in violation of Iowa

Code section 720.6 (2018) under case number SRCR320116.

On September 27, 2018, officers responded to a call for help concerning a

domestic disturbance at a restaurant in Johnston, Iowa. They encountered Dustin

Gilliam’s ex-girlfriend, Mandi Mayland, in the parking lot. Mayland explained that

Gilliam had punched the lower corner of her car’s windshield, shattering it. Gilliam

was charged in case SRCR321474 with criminal mischief in the fourth degree in

violation of section 716.6(1)(A)(1).

On September 12, 2018, Gilliam was stopped by Windsor Heights Police

Officer Chris Clingan for running a red light. He again identified himself by his

brother’s name, not his own. Several citations were issued under his brother’s

name. Upon discovery that Gilliam had falsely identified himself, Gilliam was

charged under case number SRCR321488 with malicious prosecution in violation

of section 720.6.
 4

The precipitating event for the discovery of Gilliam’s pattern of

misidentification came on October 15, 2018, when Joshua Gilliam contacted law

enforcement to inform them that his brother, Dustin Gilliam, had been identifying

himself as Joshua during confrontations with police. Dustin had reportedly

aroused no suspicion when identifying himself as Joshua and had committed

Joshua’s social security number to memory.

On January 28, 2019, Dustin Gilliam helped Mayland move items into a

storage unit at Storage Mart on Merle Hay Road in Johnston, Iowa. Security

camera footage shows that Gilliam drove a Penske moving truck to the storage

facility.

On January 30, 2019, the manager of the storage facility, Mary Clendenen,

reported that she had discovered a burglary of a storage unit. The storage unit in

question was rented out to Mayland. Clendenen reported that the storage unit’s

padlock had been cut and the latching mechanism had been damaged. Inside the

unit, appliances and furniture items had been damaged. Video surveillance

revealed Gilliam as the perpetrator. Further investigation revealed Gilliam’s

driver’s license was barred and that there was a no-contact order protecting

Mayland. For his actions at the storage unit, Gilliam was charged with criminal

mischief in the second degree, in violation of Iowa Code section 716.4(1) (2019),

and driving while barred, in violation of Iowa Code section 321.561. These two

charges were assigned the case number FECR324885. However, Gilliam was

also charged for his actions at the storage unit with burglary in the third degree in

violation of section 713.6A. That charge was assigned the case number

FECR326873. Gilliam was taken into custody in February.
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On April 4, Gilliam pleaded guilty to SRCR320116, SRCR321474, and

SRCR321488 by written petitions to plead guilty.

On May 3, Gilliam came before the district court for a hearing. The transcript

of proceedings indicates the matters heard were FECR432885, SRCR 321474,

SRCR321488, and SRCR 320116. The State noted, “Your Honor, we’re also here

on FECR326873,” which was the burglary charge. Although there initially was a

plea agreement, the plea process broke down upon a disagreement over the

factual basis regarding ownership of the property in the storage unit.

The court then indicated that the cases under review would proceed to trial.

Gilliam was immediately arraigned on the burglary charge, FECR326873, entering

a plea of not guilty and waiving a formal reading of the charges. The court set trial

for FECR326873 for June 3, noting,

I know that’s the current date set for Case No. 324885. But as I also
understand it, the factual basis supporting the burglary charge is the
same as that supporting the criminal mischief charge. So we’ll
proceed—we’ll schedule both of those trials for the same date and
then resolve anything as it comes up.

The State gave notice of its intent to file a motion to consolidate those charges,

and the defense announced it would resist such a motion. However, the State did

not file a motion until June 3, 2019. That motion was captioned “motion to amend

trial information,” and it cited to Iowa Rule of Criminal Procedure 2.6(1).

Gilliam again appeared before the district court on June 3. The transcript

reflects that the cases before the court were FECR324885, SRCR321488,

SRCR320116, and SRCR321474. The court’s introductory remarks indicated that

FECR324885 and FECR326873 were the cases before the court.
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The State opened by giving background for its motion to combine the

charges. Gilliam’s counsel resisted the motion, calling combination “extremely

prejudicial” and asserting, “It could very well be if he’s exonerated on one of those

charges, the State would dismiss one of the charges as a result.” The court

granted the motion, saying,

I do find that since these all arise out of the same factual situation,
within a couple of days of each other, the barred is related to him
driving—allegedly driving into the storage unit when the other two—
the criminal mischief and the burglary are the alleged incident on
January 30th. So they arise out of the same facts and
circumstances. I don’t see that it’s prejudicial to the defendant to put
these together, and so I am going to grant the motion.

Following the court’s grant of the motion, the burglary charge became count III of

FECR324885.

Discussion was had regarding a number of cases against Gilliam, the full

extent of which we will not recount here. Eventually, the court said “let’s just focus

on the three cases today: The criminal mischief, burglary, and the driving while

barred.” Gilliam decided to plead guilty and waived time and notice for sentencing

for SRCR320116, SRCR321474, and SRCR321488. He agreed to proceed

immediately on sentencing on those three charges in addition to the two felony

counts.

The court then initiated plea proceedings for counts I and III of

FECR324885, which were the charges for criminal mischief in the second degree

and burglary in the third degree. The court accepted the guilty pleas to counts I

and III in case FECR324885. Count II, driving while barred, was dismissed. The

court proceeded to impose sentence on the two counts of FECR324885 and the

three misdemeanor cases. The sentencing order also affected other cases not
 7

relevant here. On the same day it issued the sentencing order, the court issued a

written order to close case number FECR326873, which had previously held the

burglary charge. In the order, the court noted, “the pending charge(s) from the old

case number shall proceed under FECR324885.”

Gilliam then filed a notice of appeal on June 7,1 listing case numbers

FECR324885, SRCR321474, SRCR321488, and SRCR320116 in the document’s

caption. The combined certificate, filed July 15, also referenced only those case

numbers.

In a letter dated March 24, 2020 and filed April 2, 2020, Gilliam’s appellate

counsel sent a letter to the Polk County Clerk of District Court requesting

transmittal of the record. The letter referenced the four cases mentioned in the

notice of appeal but also requested transmittal of the record from FECR326873,

the case that originally held the burglary charge. Only the records for

SRCR321474, SRCR321488, SRCR230116, and FECR324885 were transmitted

on April 3 and 6. The Iowa Supreme Court transferred the case to this court on

April 23.

II. Standard of Review

“Our review of a district court’s consolidation order is for abuse of discretion.

To show the district court abused its discretion in consolidating, a defendant must

prove that his interest in severance was greater than the State’s interest in judicial

1 This appeal was pending on July 1, 2019, so we can address an ineffective-
assistance claim on direct appeal from a guilty plea if the record is
adequate. See State v. Macke, 933 N.W.2d 226, 227 (Iowa 2019) (“Iowa Code
sections 814.6 and 814.7, as amended, do not apply to a direct appeal from a
judgment and sentence entered before July 1, 2019.”).
 8

economy.” State v. Hajtic, 724 N.W.2d 449, 457 (Iowa 2006) (internal citation

omitted). “We review ineffective-assistance-of-counsel claims de novo.” State v.

Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).

III. Discussion

Gilliam makes two arguments on appeal. First, he contends the district

court abused its discretion when it allowed the trial information in FECR324885 to

be amended to include a count for burglary in the third degree. Second, he claims

he received ineffective assistance of counsel. His ineffective-assistance argument

has two prongs. He maintains that pleas of guilty in SRCR320116 and

SRCR321488 are unsupported by a factual basis because the written plea

documents do not indicate the county in which the crime occurred, the date that

the offense took place, or the name of the victim. He then notes that no verbatim

record exists in SRCR321488 and argues that his counsel’s failure to ensure a

record amounts to ineffective assistance of counsel.

A. Consolidation

We determine the district court did not abuse its discretion when it allowed

the trial information in FECR324885 to be amended to reflect a charge for burglary

in the third degree. We first find that when Gilliam pleaded guilty he waived his

right to object on appeal to the district court’s ruling, and we also find that he

mischaracterizes a consolidation of charges as an addition of a nascent charge.

“It is well established that a defendant’s guilty plea waives all defenses and

objections which are not intrinsic to the plea.” State v. Carroll, 767 N.W.2d 638,

641 (Iowa 2009). “A valid plea waives all defenses and the right to contest all

adverse pretrial rulings.” Schmidt v. State, 909 N.W.2d 778, 785 (Iowa 2018)
 9

(cleaned up). Gilliam’s challenge to the court’s decision consolidating the two

felony counts into SRCR321885 is not intrinsic to his plea, as it did not implicate

the knowing and voluntary nature of his plea. We hold that Gilliam’s plea waived

his right to contest the court’s order amending the trial information in FECR324885.

Even if Gilliam had not waived his protest over consolidation by pleading

guilty, we would reject it. Gilliam wrongly disregards the fact that the court’s

amendment of the trial information in FECR324885 was merely the mechanism by

which the court effected a consolidation of two extant charges. Gilliam argues that

“burglary is a wholly new and different offense than criminal mischief” and

contends he was prejudiced because “[t]he two charges require different proof by

the State, which in turn[ ] requires different examination to prepare for, different

evidence to rebut or contradict.” Quoting Iowa Rule of Criminal Procedure

2.4(8)(a), he says a trial information “is not allowed if substantial rights of the

defendant are prejudiced by the amendment, or if a wholly new and different

offense is charged.”

We do not disagree that burglary is a different charge than criminal mischief;

however, Gilliam’s arguments obscure that he had already been indicted for

burglary well in advance of the State’s motion to amend the trial information in

FECR324885. While burglary was a new charge to FECR324885, it was not a

new charge to Gilliam, and he is therefore unable to show he was prejudiced by

the amendment to FECR324885.

Gilliam was arraigned on the burglary charge when it was assigned to case

number FECR326873, and that arraignment took place one month prior to the

consolidation of the charge into FECR324885. Trial on FECR326873 was
 10

originally scheduled under the old case number for the same day as FECR324885.

Under these circumstances, it cannot be said that the amendment prejudiced

Gilliam or that the addition of a burglary charge to FECR324885 was “wholly new

and different.” See Iowa R. Crim. P. 2.4(8)(a). Thus, had Gilliam not waived this

argument by pleading guilty, we would still find the court did not abuse its discretion

in granting the motion to amend the trial information. Significant judicial economy

was achieved by the consolidation.

In approving of the district court’s consolidation, we note that Gilliam’s own

court filings have acknowledged the earlier existence of the burglary charge, which

substantially undercuts his argument on appeal that he was prejudiced by the

appearance of a burglary charge in FECR324885. By seeking to have the record

from FECR326873 transferred for appellate review, Gilliam implicitly recognizes

his earlier indictment for burglary, which arose from his entry into the storage unit

just as the criminal-mischief count did.2

2 However, the record of FECR326873 is not part of the record on appeal. Iowa
Rule of Appellate Procedure 6.801 provides: “Only the original documents and
exhibits filed in the district court case from which the appeal is taken, the transcript
of proceedings, if any, and a certified copy of the related docket and court calendar
entries prepared by the clerk of the district court constitute the record on appeal.”
(Emphasis added). Gilliam did not cite FECR326873 in his notice of appeal; there
was no appealable final judgment in that case; and no party asked the court to take
judicial notice of FECR326873 after the trial information in FECR324885 was
amended to include the burglary count. Therefore, FECR326873 is not a part of
the record on appeal. See Iowa R. App. P. 6.801. We may take judicial notice of
adjudicative facts such as the record in FECR326873 even on appeal; however,
the “general rule” is that it is not proper to take such action “without an agreement
of the parties.” State v. Washington, 832 N.W.2d 650, 655–56 (Iowa 2013)
(quoting Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 861
(Iowa 1990)). We need not look for such an agreement here, as the record in
FECR324885 includes a transcript of the proceedings in which the charges were
consolidated, from which we can discern that Gilliam was not prejudicially
surprised when the trial information in FECR324885 was amended to include the
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B. Ineffective Assistance of Counsel

We next consider Gilliam’s ineffective-assistance-of-counsel claims. To

establish a claim of ineffective assistance of counsel, a defendant must prove: (1)

counsel failed to perform an essential duty and (2) prejudice resulted. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Rhoades v. State, 848 N.W.2d 22, 26

(Iowa 2014). The defendant “must prove both elements by a preponderance of

the evidence.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). “We normally

preserve ineffective-assistance-of-counsel claims for postconviction relief actions.”

State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). This allows for “full development

of the facts surrounding counsel’s conduct.” State v. Atley, 564 N.W.2d 817, 833

(Iowa 1997). “Only in rare cases will the trial record alone be sufficient to resolve

the claim.” Id.; see also State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (“[W]e

preserve such claims for postconviction relief proceedings, where an adequate

record of the claim can be developed and the attorney charged with providing

ineffective assistance may have an opportunity to respond to defendant’s claims.”).

Gilliam’s first ineffective-assistance claim takes issue with counsel’s failure

to address that the written plea documents in two of his misdemeanor cases do

not indicate what county the crime occurred in, the date that the offense took place,

or the name of the victim. The two cases challenged are SRCR321488 and

SRCR320116. We reject this first ineffective-assistance claim for two reasons.

exact charge that was previously present on the trial information in FECR326873.
Thus, we can satisfactorily dispose of the issues raised in this case without the
need to consider the record from FECR326873. We encourage parties seeking to
consolidate criminal charges to request that the district court take judicial notice of
the record from cases that have been rendered closed by a transfer of their
charges due to consolidation.
 12

We disagree with Gilliam’s contention that the facts in question were not supported

by the minutes of testimony, and we further find that Gilliam’s claim is directed to

issues not pertinent to the elements of the charged crimes.

In determining whether a guilty plea is supported by an adequate factual

basis, we look to four sources: “(1) inquiry of the defendant, (2) inquiry of the

prosecutor, (3) examination of the presentence report, and (4) minutes of

evidence.” State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010). Here, Gilliam’s

written pleas and the minutes of evidence provide the relevant factual basis.3

In the written petition to plead guilty in SRCR321488, Gilliam admitted as

follows: “I caused the prosecution of my brother by representing I was him to law

enforcement after committing various offenses.” As Gilliam’s appellate brief

concedes, the police report in the minutes of testimony in SRCR321488 lists the

location of the incident as “ASHWORTH RD AND 19TH ST.” This same report,

dated October 15, 2018, bears the heading of the Windsor Heights Police

Department, located at 1133 66th Street, Windsor Heights, IA 50324. In the

summary block near the top of the first page of the report, the county is identified

as “Polk,” a fact Gilliam attempts to rebut by contending that the designation refers

to the address of police department, not the address of the incident. We can reject

this argument because Officer Clingan indicates in the narrative portion of the

police report that the traffic stop was initiated “at the intersection of Ashworth and

19th Street in West Des Moines.” (Emphasis added). The narrative portion also

indicates the date of the offense was September 12, 2018.

3 Gilliam’s written pleas specifically requested the court accept the minutes of
testimony as true to establish a factual basis for the offense.
 13

Acknowledging this portion of the report, Gilliam says,

[t]he narrative portion does not give a County or State location, but
does provide that it is in West Des Moines. While I may be able to
surmise whether or not the incident occurred in Polk County, Iowa, it
requires me to go outside the record to make that determination.

To respond to Gilliam’s argument that the police report, and therefore the

record, allegedly lacks a county designation, we note the broader context of

Gilliam’s claim. His factual-basis claim is brought as part of a claim that he

received ineffective assistance at a district court proceeding taking place in Polk

County. Iowa courts “ha[ve] repeatedly held courts will take judicial notice of the

geography of the state.” State v. Conley, 176 N.W.2d 213, 215 (Iowa 1970). Had

trial counsel objected to the Polk County District Court that Ashworth and 19th

Street in West Des Moines was not in Polk County, such argument would have

been meritless. “Because counsel has no duty to raise issues that have no merit,”

counsel was not ineffective for failing to object as Gilliam alleges was necessary.

See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009).

Gilliam’s claim with respect to SRCR320116 similarly fails. As was the case

in SRCR321488, Gilliam identified his brother as the victim, and the minutes of

testimony established the date of offense, which was March 21, 2018. The police

report in SRCR320116 lists the address of the traffic stop leading to the offense as

“the 5200 blk of NE 14th St.” While no statement explicitly ties the given address

to a city—as was the case with SRCR321488—we find that this flaw does not

establish that Gilliam received ineffective assistance. At the top of the police report

in a box titled “County in which Incident Occurred,” Officer Hadsall indicated “Polk

County.” The report bears the heading of the Polk County Sheriff’s Office, of which
 14

Officer Hadsall is an employee. Gilliam’s written plea in SRCR320116 had the

heading “In the Iowa District Court for Polk County.” One of the police reports

included in the minutes of testimony resulted from an interview at a Des Moines

business. All facts in the minutes of evidence indicated the crime occurred in Polk

County, and the Polk County District Court would have understood the address of

the traffic stop as being in Polk County. There was no indication below to suggest

to the court that the offense occurred anywhere besides Polk County. Gilliam’s

counsel did not breach a duty by failing to object to the alleged lack of county

designation, and neither can Gilliam show he was prejudiced.

Furthermore, the State correctly notes that the county in which the offense

occurred was not an element of the crime but rather pertained to venue. “Iowa

Rule of Criminal Procedure 2.8(2)(b) requires the court to ensure the defendant’s

plea has a factual basis before accepting the defendant’s plea.

The factual basis must be contained in the record, and the record, as a whole,

must disclose facts to satisfy all elements of the offense.” Ortiz, 789 N.W.2d at

767–68 (emphasis added). Venue is not an essential element of a crime. State v.

Allen, 293 N.W.2d 16, 20 (Iowa 1980). Counsel will not be deemed ineffective for

having failed to object that the factual basis for a crime is lacking if the alleged

missing facts do not pertain to the elements of the crime.

We next turn to Gilliam’s claim that he never waived a record of the

proceedings for SRCR321488 and therefore he received ineffective assistance of

counsel. Iowa Rule of Criminal Procedure 2.8(2)(b)(5) allows that, “The court may,

in its discretion and with the approval of the defendant, waive” in-person plea

proceedings where the underlying offense is a serious or aggravated
 15

misdemeanor. However, rule 2.8(3) provides that “[a] verbatim record of the

proceedings at which the defendant enters a plea shall be made.” These rules are

approximated in the written plea form Gilliam submitted in SRCR321488, which

has the statement “I waive my right to have a verbatim record of these

proceedings” next to a check box. Gilliam made no mark in the check box, though

he did so in SRCR320116 and SRCR321474.

We reject Gilliam’s claim that his trial counsel was ineffective for allowing

him to plead guilty in SRCR321488 without an in-court colloquy because we find

that Gilliam cannot prove he was prejudiced by his counsel’s failure to seek a

verbatim record.

To prove the prejudice prong of a claim of ineffective assistance of counsel,

a defendant must demonstrate “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; see also Hill v. Lockhart,

474 U.S. 52, 59 (1985) (“[T]he defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.”).

Here, Gilliam cannot show a reasonable probability that he would have

refrained from pleading guilty and would have instead insisted on going to trial in

SRCR321488. First, we note that, pursuant to the plea agreement, Gilliam’s one-

year sentence in SRCR321488 was to run concurrently with a cumulative ten-year

sentence on his two felony convictions; therefore, his plea in SRCR321488 had no

effect on his ultimate term of incarceration, which was decided by the sentences
 16

for his two felony convictions. Second, Gilliam’s plea resolved a number of

charges, and there is no reasonable probability he would have disturbed the global

plea agreement by contesting an in-court colloquy in SRCR321488. By agreeing

to the State’s plea offer, Gilliam received a substantial reduction in potential

sentences and had a number of charges dismissed, including a minimum of fifty

violations of a no-contact order, a driving-while-barred charge, and a habitual

offender enhancement. In the two other misdemeanor cases, signed and filed on

the same day as SRCR321488, Gilliam waived his right to a record. Moreover,

Gilliam knew he was giving up the right to challenge defects with his plea in

SRCR321488 when he signed the petition to plead guilty, in which he agreed to

the following statement:

To contest this plea I must file a Motion in Arrest of Judgment within
45 days after this plea but no later than 5 days prior to sentencing. I
understand that by seeking immediate sentencing I give up this right
and forever waive my right to challenge this plea and to appeal my
plea.

Given the scope of the many charges resolved by Gilliam’s plea and

Gilliam’s knowing waiver of a right to challenge his plea in SRCR321488, Gilliam

cannot show a reasonable probability he would have sought a trial in SRCR321488

over the failure to waive or assert his right to a record in in SRCR321488.

Therefore, his counsel was not ineffective on that ground, and we reject Gilliam’s

claim to the contrary.

IV. Conclusion

We find that the district court did not abuse its discretion in granting the

motion to amend the trial information in FECR324885 to include the burglary
 17

charge that was previously filed in FECR326873, and we reject Gilliam’s

ineffective-assistance-of-counsel claims. Accordingly, we affirm the convictions.

AFFIRMED.