IN THE COURT OF APPEALS OF IOWA
No. 21-0988
Filed November 2, 2022
BRODY WESLEY WALKER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Amy M. Moore,
Judge.
An applicant appeals the denial of postconviction relief. AFFIRMED.
Christopher A. Clausen of Clausen Law Office, Ames, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., Tabor, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
TABOR, Judge.
Brody Walker appeals the denial of his application for postconviction relief
(PCR). In 2019, he accepted a plea agreement covering two cases. In his first
case, the State charged first-degree burglary. He pleaded guilty to second-degree
burglary. In his second case, the State charged first-degree robbery. He pleaded
guilty to second-degree robbery and first-degree theft. A district court accepted all
three guilty pleas and sentenced Walker to a combined prison term not to exceed
twenty years.1
Among his PCR claims, he argued the consecutive sentences for robbery
and theft violated double jeopardy. Walker also contended his trial counsel was
ineffective in two ways: (1) in failing to investigate an intoxication defense or to
secure an expert to evaluate whether his impairment prevented him from forming
specific intent and (2) in allowing him to plead guilty without a factual basis. After
a hearing, the PCR court denied Walker’s application. He now appeals and
resurrects these two claims. Because Walker fails to show a double jeopardy
violation or ineffective assistance of counsel, we affirm.
I. Facts and Prior Proceedings
To set the stage, here’s a brief history of Walker’s two criminal cases. First,
in January 2018, the State charged him with first-degree burglary, a class “B”
felony.2 The trial information and minutes of testimony alleged that in November
2017 Walker broke into a home and shot an occupant before running away.
1 The court imposed consecutive sentences for the robbery and theft convictions
but ran them concurrent to the burglary term.
2 The case was numbered FECR356621.
3
Then, in April 2018, the State charged Walker with first-degree robbery,
another class “B” felony.3 The trial information and minutes of testimony alleged
that Walker, along with two accomplices, broke into a home, hit the sleeping
occupant in the head, demanded the combination for a safe, and then took the
safe and other items before leaving.
Walker worked out a plea deal with the State to resolve both cases. His
liability went from two class “B” felonies to three class “C” felonies. After his guilty
pleas, Walker underwent a pre-sentencing investigation (PSI). Walker told the
investigator about his history of alcohol use and how “he drank a pint of whiskey”
before he broke into both houses. He also mentioned his frequent drug use and
claimed to be under the influence of methamphetamine and marijuana when he
committed the offenses. The district court sentenced him to an indeterminate term
of twenty years.
Walker did not appeal. But he filed an application for PCR in October 2019.
In his application, he claimed theft was a lesser included offense of robbery, so he
could not be convicted of both crimes. He also raised several claimed deficiencies
in his trial counsel’s performance, including an alleged failure to mount an
intoxication defense.4 On a stipulated record,5 the district court denied all of
Walker’s claims. He now appeals the denial of relief.
3 The case was numbered FECR356904.
4 He also claimed trial counsel failed to keep him informed of proceedings or
discuss defenses with him and failed to create a client-trust account or keep track
of hours spent on the case. He does not pursue these arguments on appeal.
5 The record included the parties’ briefs, the trial informations for the charged
offenses, the judgments entries, and transcripts from the guilty plea and
sentencing hearings.
4
II. Scope and Standards of Review
We usually review PCR rulings for correction of errors at law. Brooks v.
State, 975 N.W.2d 444, 445 (Iowa Ct. App. 2022) (citation omitted). But when
applicants raise constitutional issues, such as double jeopardy and ineffective
assistance of counsel, our review is de novo. See Dempsey v. State, 860 N.W.2d
860, 868 (Iowa 2015).
III. Analysis
A. Double Jeopardy
On appeal, Walker doubles down on his argument that theft is a lesser-
included offense of robbery and thus he cannot be sentenced for both crimes. For
support, he points to Iowa Code chapter 816 (2018) and the Double Jeopardy
Clause of the United States Constitution. 6
The Double Jeopardy Clause has two purposes. The first is to protect the
defendant against multiple prosecutions for the same offense after a conviction or
acquittal. State v. Burgess, 639 N.W.2d 564, 568 (Iowa 2001). The second is to
protect against multiple punishments for the same offense. Id. Chapter 816
focuses on the first purpose: multiple prosecutions. See Iowa Code §§ 816.1
(barring a second prosecution for the same offense following a conviction or
acquittal), 816.2 (barring a second indictment for the same offense, a lesser
degree of the offense, or an included offense following a conviction or acquittal).
6 In the district court, Walker cited the state constitution in his double jeopardy
argument, contending: “Iowans have greater protection under Iowa’s constitution.”
True, our constitution’s double jeopardy protections are distinct. See State v.
Lindell, 828 N.W.2d 1, 4 (Iowa 2013). But such protections only apply to those
acquitted. Iowa Const. art. I, § 12. (“No person shall after acquittal, be tried for the
same offense.”).
5
The State amended Walker’s trial information to charge robbery and theft
for the same incident. And Walker pleaded guilty to both offenses at the same
time. So chapter 816 does not apply.
We therefore turn to the second double jeopardy protection: prohibiting
multiple punishments for the same offense. Offenses are the same when one
crime is a lesser-included offense of another. State v. Gallup, 500 N.W.2d 437,
441 (Iowa 1993) (“[W]e must determine if the offenses charged . . . involve
essentially the same offense. In short, we must determine whether one of the
offenses is a lesser included offense of the other.”). We may look to the legal
elements test—also known as the Blockburger test7—to decide if the legislature
intended multiple punishments. See id. at 443. If a person cannot commit the first,
greater crime without meeting all elements needed to commit a second, lesser
crime, then those offenses are the same. See State v. Johnson, 950 N.W.2d 21,
24–25 (Iowa 2020) (explaining if crimes should merge under the legal-elements
test, courts then look to legislative intent).8
A person commits robbery when:
[H]aving the intent to commit a theft, the person does any of the
following acts to assist or further the commission of the intended theft
or the person's escape from the scene thereof with or without the
stolen property:
a. Commits an assault upon another.
b. Threatens another with or purposely puts another in fear of
immediate serious injury.
c. Threatens to commit immediately any forcible felony.
7Blockburger v. United States, 284 U.S. 299, 304 (1932).
8Walker does not cite Iowa Code section 701.9, which codifies the double jeopardy
protection against cumulative punishments. But section 701.9’s merger analysis
also encompasses the Blockburger test. Gallup, 500 N.W.2d at 441.
6
Iowa Code § 711.1. It does not matter if the person succeeded in taking someone
else’s property. Id.
Meanwhile, theft means (1) taking possession or control of property
belonging to someone else or in another person’s possession with (2) the intent to
deprive them of that property. Id. § 714.1(1) (2017).
Looking to precedent, the district court found theft was not a lesser-included
offense of robbery. See State v. Holmes, 276 N.W.2d 823, 825 (Iowa 1979). To
commit theft, a person must take someone else’s property. Iowa Code § 714.1(1).
But the robbery statute expressly states a successful taking is not required. Thus,
one can commit robbery without committing theft. They are not the same offense.
Conceding he can find no authority for his position, Walker claims that while
theft requires a taking and robbery does not, both offenses require the same intent.
He argues robbery “is essentially using force” for a theft, making them the same
offense. He requests we “break” with precedent to merge those offenses. Like
the district court, we decline. We are bound by our supreme court’s precedent.
Figley v. W.S. Indus., 801 N.W.2d 602, 608 (Iowa Ct. App. 2011).
B. Ineffective Assistance of Counsel
Next, Walker contends his trial attorney performed subpar in two respects.
First, in the pre-trial investigation. And second, at the plea hearing.
To prevail on his claim of ineffective assistance, Walker must prove his
attorney performed deficiently and prejudice resulted. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). We measure counsel’s performance
against the standard of a reasonably competent practitioner. State v. Clay, 824
N.W.2d 488, 495 (Iowa 2012). On the prejudice prong, because Walker pleaded
7
guilty, he must show that but for his attorney’s incompetence he would have
insisted on going to trial. See State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009).
But if counsel allows a client to plead guilty to a charge for which no factual basis
exists, prejudice is inherent. State v. Ross, 941 N.W.2d 341, 346 (Iowa 2020). If
Walker fails to establish one of the prongs, we need not address the other.
Dempsey, 860 N.W.2d at 868. We focus on performance today.
Where did counsel’s performance fall short? Walker first alleges counsel
should have investigated an intoxication defense and retained an expert to
evaluate Walker’s level of impairment when he committed the offenses. Like the
district court, we find Walker’s allegations unfounded. Walker fails to create a
record detailing how his attorney would have discovered his level of impairment
when he committed the offenses.9 While Walker mentioned drinking whiskey
before both crimes and having a history of drug use, he did so only to the PSI
preparer after pleading guilty. Walker does not assert that he shared the
information of his alleged intoxication with counsel. “In assessing claims of
ineffective assistance of counsel, a defendant’s conduct is examined as well as
that of his attorney.” State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). In fact,
when the court asked Walker about his trial counsel’s performance at his plea
hearing, he stated it was satisfactory. On this record, we find no basis to question
counsel’s investigation.
9Walker concedes “little evidence” supports his claim. Neither trial counsel nor an
expert was deposed. He notes PCR counsel sought a continuance for depositions
but was denied. Walker did not challenge the denial.
8
Next Walker contends counsel was remiss in allowing him to plead guilty to
all three offenses without a factual basis. He claims an expert “would likely have
concluded” he was too impaired at the time of his offenses to form the necessary
specific intent.
True, before entering judgment, the district court must be satisfied there
exists a factual basis for a guilty plea. See State v. Sanders, 309 N.W.2d 144, 145
(Iowa Ct. App. 1981). But courts may fulfill that requirement by asking defendants
what they did. See Ryan v. Iowa State Penitentiary, 218 N.W.2d 616, 618 (Iowa
1974). And this inquiry does not require the court to extract a detailed confession
covering each element of all charged offenses to create a sufficient factual basis.
See State v. Hansen, 221 N.W.2d 274, 276 (Iowa 1974).
The court and Walker had this back-and-forth at his plea hearing. For his
burglary charge, the court asked Walker, “did you have the intent to steal from [the
victim] items belonging to him?” Walker said “yes.” For his robbery and theft
charge, the court asked Walker “you had the intent to steal items from [the victim]
. . . is that right?” He replied “yes.” We take Walker at his word. Nothing in the
record shows that his attorney or the court should have doubted his capacity to
form specific intent based on intoxication. Thus, we find no deficiency in counsel’s
plea hearing performance.
AFFIRMED.