IN THE SUPREME COURT OF IOWA No. 19–0551
Submitted September 17, 2020—Filed November 20, 2020
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER ROBY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County, Alan T.
Heavens and Kellyann M. Lekar, Judges.
Defendant seeks further review of court of appeals decision rejecting
his claim that his guilty plea to speeding barred his subsequent conviction
for eluding while speeding based on double jeopardy grounds. DECISION
OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
Waterman, J., delivered the opinion of the court, in which all justices
joined.
Marti D. Nerenstone, Council Bluffs, for appellant. 2
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Brian J. Williams, County Attorney, and Elizabeth
O’Donnell and Yeshimebet Abebe, Assistant County Attorneys, for
appellee. 3
WATERMAN, Justice.
In this appeal, we must decide whether a defendant, simply by
paying a speeding ticket, can avoid a charge of eluding while speeding for
the same police chase. The defendant, then age seventeen, received a
speeding citation to which he pled guilty without pleading guilty to his
accompanying charge of eluding. Months later after he turned eighteen,
the State formally charged him by trial information with eluding while
speeding. On advice of counsel, the defendant pled guilty to the eluding
charge and several unrelated offenses. On appeal, the defendant’s new counsel argues that speeding is a
lesser included offense of eluding while speeding and that his first lawyer
was ineffective for failing to challenge the eluding charge on double
jeopardy grounds. We transferred the case to the court of appeals, which
rejected his double jeopardy claim and other issues raised on appeal. We
granted the defendant’s application for further review.
On our review, we determine that speeding is a lesser included
offense that at trial would merge into a conviction for eluding while
speeding. Double jeopardy principles generally prohibit a second
punishment for the same offense. Here, however, the defendant pled guilty
to speeding, a scheduled violation, without a prosecutor present or any
agreement to dismiss or foreclose the eluding charge. The defendant also
had received notice of an eluding charge. Under these circumstances, we
hold that the defendant cannot use double jeopardy principles as a sword
to defeat the more serious eluding charge. We let the court of appeals
decision stand on the defendant’s other claims and affirm his convictions
and sentences. 4
I. Background Facts and Proceedings.
On October 23, 2017, Sergeant Steve Bose was driving his marked
police patrol car in Waterloo when he noticed a silver Chevy Impala with
fresh front-end damage traveling in the opposite direction. Sergeant Bose
executed a U-turn to investigate further. As he did so, the Impala rapidly
accelerated. Sergeant Bose activated his emergency lights, and the driver
failed to stop. Sergeant Bose next activated his siren, but the driver sped
away.
During the ensuing chase, the driver drove off the roadway and through the lawns of three homes. The Impala reached speeds of fifty-five
miles per hour in a twenty-five-mile-per-hour zone. The driver eventually
ditched the Impala in a backyard and fled on foot. Sergeant Bose radioed
the driver’s description and stayed with the Impala and its passengers.
Another officer apprehended the driver, identified as Christopher Lee Roby
Jr., then age seventeen.
The police report shows Roby was charged with eluding and
interference with official acts and was issued citations for driving without
a license, reckless driving, and speeding. As a minor, he was released to
his mother without being held to answer for the eluding charge. In
November, Roby, still age seventeen, pled guilty to driving without a
license, speeding, and reckless driving, all of which are scheduled
violations. There was no reported hearing involving a prosecutor. Nor did
the State agree to forgo the eluding charge. To the contrary, on May 23,
2018, after Roby turned eighteen, the State filed a criminal complaint for
the eluding charge and a magistrate issued an arrest warrant.
Officers learned that Roby was staying with his girlfriend, Tiara Bell, who drove a black 2013 Chevy Malibu. Officers saw Roby and Bell leave
her apartment and get into the Chevy. As officers spoke with Roby and 5
Bell, they smelled a “fresh green” odor of marijuana on Roby and Bell and
searched them but found nothing. Bell told the officers that there was
marijuana inside the apartment. Officers obtained a search warrant for
the apartment and located a small plastic bag of marijuana by the bed
where Roby slept and a larger bag of marijuana on the TV stand in the
bedroom. Bell told the officers that they shared the marijuana but that
“Roby gets the weed.”
On June 5, the State filed a trial information that charged Roby with
eluding—speed over twenty-five miles per hour over the limit pursuant to Iowa Code section 321.279(2) (2017)—based on the October 23, 2017
police chase. On July 11, the State filed a criminal complaint that charged
Roby with possession of a controlled substance with intent to deliver, and
on August 16, the State filed a trial information with the same charge.
On August 30, personnel at Allen Hospital contacted child
protection workers at the Iowa Department of Human Services to report
the admission of a thirteen-year-old patient who was around eight weeks
pregnant. At the Allen Child Protection Center, the patient disclosed that
she had sex with Roby several times. Roby admitted having sex with the
victim after his eighteenth birthday. On September 26, the State filed a
criminal complaint charging Roby with third-degree sexual abuse, and on
October 5, the State filed a trial information with the same charge.
On March 28, 2019, Roby pled guilty to the eluding charge and
agreed to a two-year sentence. On that same date, Roby pled guilty to the
other charges. The court sentenced Roby to five years for the possession
charge and ten years for the sexual abuse charge, with all sentences to
run concurrently. Roby filed this direct appeal, raising multiple issues, including that
his trial counsel was ineffective for failing to challenge his eluding charge 6
on double jeopardy grounds based on his guilty plea to speeding in the
same incident. We transferred the case to the court of appeals, which
affirmed Roby’s convictions. The court of appeals held that Roby failed to
establish a double jeopardy violation and rejected his other claims. Roby
applied for further review, which we granted.
II. Standard of Review.
“On further review, we have the discretion to review all or some of
the issues raised on appeal or in the application for further review.” State
v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We choose to review only the ineffective-assistance-of-counsel claim regarding double jeopardy. We let
the court of appeals decision stand as our final decision regarding the
remaining issues.
We review an alleged failure to merge convictions as required by
statute for correction of errors at law. State v. West, 924 N.W.2d 502, 504
(Iowa 2019); State v. Love, 858 N.W.2d 721, 723 (Iowa 2015). We review
constitutional double jeopardy claims de novo. State v. Lindell, 828
N.W.2d 1, 4 (Iowa 2013). “Our review of claims of ineffective assistance of
counsel is de novo.” State v. Ortiz, 905 N.W.2d 174, 179 (Iowa 2017).
III. Analysis.
Roby argues that speeding is a lesser included offense of eluding
while speeding and that upon his guilty plea to speeding, the State could
no longer prosecute him for eluding. We must therefore decide whether
speeding merges with eluding while speeding and, if so, whether Roby’s
guilty plea to speeding constitutes a double jeopardy bar to the eluding
charge such that his former counsel provided constitutionally defective
representation by allowing him to plead guilty to eluding.1
1Ineffective assistance is properly before us. See State v. Macke, 933 N.W.2d 226,
228 (Iowa 2019) (holding amendments in Senate File 589, amending Iowa Code sections 7
The State argues that we should preserve Roby’s ineffective-
assistance-of-counsel claims for future postconviction-relief proceedings.
We may address ineffective-assistance-of-counsel claims “when the record
is sufficient to permit a ruling.” State v. Wills, 696 N.W.2d 20, 22 (Iowa
2005). We conclude that the record is adequate to address Roby’s
ineffective-assistance-of-counsel claim based on the merits of his double
jeopardy argument.
In order to establish ineffective assistance of counsel, a defendant
“must demonstrate (1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006). For the reasons explained below, we find that Roby’s
double jeopardy claim lacks merit, and therefore, his counsel breached no
duty.
A. Whether Speeding Is a Lesser Included Offense of Eluding
While Speeding. We have not previously addressed whether speeding is
a lesser included offense that merges with eluding while speeding. To
answer this question, we begin with the applicable statutes. Iowa Code
section 701.9 provides, “No person shall be convicted of a public offense
which is necessarily included in another public offense of which the person
is convicted.” This statute “codifies the double jeopardy protection against
cumulative punishments.” State v. Halliburton, 539 N.W.2d 339, 344
(Iowa 1995). “The Double Jeopardy Clause prohibits multiple
punishments for the same offense” and thereby “prevents a court from
imposing a greater punishment than the legislature intended.” Id.
(emphasis added).2 The legislature defines the offenses and can provide
814.6 and 814.7, dealing with ineffective-assistance-of-counsel claims do not apply retroactively to an appeal from a judgment and sentence entered before July 1, 2019). 2The Double Jeopardy Clause of the United States Constitution provides: “[N]or
shall any person be subject for the same offence to be twice put in jeopardy of life or limb 8
for multiple punishments for separate offenses that overlap. See State v.
Johnson, 950 N.W.2d 21, ___ (Iowa 2020). “If the Double Jeopardy Clause
is not violated because the legislature intended double punishment,
section 701.9 is not applicable and merger is not required.” Halliburton,
539 N.W.2d at 344.
In determining whether the legislature provided for double
punishment, our first step is to apply the legal-elements test that
compares “the elements of the two offenses to determine whether it is
possible to commit the greater offense without also committing the lesser offense.” Id. Here, the State charged Johnson with eluding pursuant to
Iowa Code section 321.279(2) and speeding pursuant to section 321.285.
Under the eluding statute,
[t]he driver of a motor vehicle commits an aggravated misdemeanor if the driver willfully fails to bring the motor vehicle to a stop or otherwise eludes or attempts to elude a marked official law enforcement vehicle that is driven by a uniformed peace officer after being given a visual and audible signal as provided in this section and in doing so exceeds the speed limit by twenty-five miles per hour or more.
Iowa Code § 321.279(2) (emphasis added). Section 321.285, in turn,
requires that drivers obey the posted speed limit. Id. § 321.285. A violation of section 321.285 is an element of section 321.279(2). It is
impossible to violate section 321.279(2) (eluding while exceeding the speed
limit by twenty-five miles per hour) without violating section 321.285
(speeding). Id. §§ 321.279(2), .285; cf. People v. Esparza-Treto, 282 P.3d
471, 479 (Colo. App. 2011) (concluding that “one cannot commit the
offense of vehicular eluding without also committing the offense of reckless
. . . .” U.S. Const. amend. V. The Iowa Constitution provides: “No person shall after acquittal, be tried for the same offence.” Iowa Const. art. I, § 12. Roby does not request a different analysis under the Iowa Constitution. 9
driving”). According to the legal-elements test, these offenses should
merge.
We turn to the second step in the double jeopardy analysis:
“[W]hether the legislature intended multiple punishments for both
offenses.” Halliburton, 539 N.W.2d at 344. The court of appeals held that
there was no double jeopardy violation because, under State v. Rice, the
conditions resulting in varying degrees of eluding are differing sentencing
levels rather than lesser included offenses of eluding and, in any event,
“there is a clear legislative intent to impose cumulative punishments.” 661 N.W.2d 550, 551 (Iowa Ct. App. 2003). In our view, Rice is inapposite.
First, the offenses at issue in Rice were eluding and operating while
intoxicated (OWI). Id. The Rice court concluded that each statute was
“meant to protect against a different form of illegal conduct” and that
merger “would thwart the legislative design” of the OWI statute, specifically
its subsequent-offense enhancement scheme and mandatory minimums.
Id. at 551–52.
Second, the Rice court merely stated it was “inclined” to agree that
the eluding statute defined one offense “with three possible sentencing
levels” while also observing “[i]t is not readily apparent” whether the OWI
statute was a lesser included offense, or rather, “one of several possible
sentencing enhancements.” Id. at 551. Regardless, the Rice court, without
deciding that issue, expressly held that even if an OWI was a lesser
included offense of eluding, there was a “clear legislative intent to impose
cumulative punishments.” Id.
Here, the lesser included offense is not OWI, but speeding. Eluding
while speeding and speeding both involve a driver exceeding the posted speed limit and thereby endangering others. Moreover, unlike the OWI
statute, the speeding statute lacks subsequent-offense enhancements. 10
Compare Iowa Code § 321.285 with § 321J.2(2). See also Johnson, 950
N.W.2d at ___ (holding the legislature intended separate punishments for
possession of marijuana and eluding while possessing marijuana, in light
of subsequent offense enhancements for simple possession). We see no
clear legislative intent to impose cumulative punishments. We now hold
that speeding is a lesser included offense of eluding while speeding. The
speeding conviction should merge with the eluding conviction. See State
v. Forbes, No. A–3861–04T43861–04T4, 2007 WL 879570, at *1 (N.J.
Super. Ct. App. Div. Mar. 26, 2007) (per curiam) (determining that defendant’s speeding and reckless driving convictions merged with the
eluding conviction); State v. Mulder, 755 S.E.2d 98, 106 (N.C. Ct. App.
2014) (“[W]e hold that Defendant was unconstitutionally subjected to
double jeopardy when he was convicted of speeding and reckless driving
in addition to felony fleeing to elude arrest based on speeding and reckless
driving.”). The State does not argue otherwise.
Accordingly, if a jury had found Roby guilty of speeding and eluding
while speeding for the same incident, the speeding conviction would merge
into the eluding conviction, and the court would sentence him for eluding
alone. See Iowa Code § 701.9. So was Roby’s counsel ineffective for not
arguing his speeding conviction precluded his eluding conviction? We turn
to that question next.
B. Whether the Defendant May Use the Double Jeopardy Clause
as a “Sword” to Avoid Prosecution on the More Serious Charge. The
United States Supreme Court has “recognized that the Double Jeopardy
Clause prohibits prosecution of a defendant for a greater offense when he
has already been tried and acquitted or convicted on the lesser included offense.” Ohio v. Johnson, 467 U.S. 493, 501, 104 S. Ct. 2536, 2542 11
(1984). However, the same principle does not necessarily apply when the
defendant pleads guilty to the lesser included offense.
In Ohio v. Johnson, an Ohio grand jury indicted the defendant for
murder, involuntary manslaughter, aggravated robbery, and grand theft.
Id. at 495, 104 S. Ct. at 2538–39. Johnson pled guilty to “involuntary
manslaughter and grand theft, but pleaded not guilty to . . . murder and
aggravated robbery.” Id. at 494, 104 S. Ct. at 2538. The trial court
accepted his guilty pleas and granted his motion to dismiss the other
offenses on double jeopardy grounds. Id. The Ohio Court of Appeals and Ohio Supreme Court affirmed. Id. The United States Supreme Court
reversed and held that “prosecuting respondent on the two more serious
charges would not constitute the type of ‘multiple prosecution’ prohibited
by the Double Jeopardy Clause.” Id. Indeed, “ending prosecution now
would deny the State its right to one full and fair opportunity to convict
those who have violated its laws.” Id. at 502, 104 S. Ct. at 2542.
The Johnson Court held that double jeopardy was not implicated
because
[t]he acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, . . . has none of the implications of an “implied acquittal” which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.
Id. at 501–02, 104 S. Ct. at 2542. In so holding, the Supreme Court
determined that the “respondent should not be entitled to use the Double
Jeopardy Clause as a sword to prevent the State from completing its
prosecution on the remaining charges.” Id. at 502, 104 S. Ct. at 2542.
Thus, the State could proceed with its prosecution on the murder and aggravated robbery charges. Id. 12
Our court of appeals applied Ohio v. Johnson in State v. Trainer, 762
N.W.2d 155, 157–59 (Iowa Ct. App. 2008). In Trainer, the defendant was
charged with trespass and four counts of first-degree harassment in
violation of Iowa Code sections 716.7 and 708.7(2). 762 N.W.2d at 156.
Initially, Trainer pled not guilty to the trespass charge. Id. A few weeks
later, the State charged Trainer by trial information with four counts of
first-degree harassment in violation of Iowa Code sections 708.7(1)(b) and
708.7(2) and second-degree burglary in violation of sections 713.1 and
713.5(2). Id. Trainer then pled guilty to the trespass charge, which the State resisted because it was a lesser included offense of burglary. Id. The
magistrate denied the State’s resistance, and subsequently, Trainer moved
to dismiss the burglary charge on double jeopardy grounds. Id. at 157.
The district court granted the motion, ruling that trespass was a lesser
included offense of second-degree burglary. Id. The court of appeals
reversed, holding that the State could prosecute the greater offense. Id. at
159. Although the trespass and burglary charges were charged separately,
the court of appeals did not consider this fact dispositive. Id. at 158–59.
Instead, the court agreed with other courts following Johnson that
when a defendant pleads guilty to a lesser-included charge with the knowledge of a greater charge pending in a separate indictment or about to be filed in a separate indictment, the defendant [i]s not allowed to use double jeopardy as a sword to avoid prosecution of the greater offense.
Id. at 159; see also State v. Kameroff, 171 P.3d 1160, 1163 (Alaska Ct.
App. 2007) (“We see no reason to allow Kameroff to use the Double
Jeopardy Clause as a sword to preclude the State from pursuing the felony
charges where he was fully aware that the State was actively proceeding
on those charges.”); State v. Gonzalez, 677 N.E.2d 1207, 1211 (Ohio Ct. App. 1996) (explaining that the defendant could not rely on the double 13
jeopardy clause to avoid further prosecution because she attempted “to
manipulate the proceedings” and “to use the double jeopardy clauses as a
sword”).3
We are bound by Johnson under the Federal Constitution and reach
the same conclusion under the Iowa double jeopardy clause. Roby was
initially charged with eluding and given a citation for speeding. He pled
guilty to speeding without a court hearing or the prosecutor’s knowledge
or involvement. The State, for legitimate reasons, waited six months until
Roby’s eighteenth birthday to file the formal criminal complaint for eluding.4 But the State never agreed that Roby’s payment of his speeding
3Johnson remains long-standing, settled law. See, e.g., Buchanan v. Angelone,
103 F.3d 344, 350 (4th Cir.1996) (“[T]he Court’s reasoning [in Johnson] applies equally to a case involving multiple indictments brought in a single prosecution.”), aff’d, 522 U.S. 269, 118 S. Ct. 757 (1998); Boze v. Broglin, No. 89–2947, 1991 WL 65425, at *2 (7th Cir. Apr. 23, 1991) (The defendant’s double jeopardy claim had “no merit” because “[h]ere, as in Johnson, Boze attempted to resolve part of the charges against him, while the State objected to the dismissal of the greater charge without a trial and appealed the trial court’s decision.”); United States v. Quinones, 906 F.2d 924, 928 (2d Cir. 1990) (Double jeopardy did not bar the superseding indictment because the defendant “precipitated the two proceedings by the strategy of suddenly tendering his plea” and his “attempt to use double jeopardy as a sword involved an affirmative misrepresentation to the government by defense counsel.”); People v. Super. Ct. of San Diego Cnty., 6 Cal. Rptr. 2d 242, 250 (Ct. App. 1992) (“The case which most closely resembles this case, and from which we receive the most guidance, is Ohio v. Johnson . . . .”); Boze v. State, 514 N.E.2d 275, 277 (Ind. 1987) (“Where the defendant has an active hand in arranging the disposition of the causes so he might benefit from the results, he waives any double jeopardy claims.”); State v. Freeman, 689 P.2d 885, 894–95 (Kan. 1984) (The State could continue prosecution when the defendant “attempted to do the same thing as Johnson did in Ohio, to use the double jeopardy clause to prevent the State from completing its prosecution on the greater charges.”); Righetti v. Eighth Jud. Dist. Ct. of Nev., 388 P.3d 643, 645 (Nev. 2017) (en banc) (“When the charging document alleges multiple theories for a single offense, linking them with ‘and/or,’ an accused may not undercut the State’s charging decision by pleading guilty to only some of the theories alleged without the State’s affirmative consent.”), aff’d, No. 73015, 2019 WL 1772303 (Nev. Apr. 19, 2019); State v. King, 48 P.3d 396, 405 (Wyo. 2002) (“We also embrace the Johnson decision and hold that the district court was in error in ordering dismissal of Count 2.”). 4After his arrest for eluding, Roby was issued the speeding citation and released
to his mother’s care without being held to answer in court. The speedy indictment rule for eluding was not triggered by his arrest because he was a minor. See Iowa R. Crim. P. 2.33(2)(a). The prosecution of simple misdemeanor speeding citations falls outside Iowa Code chapter 232, governing juvenile court proceedings. See Iowa Code § 321.482. As such, Roby was able to plead guilty to speeding and pay the scheduled fine in autumn 14
ticket ended his criminal liability for eluding. Nor has Roby ever claimed
he pled guilty to speeding with the understanding the eluding charge
would go away. There was no such plea agreement. To the contrary, Roby
ultimately pled guilty to eluding while speeding.
We hold that Ohio v. Johnson applies here and that Roby is not
allowed to use double jeopardy as a sword to defeat his conviction for
eluding under these circumstances. His guilty plea counsel was not
required to raise a challenge that lacked merit and, therefore, breached no
duty. Roby’s ineffective-assistance-of-counsel claims fail.5
2017 without being required to answer in juvenile court regardless of whether the State had prosecuted him for eluding at that time through delinquency proceedings. Once Roby turned age eighteen the following May, the State could file the eluding charge in district court, which it did. See id. § 803.5. This avoided the need for a waiver hearing in juvenile court pursuant to Iowa Code section 232.45. 5Ordinarily,
whenever the government is allowed to proceed with a greater charge after a guilty plea to a lesser included offense, as in Johnson, the government is nevertheless barred from punishing the defendant more than once for the “same offense.” To avoid multiple punishments for the same offense, a trial court must vacate duplicate convictions and sentences for a single offense. 6 Wayne R. LaFave et al., Criminal Procedure § 25.1(d), at 781 (4th ed. 2015) (footnotes omitted); see also Boze, 514 N.E.2d at 277–78 (remanding case to vacate conviction on lesser included battery charge after defendant was convicted of attempted murder). Based on our decision today, a speeding conviction would merge with a conviction for eluding while speeding in the same proceeding. We would then remand for resentencing to vacate the conviction on the lesser included offense. That remedy, however, is not available under the procedural posture of this appeal. Roby pled guilty to speeding in a separate proceeding over a year before he pled guilty to eluding, the subject of this appeal. He never appealed his 2017 speeding conviction or the scheduled fine paid for that simple misdemeanor. Nor does he ask us in this appeal to vacate his 2017 speeding conviction. This appeal is from his 2019 conviction for eluding. His 2019 sentence did not include the scheduled fine for speeding. Accordingly, we do not remand the case for resentencing. 15
IV. Disposition.
For these reasons, we affirm the decision of the court of appeals
(although based on different reasoning on the double jeopardy claim), and
we affirm the district court’s convictions and sentences.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.