IN THE COURT OF APPEALS OF IOWA
No. 17-1056 Filed March 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
DANIEL JOSEPH BUENNEKE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
Daniel Buenneke appeals following his guilty plea from convictions for
second-degree robbery and first-degree theft. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ. 2
VAITHESWARAN, Judge.
Daniel Buenneke entered an Alford plea1 to second-degree robbery and
first-degree theft in connection with an incident at a Waterloo liquor store.2 The
district court imposed sentence, including “[a] mandatory minimum sentence of
incarceration . . . for a term of 70% on” the robbery count. On appeal, Buenneke
contends his plea lacked a factual basis and his attorney was ineffective in failing
to challenge it. He also contends the district court abused its discretion in imposing
the mandatory minimum sentence of seventy percent. The first issue is dispositive.
Ineffective assistance claims have two components: (1) breach of an
essential duty and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984). “If trial counsel permits a defendant to plead guilty and waives the
defendant’s right to file a motion in arrest of judgment when there is no factual
basis to support the defendant’s guilty plea, trial counsel breaches an essential
duty,” and “we presume prejudice.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa
2014). While ineffective assistance claims are generally preserved for
postconviction relief, we find the record adequate to address the issue. See State
v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
Robbery is defined as follows:
1. A person commits a robbery when, having 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.
1 An Alford plea is a variation of a guilty plea where the defendant does not admit participation in the acts constituting the crime but consents to the imposition of a sentence. North Carolina v. Alford, 400 U.S. 25, 37 (1970). 2 Buenneke also entered Alford pleas to two other crimes. They are not at issue on appeal. 3
b. Threatens another with or purposely puts another in fear of immediate serious injury. c. Threatens to commit immediately any forcible felony. 2. It is immaterial to the question of guilt or innocence of robbery that property was or was not actually stolen.
Iowa Code § 711.1 (2015). First-degree robbery occurs “when, while perpetrating
a robbery, the person purposely inflicts or attempts to inflict serious injury, or is
armed with a dangerous weapon.” Id. § 711.2. “All robbery which is not robbery
in the first degree is robbery in the second degree.” Id. § 711.3.
“A person commits theft when the person . . . [t]akes possession or control
of the property of another, or property in the possession of another, with the intent
to deprive the other thereof.” Id. § 714.1(1). “The theft of property exceeding ten
thousand dollars in value, or the theft of property from the person of another . . . is
theft in the first degree.” Id. § 714.2(1).
The State asserts Buenneke aided and abetted another man in the
commission of second-degree robbery and first-degree theft. “According to the
aiding and abetting theory: ‘All persons concerned in the commission of a public
offense, whether they directly commit the act constituting the offense or aid and
abet its commission, shall be charged, tried and punished as principals.’” State v.
Rodriguez, 804 N.W.2d 844, 852 (Iowa 2011) (quoting Iowa Code § 703.1).
“Under section 703.1, the aider and abettor is held liable for the same crime which
he or she has knowingly aided the principal in committing, ‘either by active
participation in it or by some manner encouraging it prior to or at the time of its
commission.’” Id. (quoting State v. Satern, 516 N.W.2d 839, 843 (Iowa 1994)).
In the State’s view, Buenneke’s “actions before and after the crime,
including his presence, companionship, and conduct” permit an inference he 4
participated in the crimes at the liquor store. See State v. Miles, 346 N.W.2d 517,
520 (Iowa 1984) (citing Fryer v. State, 325 N.W.2d 400, 406 (Iowa 1982)). We are
not persuaded.
We begin with the plea to second-degree robbery. The minutes of
testimony disclose that Buenneke entered the liquor store with a man later
identified as Marlon Harris, Jr. Harris demanded money from one clerk and
cigarettes from another. He “displayed a gun in his waistband.” The clerks
believed he would use it “if they did not do what he said.” Harris also shoved one
of the clerks and grabbed a bottle of liquor and approximately four packs of
cigarettes hanging above the counter.
Buenneke “was located a short distance away from the crime scene.” He
approached one of the store employees and asked “if she would buy him a shot.”
She said “No, you already have an open bottle in your hand.” She told police
Buenneke was “just standing around and was telling Harris ‘stop, we are not on
this tonight.’” Buenneke left the store with Harris and, as he did so, “took four bags
of chips for a total value of two dollars.” On leaving, Buenneke committed other
crimes with Harris.
There is scant if any indication Buenneke countenanced Harris’ threatening
displays of a gun or his decision to shove one of the clerks. To the contrary,
Buenneke encouraged Harris to back off. The only suggestion of threatening
behavior by Buenneke came from a customer, who told police Buenneke stepped
between the counter and the customer and ignored the customer’s demand to
“back the hell up.” Neither the customer nor police tied this action to Harris’
assaultive behaviors, an intended theft, or an effort to escape. On our de novo 5
review of the record, we conclude there was no factual basis for second-degree
robbery.
We turn to the theft count. The State notes Buenneke, acting as a principal
rather than an aider and abettor, stole four chip bags from the store. But the value
of the bags was a tiny fraction of the $10,000 threshold for first-degree theft.
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IN THE COURT OF APPEALS OF IOWA
No. 17-1056 Filed March 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
DANIEL JOSEPH BUENNEKE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
Daniel Buenneke appeals following his guilty plea from convictions for
second-degree robbery and first-degree theft. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ. 2
VAITHESWARAN, Judge.
Daniel Buenneke entered an Alford plea1 to second-degree robbery and
first-degree theft in connection with an incident at a Waterloo liquor store.2 The
district court imposed sentence, including “[a] mandatory minimum sentence of
incarceration . . . for a term of 70% on” the robbery count. On appeal, Buenneke
contends his plea lacked a factual basis and his attorney was ineffective in failing
to challenge it. He also contends the district court abused its discretion in imposing
the mandatory minimum sentence of seventy percent. The first issue is dispositive.
Ineffective assistance claims have two components: (1) breach of an
essential duty and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984). “If trial counsel permits a defendant to plead guilty and waives the
defendant’s right to file a motion in arrest of judgment when there is no factual
basis to support the defendant’s guilty plea, trial counsel breaches an essential
duty,” and “we presume prejudice.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa
2014). While ineffective assistance claims are generally preserved for
postconviction relief, we find the record adequate to address the issue. See State
v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
Robbery is defined as follows:
1. A person commits a robbery when, having 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.
1 An Alford plea is a variation of a guilty plea where the defendant does not admit participation in the acts constituting the crime but consents to the imposition of a sentence. North Carolina v. Alford, 400 U.S. 25, 37 (1970). 2 Buenneke also entered Alford pleas to two other crimes. They are not at issue on appeal. 3
b. Threatens another with or purposely puts another in fear of immediate serious injury. c. Threatens to commit immediately any forcible felony. 2. It is immaterial to the question of guilt or innocence of robbery that property was or was not actually stolen.
Iowa Code § 711.1 (2015). First-degree robbery occurs “when, while perpetrating
a robbery, the person purposely inflicts or attempts to inflict serious injury, or is
armed with a dangerous weapon.” Id. § 711.2. “All robbery which is not robbery
in the first degree is robbery in the second degree.” Id. § 711.3.
“A person commits theft when the person . . . [t]akes possession or control
of the property of another, or property in the possession of another, with the intent
to deprive the other thereof.” Id. § 714.1(1). “The theft of property exceeding ten
thousand dollars in value, or the theft of property from the person of another . . . is
theft in the first degree.” Id. § 714.2(1).
The State asserts Buenneke aided and abetted another man in the
commission of second-degree robbery and first-degree theft. “According to the
aiding and abetting theory: ‘All persons concerned in the commission of a public
offense, whether they directly commit the act constituting the offense or aid and
abet its commission, shall be charged, tried and punished as principals.’” State v.
Rodriguez, 804 N.W.2d 844, 852 (Iowa 2011) (quoting Iowa Code § 703.1).
“Under section 703.1, the aider and abettor is held liable for the same crime which
he or she has knowingly aided the principal in committing, ‘either by active
participation in it or by some manner encouraging it prior to or at the time of its
commission.’” Id. (quoting State v. Satern, 516 N.W.2d 839, 843 (Iowa 1994)).
In the State’s view, Buenneke’s “actions before and after the crime,
including his presence, companionship, and conduct” permit an inference he 4
participated in the crimes at the liquor store. See State v. Miles, 346 N.W.2d 517,
520 (Iowa 1984) (citing Fryer v. State, 325 N.W.2d 400, 406 (Iowa 1982)). We are
not persuaded.
We begin with the plea to second-degree robbery. The minutes of
testimony disclose that Buenneke entered the liquor store with a man later
identified as Marlon Harris, Jr. Harris demanded money from one clerk and
cigarettes from another. He “displayed a gun in his waistband.” The clerks
believed he would use it “if they did not do what he said.” Harris also shoved one
of the clerks and grabbed a bottle of liquor and approximately four packs of
cigarettes hanging above the counter.
Buenneke “was located a short distance away from the crime scene.” He
approached one of the store employees and asked “if she would buy him a shot.”
She said “No, you already have an open bottle in your hand.” She told police
Buenneke was “just standing around and was telling Harris ‘stop, we are not on
this tonight.’” Buenneke left the store with Harris and, as he did so, “took four bags
of chips for a total value of two dollars.” On leaving, Buenneke committed other
crimes with Harris.
There is scant if any indication Buenneke countenanced Harris’ threatening
displays of a gun or his decision to shove one of the clerks. To the contrary,
Buenneke encouraged Harris to back off. The only suggestion of threatening
behavior by Buenneke came from a customer, who told police Buenneke stepped
between the counter and the customer and ignored the customer’s demand to
“back the hell up.” Neither the customer nor police tied this action to Harris’
assaultive behaviors, an intended theft, or an effort to escape. On our de novo 5
review of the record, we conclude there was no factual basis for second-degree
robbery.
We turn to the theft count. The State notes Buenneke, acting as a principal
rather than an aider and abettor, stole four chip bags from the store. But the value
of the bags was a tiny fraction of the $10,000 threshold for first-degree theft.
There is also no indication Buenneke took the chips “from the person of
another” as set forth in section 714.2(1). See State v. Washington, 308 N.W.2d
422, 423 (Iowa 1981) (“[T]heft from the victim’s area of control, because of its
potential for physical confrontation with the thief, could logically be seen as
justifying an enhanced penalty.”); State v. Patrick, No. 02-0955, 2003 WL 558507,
at *2 (Iowa Ct. App. Feb. 28, 2003) (“[T]he policy considerations sustaining the
prosecution of theft from the person as first-degree theft support a narrow
interpretation of ‘from the person’ requiring the victim and the property to be in
close proximity.”); cf. State v. Parker, 342 N.W.2d 459, 463 (Iowa 1983) (noting
prior to 1983, certain items such as “thefts of property from the person of another”
were “singled out for separate treatment”).
As for Harris’ theft and the State’s assertion Buenneke aided and abetted
in his theft, the State made no record of the value of the liquor bottle and cigarette
packs Harris took, but we may easily infer these items did not meet the $10,000
threshold for first-degree theft. There also is no indication Buenneke participated
in or encouraged the taking of the liquor bottle near one of the clerks so as to
satisfy the taking “from the person of another” portion of section 714.2(1). We
conclude there was no factual basis for first-degree theft 6
We recognize Buenneke entered and exited the store with Harris. See
State v. Jefferson, 574 N.W.2d 268, 277 (Iowa 1997) (finding sufficient evidence
of aiding and abetting a robbery based in part on the fact that codefendants “left
the scene together”). But “[m]ere nearness to, or presence at, the scene of the
crime, without more evidence, is not ‘aiding and abetting.’” State v. Allen, 633
N.W.2d 752, 754 (Iowa 2001) (quoting Iowa Crim. Jury Instructions 200.8 (1988));
see also State v. Henderson, ___ N.W.2d ___, ___, 2018 WL 1224523, at *6-7
(Iowa 2018).
We also recognize Buenneke was aware of the crimes Harris was
committing. But “mere knowledge of the crime is not enough to prove ‘aiding and
abetting.’” Allen, 633 N.W.2d at 754. Unlike Jefferson, 574 N.W.2d at 277, where
the aider and abettor accompanied his codefendant into a hallway, watched as the
codefendant fired a gun at the store clerk, and appeared to have owned or
furnished the gun, Buenneke was a short distance away from Harris and
encouraged Harris not to commit the crimes. See State v. Rush-Brantley, No. 12-
1915, 2015 WL 161791, at *6 (Iowa Ct. App. Jan. 14, 2015) (finding insufficient
evidence of intent and knowledge to support finding of guilt as aider and abettor).
Nor are we persuaded Buenneke’s commission of crimes with Harris after
the fact generated a factual basis for the crimes at the liquor store. See State v.
Hearn, 797 N.W.2d 577, 581 (Iowa 2011) (noting the aider and abettor swerved
toward an officer following a carjacking, suggesting he “was involved in the
carjacking because he was trying to help the principal carjackers escape the scene
of the crime”). Harris was identified as the driver of the vehicle. The crimes were
close in time to the crimes at the liquor store but were otherwise unrelated. With 7
respect to the first—operating a motor vehicle without the owner’s consent—Harris
was identified as the driver of the vehicle. The crime arose “[s]uddenly” when
Harris saw a customer’s running vehicle in the parking lot of the liquor store and
decided to jump in and take off in that vehicle rather than the one he came in. The
remaining crime of theft arose from their decision to take items from the customer’s
vehicle. As noted, Buennecke does not challenge his convictions for those crimes.
In sum, the record establishes Buennke’s presence at the scene of the
crimes and his knowledge of the crimes. The record does not establish Buenneke’s
active participation in or encouragement of the crimes. Because the record lacked
a factual basis for second-degree robbery and first-degree theft arising from the
liquor store events, Buenneke’s attorney breached an essential duty in failing to
challenge the plea via a motion in arrest of judgment. Prejudice is presumed.
We are left with the remedy. See State v. Royer, 632 N.W.2d 905, 910
(Iowa 2001). Buenneke asserts he was charged with the wrong crimes and we
should dismiss the charges. See id. The State counters it is possible to “provide
additional testimony” to establish a factual basis. See id. We agree with the
State’s proposed remedy. We vacate Buenneke’s sentence and reverse and
remand the case to allow the State to establish a factual basis for the crimes. In
light of our resolution, we need not address Buenneke’s challenge to the
mandatory minimum sentence.
REVERSED AND REMANDED.