IN THE COURT OF APPEALS OF IOWA
No. 17-0316 Filed December 6, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
JEMERIAL LOVE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
Jemerial Love appeals from her conviction by written guilty plea for theft in
the third degree. AFFIRMED.
Merrill C. Swartz of Swartz Law Firm, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ. 2
DANILSON, Chief Judge.
Jemerial Love appeals from her conviction by written guilty plea for theft in
the third degree, in violation of Iowa Code sections 714.1 and .2(3) (2016). Love
was alleged to have stolen items not exceeding $500 in value. Thus, to establish
Love committed third-degree theft under section 714.2(3),1 the State was
required to show Love had “before been twice convicted of theft.” Love’s written
guilty plea and the court’s February 3, 2017 order accepting the plea do not
include acknowledgment of Love’s prior theft convictions. Love contends
because the plea did not provide a factual basis2 for the offense, it was not made
intelligently or voluntarily, and defense counsel rendered ineffective assistance
by failing to file a motion in arrest of judgment to contest the plea. We affirm.
Our review of this ineffective-assistance-of-counsel claim is de novo.
State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). To establish defense counsel
rendered ineffective assistance, Love must show by a preponderance of the
evidence both that defense counsel failed to perform an essential duty and the
failure resulted in prejudice. See State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006).
Although Love did not file a motion in arrest of judgment, she may
challenge the entry of the guilty plea “under the rubric of ineffective assistance of
1 Section 714.2(3) provides alternative means of theft in the third degree: “The theft of property exceeding five hundred dollars but not exceeding one thousand dollars in value, or the theft of any property not exceeding five hundred dollars in value by one who has before been twice convicted of theft, is theft in the third degree.” (Emphasis added.) 2 Iowa Rule of Criminal Procedure 2.8(2)(b) provides before the court accepts a guilty plea, it must determine “that the plea is made voluntarily and intelligently and has a factual basis.” The court must also determine the defendant understands “[t]he nature of the charge to which the plea is offered.” Iowa R. Crim. P. 2.8(2)(b)(1). 3
counsel, which would require [her], among other things, to demonstrate ‘a
reasonable probability that, but for counsel’s errors [she] would not have pleaded
guilty and would have insisted on going to trial.’” State v. Fisher, 877 N.W.2d
676, 682 n.3 (Iowa 2016) (quoting Straw, 709 N.W.2d at 138).
“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.” Finney,
834 N.W.2d at 54. “On a claim that a plea bargain is invalid because of a lack of
accuracy on the factual-basis issue, the entire record before the district court
may be examined.” Id. at 62. The entire record includes the minutes of
testimony. Id.
Here, neither the guilty plea nor the court’s order accepting the plea
acknowledged the existence of at least two previous theft convictions—a
required element of third-degree theft under section 714.2(3) here. Love
maintains, therefore, that the plea was entered without a sufficient factual basis,
in violation of rule 2.8(2)(b).
However, the minutes of testimony clearly reflect Love has nine previous
theft convictions occurring from 2006 to 2014. Additionally, at the sentencing
hearing, Love acknowledged her lengthy criminal history. As such, we find there
is a factual basis supporting Love’s guilty plea for third-degree theft premised
upon at least two prior convictions of theft.
Love also asserts she “did not voluntarily and intelligently admit to: (1)
prior theft convictions; (2) being represented by counsel at the prior theft
convictions; [and] (3) a factual basis exists to support the admission to the prior
convictions.” To the extent Love is claiming that her plea was not voluntarily and 4
intelligently entered, we view this contention as a claim the plea was not
voluntary and intelligent as is constitutionally required. See id. at 54-55 (stating
the United States Supreme Court’s “caselaw recognizes two distinct strands of
constitutional analysis related to guilty pleas”: claims “rooted in the right to
effective assistance of counsel under the Sixth Amendment,” and claims “based
on the Due Process Clauses of the Fifth and Fourteenth Amendments requir[ing]
the trial court to determine the defendant made a knowing and intelligent choice”
to plead guilty to the underlying crime). However, Love failed to separately
identify this claim as an issue. See Iowa R. App. P. 6.903(2)(g) (“The argument
section shall be structured so that each issue raised on appeal is addressed in a
separately numbered division.”).
To the extent Love is contending counsel was ineffective in permitting
Love to enter a plea involuntarily or unintelligently, the record is not adequate to
address this claim. As observed in State v. Thacker, 862 N.W.2d 402, 405 (Iowa
2015):
When a defendant seeks to have an ineffective-assistance claim resolved on direct appeal, the defendant must establish that the record is adequate to allow the appellate court to determine the issue. If the record is inadequate on appeal, the issue must be addressed in an action for postconviction relief.
“Only in rare cases will the trial record alone be sufficient to resolve the claim on
direct appeal.” Straw, 709 N.W.2d at 133. “Even a lawyer is entitled to his day in
court, especially when his professional reputation is impugned.” State v. Bentley,
757 N.W.2d 257, 264 (Iowa 2008) (citation omitted).
We find Love’s guilty plea substantially complied with the requirements of
rule 2.8(2), and defense counsel did not render ineffective assistance in failing to 5
challenge the entry of the plea by filing a motion in arrest of judgment with
respect to the prior convictions.3 Any claim the plea was not voluntarily and
intelligently entered must be addressed in postconviction-relief proceedings. We
therefore affirm.
AFFIRMED.
3 We note Love also contends that the guilty plea is insufficient in this matter under State v. Harrington, 893 N.W.2d 36, 45 (Iowa 2017), in which our supreme court stated the requirements for admitting prior convictions in a habitual-offender proceeding. We do not find persuasive Love’s argument that the guilty plea must include Love’s admission she was represented or waived representation during the previous convictions.
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IN THE COURT OF APPEALS OF IOWA
No. 17-0316 Filed December 6, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
JEMERIAL LOVE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
Jemerial Love appeals from her conviction by written guilty plea for theft in
the third degree. AFFIRMED.
Merrill C. Swartz of Swartz Law Firm, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ. 2
DANILSON, Chief Judge.
Jemerial Love appeals from her conviction by written guilty plea for theft in
the third degree, in violation of Iowa Code sections 714.1 and .2(3) (2016). Love
was alleged to have stolen items not exceeding $500 in value. Thus, to establish
Love committed third-degree theft under section 714.2(3),1 the State was
required to show Love had “before been twice convicted of theft.” Love’s written
guilty plea and the court’s February 3, 2017 order accepting the plea do not
include acknowledgment of Love’s prior theft convictions. Love contends
because the plea did not provide a factual basis2 for the offense, it was not made
intelligently or voluntarily, and defense counsel rendered ineffective assistance
by failing to file a motion in arrest of judgment to contest the plea. We affirm.
Our review of this ineffective-assistance-of-counsel claim is de novo.
State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). To establish defense counsel
rendered ineffective assistance, Love must show by a preponderance of the
evidence both that defense counsel failed to perform an essential duty and the
failure resulted in prejudice. See State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006).
Although Love did not file a motion in arrest of judgment, she may
challenge the entry of the guilty plea “under the rubric of ineffective assistance of
1 Section 714.2(3) provides alternative means of theft in the third degree: “The theft of property exceeding five hundred dollars but not exceeding one thousand dollars in value, or the theft of any property not exceeding five hundred dollars in value by one who has before been twice convicted of theft, is theft in the third degree.” (Emphasis added.) 2 Iowa Rule of Criminal Procedure 2.8(2)(b) provides before the court accepts a guilty plea, it must determine “that the plea is made voluntarily and intelligently and has a factual basis.” The court must also determine the defendant understands “[t]he nature of the charge to which the plea is offered.” Iowa R. Crim. P. 2.8(2)(b)(1). 3
counsel, which would require [her], among other things, to demonstrate ‘a
reasonable probability that, but for counsel’s errors [she] would not have pleaded
guilty and would have insisted on going to trial.’” State v. Fisher, 877 N.W.2d
676, 682 n.3 (Iowa 2016) (quoting Straw, 709 N.W.2d at 138).
“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.” Finney,
834 N.W.2d at 54. “On a claim that a plea bargain is invalid because of a lack of
accuracy on the factual-basis issue, the entire record before the district court
may be examined.” Id. at 62. The entire record includes the minutes of
testimony. Id.
Here, neither the guilty plea nor the court’s order accepting the plea
acknowledged the existence of at least two previous theft convictions—a
required element of third-degree theft under section 714.2(3) here. Love
maintains, therefore, that the plea was entered without a sufficient factual basis,
in violation of rule 2.8(2)(b).
However, the minutes of testimony clearly reflect Love has nine previous
theft convictions occurring from 2006 to 2014. Additionally, at the sentencing
hearing, Love acknowledged her lengthy criminal history. As such, we find there
is a factual basis supporting Love’s guilty plea for third-degree theft premised
upon at least two prior convictions of theft.
Love also asserts she “did not voluntarily and intelligently admit to: (1)
prior theft convictions; (2) being represented by counsel at the prior theft
convictions; [and] (3) a factual basis exists to support the admission to the prior
convictions.” To the extent Love is claiming that her plea was not voluntarily and 4
intelligently entered, we view this contention as a claim the plea was not
voluntary and intelligent as is constitutionally required. See id. at 54-55 (stating
the United States Supreme Court’s “caselaw recognizes two distinct strands of
constitutional analysis related to guilty pleas”: claims “rooted in the right to
effective assistance of counsel under the Sixth Amendment,” and claims “based
on the Due Process Clauses of the Fifth and Fourteenth Amendments requir[ing]
the trial court to determine the defendant made a knowing and intelligent choice”
to plead guilty to the underlying crime). However, Love failed to separately
identify this claim as an issue. See Iowa R. App. P. 6.903(2)(g) (“The argument
section shall be structured so that each issue raised on appeal is addressed in a
separately numbered division.”).
To the extent Love is contending counsel was ineffective in permitting
Love to enter a plea involuntarily or unintelligently, the record is not adequate to
address this claim. As observed in State v. Thacker, 862 N.W.2d 402, 405 (Iowa
2015):
When a defendant seeks to have an ineffective-assistance claim resolved on direct appeal, the defendant must establish that the record is adequate to allow the appellate court to determine the issue. If the record is inadequate on appeal, the issue must be addressed in an action for postconviction relief.
“Only in rare cases will the trial record alone be sufficient to resolve the claim on
direct appeal.” Straw, 709 N.W.2d at 133. “Even a lawyer is entitled to his day in
court, especially when his professional reputation is impugned.” State v. Bentley,
757 N.W.2d 257, 264 (Iowa 2008) (citation omitted).
We find Love’s guilty plea substantially complied with the requirements of
rule 2.8(2), and defense counsel did not render ineffective assistance in failing to 5
challenge the entry of the plea by filing a motion in arrest of judgment with
respect to the prior convictions.3 Any claim the plea was not voluntarily and
intelligently entered must be addressed in postconviction-relief proceedings. We
therefore affirm.
AFFIRMED.
3 We note Love also contends that the guilty plea is insufficient in this matter under State v. Harrington, 893 N.W.2d 36, 45 (Iowa 2017), in which our supreme court stated the requirements for admitting prior convictions in a habitual-offender proceeding. We do not find persuasive Love’s argument that the guilty plea must include Love’s admission she was represented or waived representation during the previous convictions. In Harrington, the court included this requirement specifically with respect to habitual- offender proceedings because Iowa Rule of Criminal Procedure 2.19(9) requires the offender to have an opportunity “to affirm or deny . . . that the offender was not represented by counsel and did not waive counsel.” We note rule 2.19(9) applies “[a]fter conviction of the primary or current offense.” Love cites no case law calling for application of this requirement to cases where previous convictions must be shown as an element of the crime, and we decline to impose the requirement. See Iowa R. App. P. 6.903(2)(g)(3). We also note nothing in the record indicates Love’s previous theft convictions were improper.