State Of Iowa v. Ortiz

• Citation: 789 N.W.2d 761
• Decision Date: 15 October 2010
• Docket Number: No. 09-0895.,09-0895.
• Parties: STATE of Iowa, Appellee, v. Ricardo ORTIZ, Appellant.
• Court: United States State Supreme Court of Iowa

789 N.W.2d 761

STATE of Iowa, Appellee,

v.Ricardo ORTIZ, Appellant.

No. 09-0895.

Supreme Court of Iowa.

Oct. 15, 2010.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary E. Tabor (until withdrawal) and then Thomas S. Tauber, Assistant Attorneys General, and Darin J. Raymond, County Attorney, for appellee.

BAKER, Justice.

The State seeks further review from the court of appeals' decision to vacate the sentence of the defendant, Ricardo Ortiz, following his guilty plea to robbery in the first degree in violation of Iowa Code sections 711.1 and 711.2 (2009). The State contends the court of appeals erred in holding defendant received ineffective assistance of counsel because defendant's trial counsel permitted defendant to plead guilty to robbery in the first degree without a sufficient factual basis in the record in violation of Iowa Rule of Criminal Procedure 2.8(2)( b ). The State asserts the record contains a sufficient factual basis to support first-degree robbery. We agree. We find the record contains a factual basis that a dangerous weapon was used in the robbery. The decision of the court of appeals is vacated, and the district court judgment is affirmed.

I. Background Facts and Proceedings.

Ricardo Ortiz pleaded guilty to robbery in the first degree in violation of Iowa Code sections 711.1 and 711.2. The minutes of evidence contained in the trial information allege Ortiz was one of three or four masked men who entered K.S.'s house through her garage with the intent to steal property. One of the intruders displayed a box cutter or utility knife in his left hand. This intruder was waving the instrument. K.S. was frightened and was yelling. At one point during the invasion, the intruder who possessed the box cutter confronted K.S. in the hallway, placing himself between her and the bedroom. K.S. and the intruder then struggled over the door; K.S. tried to close the door to keep the intruder out while the intruder tried to open the door. K.S.'s screaming and yelling eventually caused the intruders to leave and flee the scene.

Another resident, F.T., was in the master bedroom and did not see the intruders, but he did contact police. The deputies located and pursued the intruders' car. The intruders lost control of their car, and it became lodged in a snow bank. Three individuals fled, and two individuals, including Ortiz, were apprehended in the car. Ortiz's footprints matched foot treads found outside of K.S. and F.T.'s home. Ortiz admitted to the police they entered the house “to see what they could get.” He admitted to wearing a black stocking cap and a red bandanna covering his face. Ortiz also carried a black trash bag to carry stolen goods.

Deputies found a fixed five-inch knife with a black rubber handle and a silver metal hatchet located near the snow bank where the intruders' car stopped. The record does not indicate that a box cutter or utility knife was ever found. David Zamora, one of the participants, told the deputies that Michael Carson, another participant, “threw something and he thought it was a knife out of the back window prior to going into the ditch.”

Ortiz pleaded guilty to robbery in the first degree. As part of his plea, Ortiz waived his right to file a motion in arrest of judgment. He was sentenced to a term of twenty-five years with a seventy percent mandatory minimum.

During the plea colloquy, the court was confused as to what additional elements triggered first-degree robbery as opposed to second-degree robbery. The prosecutor advised the judge that first-degree robbery requires the additional element that the defendant “purposely inflict serious injury or attempt to inflict serious injury or is armed with a dangerous weapon.” Ortiz and his trial counsel discussed the additional first-degree robbery element off the record. Then, the following conversation occurred:

THE COURT: All right. Uh, I think my last question, Mr. Sloan [defense counsel], was are you prepared to address which one of those options under 711.2 might apply to this particular case? MR. SLOAN: I-I believe it is armed with a dangerous weapon, Your Honor.

THE COURT: All right. Uh, Mr. Ortiz, do you agree that either you or someone with whom you were, uh, participating in this robbery with was armed with a dangerous weapon? DEFENDANT: Yes.

THE COURT: All right. Have, uh, you, uh, visited with Mr. Sloan about what's involved and what the definition of a dangerous weapon is? DEFENDANT: Yes.

THE COURT: Ok Mr. Raymond [the prosecutor], are you satisfied with the factual basis? MR. RAYMOND: I am, Your Honor.

Earlier in the colloquy, Ortiz also admitted he “purposely put someone in fear of a serious injury.” At the end of the colloquy, the court accepted Ortiz's plea. Subsequently, Ortiz filed a notice of appeal asserting ineffective assistance of counsel alleging that his trial counsel failed to file a motion in arrest of judgment. Specifically, he alleged there was no factual basis in the record that anyone participating in the robbery possessed a dangerous weapon within the meaning of Iowa Code section 702.7; therefore, there was no factual basis to support his first-degree robbery plea.

We transferred the case to the court of appeals. The court of appeals found the record contained no factual basis that anyone involved in the robbery used a dangerous weapon and vacated the district court's sentence. We granted further review.

II. Scope of Review.

Normally we review challenges to guilty pleas for correction of errors at law. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006); Iowa R.App. P. 4. Because Ortiz claims his guilty plea results from ineffective trial counsel, a claim with constitutional dimensions, our review is de novo. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).

III. Preservation of Error.

To preserve error for appeal, generally, defendants challenging a guilty plea must file a motion in arrest of judgment prior to sentencing. State v. Gant, 597 N.W.2d 501, 503-04 (Iowa 1999). We recognize an exception to this general rule for ineffective assistance of counsel claims. Keene, 630 N.W.2d at 581. Nevertheless, the State contends Ortiz did not properly preserve error because Ortiz, as part of his plea agreement, waived his right to file a motion in arrest of judgment; therefore, Ortiz cannot allege on appeal his counsel was ineffective for not filing a motion in arrest of judgment. If we accept the State's argument, then Ortiz's plea agreement would waive his right to challenge the factual basis of his plea; such a result empowers the State to deprive defendants of their right to effective counsel as a condition of the plea bargaining process, an untenable result. See State v. Philo, 697 N.W.2d 481, 484-85 (Iowa 2005) (noting that counsel's failure to file a motion in arrest of judgment when defendant's plea lacks a factual basis constitutes ineffective counsel). We adhere to precedent. Ineffective counsel claims are an exception to our error preservation requirements. Id. at 485.

IV. Discussion and Analysis.

To prove ineffective assistance, the defendant must demonstrate by a preponderance of evidence that “(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) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). Defense counsel violates an essential duty when counsel permits defendant to plead guilty and waive his right to file a motion in arrest of judgment when there is no factual basis to support defendant's guilty plea. Philo, 697 N.W.2d at 485; Iowa R.Crim. P. 2.8(2)( b ). Prejudice is presumed under these circumstances. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

Therefore, to succeed on the essential duty prong, Ortiz must demonstrate the record lacks a factual basis to support his guilty plea to first-degree robbery. First-degree robbery requires the accused to commit robbery “armed with a dangerous weapon.” Iowa Code § 711.2. The precise issue then is whether the record demonstrates a factual basis that a dangerous weapon was used in the robbery. ¹

Iowa Code section 702.7 defines the term dangerous weapon in three different manners. We must examine whether the record demonstrates a factual basis that a dangerous weapon was used in the robbery within the framework of each statutory definition of dangerous weapon.

A. Dangerous Weapon Defined Generally.

Initially, section 702.7 defines “dangerous weapon” generally:

A “ dangerous weapon ” is any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed, except a bow and arrow when possessed and used for hunting or any other lawful purpose.

The record contains facts demonstrating that a small utility knife or box cutter was present during the robbery. These instruments do not have the primary purpose of inflicting death or injury, nor were they designed for that purpose. There is no factual basis in the record to support that a dangerous weapon under this definition was used in the robbery.

B. Dangerous Weapon Per Se.

Section 702.7 also defines “dangerous weapon” in terms of per se dangerous weapons:

Dangerous weapons include but are not limited to any offensive weapon, pistol, revolver, or other firearm, dagger, razor, stiletto, switchblade knife, knife having a blade exceeding five inches in length, or any portable device or weapon directing an electric current, impulse, wave, or beam that produces a high-voltage pulse designed to immobilize a person.

The State argues that because K.S. described the weapon as “a box cutter knife that contained a razor blade” and because section 702.7 includes the term “raz...