State v. Brown, 17-0820
| Decision Date | 07 March 2018 |
| Docket Number | No. 17-0820,17-0820 |
| Citation | 911 N.W.2d 180 |
| Parties | STATE of Iowa, Plaintiff-Appellee, v. Eric Devon BROWN, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
Eric Brown pleaded guilty to burglary in the third degree, in violation of Iowa Code sections 713.1 and 713.6A (2017). In this direct appeal, he contends his guilty plea lacked a factual basis, the prosecutor breached the plea agreement, and the prosecutor had a disqualifying conflict of interest.
Brown's first and second claims are presented as claims of ineffective assistance of counsel. Because a claim of ineffective assistance arises out of the constitutional guarantee to have the assistance of counsel for one's defense, our review is de novo. See Everett v. State , 789 N.W.2d 151, 155 (Iowa 2010). To succeed on an ineffective-assistance claim a defendant must show "(1) counsel failed to perform an essential duty; and (2) prejudice resulted." State v. Maxwell , 743 N.W.2d 185, 195 (Iowa 2008).
We first address Brown's claim his guilty plea lacked a factual basis. State v. Nall , 894 N.W.2d 514, 525 (Iowa 2017). In establishing a factual basis for a guilty plea, the district court can "(1) inquir[e] of the defendant, (2) inquir[e] of the prosecutor, and (3) examin[e] the presentence report." State v. Finney , 834 N.W.2d 46, 56 (Iowa 2013). In addition, the district court may look to the minutes of testimony where the minutes are acknowledged during the plea colloquy. See id. at 57. When this court reviews whether there is a factual basis for the plea, the relevant inquiry is whether the record before the district court as a whole supports a factual basis for each element of the offense. See State v. Amadeo , No. 11-1426, 2012 WL 2122262, at *3–4 (Iowa Ct. App. June 13, 2012) (collecting cases).
At issue here, to commit a burglary, one must enter an occupied structure with "no right, license, or privilege to do so." See Iowa Code § 713.1. Brown contends his counsel was ineffective in allowing to him plead guilty because Brown had permission to enter the occupied structure at issue. The plea record shows the occupied structure at issue is an apartment. In February 2017, the tenants returned to the apartment and noticed the back door ajar. They notified police. After some searching, the tenants found a mobile phone in the apartment belonging to neither of them. The police later determined the phone belonged to Brown. One of the tenants also discovered several bottles of her prescription drugs were missing. When the police contacted the landlord, the landlord reported that "someone by the name of Eric had contacted him saying that he was a really good friend of [one of the tenants] and that she wanted help moving her stuff out and he was going to take the stuff to a new location." The landlord explained he authorized Eric to enter the apartment for this purpose. The minutes of testimony establish Brown was not friends with the tenants, was not authorized by them to be in the apartment, and was not helping them move.
Brown's entry into the apartment obtained by deceit of the landlord is sufficient to establish a constructive breaking and a factual basis for the guilty plea. See Judy E. Zelin, Annotation, Maintainability of Burglary Charge Where Entry into Building Is Made with Consent , 58 A.L.R.4th 335 (1987) (). "Constructive breaking occurs when entry is obtained by any manner other than physical force, such as by fraud or trick." State v. Madison , No. 00-1859, 2002 WL 570714, at *2 (Iowa Ct. App. Feb. 20, 2002) ; see State v. Schoo , No. 03-0999, 2004 WL 2173328, at *1 (Iowa Ct. App. Sept. 29, 2004) (). "The law is clear that entry to a home procured by means of fraud is the legal equivalent of entry by force and constitutes a constructive breaking." State v. Carey , 165 N.W.2d 27, 47 (Iowa 1969) (Garfield, C.J., dissenting). Other states have reached similar conclusions. See Commonwealth v. Labare , 11 Mass.App.Ct. 370, 416 N.E.2d 534, 536 n.3 (1981) ( ); Smallwood v. State , 930 So.2d 448, 451 (Miss. Ct. App. 2006) (); State v. Ortiz , 92 N.M. 166, 584 P.2d 1306, 1308 (N.M. Ct. App. 1978) ().
While our statute defines the offense in terms of entry without right, license, or privilege to do so rather than "breaking," the same principle applies. Here, the right of entry was obtained by fraud and deceit and legally was no right of entry at all. See Johnson v. State , 921 So.2d 490, 508 (Fla. 2005) (). Counsel did not breach an essential duty in failing to raise a non-meritorious objection to the guilty plea. See State v. Westeen , 591 N.W.2d 203, 207 (Iowa 1999). This claim of ineffective assistance of counsel thus fails.
We next address whether Brown's counsel was ineffective in failing to object to a purported breach of the plea agreement. By way of background, Brown entered an Alford plea, see North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in exchange for the State agreeing Brown be placed on pretrial release with supervision pending sentencing and agreeing to recommend a suspended sentence. Following the entry of Brown's guilty plea, Brown was granted pretrial release with supervision. As a condition of release, Brown was required to comply with the law. Eight days later, Brown was arrested on new charges, and Brown's bond was changed from release with supervision to $5000 cash bond only. At a subsequent bond review hearing, Brown again requested release with supervision, but the prosecutor argued against release with supervision and in favor of maintaining the cash bond. The district court denied Brown's request for release with supervision and ordered $5000 cash bond continue. Brown was unable to post bond and remained in jail pending sentencing. At the time of sentencing, the district court did not follow the parties' joint recommendation for a suspended sentence and instead sentenced Brown to an indeterminate prison term not to exceed five years.
Brown first argues the State breached the plea agreement when it resisted his second request for pretrial release with supervision. We disagree. People v. Jones , 128 Cal.App.3d 253, 180 Cal.Rptr. 228, 233 (1982). When the parties enter into a plea agreement, "an implied condition exists that circumstances surrounding the bargain will remain substantially the same, and a subsequent change is sufficient to relieve the State of its obligation." State v. Pascall , 49 Ohio App.2d 18, 358 N.E.2d 1368, 1368 (1972). In the recent and analogous case of State v. Pierce , No. 17-0659, 2018 WL 347737, at *4 (Iowa Ct. App. Jan. 10, 2018), this court held the State did not breach a plea agreement requiring the State to recommend probation when the State recommended probation at the time of sentencing but subsequently advocated for incarceration at a subsequent revocation hearing. The court reasoned the "scope of the plea agreement was limited to the original sentencing hearing." Pierce , 2018 WL 347737, at *4. Similarly, in this case, the State followed the terms of the plea agreement and recommended Brown be released from jail prior to sentencing. The State performed its obligations under the terms of the plea agreement. At the time of the bond review hearing, the prosecutor stated he was supportive of pretrial release in the first instance but "certain things have changed since then," including charges for violation of a no-contact order. The prosecutor was not required to again recommend release with supervision after the defendant violated the terms and conditions of his pretrial release. Because the State was not required to again recommend release with supervision, Brown's counsel did not breach an essential duty in failing to object to the prosecutor's conduct. See Westeen , 591 N.W.2d at 207.
Brown also contends his counsel was ineffective in not objecting to the prosecutor's breach of the plea agreement at sentencing. Specifically, Brown contends the prosecutor undercut the recommendation for suspended sentence. The relevant portion of the sentencing hearing is as follows:
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