State v. Philo

• Decision Date: 03 June 2005
• Docket Number: No. 04-0183.,04-0183.
• Citation: 697 N.W.2d 481
• Parties: STATE of Iowa, Appellee, v. Mark Thomas PHILO, Appellant.
• Court: Iowa Supreme Court

697 N.W.2d 481

STATE of Iowa, Appellee, v. Mark Thomas PHILO, Appellant.

No. 04-0183.

Supreme Court of Iowa.

June 3, 2005.

Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee.

CADY, Justice.

In this appeal, we primarily consider the meaning of the phrase "participating in a public offense" as applied to the eluding of a law enforcement vehicle statute, Iowa Code section 321.279(3)(a) (2003). In doing so, we vacate the decision of the court of appeals, reverse the decision of the district court, and remand for further proceedings.

I. Background Facts and Proceedings

Mark Philo pled guilty to the crimes of theft of a motor vehicle, third-offense possession of marijuana, and felony eluding of a law enforcement vehicle. The minutes of testimony filed with the county attorney information alleged Philo stole a car in Buchanan County "on or about December 5, 2003." The minutes further alleged two Waterloo police officers on a routine patrol in the late morning hours of December 5 observed the vehicle stopped at a stoplight in Waterloo, which is in Black Hawk County. The officers did not know the vehicle was stolen, but decided to run a random license plate check through the computer in the police car. The computer showed the vehicle had been reported as stolen, and the officers attempted to stop the vehicle by activating the lights and siren of the police car.

Instead of stopping, Philo led police on a high-speed chase through the city of Waterloo. Before he was eventually stopped and apprehended, Philo reached speeds from fifty to eighty miles per hour on the city streets, committed several traffic violations, and damaged property.

The guilty pleas entered by Philo occurred in two separate hearings. Philo first entered a plea of guilty in Buchanan County district court to theft in the second degree in violation of Iowa Code sections 714.1(1) and 714.2(2). He was sentenced to a term of incarceration not to exceed five years. He then appeared in district court in Black Hawk County and entered pleas of guilty to felony eluding in violation of section 321.279(3)(a) and possession of marijuana, third offense, in violation of section 124.401(5). Although Philo was unable to admit that he exceeded the posted speed limit by more than twenty-five miles an hour during the police chase, he acknowledged that the court could find he did so from the police reports that were made part of the minutes of testimony.

Philo then waived his right to file a motion in arrest of judgment and waived time before sentencing. See Iowa R.Crim. P. 2.23(1) ("Upon a plea of guilty, . . . the court must fix a date for pronouncing judgment, which must be within a reasonable time but not less than 15 days after the plea is entered . . ., unless the defendant consents to a shorter time."). The court sentenced Philo to a term of incarceration not to exceed five years for eluding. He was also sentenced to a term of incarceration not to exceed two years for possession of marijuana. Additionally, he was fined, and his license was revoked. The court ordered the two sentences of incarceration for eluding and possession to run concurrently with each other. The court also ordered the possession sentence to run concurrently with the theft sentence imposed by the district court in Buchanan County, but ordered the eluding sentence to run consecutively to the theft sentence.

The plea colloquy in the Black Hawk County proceeding indicated the guilty pleas were entered pursuant to a plea agreement. In initially discussing the plea agreement on the record, the court agreed to impose the sentence for possession of marijuana "concurrently with the other cases, both in Buchanan County and the other case we are about to deal with." A short time later, the court advised Philo that the sentence for eluding would "run concurrently with the other sentences we've talked about here." Philo acknowledged the plea agreement, as did defense counsel and the county attorney. However, after accepting the guilty pleas and just prior to the pronouncement of sentence, the county attorney asked the court to impose sentencing pursuant to the plea agreement so that the possession of marijuana sentence would run concurrently with the eluding sentence and concurrently with the theft sentence, but the eluding sentence would run consecutively to the theft sentence. Counsel for Philo acknowledged the statement of the plea agreement made by the county attorney, and the court subsequently imposed the sentences.

Philo appealed and raised a single claim of ineffective assistance of counsel under both the state and federal constitutions. He claimed his trial counsel was ineffective for failing to file a motion in arrest of judgment following the guilty plea proceeding because there was no factual basis in the record to support the plea of guilty to felony eluding. He also claimed his trial counsel was ineffective for failing to file a motion in arrest of judgment because the court misled him into believing all the sentences would be served concurrently, rendering his guilty plea involuntary and unintelligent.

We transferred the case to the court of appeals. The court of appeals found trial counsel was not ineffective and affirmed the judgment and sentence of the district court. We granted further review.

II. Principles of Review

"Ordinarily, we do not consider issues raised for the first time on appeal. The issues forming the basis of the defendant's claim of ineffective assistance of counsel fall into that category. However, we recognize an exception in the case of claims of ineffective assistance of counsel. We do so because as a practical matter these claims are not made by attorneys against their own actions. "Because the defendant's claims of ineffective assistance of counsel arise from his Sixth Amendment right to counsel, our review is de novo."

State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005) (quoting State v. Scalise, 660 N.W.2d 58, 61-62 (Iowa 2003)) (brackets omitted).

III. Ineffective Assistance of Counsel

"To prove an ineffective assistance of counsel claim, `a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.'" State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citation omitted). With respect to the second prong, "the defendant must `show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).

A. Factual Basis

Before accepting a guilty plea, the court must ensure that the plea is not only voluntarily and intelligently made, but also that it is supported by a factual basis. Iowa R.Crim. P. 2.8(2)(b). If an attorney allows a defendant to plead guilty to an offense for which there is no factual basis and to waive the right to file a motion in arrest of judgment, the attorney breaches an essential duty. See State v. Doggett, 687 N.W.2d 97, 101-02 (Iowa 2004)

. Philo claims his attorney breached an essential duty because there was no factual basis to support two elements of felony eluding: (1) that he exceeded the posted speed limit by twenty-five miles per hour or more, (2) while participating in a public offense. Iowa Code § 321.279(3)(a).

Regarding his first argument, Philo concedes that the minutes of testimony indicate he traveled at speeds up to fifty to eighty miles per hour during the chase. However, he claims that there is no evidence in the minutes to show the posted speed limit when he reached those speeds. Accordingly, he argues there is no factual basis to support the element of felony eluding that he exceeded the posted speed limit by twenty-five miles per hour or more. See id.

Philo is correct that there is no evidence in the record of the posted speed limits on the streets through which the police pursued him. The State responds that the district judge could rely on his independent knowledge that the streets referenced in the police reports attached to the minutes of testimony were residential and business streets where the speed limit would be twenty to twenty-five miles per hour. See id. § 321.285(1)-(2) (setting forth speed limits).

In construing Federal Rule of Criminal Procedure 11(f), the federal counterpart to our rule 2.8(2)(b), the Supreme Court has stated that the rule requires the judge to "develop, on the record, the factual basis for the plea." Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971); see Fed.R.Crim.P. 11(g) (requiring verbatim record of plea proceedings); Iowa R.Crim. P. 2.8(3) (same). It has been held that "if the district judge finds it necessary to look to evidence other than the defendants' statements to establish the factual basis for the plea in any situation, these additional facts or evidence must be specifically articulated on the record." United States v. Wetterlin, 583 F.2d 346, 353 (7th Cir.1978); see 1A Charles Alan Wright, Federal Practice and Procedure § 174, at 203-04 n. 18 (3d ed.1999) (citing cases). Thus, if the district court in this case had relied on independent knowledge of the speed limits on the Waterloo streets for a factual basis, those facts should have been made part of the record. However, the absence of these facts in the record does not invalidate the plea because in this case, there was other evidence to establish a factual basis. Philo admitted on the record that the district court could find he exceeded the posted speed limit by twenty-five miles per hour or more.¹ The defendant's admission...