State v. Rodriguez

• Decision Date: 21 October 2011
• Docket Number: No. 10–1223.,10–1223.
• Parties: STATE of Iowa, Appellee,v.Orlando David RODRIGUEZ, Appellant.
• Court: Iowa Supreme Court

804 N.W.2d 844

STATE of Iowa, Appellee,

v.Orlando David RODRIGUEZ, Appellant.

No. 10–1223.

Supreme Court of Iowa.

Oct. 21, 2011.

Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano and David Porter, Assistant County Attorneys, for appellee.MANSFIELD, Justice.

Orlando Rodriguez appeals his conviction for reckless vehicular homicide based on his guilty plea, claiming he received ineffective assistance of counsel because there was no factual basis to support his plea. We granted further review in this case to address whether an active participant in a drive-away theft of gasoline can be found guilty of reckless vehicular homicide if he was not driving the car when the accident occurred. We find that a passenger can be responsible as a party to the crime under a joint criminal conduct theory and that this case had a factual basis to support the defendant's plea. Therefore, we affirm the defendant's conviction.

Rodriguez also appeals the part of his sentence requiring payment of a $125 fine for a law enforcement initiative surcharge. We agree there is no statutory authority to apply that fine to vehicular homicide and vacate this portion of the defendant's sentence.

I. Background Facts and Proceedings.

According to the minutes of testimony, the evidence presented at the preliminary hearing, and the transcript of what became the guilty plea hearing, on September 23, 2009, at approximately 5 p.m., defendant Orlando Rodriguez (Rodriguez) and his brother Santos committed a drive-away theft of gasoline from the Casey's General Store located in the 4300 block of Park Avenue in Des Moines. A Casey's security camera captured the theft in detail as well as the subsequent fatal collision that occurred during their attempt to flee the gas station. The video shows Rodriguez pumping gas while Santos remained ready at the wheel, with the vehicle's brake lights flashing on and off. When Rodriguez finished pumping, instead of paying, he quickly jumped back into the car which immediately sped onto Park Avenue without slowing down to check for or yield to traffic. Rodriguez admitted to an investigating officer that it had been the brothers' intention to steal gas.

The security video shows that the vehicle's brake lights never illuminated after it left the pumping area, the vehicle was driven at a faster speed than the other cars that departed the gas station before it, and the vehicle appeared to be accelerating as it turned out of the gas station onto a busy street at a busy time of day. Eyewitnesses confirmed that the brothers' Ford Explorer was traveling at a high rate of speed.

According to witnesses, as the brothers' Explorer raced out onto Park Avenue, it pulled directly into the path of a motorcyclist, Bruce Mundy. A witness reported that Mundy was driving his motorcycle along Park Avenue at a safe and appropriate speed; if anything, Mundy was causing traffic to slow behind him. Although Mundy tried to swerve to avoid a crash, he was unsuccessful, and the fast-moving Explorer struck and killed him.

Rodriguez immediately jumped out of the Explorer and briefly checked on Mundy. He helped his brother Santos, who has only one leg, out of the Explorer and handed him his walker. Rodriguez then fled the scene of the accident on foot. Rodriguez was arrested soon afterward while hiding in the nearby neighborhood. After Rodriguez was apprehended, personal identification papers that he had apparently thrown away while fleeing were also retrieved.

An arresting officer observed signs of marijuana intoxication on both Rodriguez and his brother: bloodshot, watery eyes; white coatings on their tongues; and poor performance on a horizontal gaze nystagmus test. The officer therefore requested urine samples from each brother. Both of them tested positive for marijuana at the time of the crash. When apprehended, Rodriguez told police that he, not his brother, had been the driver at the time of the collision with the motorcycle. The Casey's video later confirmed otherwise.

On October 29, 2009, the State's trial information charged both brothers with Count I: homicide by vehicle-OWI, a class “B” felony in violation of Iowa Code section 707.6A(1) (2009); Count II: homicide by vehicle-reckless, a class “C” felony in violation of Iowa Code section 707.6A(2); and Count III: involuntary manslaughter, a class “D” felony in violation of Iowa Code section 707.5(1). The information accused each brother of committing these crimes “individually by joint criminal conduct, or by aiding and abetting another.” Both accomplice theories were mentioned by the prosecution again during the October 13, 2009 preliminary hearing.

Rodriguez's trial was set for May 10, 2010, but before jury selection was completed, the parties reached a plea agreement and Rodriguez entered an Alford¹ plea of guilty to Count II only. The plea colloquy included the following exchange:

THE COURT: ... For Homicide by Vehicle, as a Result of Reckless Operation, the State would have to prove that ... you or someone you aided and abetted, unintentionally caused the death of Bruce Mundy by operating a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or their property....

....

Okay. Now you're actually entering what we call an Alford plea of guilty. And what that means is you are not going to tell me that, yes, you, in fact, are guilty of this crime as charged. But what you are telling me is this: You are telling me that you have reviewed, with your attorney, the evidence that the State has and will present against you in this case. And having done that, you are concerned that the evidence the State has is strong evidence of actual guilt in this matter. And what you want to do is you want to accept the plea bargain that the State has offered you because you have much more to gain by taking the plea bargain than you would have by going to the trial and taking your chances with the jury. Do you understand what I am saying?

DEFENDANT: Yes, sir.

THE COURT: Okay. Do you feel—I am going to be more specific—that it is in your best interest to enter into this plea?

DEFENDANT: Yes, sir.

....

THE COURT: Do you recognize that there is strong evidence of actual guilt against you in this matter and that there is, you know, a very good risk or likelihood that a jury could find you guilty of Count I, which is a much more serious charge? Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: And you do want to take advantage of this guilty plea?

DEFENDANT: Yes, sir.

THE COURT: Okay. Now, are you fully satisfied with the advice and services of your lawyer?

DEFENDANT: Yes, sir.

THE COURT: Notwithstanding what you have told me, I will let you withdraw your guilty plea, and you could still have a jury trial with all of the rights that I have discussed with you. Or do you still want to enter this Alford guilty plea?

DEFENDANT: Yes, sir. I want to enter the plea.

The district court later found that Rodriguez understood the charge, the penal consequences, and the rights being waived; that there was a factual basis for the plea; and that the plea was voluntary.

As part of the plea agreement, on June 30, 2010, the State filed a notice and intent not to prosecute and order of dismissal for Counts I and III. On June 16, 2010, Rodriguez filed a motion in arrest of judgment on Count II, but withdrew this motion at his sentencing hearing on June 23, 2010. At that hearing, he was sentenced to ten years in prison, restitution of $150,000, a suspended fine of $1000, and a law enforcement initiative surcharge of $125. The sentence was amended on August 4, 2010, to include additional restitution of $18,065.72 to the Crime Victim Compensation Program.

Rodriguez timely filed a notice of appeal on July 20, 2010. The appeal raised two issues. First, Rodriguez challenged his conviction, claiming that there was no factual basis to support his guilty plea to homicide by vehicle-reckless. This matter was raised as a claim of ineffective assistance of counsel. Second, Rodriguez maintained that the district court imposed an illegal sentence by levying a $125 law enforcement initiative surcharge.

In a brief opinion, the court of appeals affirmed Rodriguez's conviction, but vacated his sentence with respect to the $125 surcharge. We granted further review.

II. Standard of Review.

We review claims of ineffective assistance of counsel de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). To succeed on an ineffective-assistance-of-counsel claim, a defendant must show by a preponderance of the evidence that: “(1) counsel failed to perform an essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “We can affirm on appeal if either element is absent.” State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998). “Our review of the district court's sentence is limited to correction of errors at law.” State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987); Iowa R.App. P. 6.907.

III. Ineffective–Assistance–of–Counsel Claim Based on Alleged Lack of Factual Basis for Guilty Plea.

Rodriguez's failure to pursue a motion in arrest of judgment would normally prevent him from contesting his guilty plea on appeal. Iowa R.Crim. P. 2.8(2)( d). However, he is not precluded from challenging the validity of his plea under a claim of ineffective assistance of counsel. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Ineffective-assistance claims are an exception to our normal rules of error preservation. State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). Such claims are generally preserved for postconviction proceedings unless there is a satisfactory record upon which to draw a conclusion. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). The record in this case is...