State v. Schminkey

• Citation: 597 N.W.2d 785
• Decision Date: 08 July 1999
• Docket Number: No. 97-2333.,97-2333.
• Parties: STATE of Iowa, Appellee, v. William Joseph SCHMINKEY, Appellant.
• Court: United States State Supreme Court of Iowa

597 N.W.2d 785

STATE of Iowa, Appellee, v. William Joseph SCHMINKEY, Appellant.

No. 97-2333.

Supreme Court of Iowa.

July 8, 1999.

Linda Del Gallo, State Appellate Defender, and Christopher Cooklin, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Ray Lough, County Attorney, and Karen Duncan, Assistant County Attorney, for appellee.

Considered en banc.

TERNUS, Justice.

The defendant, William Schminkey, entered Alford pleas to the offenses of homicide by vehicle, see Iowa Code § 707.6A(1) (1997), and theft of a motor vehicle, see id. §§ 714.1, .2(2). See generally North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970) (holding that an accused may consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime). The court sentenced him to consecutive ten-year and five-year terms of imprisonment, respectively. Schminkey now claims that the record lacks a sufficient factual basis for a finding that he was guilty of the theft offense. He also claims his counsel rendered ineffective assistance in failing to object to the prosecutor's breach of the plea agreement with respect to the State's sentencing recommendations.

We agree that the record does not show a factual basis for Schminkey's conviction of the crime of theft of a motor vehicle. This conclusion makes it unnecessary to consider Schminkey's claim that the State breached the plea agreement. Accordingly, we vacate the sentence on the theft conviction and remand for further proceedings.

I. Factual and Procedural Background.

The underlying facts of the tragic episode culminating in Schminkey's convictions are undisputed. Because the ultimate focus in this case is on the record before the district court at the time of the guilty plea proceedings, we recite the facts as they appeared to the court during that phase of the case.

Schminkey spent the evening of May 17, 1997 drinking, first at a party and then at a bar. Although Schminkey has no recollection of leaving the bar or of what happened after he left, witnesses established that he departed the bar and then drove a pickup owned by Dale Kimm, a man Schminkey did not know. Schminkey did not have Kimm's permission to drive the pickup. Several witnesses observed the pickup being driven erratically and in excess of the speed limit. They saw the vehicle heading north, approaching a controlled intersection in the town of Van Horne at an excessive rate of speed. The pickup went through the intersection without slowing down and struck two vehicles, facing south, that were stopped at the intersection stop sign. The driver and only occupant of the first vehicle, nineteen-year-old Jason Kray, died en route to the hospital.

Notwithstanding the collision, the driver of the pickup appeared to be fleeing the scene, accelerating the engine and proceeding down the road for another block or so before crashing into a fence. Witnesses who assisted in extricating Schminkey from the pickup said he smelled strongly of alcohol. A later urine test showed his blood alcohol level to be .189, significantly over the legal limit of .10. See Iowa Code § 321J.2(1).

Schminkey was charged with homicide by vehicle in violation of Iowa Code section 707.6A(1), involuntary manslaughter in violation of Iowa Code section 707.5(1), and theft of a motor vehicle in violation of Iowa Code sections 714.1 and 714.2(2). Claiming he was unable to recall the events of the evening due to his intoxication, Schminkey entered into a plea agreement with the State, whereby, in exchange for his Alford plea to the theft and homicide charges, the State would dismiss the involuntary manslaughter charge and recommend that Schminkey's sentences on the remaining charges run concurrently.

The State dismissed the manslaughter charge. At the plea hearing, the district court made a determination that a factual basis for the pleas appeared in the record and then accepted Schminkey's guilty pleas. Schminkey was subsequently sentenced to consecutive ten-year and five-year terms of incarceration.

Schminkey appealed, claiming his counsel rendered ineffective assistance in two ways. First, he contends his counsel should not have allowed him to plead guilty to the theft charge because there was not a factual basis for a finding that he intended to permanently deprive the owner of his vehicle. He also claims that the prosecutor breached the plea agreement because the prosecutor did not expressly state the State's recommendation for concurrent sentences at the sentencing hearing. Schminkey asserts his counsel rendered ineffective assistance in failing to object to this breach. The court of appeals affirmed, and we granted further review.

II. General Principles Governing Ineffective-Assistance-of-Counsel Claims.

The Sixth Amendment to the United States Constitution guarantees a defendant the right to the effective assistance of counsel. See U.S. Const. amend. VI; Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). We review claims that this constitutional right has been violated de novo. See State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).

Claims of ineffective assistance of counsel are generally preserved for postconviction relief proceedings. See id. Where the record is adequate to address the issue, however, such claims will be considered on direct appeal. See id. As will become clear, this is such a case.

The standards required to prevail on a claim of ineffective assistance of counsel are well established. The defendant must prove by a preponderance of the evidence that his "counsel failed to perform an essential duty," and that he "was prejudiced by counsel's error." State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).

III. Did Trial Counsel Render Ineffective Assistance in Allowing Schminkey to Plead Guilty to the Offense of Theft of a Motor Vehicle?

The district court may not accept a guilty plea without first determining that the plea has a factual basis. See Iowa R.Crim. P. 8(2)(b); State v. Burtlow, 299 N.W.2d 665, 668 (Iowa 1980). This requirement exists even where the plea is an Alford plea. See Alford, 400 U.S. at 38 n. 10, 91 S.Ct. at 168 n. 10, 27 L.Ed.2d at 171-72 n. 10. Where a factual basis for a charge does not exist, and trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an essential duty. See Brooks, 555 N.W.2d at 448. Prejudice in such a case is inherent. See State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996) (holding that where there is no factual basis for a guilty plea, ineffective assistance of counsel is established). Therefore, our first and only inquiry is whether the record shows a factual basis for Schminkey's guilty plea to the charge of theft of a motor vehicle. In deciding whether a factual basis exists, we consider the entire record before the district court at the guilty plea hearing, including any statements made by the defendant, facts related by the prosecutor, the minutes of testimony, and the presentence report. See Brooks, 555 N.W.2d at 448-49; State v. Fluhr, 287 N.W.2d 857, 867-68 (Iowa 1980), overruled in part on other grounds by State v. Kirchoff, 452 N.W.2d 801, 805 (Iowa 1990).

The offense of theft is defined in section 714.1(1), which states that a person commits theft when he "[t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof." (Emphasis added.) Schminkey challenges the factual basis for the intent element of this crime.

The intent required for the commission of a theft is an intent to deprive the owner of his or her property. See Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 1981). Schminkey argues that this element of the crime requires proof that he intended to permanently deprive the owner of his vehicle. He contrasts the theft statute, section 714.1(1), with Iowa Code section 714.7, defining the crime of operating a vehicle without the owner's consent. The latter statute prohibits the "possession or control of . . . any self-propelled vehicle. . . without the consent of the owner of such, but without the intent to permanently deprive the owner thereof." Iowa Code § 714.7 (emphasis added). This crime, operating a vehicle without the owner's consent, is expressly made a lesser included offense of the crime of theft. See id.

Schminkey correctly argues that an intent to permanently deprive the owner of his property is an essential element of theft under section 714.1(1). The legislature's distinction of the crime of theft from the crime of operating a vehicle without the owner's consent—the existence or absence of an intent to permanently deprive the owner—supports this conclusion. In addition, this interpretation of section 714.1(1) is consistent with the crime of larceny as it was defined prior to the revision of Iowa's criminal laws in 1978. See generally Eggman, 311 N.W.2d at 80 ("Revised criminal code offenses are to be construed as altering prior law only if a legislative intent to change the prior law is clear."); Emery v. Fenton, 266 N.W.2d 6, 8 (Iowa 1978) (stating that the criminal law revision "is primarily a restatement of [the prior] law"). Prior to the criminal code revisions, the crime of larceny, see Iowa Code § 709.1 (1977), and the separate crime of larceny of a motor vehicle, see id. § 321.82, required proof of an intent to permanently deprive the owner of the stolen property or vehicle. See Brainard v. State, 222 N.W.2d 711, 721 (Iowa 1974); State v. Boggs, 181 Iowa 358, 360, 164 N.W. 759, 760 (1917). In one of the few cases in which this court has addressed the issue of intent since the criminal code revisions, we held that the record must demonstrate more than an intent to temporarily deprive the owner of the property in order to prove a theft. See Fluhr, 287 N.W.2d at 867.¹...