State v. Schoelerman

• Decision Date: 20 January 1982
• Docket Number: No. 66751,66751
• Citation: 315 N.W.2d 67
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Charles Raymond SCHOELERMAN, Appellant.

Page 67

315 N.W.2d 67

STATE of Iowa, Appellee, v. Charles Raymond SCHOELERMAN, Appellant.

No. 66751.

Supreme Court of Iowa.

Jan. 20, 1982.

Francis C. Hoyt, Jr., Appellate Defender, Des Moines, and Charles L. Harrington Asst. Appellate Defender, Newton, for appellant.

Thomas J. Miller, Atty. Gen., Richard L. Cleland, Asst. Atty. Gen., Edward W. Kemp, Cedar County Atty., and Lee W. Beine, Asst. Cedar County Atty., for appellee.

Considered by LeGRAND, P. J., and McCORMICK, ALLBEE, McGIVERIN, and LARSON, JJ.

ALLBEE, Justice.

Defendant appeals from the judgment entered on his plea of guilty to the crime of false use of a financial instrument (FUFI), a violation of section 715.6, The Code 1979.

It is undisputed that on September 1, 1980, in exchange for merchandise and ten dollars in cash, defendant wrote two checks totaling $30.52, drawing on a bank where he had no account. Both checks were nonpersonal counter checks furnished to defendant by the merchant to whom the checks were made payable. Defendant signed his own name to both checks. At his plea hearing, defendant admitted these facts, plus the fact that he wrote the checks with an intent to defraud.

Defendant now contends that these undisputed facts do not amount to a violation of the FUFI statute, and that they merely constitute fifth degree theft under sections 714.1(6) and 714.2(5), The Code 1979. He relies in part on Dunahoo, The New Iowa Criminal Code, 29 Drake L.Rev. 237, 392 (1979-80):

A defendant-maker of a worthless check commits Theft when he signs his own name on a check for which he either has insufficient funds or no account at all. The worthless check constitutes Theft, provided that defendant knows at the time of utterance that the check will not be paid when presented. In this same set of circumstances, however, the crime of False Use of a Financial Instrument does not occur. This is because the latter basically is a crime of alteration, as evidenced by "false use" being defined alternatively in terms of the financial instrument not being "what it purports to be" or of the defendant-user not being "the person authorized to use" it. So, defined, a worthless check signed by the defendant (in his true name) is still what it purports to be, that is, a promise to pay by the defendant.

(Footnote omitted) (emphasis added).

Defendant points out that Iowa's theft by bad check statute specifically applies to the situation where, in the words of the statute, the drawee bank "has refused payment because the maker has no account with the drawee." § 714.1(6). The FUFI statute, however, is applicable to defendant only if a bad check signed in the defendant-maker's own name is "not what it purports to be." § 715.6. Although this court has not yet decided whether the FUFI statute is applicable to such a check, defendant cites numerous cases from other jurisdictions in support of his contention that a check signed in the defendant-maker's own name is "what it purports to be," even though the check draws on a bank where the defendant has no account.

FUFI is a class C felony, punishable by a maximum of ten years' imprisonment and a fine of up to $5000. §§ 715.6, 902.9(3), The Code 1979. Fifth degree theft by bad check is a simple misdemeanor, punishable by up to thirty days' imprisonment or a fine of up to $100. §§ 714.2(5), 903.1(3), The Code 1979. Pursuant to his plea of guilty to the FUFI charge, defendant was sentenced to a term not to exceed ten years; probation was denied on the basis of a presentence report.

At defendant's plea hearing, in attempting to ascertain a factual basis for defendant's plea of guilty to the FUFI charge, the trial judge asked defendant if he knew that the check he wrote "was not what it purported to be, in other words, an instrument which could draw on an account that you had at the Union Trust & Savings Bank?" (Emphasis added.) Defendant responded: "Correct." Neither defense counsel nor the trial judge mentioned the possibility that theft, rather than FUFI, was the appropriate charge. The judge presiding at the sentencing hearing, however, did comment that "(t)en years for this seems to be kind of a harsh sentence. These aren't large checks."

After accepting defendant's guilty plea, trial court informed him, as required by Iowa R.Crim.P. 8(2)(d), that he had a right to challenge any errors in the plea proceeding by filing a timely motion in arrest of judgment and that failure to do so would waive his right to make any such challenge on appeal. No such motion was made.

On appeal, defendant asserts that there was no factual basis for his plea of guilty to the FUFI charge and that his plea was involuntary and unknowing because both defense counsel and the trial court misinformed him that FUFI was the applicable offense. He also contends that he was denied effective assistance of counsel. The State argues that the ineffective assistance of counsel claim should not be adjudicated upon this direct appeal, and that defendant's failure to challenge trial court's acceptance of his guilty plea by a motion in arrest of judgment, as required by Iowa R.Crim.P. 23(3)(a), precludes his raising the other issues.

I. Ineffective assistance of counsel.

Because defendant was informed by trial court as to the necessity of filing a motion in arrest of judgment, see State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980), there is no basis for suspending the application of Iowa R.Crim.P. 23(3) (a) and considering the merits of this appeal unless defendant's failure to move in arrest of judgment resulted from ineffective assistance of counsel. The test we apply in determining the latter question is "whether under all the circumstances counsel's performance was within the range of normal competency." Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980).

Ordinarily, the record on a direct appeal is insufficient to allow us to adjudicate a claim of ineffective assistance of counsel. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). In such cases, it is preferable that the claim be litigated in postconviction proceedings, see State v. Williams, 285 N.W.2d 248, 271 (Iowa 1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1859, 64 L.Ed.2d 277 (1980), especially where the attorney's actions or omissions may be explainable as a matter of trial tactics or strategy, or where there is a need for additional evidence concerning what other lawyers would have done under similar circumstances. We have stated on numerous occasions that improvident trial strategy, miscalculated tactics or mistakes in judgment do not necessarily amount to ineffective assistance of counsel. E.g. Sims v. State, 295 N.W.2d 420, 423 (Iowa 1980).

In the present case, however, the record is adequate to allow us to adjudicate the matter of trial counsel's effectiveness, and we believe nothing would be gained by requiring a further hearing on the question. Cf. State v. Hendren, 311 N.W.2d 61, 63-64 (Iowa 1981) (record on direct appeal was adequate for supreme court to find ineffective assistance of counsel where attorney failed to cross-examine witnesses or make closing argument after defendant voluntarily absented himself from trial).

The record here shows that trial counsel never, during defendant's guilty plea hearing or otherwise, raised the issue of whether defendant was guilty of fifth degree theft rather than FUFI. It may be that trial counsel did not raise that issue because he was unaware of the theft by bad check statute, section 714.1(6), and therefore had little or no reason to question the propriety of the FUFI charge. If that was the case, we believe trial counsel's lack of knowledge or preparation would place him below the "range of normal competency" in his representation of defendant. A normally competent attorney who undertakes to represent a criminal defendant should either be familiar with the basic provisions of the criminal code, or should make an effort to acquaint himself with those provisions which may be applicable to the criminal acts allegedly committed by his client. ¹ See Iowa Code of Professional Responsibility for Lawyers, Canon 6, DR 6-101(A)(2) ("A lawyer shall not ... (h)andle a legal matter without preparation adequate in the circumstances.").

On the other hand, if trial counsel was aware of the theft by bad check provision, he would have been confronted with two statutes, one containing concrete language specifically applicable to his client and carrying a maximum thirty-day sentence, the other containing broader language possibly applicable to his client and carrying a maximum ten-year sentence. Under these circumstances, even if he was uncertain as to which statute applied, trial counsel had a duty to at least raise the issue of whether defendant had been mischarged with the more serious offense. See Iowa Code of Professional Responsibility for Lawyers, Canon 7, EC 7-3 ("While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law."). The question is not, as the State contends, whether a normally competent attorney might have concluded that FUFI was an appropriate charge; rather, it is whether a normally competent attorney could have concluded that the question of fifth degree theft by bad check was not worth raising.

We recognize that an attorney need not be a "crystal gazer" who can predict future changes in established rules of law in order to provide effective assistance to a criminal defendant. See Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981) (trial counsel was not ineffective for failing to raise issue which would have been foreclosed by Iowa case law existent at time of trial, although the law was later changed). Here, however, there were no decisions of this court which foreclosed the issue in question, and indeed the specificity of the language in the theft by bad check statute would have lent substantial weight to an argument that defendant had been mischarged. Furthermore, had trial coun...