State of Iowa v. Chad Edward Berry ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0827
Filed November 13, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHAD EDWARD BERRY,
Defendant-Appellant.
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Appeal from the Iowa District Court for Jasper County, Steven J.
Holwerda, District Associate Judge.
Chad Berry appeals his guilty-plea conviction and sentence for escape in
violation of Iowa Code section 719.4(2) (2013). REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Michael K. Jacobsen, County Attorney, and Kelly T. Bennett, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., McDonald, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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VAITHESWARAN, P.J.
After his conviction for certain crimes, Chad Berry entered a work release
program. Berry left his work place without permission and the State charged him
with escape, in violation of Iowa Code section 719.4(2) (2013). Berry pled guilty
as charged and the district court imposed sentence.
On appeal, Berry contends the plea lacked a factual basis and his plea
attorney was ineffective in allowing him to enter it. The State concedes “there
was no factual basis for the defendant’s plea of guilty to the charge of escape
from custody, because he was not physically restrained or subject to immediate
physical restraint when he was away from [his work place].” Accordingly, the
State agrees Berry’s attorney “rendered ineffective assistance by allowing him to
enter the plea” and “[p]rejudice is inherent under the circumstances.” See
Strickland v. Washington, 466 U.S. 668, 687 (1984) (setting forth elements of
ineffective-assistance-of-counsel claim).
The only remaining question is the remedy. The State asserts “the record
available to the district court at the time of the defendant’s guilty plea” provided a
factual basis for the lesser-included offense of absence from custody under
section 719.4(3). The State asks the court to remand the case for entry of an
amended judgment of conviction on the lesser-included offense.
The State’s proposed remedy has been invoked where a jury received
instructions on greater and lesser-included offenses and the jury found the
defendant guilty of the greater offense and, “[i]n so doing, . . . necessarily found
that the State had established all elements of the included offense.” State v.
Morris, 677 N.W.2d 787, 788-89 (Iowa 2004); accord State v. Pace, 602 N.W.2d
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764, 774 (Iowa 1999); State v. Lampman, 342 N.W.2d 77, 81 (Iowa Ct. App.
1983). The remedy has not been used in the guilty plea context. See State v.
Williams, No. 04-0061, 2004 WL 1899957, at *3 (Iowa Ct. App. Aug. 26, 2004)
(“Williams does not cite nor do we find any controlling Iowa authority allowing a
sentence to be imposed for a lesser-included offense based on a guilty plea to a
greater offense.”). In this context, State v. Burtlow, 299 N.W.2d 665, 670 (Iowa
1980), is instructive.
As with this case, the court in Burtlow was asked to decide whether there
was a factual basis for a plea to escape. The court found “the facts alleged by
the State . . . c[a]me within subsection three rather than subsection one of the
[escape] statute.” Burtlow, 299 N.W.2d at 669. The court concluded the
“conviction itself” had to be set aside because the record showed “a factual basis
which, as a matter of law, exclude[d] the possibility of conviction on the charge to
which the defendant pled guilty.” Id. at 670. The court reversed and remanded
to allow the case to proceed to conclusion on a previously-entered not guilty
plea, unless the State amended the charge to the correct one. Id.
Since Burtlow, the court has required dismissal of the charge where the
record reveals a defendant was charged with the wrong crime. See State v.
Galbreath, 525 N.W.2d 424, 427 (Iowa 1994). Dismissal is subject to the State’s
right to charge the correct offense. Id.
Berry was charged with the wrong crime. Accordingly, we reverse and
remand for dismissal of the charge of escape under Iowa Code section 719.4(2),
subject to the State’s right to charge a different offense.
REVERSED AND REMANDED.