State of Iowa v. Ronde Rogers ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0648
Filed February 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RONDE ROGERS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, John D. Telleen
(plea proceeding) and Joel W. Barrows (sentencing), Judges.
A defendant appeals her conviction of one count of theft in the second
degree and one count of theft in the fourth degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, and Michael J. Walton, County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, J.
Ronde Rogers appeals her judgment and sentence for one count of theft
in the second degree1 resulting from her theft of Best Buy’s property. Rogers
contends her due process rights were violated when her ineffective counsel
allowed her to plead guilty to a charge lacking a factual basis and when the
district court failed to ascertain whether her plea was voluntary and intelligent.
We affirm the ruling of the district court.
I. Background Facts and Proceedings.
At approximately 6:30 p.m. on September 25, 2013, Rogers and two
accomplices entered Best Buy. Upon entry, the group proceeded to the video
game and camera section of the store, seized two cameras and two Wiis, and
relocated to another area of the store. There, one accomplice acted as a lookout
while the other two attempted to remove each item’s packaging and spider theft
detection device. They successfully removed the packaging of one Wii, one
Nikon camera, and one Olympus camera, valued at $129.99, $350.00, and
$350.00, respectively. Rogers and one accomplice concealed these items in
their purses and exited the store, leaving behind the Wii U they were unable to
remove from the theft detection device; it was valued at $299.99.
At approximately 8:32 p.m., the Davenport Police responded to a theft
complaint at Best Buy, spoke with Loss Prevention Office Jeffrey Myer, and
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While Ronde Rogers was charged and convicted of two counts of theft in the second
degree and one count of theft in the fourth degree, she only appeals one count of theft in
the second degree.
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obtained a listing of the stolen property and a zip drive with surveillance video
confirming the above activity and item values.
Rogers was charged with second degree theft on December 9, 2013, for
taking possession or control of and intending to deprive Best Buy of its property,
valued between $1000 and $10,000, in violation of Iowa Code sections 714.4,
714.2(2), and 703.1 (2013). On February 19, 2014, Rogers pled guilty to theft in
the second degree. Rogers was sentenced on April 17, 2014, and has appealed.
II. Discussion.
A. Ineffective Assistance of Counsel
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, a defendant must show, by a preponderance of the
evidence, that (1) the attorney failed to perform an essential duty and (2)
prejudice resulted to the extent it denied defendant a fair trial. State v.
Shanahan, 712 N.W.2d 121, 136 (Iowa 2006); State v. McKettrick, 480 N.W.2d
52, 55 (Iowa 1992). In a guilty plea proceeding, a defendant must show that but
for counsel’s alleged error, the defendant would not have pleaded guilty and
would have insisted on going to trial. State v. Straw, 709 N.W.2d 128, 138 (Iowa
2006).
We will address on direct appeal claims of ineffective assistance of
counsel only if the factual record does not need further development and these
elements can be decided as a matter of law. See State v. Tesch, 704 N.W.2d
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440, 450 (Iowa 2005). Upon finding no additional factual development would be
helpful, we proceed.
Rogers claims she received ineffective assistance when her counsel
permitted her to plead guilty to theft in the second degree without a factual basis.
It is well-established that where a factual basis for a charge does not exist, but
counsel allows the defendant to plead guilty anyway, counsel has failed to
perform an essential duty. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa
1999). When such an assertion is made, we may examine the entire record
before the district court in pursuit of the requisite factual basis. State v. Finney,
834 N.W.2d 46, 62 (Iowa 2013). If the requisite factual basis is not found,
prejudice to the defendant inheres. State v. Keene, 629 N.W.2d 360, 366 (Iowa
2001).
Rogers contends a factual basis was not established because she pled
guilty to leaving Best Buy with property valued between $1000 and $10,000,
when in fact the minutes of testimony indicate Rogers left Best Buy with three
items valued at $829.99. Rogers’s contention is, essentially, that assuming she
exited Best Buy with property only valued at $829.99, a factual basis does not
exist for her guilty plea to theft in the second degree. As a factual basis claim
requires an objective inquiry of the entire record and not a subjective inquiry of
defendant’s understanding of the claim at the plea hearing, we need only
determine if the record indicates that Rogers’s acts amounted to theft in the
second degree. See Finney, 834 N.W.2d at 54–55, 62.
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Iowa Code section 714.1(1) provides that a person commits theft by
“tak[ing] possession or control of the property of another, or property in the
possession of another, with the intent to deprive the other thereof.” Indeed, theft
is complete when “the actor secures dominion over the object or uses it in a
manner beyond [her] authority.” State v. Donaldson, 663 N.W.2d 882, 886 (Iowa
2003). Most significantly, one is “nonetheless a thief if, shortly after [s]he exerts
[her] dominion over the property of another, [s]he is prevented from making off
with it.” Id. (citing State v. Victor, 368 So. 2d 711, 714 n.3 (La. 1979)).
Rogers and her accomplices were without authority to remove Best Buy
security devices or to remove Best Buy’s products from their packaging; thus,
their actions constituted theft at the point in which they attempted to do so with
the intent to deprive Best Buy of its property. Id.; see Iowa Code § 714.1. Such
intent can be inferred from the mere act of attempting to remove the products’
theft detection devices as the record is devoid of any evidence that Rogers and
her accomplices did so for any purpose other than hoping to deprive Best Buy of
each item. See Donaldson, 663 N.W.2d at 886–87 (absent other evidence,
intent to deprive owner of van can be inferred by act of tearing apart steering
column).
Rogers’s inability to remove one product, a Wii U, from its packaging does
not negate her fulfillment of the elements of theft; indeed, she still exercised
dominion and control over the item with the intent to permanently deprive Best
Buy of the product. Id. at 885 (concluding that “the element of asportation is no
longer necessary” for theft). The collective value of the four items Rogers
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attempted to remove was $1129.98; thus, her actions were properly
characterized as theft in the second degree. See Iowa Code § 714.2(2) (theft in
the second degree is that “exceeding one thousand dollars but not exceeding ten
thousand dollars in value”).
The record further reveals that the court asked Rogers if she understood
theft in the second degree to mean that the State must prove the following:
on or about the 25th day of September, 2013, in Scott County,
Iowa, you did take possession or control of property; two, that you
did so with the intent to deprive the other of the ownership of such
property and; three, that the value of the property exceeded $1000
in value but did not exceed $10,000 in value.
Rogers responded, “Yes, your Honor.”
Therefore, there is a factual basis for theft in the second degree, and the
reiteration of the factual basis provided at the plea proceeding was accurate.
Even if later portions of the plea proceeding were ambiguous as to when the theft
was complete, the record as a whole resolves any inaccuracy. See Finney, 834
N.W.2d at 62 (lack of accuracy of factual basis in plea proceeding can be
resolved by accuracy in the record).
B. Knowing and Voluntary
If a defendant’s plea is involuntary, article I, section 9 of the Iowa
Constitution and the Due Process requirement of the Fourteenth Amendment are
violated. Id. at 61. Moreover, Iowa Rule of Criminal Procedure 2.8(2)(b) requires
the court to determine that a plea is “made voluntarily and intelligently.”
Compliance with rule 2.8(2)(b), however, fulfills the constitutional requirements
for a guilty plea. State v. Myers, 653 N.W.2d 574, 577 (Iowa 2002).
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Rule 2.8(2)(b) requires the court inform the defendant of and determine
the defendant understands: “(1) The nature of the charge to which the plea is
offered . . . .” “Substantial compliance” with this rule is necessary; this standard
requires, at a minimum, “that defendant be informed of these matters and
understands them.” State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). However,
the court is not required to “explain each element of the offense if it was apparent
in the circumstances the defendant understood the nature of the charge.” State
v. Smith, 300 N.W.2d 90, 92 (Iowa 1981).
To this point, Rogers’s assertion of error is identical to her factual basis
claim—that Rogers’s colloquy with the court did not correspond with the minutes
of testimony in that Rogers did not leave the store with more than $1000 in
property. Therefore, Rogers claims the record is not clear that she understood
the elements of the crime to which she pled guilty.
As previously established, leaving the store with over $1000 in property is
not an element of theft. Thus, Rogers’s statement that leaving Best Buy with
over $1000 of property evidenced her intent to commit theft in the second degree
is, if a misunderstanding at all, immaterial to any theft elements and therefore
insufficient to support a claim that her plea was not knowing and voluntary. Her
second claim, then, fails for the same reason as her first.
III. Conclusion.
We find there was a factual basis in the record to support Rogers’s plea of
guilty that she intended to deprive Best Buy of property valued over $1000.
Thus, counsel was not ineffective. We further find the trial court’s colloquy with
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Rogers demonstrated Rogers’s understanding of the charge at the plea hearing
and was in substantial compliance with Iowa Rule of Criminal Procedure
2.8(2)(b). We affirm.
AFFIRMED.