                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0629
                              Filed August 2, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RANDY LEE BARNES JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Madison County, Brad McCall,

Judge.



      Randy Lee Barnes Jr. appeals following judgment and sentences entered

upon his convictions for theft and eluding.      CONVICTIONS AFFIRMED ON

CONDITION,       SENTENCES         VACATED,        AND      REMANDED          WITH

INSTRUCTIONS.



      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                           2


MAHAN, Senior Judge.

       Randy Lee Barnes Jr. appeals following judgment and sentences entered

upon his convictions for second-degree theft by exercising control over stolen

property, in violation of Iowa Code sections 714.1(4) and 714.2 (2015), and

eluding while participating in a felony, in violation of section 321.279(3), each

offense committed as a habitual offender, in violation of section 902.8.1

       While we find substantial evidence exists to support the jury’s findings of

guilt, the trial court misstated the maximum possible sentences Barnes faced

pursuant to the habitual-offender enhancement, which undermines our

confidence in the voluntary and knowing nature of the defendant’s rejection of the

State’s plea offer, as well as the defendant’s waiver of a trial on the habitual-

offender allegations. In addition, the trial court did not provide any reasons for

imposing consecutive sentences.            We therefore conditionally affirm the

convictions, vacate the sentences, and remand with instructions.

I. Background Facts.

       On November 6, 2015, Madison County Sheriff Jason Barnes received a

report that a truck with a man apparently asleep inside had been parked in front

of storage units for more than two hours. The sheriff responded to the report and

found the vehicle with Randy Lee Barnes Jr. inside.2 Barnes and the sheriff

briefly spoke, the sheriff went back to his vehicle, and Barnes pulled out of the

storage unit’s parking lot and left the area. In running the plates of the truck, the


1
  The State asserted Barnes had pled guilty to possession of methamphetamine in 1997
and to possession of pseudoephedrine in 2002.
2
  Because the sheriff and the defendant share a last name, further references to Sheriff
Barnes will be as “sheriff” and the defendant will be referred to as “Barnes.”
                                         3


sheriff learned the vehicle had been reported taken on October 29 from a

community about three hours away. The sheriff followed Barnes, and a chase

ensued, eventually involving numerous law enforcement agencies, including the

Madison County Sheriff’s Office, Warren County Sheriff’s Office, Dallas County

Sheriff’s Office, Iowa State Patrol (including a state patrol airplane), Iowa

Department of Natural Resources, and Earlham Police Department. During the

pursuit, the uniformed law enforcement officers were in marked patrol vehicles

and their lights and sirens were activated. Barnes continued to fail to stop for the

officers or for stop signs, and his vehicle reached speeds in excess of 110 miles

per hour on gravel roads, which have a maximum speed limit of fifty-five miles

per hour. Warren County deputies attempted to setup a roadblock with their

vehicles, but Barnes drove down into a ditch to bypass the roadblock. Officers

attempted to use stop sticks to deflate the truck’s tires, two of which Barnes

avoided. Barnes failed to slow down when approaching other vehicles (including

a road grader) and when crossing highways or other roads. After more than

thirty minutes, the police were successful in using stop sticks on the truck to

deflate two of the truck’s tires, and Barnes pulled off of the road and surrendered.

       Police confirmed the truck did not belong to Barnes, although Barnes had

his property in the truck bed and inside the truck.        During a recorded jail

telephone call, Barnes told his former girlfriend that “the truck was hot” and

“that’s why [he] left” the storage units because he “wasn’t going to sit there and

let [the police] run the plates.”

       Barnes was charged with second-degree theft by exercising control over

stolen property, in violation of Iowa Code sections 714.1(4) and 714.2, and
                                              4


eluding while participating in a felony, in violation of section 321.279(3),3 each

offense committed as a habitual offender.

       In a pretrial filing seeking a partial judgment of acquittal, the defense

argued in regard to the eluding while participating in a felony, “The only question

that is left is whether or not the defendant was participating in a felony at this

time.” Relying on State v. Philo, 697 N.W.2d 481 (Iowa 2005), the defense noted

the legislature, in Iowa Code section 702.13, has defined “participating in a public

offense” as the period commencing with the first act done directly toward the

commission of the offense and for the purpose of committing that offense and

terminating when the person has been arrested or has withdrawn from the scene

of the intended crime and has eluded pursuers, if there be any. He argued the

offense of theft of a motor vehicle had been completed before the eluding

occurred here, which required a dismissal of the charge.                 The district court

denied the motion, noting the offense charged here—theft by possession or

control of stolen property, pursuant to section 714.1(4)—was not under the same




3
 Section 321.279(3) provides:
               The driver of a motor vehicle commits a class “D” felony if the
       driver willfully fails to bring the motor vehicle to a stop or otherwise eludes
       or attempts to elude a marked official law enforcement vehicle that is
       driven by a uniformed peace officer after being given a visual and audible
       signal as provided in this section, and in doing so exceeds the speed limit
       by twenty-five miles per hour or more, and if any of the following occurs:
               (a) The driver is participating in a public offense, as defined in
       section 702.13, that is a felony.
Section 702.13 provides in turn,
               A person is “participating in a public offense,” during part or the
       entire period commencing with the first act done directly toward the
       commission of the offense and for the purpose of committing the offense,
       and terminating when the person has been arrested or has withdrawn
       from the scene of the intended crime and has eluded pursuers, if any
       there be.
                                        5

statutory provision as that in the Philo case—theft by taking, pursuant to section

714.1(1).

      Before trial began, a record was made as to the plea offered to Barnes by

the State:

             [PROSECUTOR] MR. ANDERSON: Mr. Barnes has been
      charged with theft in the second degree as a habitual offender and
      felony eluding as a habitual offender.
             The State made a plea offer yesterday that if Mr. Barnes
      agreed to plead guilty to theft in the second degree without the
      habitual offender enhancement and eluding as an aggravated
      misdemeanor, if he agreed to prison terms on those sentences and
      that those sentences run consecutive, the State would be willing to
      make that offer to him. That offer was rejected yesterday.
             THE COURT: All right. So the State has offered to have Mr.
      Barnes plead to one class “D” felony, one aggravated
      misdemeanor, and agree to consecutive prison terms?
             MR. ANDERSON: Correct, for a total of seven years with no
      minimum on it.
             THE COURT: All right. Okay. And, Mr. Hoover [defense
      attorney], have you had an opportunity to discuss that offer with
      your client?
             MR. HOOVER: I went to the jail last night, Your Honor, and
      discussed that, that offer with my client. I discussed with him the
      benefits of taking the offer, as well as I guess what potentially could
      happen at trial.
             After that discussion, I asked my client if he was willing to
      accept the plea offer and he indicated to me that he did not wish to
      accept that plea offer.
             THE COURT: All right. Mr. Barnes, you understand the
      terms of the offer that’s been made by the State?
             THE DEFENDANT: Yes, I do.
             THE COURT: And you understand that if you accepted this
      plea offer, you would be pleading guilty to one class “D” felony, one
      aggravated misdemeanor, and agreeing to a five-year prison
      sentence and a two-year prison sentence to be served
      consecutively to one another, in other words, a seven-year prison
      term. That prison term would not have any mandatory minimum
      sentence attached to it. You understand that?
             THE DEFENDANT: Yes, I do.
             THE COURT: You understand if you go forward and you are
      convicted of both offenses as charged and the jury determines that
      you are an habitual offender, you face the potential of being
      sentenced to five years in prison as to the theft in the second
                                           6


       degree charge and five years in prison as to the eluding
       charge. Each of those sentences would carry with them a
       mandatory term of incarceration of three years prior to eligibility for
       parole. If those sentences are imposed consecutively, you
       would be sentenced to ten years in prison, and you would
       have a mandatory six-year sentence prior to being eligible for
       parole.[4] You understand that?
              THE DEFENDANT: Yes.

(Emphasis added.)

       The trial proceeded. Barnes chose to testify. He stated several days

before the chase with the sheriff his own vehicle had broken down in Winnebago

County in northern Iowa. At about 2:00 a.m., Barnes decided to take a truck he

found with the keys in it (the same truck law enforcement pursued).5 The next


4
  This is a misstatement of the maximum sentence Barnes faced.
         Under the legislature’s sentencing scheme for felonies, a person
         convicted of a class “D” felony, who is not a habitual offender, shall be
         confined no more than five years, and in addition shall be fined at least
         $750 but no more than $7500. [Iowa Code] § 902.9(5). Under the same
         sentencing scheme, a habitual offender shall be confined no more than
         fifteen years. Id. § 902.9(3). A habitual offender includes any person
         convicted of a class “D” felony who has twice before been convicted of a
         felony.
State v. Maxwell, 743 N.W.2d 185, 190–91 (Iowa 2008). Consequently, if found to be
guilty on the charges as a habitual offender, Barnes was subject to two-fifteen year
terms of imprisonment. See Iowa Code § 908.1. If the sentences were to be served
consecutively, Barnes’s sentence would be a thirty-year term, substantially greater than
the ten years stated by the court.
         Neither the State nor the defendant’s attorney corrected the court’s
misstatement.
5
  Barnes’s testimony includes the following:
                 Q. Okay. When you took the truck, did you think—did you think
         you were stealing the truck? A. No, I kind of looked at it as borrowing, but
         I know there was complications, you know.
                 Q. And can you understand where someone might look at, Hey, a
         number of days, a period of number of days might look like you weren’t
         intending on taking the vehicle back? A. Yes. Yes.
                 Q. And did you make arrangements to head back to Buffalo
         Center? A. I did. I had explained to my ex-girlfriend on—via text that I
         intended to return to Buffalo Center. I don’t recall whether I told her why,
         but I was going back up there to get my—to fix my truck and to leave
         again in it.
                 ....
                                            7


day, Barnes drove the truck across Iowa and into Missouri to move some of his

property. Barnes returned to Iowa in the truck, and he went to Des Moines.

Barnes again drove south into Madison County, where he was ultimately

questioned by the sheriff at the storage unit. Barnes testified he intended to

return the truck when he went to retrieve his own: “I had every intention to park

the truck back where I got it there in the street, and right around the corner is my

truck. If I’m going to be there working on my truck, their truck is just going to

basically re-appear.” Barnes acknowledged he had exceeded the speed limit by

more than twenty-five miles per hour and that the sheriff’s vehicle “definitely” had

its lights and siren on. He acknowledged he was “running away because [he]

didn’t want to be arrested.” When approached by the sheriff, a topper had been

removed from the truck. Barnes also acknowledged that at the time he took the

truck, a topper had been in place; the topper “fell off”; and he left it in Des

Moines.

       Because he was charged with eluding while participating in a public

offense, i.e., possessing or controlling stolen property, the defense sought a jury

instruction defining “stolen.” The court responded: “I think stealing denotes a

taking regardless of whether there is an intent to deprive or not. I think the



               Q. And you said the vehicle was hot? A. Yes.
               Q. What did you mean by that? A. That it may be being looked
       for. My initial reaction was I actually stole some gasoline the night before
       in order to get to Buffalo Center. I stopped at a gas station, pumped
       some gas, and drove off without paying was my initial thought when . . . I
       was thinking the police were there, that that would be what they were
       talking about or what they were coming for me for.
               Q. Okay. Do you have any knowledge as to whether—how they
       report stolen gas? A. I just assume they call the police and give them the
       plate number of the vehicle.
                                          8


defendant has admitted that taking.” The court opined it was unnecessary to

define the word “stolen.”

       Defense counsel argued that felony eluding was not supported by the

evidence under legal principles stating neither theft nor possession of stolen

property is a continuing offense. Defense counsel argued that possession of

stolen property does not apply to the person who has taken the property. The

district court denied the motion for partial judgment of acquittal.

       With regard to the theft charge, the jury was instructed in Instruction No. 8:

              The State must prove all of the following elements of theft in
       the second degree:
              1. A 1991 Chevy pickup truck was stolen.
              2. On or about the 6th day of November, 2015, the
       defendant exercised possession or control over the 1991 Chevy
       pickup truck.
              3. At the time he exercised possession or control over the
       1991 Chevy pickup truck, the defendant knew the property had
       been stolen.
              4. The defendant did not intend to promptly return the stolen
       1991 Chevy pickup truck to the owner or to deliver it to an
       appropriate public officer.
              If the State has proved each of these elements, the
       defendant is guilty of theft. If the State has failed to prove any one
       of the elements, the Defendant is not guilty of theft.

       Instruction No. 9 provided: “In considering whether or not the 1991 Chevy

pickup truck was previously stolen as in element 1 of Instruction No. 8, the State

does not need to prove the person who stole the property has been convicted of

the crime.”

       Instruction No. 10 states, “‘Possession or control’ as used in element 2 of

Instruction No. 8, means to secure dominion or exert control over an object or to

use an object in a manner beyond the person’s authority to do so.”
                                          9


       As for eluding, Instruction No. 11 provided the State was required to prove

all of the following:

              1. On or about the 6th day of November 2015, the defendant
       was driving a motor vehicle.
              2. The defendant willfully failed to bring the motor vehicle to
       a stop, or otherwise eluded, a marked official law enforcement
       vehicle driven by a uniformed peace officer after being given a
       visual and audible signal to stop.
              3. In doing so the defendant exceeded the speed limit by
       twenty-five (25) miles per hour or more.
              4. In doing so, the defendant was participating in a theft, as
       defined in instruction 9.[6]

       Instruction No. 12 provided: “Concerning element 2 of Instruction No. 11,

‘willfully’ means intentionally or by fixed design or purpose and not accidentally.”

       And Instruction No. 13 explained,

               Concerning element 4 of Instruction No. 11, a person is
       participating in” an offense from the period commencing with the
       first act done directly toward the commission of the offense and for
       the purpose of committing that offense and terminating when the
       person has been arrested or has withdrawn from the scene of the
       intended crime and has eluded pursuers, if any there be.

       In closing arguments, the prosecutor argued:

               One thing I do want to talk to you about in number 4 here on
       Instruction 11, at the time the defendant was participating in a theft
       as defined in Instruction 9. We’ve charged Randy Barnes with
       possession of stolen property.
               Now, if you find that Randy Barnes was possessing that
       stolen property, which we would submit we submitted that evidence
       for that, at the time of the eluding, Randy Barnes was participating
       in that crime, that crime of possession of stolen property. He drove
       away in the truck that we allege that was stolen and he knew it was
       stolen. And because he is doing that, because he is participating in
       that crime, he is guilty of eluding while participating in a theft.

The jury found the defendant guilty as charged.


6
  This is an apparent typographical error—as already noted, the elements of theft are
found Instruction No. 8.
                                            10


          Barnes then stipulated to having been twice previously convicted of a

felony.     The court engaged in the following colloquy with Barnes during the

stipulation:

                  THE COURT: You understand that by tendering of that is
          effectively a guilty plea, by admitting that you are the same
          individual alleged by the State to have previously been convicted,
          that you subject yourself to a sentence, if sentenced to a period of
          confinement, that you would not be eligible for parole until you
          served a minimum sentence of three years? You understand that?
                  THE DEFENDANT: Yes, sir.
                  THE COURT: All right. And is it your desire—well, one other
          thing. You have been convicted of two felonies and there is at least
          the potential that you could be sentenced to consecutive sentences
          on the two felony charges.
                  In the event you are sentenced to consecutive sentences,
          you would subject yourself to consecutive minimum periods of
          confinement of three years prior to parole eligibility, in other words,
          six years before you would be eligible for parole. Do you
          understand that?
                  THE DEFENDANT: Yes, sir.

          Barnes filed a motion for new trial, which was denied. At the sentencing

hearing, the State argued for the imposition of the maximum term of

imprisonment:

                  Your Honor, as it relates to Count I, we’d ask the Court to
          impose the maximum sentence allowed by law, which is a five-year
          term, subject to the habitual offender enhancement with the
          mandatory minimum of three years. We would ask the Court to
          impose the minimum fine, court costs and surcharges; that Mr.
          Barnes be responsible for all attorney’s fees; that Mr. Barnes
          submit a DNA sample; that Mr. Barnes pay restitution in this case,
          the State given [thirty] days to file statement of pecuniary damages.
                  As to Count II, theft in the second degree, we’d ask the
          Court to again impose the maximum sentence as allowed by law, to
          impose the habitual offender enhancement giving Mr. Barnes a
          three-year minimum term to serve before he’s eligible for parole;
          the minimum fine, we’d ask the court to impose that with the
          relevant surcharge, court costs, and that Mr. Barnes be responsible
          for all his attorney’s fees. We’d ask the Court to assess restitution
          in that matter as well.
                                          11


               Generally speaking, we would ask the Court to impose
       restitution on Mr. Barnes for all correctional fees incurred pursuant
       to Iowa Code section 356.7. Your Honor, we would ask that the
       Court impose those sentences and run them consecutively.

       Defense counsel then argued for probation—and for the first time in these

proceedings—noted Barnes was subject to a fifteen-year sentence on each

charge.   The court responded: “Where do we get fifteen years?”               Defense

counsel and the court then had this discussion on the record:

               [DEFENSE COUNSEL]: It’s the habitual offender, Your
       Honor.
               THE COURT: Well, all that does is provide that he shall not
       be eligible for parole until he’s served a minimum period of
       confinement of three years.
               [DEFENSE COUNSEL]: Correct, Your Honor, but I think it’s
       still—you would still sentence him to the [fifteen] but the mandatory
       minimum wouldn’t apply.
               THE COURT: Would you agree with that, Mr. Anderson? I
       think he gets a five-year sentence, and he has to serve three before
       he's eligible for parole.
               [PROSECUTOR]: No. I believe he gets a [fifteen]-year
       sentence. He has to serve three before he’s eligible for parole.
               THE COURT: Fifteen? So we triple them?
               [PROSECUTOR]: That’s correct.
               THE COURT: Okay.

The court entered judgment and imposed consecutive fifteen-year terms.

       Barnes appeals, contending there is insufficient evidence to support a

theft conviction, and, any theft was complete at the time he fled from the officer

so any eluding was not “during the commission of a public offense.” In addition,

Barnes contends there is insufficient evidence he was in possession of stolen

property, the court erred in failing to instruct the jury on the definition of “stolen”

and on a lesser-included offense of operating a motor vehicle without the owner’s

consent, and the court should have granted his motion for judgment of acquittal

because the “actual taker of the truck cannot be convicted of possession” of
                                        12


stolen property. Barnes also maintains trial counsel was ineffective in failing to

object to the trial court’s misstatement of the maximum sentences that could be

imposed, and the trial court did not provide adequate reasons for imposing two

fifteen-year sentences, which are to be served consecutively.

II. Scope and Standards of Review.

      We review challenges to the sufficiency of the evidence for correction of

errors at law. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001).

      We review constitutional issues, such as a claim of ineffective assistance

of counsel, de novo. State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).

      “A court’s decision not to give a requested instruction is reviewed for

correction of errors at law.” State v. Huser, 894 N.W.2d 472, 501 (Iowa 2017).

      The sentencing decision of a district court within the statutory limits is

“cloaked with a strong presumption in its favor, and will only be overturned for an

abuse of discretion or the consideration of inappropriate matters.”       State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “An abuse of discretion will not be

found unless we are able to discern that the decision was exercised on grounds

or for reasons that are clearly untenable or unreasonable.” Id. at 725.

III. Sufficiency of the Evidence.

      On a sufficiency-of-the-evidence challenge, we uphold a verdict if a

rational fact-finder “could have found that the elements of the crime were

established beyond a reasonable doubt.” State v. Keopasaeuth, 645 N.W.2d

637, 640 (Iowa 2002). This court views the evidence in the light most favorable

to the State and considers all reasonable inferences that fairly may be drawn

therefrom. See State v. Acevedo, 705 N.W.2d 1, 5 (Iowa 2005). “Inherent in our
                                         13


standard of review of jury verdicts in criminal cases is the recognition that the jury

[is] free to reject certain evidence, and credit other evidence.” State v. Sanford,

814 N.W.2d 611, 615 (Iowa 2012) (citation omitted).

       Defense counsel argues this case is similar to Philo, where the court

determined that the defendant was not participating in the felony of theft at the

time he was eluding police because the crime of theft by taking was completed

when he left the scene of the theft without being pursued, and “there was no

evidence that the pursuit was connected to the withdrawal from the crime scene.”

697 N.W.2d at 487. We agree with the district court, however, that Philo is

distinguishable and not applicable because it involved a theft by taking. Cf. State

v. Hearn, 797 N.W.2d 577, 585 (Iowa 2011) (“The language in Philo does not

require continuous pursuit commencing from the crime scene, but only requires

that if liability is to attach after the accused has left the crime scene, the accused

must be ‘pursued.’”)

       Barnes was charged with theft by possession or being in control of stolen

property. The questions before us then are: Where was the “crime scene?” and

Was Barnes pursued from that location? It is reasonable to determine the crime

scene followed Barnes while he was in possession of the stolen truck.

       In denying the motion for new trial, the court concluded:

              When that statutory definition of participation in a public
       offense is read in conjunction with the felony eluding statute, it is
       clear to me that the intention and purpose of the legislature in
       making the eluding charge more serious if there is a connection
       between the underlying felony and the act of the eluding. In other
       words, the eluding becomes more serious and a higher degree of
       offense if the person is at the same time committing a felony.
              In this case, based on the defendant’s own admission, both
       from the witness stand and during the telephone call that he had
                                         14


       from the jail, that was also admitted into evidence, it was clear that
       the defendant’s intent in attempting to elude arrest by the sheriff
       was for the purpose of avoiding detection and apprehension for his
       possession of stolen property.
              Therefore, I believe the jury was appropriately given the
       opportunity to find the defendant guilty of the felony eluding charge,
       and there is clearly sufficient basis in the record from which the jury
       could find him guilty.

We find no error in the court’s ruling as it is consistent with the purpose of the

statute.

       In Hearn, 797 N.W.2d at 582-84, the court rejected a defendant’s claim

that he had withdrawn from the scene of a carjacking before he was chased by

police and therefore could not be convicted of eluding while participating in a

public offense. The court observed,

       [L]imiting the statute to situations involving continuous pursuit of a
       suspect commencing at the crime scene makes no sense in light of
       the legislative policy manifest in the language of the statute. . . .
       The underlying purposes of the statute in this case do not support
       the distinction that Hearn seeks to draw between continuous pursuit
       from the crime scene and pursuit that occurs in response to a 911
       call and begins in close temporal and geographic proximity to the
       crime. See Muscarello v. United States, 524 U.S. 125, 132–33
       (1998) (holding phrase “carrying a firearm” in criminal statute
       includes driving a car with a gun in the trunk because it would not
       make sense to penalize one who walks with a gun in a bag, but to
       ignore a similar individual who drives with the same gun in a bag in
       his car). The statute must not be construed in a way to defeat its
       plain public purpose. State v. Peck, 539 N.W.2d 170, 173 (Iowa
       1995) (stating that statutes must be construed reasonably and in a
       way not to defeat their plain purpose); State v. Nelson, 178 N.W.2d
       434, 437 (Iowa 1970) (stating that criminal statutes “are not to be
       construed so strictly as to defeat the obvious intention of the
       Legislature”).

Hearn, 797 N.W.2d at 583-84.

       We also reject Barnes’s claim that there was not sufficient evidence that

he intended to permanently deprive the owner of the truck, negating a finding the
                                        15


property was “stolen.” It is true that for purposes of theft as defined in section

714.1(1), which states that a person commits theft when the person “[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.” See State v. Schminkey,

597 N.W.2d 785, 788-89 (Iowa 1999). Again, however, Barnes was charged and

convicted of theft by possession of stolen property. As the trial court noted,

Barnes admitted he knew the truck was “hot” when he was chased by law

enforcement. At trial, after Barnes testified he took the truck without permission,

he testified further:

              Q. All right. Now, fast forwarding to when you came into
       contact with Sheriff Barnes, you could have just said “I got this
       truck. I don’t—it’s not mine. It is stolen. Sorry,” right? A. I could
       have, yes.
              Q. But you didn’t? A. That’s correct.
              Q. Okay. So you led the officers on a chase in this vehicle
       knowing that was stolen, right? A. Yes.
              Q. And you exceeded the speed limit by [twenty-five] miles
       per hour? A. Yes.

There is substantial evidence to support the conviction of eluding while in

possession or control of stolen property. The jury was free to reject his further

claim he “was returning [the truck]” to the place where he took it. See Sanford,

814 N.W.2d at 615.

       Barnes also contends the court erred in failing to give an instruction to the

jury defining “stolen.” We have viewed the defendant’s proposed instructions

and the instructions given. Read as a whole, the instructions given by the court

adequately informed the jury they had to find Barnes exercised control over

property he did not own or have permission to use and did not intend to promptly

return. See Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016) (“Iowa
                                         16


law requires a court to give a requested jury instruction if it correctly states the

applicable law and is not embodied in other instructions.” (emphasis added)).

       Barnes contends a person who takes property cannot be found guilty of

being in possession of stolen property, citing State v. Upton, 167 N.W.2d 625,

627 (Iowa 1969) (stating “a thief is not an accomplice of the person who later

receives the stolen property from him”). We are not convinced. In a case in

which the defendant was charged with theft by exercising control over stolen

property, our supreme court stated:

       This contention ignores the relationship between the act of stealing
       property and the act of exercising control over stolen property.
       Under Iowa Code section 714.1 the former act necessarily
       encompasses the latter, because one who steals property must
       exercise control over it and must know that it is stolen. 4 J. Yeager
       & R. Carlson, Iowa Practice § 316 at 82 (1979). It was not
       improper for the jury to consider whether defendant had actually
       stolen property, because an affirmative finding on that issue would
       have led to a verdict that defendant was guilty of the offense with
       which he was charged (theft by exercising control over stolen
       property, section 714.1(4)).

State v. Washington, 356 N.W.2d 192, 195 (Iowa 1984) (emphasis added); see

also State v. Conger, 434 N.W.2d 406, 409-10 (Iowa Ct. App. 1988). There is

substantial evidence to support the convictions.

IV. Ineffective Assistance of Trial Counsel.

       Barnes asserts trial counsel was ineffective in failing to correct the district

court’s misstatement of the maximum sentences that could be imposed.              He

contends his decision to reject the State’s plea offer was not made knowingly and

voluntarily because he did not understand that he was exposing himself to a

thirty-year term rather than the ten-year maximum term about which the court

advised him. He also contends counsel did not adequately investigate whether
                                       17


Barnes was represented by counsel or knowingly waived counsel for his prior

convictions, which would negate one habitual-offender enhancement. See State

v. Kukowski, 704 N.W.2d 687, 691-92 (Iowa 2005) (stating the “State must also

establish that the defendant was either represented by counsel when previously

convicted or knowingly waived counsel”); see also State v. Johnson, 770 N.W.2d

814, 825 (Iowa 2009).

      To prove a claim of ineffective assistance, Barnes must prove both that

counsel breached an essential duty and prejudice resulted. See Maxwell, 743

N.W.2d at 195. Ineffective-assistance-of-counsel claims are resolved on direct

appeal only when the record is adequate. State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012).

      We agree with Barnes’s claim the trial court had a duty to inform him of

the ramifications of being found a habitual offender.     See Iowa R. Crim. P.

2.19(9); State v. Oetken, 613 N.W.2d 679, 687 (Iowa 2000). While we find the

record clear that the district court did misstate the maximum sentences that could

be imposed upon a finding Barnes was a habitual offender, the record is

inadequate to know if Barnes’s counsel had breached an essential duty by

incorrectly advising Barnes of the maximum possible punishment before Barnes

rejected the plea deal.   If counsel fully informed him that he faced possible

consecutive fifteen-year terms, Barnes cannot establish the trial court’s

misstatement resulted in his rejecting the plea offer. Moreover, we do not know

what investigation into Barnes’s prior felony convictions was conducted by trial

counsel and whether those convictions were entered with the assistance of

counsel or if Barnes knowingly waived counsel.          See Iowa R. Crim. P.
                                        18


2.8(2)(b)(1). But because we are remanding this case for other reasons, those

issues can be addressed by the district court on remand.

V. Is Operating a Motor Vehicle Without the Owner’s Consent a Lesser-

Included Offense of Theft?

       To determine whether a crime is a lesser-included offense of a greater

offense, the court applies the “impossibility test” and asks “whether the greater

offense cannot be committed without also committing all elements of the lesser

offense.” State v. Miller, 841 N.W.2d 583, 587-88 (Iowa 2014) (citing State v.

Coffin, 504 N.W.2d 893, 894 (Iowa 1993), and State v. Turecek, 456 N.W.2d

219, 223 (Iowa 1990)). We look at the elements of the marshaling instruction

submitted to the jury and compare them with the statutory elements of the

proposed lesser-included offense to “determine if the greater offense can be

committed without also committing the lesser offense.” Miller, 841 N.W.2d at

590.

       We agree with the district court the offense of operating a motor vehicle

without the owner’s consent is not a lesser included offense of theft by exercising

control over stolen property.    The statutory elements for operating without

owner’s consent are: (1) the defendant took possession or control of an

automobile belonging to another; (2) the possession or control was without the

consent of the owner; and (3) the defendant did not have the intent to

permanently deprive the owner thereof. See Iowa Code § 714.7. As noted by

the State, the elements for exercising control over stolen property can be met

without proving: (1) the property in question was an automobile; (2) who
                                        19


specifically owned the property; (3) the control over the automobile was without

the owner’s consent.

VI. Adequacy of Reasons for Consecutive Sentences.

       Barnes asserts the district court provided inadequate reasons for imposing

consecutive sentences. In State v. Hill, 878 N.W.2d 269, 275 (Iowa 2016), the

supreme court held, “Sentencing courts should also explicitly state the reasons

for imposing a consecutive sentence, although in doing so the court may rely on

the same reasons for imposing a sentence of incarceration.” See also State v.

Thacker, 862 N.W.2d 402, 408 (Iowa 2015) (“While [Iowa Rule of Criminal

Procedure 2.23(3)(d)] requires a statement of reasons on the record, a ‘terse and

succinct’ statement may be sufficient, ‘so long as the brevity of the court’s

statement does not prevent review of the exercise of the trial court’s sentencing

discretion.’” (citation omitted)).

       We have reviewed the transcript of the sentencing hearing and the

sentencing order and are unable to locate an explicit statement of reasons for

imposing consecutive sentences. We therefore vacate the sentencing order and

remand for resentencing.

VII. Summary.

       There is sufficient evidence to affirm the convictions for second-degree

theft by exercising control over stolen property, in violation of Iowa Code section

714.1(4) and 714.2, and eluding while participating in a felony, in violation of

section 321.279(3).       The record is inadequate to determine whether the

defendant was properly informed of the maximum sentences he faced if

convicted as a habitual offender. We remand the case for an evidentiary hearing
                                        20


to address the voluntariness of Barnes’s rejection of the plea offer and the

stipulation of prior convictions. See State v. Hrbek, 336 N.W.2d 431, 437 (Iowa

1983). If the trial court determines the statements were involuntary, a new trial

shall be granted. If not, the convictions shall stand affirmed, and the court shall

determine whether the sentences shall be served concurrently or consecutively

and specify the reasons for the decision.

      CONVICTIONS AFFIRMED ON CONDITION, SENTENCES VACATED,

AND REMANDED WITH INSTRUCTIONS.
