                IN THE SUPREME COURT OF IOWA
                              No. 10–1223

                         Filed October 21, 2011


STATE OF IOWA,

      Appellee,

vs.

ORLANDO DAVID RODRIGUEZ,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Joel D.

Novak, Judge.



      Orlando David Rodriguez appeals his conviction on a guilty plea for

reckless vehicular homicide and the part of his sentence requiring

payment of a law enforcement initiative surcharge.            COURT OF

APPEALS    DECISION     AFFIRMED;     DISTRICT     COURT      JUDGMENT

AFFIRMED IN PART AND VACATED IN PART.



      Mark C. Smith, State Appellate Defender, and Dennis D.

Hendrickson, Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant

Attorney General, John P. Sarcone, County Attorney, and Steve Foritano

and David Porter, Assistant County Attorneys, for appellee.
                                     2

MANSFIELD, Justice.

      Orlando Rodriguez appeals his conviction for reckless vehicular

homicide based on his guilty plea, claiming he received ineffective

assistance of counsel because there was no factual basis to support his

plea. We granted further review in this case to address whether an active

participant in a drive-away theft of gasoline can be found guilty of

reckless vehicular homicide if he was not driving the car when the

accident occurred.   We find that a passenger can be responsible as a

party to the crime under a joint criminal conduct theory and that this

case had a factual basis to support the defendant’s plea. Therefore, we

affirm the defendant’s conviction.

      Rodriguez also appeals the part of his sentence requiring payment

of a $125 fine for a law enforcement initiative surcharge. We agree there

is no statutory authority to apply that fine to vehicular homicide and

vacate this portion of the defendant’s sentence.

      I. Background Facts and Proceedings.

      According to the minutes of testimony, the evidence presented at

the preliminary hearing, and the transcript of what became the guilty

plea hearing, on September 23, 2009, at approximately 5 p.m., defendant

Orlando Rodriguez (Rodriguez) and his brother Santos committed a

drive-away theft of gasoline from the Casey’s General Store located in the

4300 block of Park Avenue in Des Moines. A Casey’s security camera

captured the theft in detail as well as the subsequent fatal collision that

occurred during their attempt to flee the gas station. The video shows

Rodriguez pumping gas while Santos remained ready at the wheel, with

the vehicle’s brake lights flashing on and off. When Rodriguez finished

pumping, instead of paying, he quickly jumped back into the car which

immediately sped onto Park Avenue without slowing down to check for or
                                     3

yield to traffic. Rodriguez admitted to an investigating officer that it had

been the brothers’ intention to steal gas.

      The security video shows that the vehicle’s brake lights never

illuminated after it left the pumping area, the vehicle was driven at a

faster speed than the other cars that departed the gas station before it,

and the vehicle appeared to be accelerating as it turned out of the gas

station onto a busy street at a busy time of day. Eyewitnesses confirmed

that the brothers’ Ford Explorer was traveling at a high rate of speed.

      According to witnesses, as the brothers’ Explorer raced out onto

Park Avenue, it pulled directly into the path of a motorcyclist, Bruce

Mundy. A witness reported that Mundy was driving his motorcycle along

Park Avenue at a safe and appropriate speed; if anything, Mundy was

causing traffic to slow behind him. Although Mundy tried to swerve to

avoid a crash, he was unsuccessful, and the fast-moving Explorer struck

and killed him.

      Rodriguez immediately jumped out of the Explorer and briefly

checked on Mundy. He helped his brother Santos, who has only one leg,

out of the Explorer and handed him his walker. Rodriguez then fled the

scene of the accident on foot.    Rodriguez was arrested soon afterward

while hiding in the nearby neighborhood.            After Rodriguez was

apprehended, personal identification papers that he had apparently

thrown away while fleeing were also retrieved.

      An arresting officer observed signs of marijuana intoxication on

both Rodriguez and his brother: bloodshot, watery eyes; white coatings

on their tongues; and poor performance on a horizontal gaze nystagmus

test. The officer therefore requested urine samples from each brother.

Both of them tested positive for marijuana at the time of the crash.

When apprehended, Rodriguez told police that he, not his brother, had
                                            4

been the driver at the time of the collision with the motorcycle.                     The

Casey’s video later confirmed otherwise.

       On October 29, 2009, the State’s trial information charged both

brothers with Count I: homicide by vehicle-OWI, a class “B” felony in

violation of Iowa Code section 707.6A(1) (2009); Count II: homicide by

vehicle-reckless, a class “C” felony in violation of Iowa Code section

707.6A(2); and Count III: involuntary manslaughter, a class “D” felony in

violation of Iowa Code section 707.5(1). The information accused each

brother of committing these crimes “individually by joint criminal

conduct, or by aiding and abetting another.” Both accomplice theories

were mentioned by the prosecution again during the October 13, 2009

preliminary hearing.

       Rodriguez’s trial was set for May 10, 2010, but before jury

selection was completed, the parties reached a plea agreement and

Rodriguez entered an Alford 1 plea of guilty to Count II only. The plea

colloquy included the following exchange:

              THE COURT: . . . For Homicide by Vehicle, as a Result
       of Reckless Operation, the State would have to prove that . . .
       you or someone you aided and abetted, unintentionally
       caused the death of Bruce Mundy by operating a motor
       vehicle in a reckless manner with willful or wanton disregard
       for the safety of persons or their property. . . .

                ....

              Okay. Now you’re actually entering what we call an
       Alford plea of guilty. And what that means is you are not
       going to tell me that, yes, you, in fact, are guilty of this crime
       as charged. But what you are telling me is this: You are
       telling me that you have reviewed, with your attorney, the

       1North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
An Alford plea allows a defendant to plead guilty to a crime without admitting to the
underlying facts that establish the crime. “[W]hen a defendant enters an Alford plea, he
. . . does not admit participation in the acts constituting the crime. Though the
defendant does not admit guilt, he . . . may voluntarily . . . consent to the imposition of
a sentence.” State v. Burgess, 639 N.W.2d 564, 567 n.1 (Iowa 2001) (citation omitted).
                                    5
      evidence that the State has and will present against you in
      this case. And having done that, you are concerned that the
      evidence the State has is strong evidence of actual guilt in
      this matter. And what you want to do is you want to accept
      the plea bargain that the State has offered you because you
      have much more to gain by taking the plea bargain than you
      would have by going to the trial and taking your chances
      with the jury. Do you understand what I am saying?

            DEFENDANT: Yes, sir.

             THE COURT: Okay. Do you feel—I am going to be more
      specific—that it is in your best interest to enter into this
      plea?

            DEFENDANT: Yes, sir.

            ....

            THE COURT: Do you recognize that there is strong
      evidence of actual guilt against you in this matter and that
      there is, you know, a very good risk or likelihood that a jury
      could find you guilty of Count I, which is a much more
      serious charge? Do you understand that?

            DEFENDANT: Yes, sir.

            THE COURT: And you do want to take advantage of
      this guilty plea?

            DEFENDANT: Yes, sir.

            THE COURT: Okay. Now, are you fully satisfied with
      the advice and services of your lawyer?

            DEFENDANT: Yes, sir.

             THE COURT: Notwithstanding what you have told me,
      I will let you withdraw your guilty plea, and you could still
      have a jury trial with all of the rights that I have discussed
      with you. Or do you still want to enter this Alford guilty
      plea?

            DEFENDANT: Yes, sir. I want to enter the plea.

      The district court later found that Rodriguez understood the

charge, the penal consequences, and the rights being waived; that there

was a factual basis for the plea; and that the plea was voluntary.
                                      6

      As part of the plea agreement, on June 30, 2010, the State filed a

notice and intent not to prosecute and order of dismissal for Counts I

and III.   On June 16, 2010, Rodriguez filed a motion in arrest of

judgment on Count II, but withdrew this motion at his sentencing

hearing on June 23, 2010.      At that hearing, he was sentenced to ten

years in prison, restitution of $150,000, a suspended fine of $1000, and

a law enforcement initiative surcharge of $125.         The sentence was

amended on August 4, 2010, to include additional restitution of

$18,065.72 to the Crime Victim Compensation Program.

      Rodriguez timely filed a notice of appeal on July 20, 2010.        The

appeal raised two issues.     First, Rodriguez challenged his conviction,

claiming that there was no factual basis to support his guilty plea to

homicide by vehicle-reckless.       This matter was raised as a claim of

ineffective assistance of counsel. Second, Rodriguez maintained that the

district court imposed an illegal sentence by levying a $125 law

enforcement initiative surcharge.

      In a brief opinion, the court of appeals affirmed Rodriguez’s

conviction, but vacated his sentence with respect to the $125 surcharge.

We granted further review.

      II. Standard of Review.

      We review claims of ineffective assistance of counsel de novo.

Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). To succeed on an

ineffective-assistance-of-counsel claim, a defendant must show by a

preponderance of the evidence that: “(1) counsel failed to perform an

essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d

185, 195 (Iowa 2008).     “We can affirm on appeal if either element is

absent.”   State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998).        “Our

review of the district court’s sentence is limited to correction of errors at
                                    7

law.” State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987); Iowa R. App. P.

6.907.

      III. Ineffective-Assistance-of-Counsel Claim Based on Alleged

Lack of Factual Basis for Guilty Plea.

      Rodriguez’s failure to pursue a motion in arrest of judgment would

normally prevent him from contesting his guilty plea on appeal. Iowa R.

Crim. P. 2.8(2)(d).   However, he is not precluded from challenging the

validity of his plea under a claim of ineffective assistance of counsel.

State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Ineffective-assistance

claims are an exception to our normal rules of error preservation. State

v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). Such claims are generally

preserved for postconviction proceedings unless there is a satisfactory

record upon which to draw a conclusion. State v. Oetken, 613 N.W.2d

679, 683 (Iowa 2000). The record in this case is sufficient for resolution

on direct appeal.

      The specific ineffectiveness claim raised by Rodriguez is that there

was no factual basis under Iowa Code section 707.6A(2) to support his

plea to reckless vehicular homicide.     See Iowa R. Crim. P. 2.8(2)(b)

(requiring a factual basis for guilty pleas).   If this is true, then his

counsel failed to perform an essential duty both in allowing the plea to be

made and in failing to pursue a motion in arrest of judgment to challenge

it. State v. Ortiz, 789 N.W.2d 761, 764–65 (Iowa 2010). Prejudice would

be presumed. Id. “[U]nder no circumstances may a conviction upon plea

of guilty stand if it appears that the facts of the charge do not state a

violation of the statute under which the charge is made.”         State v.

Mitchell, 650 N.W.2d 619, 621 (Iowa 2002). Therefore, to succeed on the

essential duty element of his ineffective-assistance claim, Rodriguez must

demonstrate the record lacks a factual basis to support his guilty plea to
                                    8

reckless homicide by vehicle. Conversely, if there is a factual basis for

the plea, then Rodriguez’s ineffective-assistance claim must fail because

“counsel has no duty to raise an issue that lacks merit.” State v. Taylor,

689 N.W.2d 116, 134 (Iowa 2004); accord Ortiz, 789 N.W.2d at 768.

      The law requires that the factual basis for Rodriguez’s plea be

disclosed in the record. Ortiz, 789 N.W.2d at 767. The standard for a

sufficient factual basis is only “that the facts support the crime, ‘not

necessarily that the defendant is guilty.’ ” State v. Keene, 630 N.W.2d

579, 581 (Iowa 2001) (quoting 1A Charles Alan Wright, Federal Practice

and Procedure § 174, at 199 (1999)); see also Ortiz, 789 N.W.2d at 768

(“[T]he record does not need to show the totality of evidence necessary to

support a guilty conviction, but it need only demonstrate facts that

support the offense.”).

      A. Recklessness.     Rodriguez pled guilty to homicide by vehicle-

reckless in violation of Iowa Code section 707.6A(2), which states:

             2. A person commits a class “C” felony when the
      person unintentionally causes the death of another by any of
      the following means:

             a. Driving a motor vehicle in a reckless manner with
      willful or wanton disregard for the safety of persons or
      property, in violation of section 321.277.

      Iowa Code section 321.277 defines recklessness for driving

purposes:
            Any person who drives any vehicle in such manner as
      to indicate either a willful or a wanton disregard for the
      safety of persons or property is guilty of reckless driving.

             Every person convicted of reckless driving shall be
      guilty of a simple misdemeanor.
                                     9

See also Iowa Code § 702.16 (2009) (“A person is ‘reckless’ or acts

recklessly when the person willfully or wantonly disregards the safety of

persons or property.”).

      In finding recklessness “we do not condition guilt on an intent to

cause harm.    We simply look to whether the actor embarked on an

activity which is known, or should be known, to pose a substantial risk

to others.”    State v. Conroy, 604 N.W.2d 636, 638 (Iowa 2000).

“[R]eckless driving is not an intentional wrong in the sense that resulting

harm is intended.” State v. Baker, 203 N.W.2d 795, 796 (Iowa 1973). A

driver is reckless when he knows or should know that his driving puts

others at an unreasonable risk of harm. State v. Conyers, 506 N.W.2d

442, 444 (Iowa 1993).

      Criminal culpability requires more than merely negligent behavior.

State v. Sutton, 636 N.W.2d 107, 111 (Iowa 2001).

      To prove recklessness sufficient to support a conviction for
      vehicular homicide under section 707.6A(2)(a), the State
      must prove that the defendant engaged in conduct “fraught
      with a high degree of danger,” conduct so obviously
      dangerous that the defendant knew or should have forseen
      that harm would flow from it.

Id. at 112 (quoting State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993)).

      Because Rodriguez was not the driver of the vehicle that killed

Mundy, we must determine first whether there was a factual basis for

concluding the Explorer was driven recklessly and then whether

Rodriguez could have been considered an accomplice. Since Rodriguez

made an Alford plea, we cannot rely upon his in-court admissions to

establish these facts. Instead, we look to the rest of the record including

the minutes of testimony to see whether sufficient facts were available to

justify counsel in allowing a plea and the court in accepting it. See Ortiz,

789 N.W.2d at 767–68 (indicating that “[t]he factual basis must be
                                      10

contained in the record, and the record, as a whole, must disclose facts

to satisfy all elements of the offense”); State v. Carter, 582 N.W.2d 164,

166 (Iowa 1998) (stating that “we consider the entire record before the

district court”); Brooks, 555 N.W.2d at 448 (same).

       The minutes of testimony provide a factual basis for concluding the

crash that killed Mundy was caused by the reckless driving of Santos.

The minutes show that Santos, while under the influence of a controlled

substance, accelerated out of the Casey’s to get away following the theft

of gasoline, did not stop or slow down at all, and pulled directly into the

path of Mundy who was driving at a safe and appropriate speed.

       B. Accomplice Liability.       Next we consider whether a factual

basis exists for concluding Rodriguez was criminally complicit in this

activity.

       In prior cases, we have recognized that nondrivers can be found

guilty of vehicular homicide in certain circumstances. In State v. Satern,

for example, we upheld a conviction for vehicular homicide even though

it was unclear whether the intoxicated defendant or his intoxicated friend

had operated the vehicle. 516 N.W.2d 839, 842–45 (Iowa 1994). Satern

and the friend had spent the evening drinking and cruising between bars

until the vehicle, owned by Satern, crossed the center line of a rural

highway causing a fatal accident. Id. at 840. Regardless of who was the

actual driver of the vehicle at the time of the accident, we found sufficient

evidence to support Satern’s conviction because a jury could “premise

criminal culpability for vehicular homicide or injury by vehicle on a

theory of vicarious liability.” Id. at 842.

       In Satern, the jury was charged under two theories—first, that

Satern was the driver and, second, that he had engaged in joint criminal

conduct. Id. The jury returned a general verdict of guilty. Id. at 840. In
                                      11

holding there was sufficient evidence to support that verdict under the

theory of joint criminal conduct (assuming Satern was not the driver), we

emphasized that “the sum total of [the driver’s] actions, from the time

Satern put him behind the wheel of his truck to the point where he

recklessly . . . collided with an oncoming car, furthered the crime of

OWI.” Id. at 844. “The subsequent crime [of vehicular homicide] was

incidental to carrying out the illegal act [of OWI].” Id.

      In State v. Dalton, we again upheld a vehicular homicide conviction

based on vicarious liability. 674 N.W.2d 111, 117 (Iowa 2004). Dalton, a

passenger in a truck driven by his brother, had an altercation with a

third person who was half-inside the truck on the passenger side. Id. at

115. The driver sped away with the third person clinging to the truck

and Dalton repeatedly punched him to break his grip until he fell to his

death.   Id.   We affirmed Dalton’s conviction for reckless vehicular

homicide under an aiding and abetting theory. Id. at 117, 122.

      Also, in State v. Travis, the court of appeals upheld the conviction

of a motorcycle passenger for involuntary manslaughter on a theory of

aiding and abetting because he allowed an untrained minor to drive. 497

N.W.2d 905, 908 (Iowa Ct. App. 1993).        Travis knew the driver was a

minor, the motorcycle was not in proper operating condition, and

children were at risk in the busy residential neighborhood. Id. at 907.

Nevertheless, he invited a fifteen-year-old to drive after sunset without

headlights at an unsafe speed, resulting in the death of a six-year-old

girl. Id. at 906. Under these conditions, the court held that Travis could

reasonably foresee the possibility of an accident due to the driving he

encouraged. Id. at 908; see also State v. Youngblut, 257 Iowa 343, 346,

132 N.W.2d 486, 487 (1965) (holding the defendant could be found guilty
                                           12

of manslaughter because he agreed to drag race and the other drag

racer’s car collided with a third car, resulting in a fatality). 2

       Other     jurisdictions      have     also    upheld      vehicular     homicide

convictions based on accomplice liability. In State v. Hann, a case whose

facts bear some resemblance to the present case, Hann and another

person, Waugh, used the drive-in window at a bank in a joint attempt to

cash a stolen, forged check.           380 N.E.2d 1339, 1340 (Ohio Ct. App.

1977).    When the bank immediately noticed the check was stolen, the

two individuals fled by car. Id. Hann allowed Waugh, a minor who did

not have a driver’s license, to drive.              Id.   A high-speed chase later

ensued, ultimately resulting in a fatality. Id. The court of appeals found

sufficient evidence to sustain Hann’s vehicular homicide conviction:

       After participating in a forgery, defendant continued to allow
       Waugh to operate the vehicle. Defendant knew that pursuit
       and the attendant risks inherent in high speed flight might
       follow. He could, therefore, properly be held responsible as
       an aider and abettor for the acts of his companion in
       attempting to make good their escape.

Id. at 1341.      The court did note that Hann was aware Waugh was a

minor and did not have a driver’s license. Id. at 1340–41. 3

       2When  the legislature codified the offense of vehicular homicide in 1986, see
1986 Iowa Acts ch. 1220 § 41, it provided that drag racing unintentionally causing the
death of another would be a separate form of vehicular homicide. See Iowa Code §
707.6A(3).
       3See  also United States v. Brown, 22 M.J. 448, 450 (C.M.A. 1986) (upholding a
guilty plea to involuntary manslaughter where the defendant’s conduct “in turning over
the operation of his car to an intoxicated person was itself culpably negligent”); Stacy v.
State, 306 S.W.2d 852, 854 (Ark. 1957) (upholding the defendant’s conviction as an
accessory to involuntary manslaughter when the defendant “was riding immediately
behind the truck with full knowledge of, and acquiescence in, [the truck driver’s]
wanton negligence and intoxicated condition, and the tragic results likely to flow
therefrom”); People v. Kemp, 310 P.2d 680, 683 (Cal. Ct. App. 1957) (drag racer found to
have committed manslaughter even though he had never spoken to the other driver
whose vehicle struck a third car, killing a passenger); Michel v. State, 752 So.2d 6, 8, 12
(Fla. Dist. Ct. App. 2000) (upholding a passenger’s conviction of vehicular homicide,
even though he was not driving when the accident occurred, because he had convinced
his codefendant to drive and knew that the vehicle was in an unsafe driving condition);
                                          13

       In this case the trial information charged Rodriguez under both

theories of accomplice liability—aiding and abetting and joint criminal

conduct.     According to the aiding and abetting theory: “All persons

concerned in the commission of a public offense, whether they directly

commit the act constituting the offense or aid and abet its commission,

shall be charged, tried and punished as principals.” Iowa Code § 703.1.

       Joint criminal conduct is defined as follows:

             When two or more persons, acting in concert,
       knowingly participate in a public offense, each is responsible
       for the acts of the other done in furtherance of the
       commission of the offense or escape therefrom, and each
       person’s guilt will be the same as that of the person so
       acting, unless the act was one which the person could not
       reasonably expect to be done in the furtherance of the
       commission of the offense.

Iowa Code § 703.2.

       In Satern, we discussed the distinction between aiding and

abetting under section 703.1 and joint criminal conduct under section

703.2:

             The concepts of vicarious liability embraced in these
       two doctrines are quite distinct. Under section 703.1, the
       aider and abettor is held liable for the same crime which he
       or she has knowingly aided the principal in committing,
       “either by active participation in it or by some manner
       encouraging it prior to or at the time of its commission.”

________________________________
State v. Marquez, 238 P.3d 880, 883 (N.M. Ct. App. 2009) (holding that the guilty plea to
vehicular homicide of a person who suggested his intoxicated friend should drive and
keep partying with him was supported by a factual basis); State v. Whitaker, 259 S.E.2d
316, 319 (N.C. Ct. App. 1979) (“[W]hen a death results from the operation of a motor
vehicle by an intoxicated person not the owner of that vehicle, the owner who is present
in the vehicle and who with his knowledge and consent permits the intoxicated driver to
operate the vehicle, is as guilty as the intoxicated driver.”); Eager v. Tennessee, 325
S.W.2d 815, 822–23 (Tenn. 1959) (“The criminal negligence of the drunken driver is
imputable to drunken occupants of the car when the evidence shows some degree of
concert of action. . . . ‘Hence, one may be an aider and abettor in involuntary
manslaughter because of a common purpose to participate in the unlawful act the
natural and probable result of which was to kill another.’ ” (quoting Wade v. State, 124
S.W.2d 710, 711 (Tenn. 1939))).
                                    14
       Joint criminal conduct, on the other hand, takes the
       enterprise a step further. It contemplates two acts—the
       crime the joint actor has knowingly participated in, and a
       second or resulting crime that is unplanned but could
       reasonably be expected to occur in furtherance of the first
       one. Depending on the case, it may be appropriate for the
       court to instruct on both doctrines.

516 N.W.2d at 843 (citations omitted) (quoting State v.Lott, 255 N.W.2d
105, 107 (Iowa 1977), overruled on other grounds by State v. Allen, 633

N.W.2d 752, 756 (Iowa 2001)).

       To prove aiding and abetting, the State would have had to show

that Rodriguez “ ‘assented to or lent countenance and approval to the

criminal act [vehicular homicide] either by active participation or by some

manner encouraging it.’ ” Dalton, 674 N.W.2d at 117 (quoting Sutton, 636

N.W.2d at 112).

       Under section 703.2, joint criminal conduct requires the State to

prove four elements:

       1. Defendant must be acting in concert with another.

       2. Defendant must knowingly be participating in a public
          offense.

       3. A “different crime” must be committed by another
          participant in furtherance of the defendant’s offense.

       4. The commission of the different crime must be reasonably
          foreseen.

State v. Smith, 739 N.W.2d 289, 294 (Iowa 2007) (quoting State v.

Jefferson, 574 N.W.2d 268, 277 (Iowa 1997)). “ ‘[I]n furtherance of’ is not

limited to acts done to promote or advance the underlying crime, but

includes acts done ‘while furthering’ that offense.” Satern, 516 N.W.2d at

844.

       We think this case fits into a joint criminal conduct paradigm

without much difficulty. Rodriguez admitted he and his brother went to

the gas station with the intent of stealing gasoline, and the security video
                                         15

recording confirmed they followed through on their plan. This satisfies

the first two elements under section 703.2, demonstrating that Rodriguez

acted “in concert with another” and “knowingly . . . participat[ed] in a

public offense.”     Smith, 739 N.W.2d at 294 (interpreting Iowa Code

§ 703.2). 4   Santos then committed the “different crime” of vehicular

homicide.      His collision with Mundy was “in furtherance of the

defendant’s offense” of theft, in the sense that it occurred while Santos

was “furthering” the offense by speeding away from Casey’s. See Satern,

516 N.W.2d at 844.         Furthermore, section 703.2 specifically provides

that an act done in “escape” from the original offense is sufficient by

itself to link the anchor crime to the secondary crime, making a

participant in the former equally guilty of the latter.

       Also, high-speed, reckless driving away from the scene of a gas

theft that occurs during the day can be “reasonably foreseen,” Smith, 739

N.W.2d at 294, and so the unintentional homicide that resulted from

that flight was also reasonably foreseeable.             Indeed, rapid flight by

vehicle is arguably inherent in drive-away thefts of gasoline. Such thefts

occur in open areas frequented by the public that are typically under

surveillance. The stolen merchandise (i.e., the gasoline) goes directly into

the vehicle and is inseparable from it. Hence, it can be expected that the

perpetrators will drive away in their vehicle at a high rate of speed.

       Rodriguez argues that the State’s joint criminal conduct theory

cannot serve as the factual basis for the plea because it was not


       4See Iowa Code §§ 701.2 (defining “public offense” as “that which is prohibited
by statute and is punishable by fine or imprisonment”), 701.8 (providing that
misdemeanors are “public offenses”), 714.2(5) (providing that a theft of property not
exceeding two hundred dollars in value is a simple misdemeanor); see also State v.
Klawonn, 609 N.W.2d 515, 518 (Iowa 2000) (noting that a public offense that serves as
the predicate for involuntary manslaughter may be a simple misdemeanor traffic
offense).
                                            16

mentioned during the guilty plea colloquy.                Rather, the court told

Rodriguez the State would have to prove that “you or someone you aided

and abetted, unintentionally caused the death of Bruce Mundy by

operating a motor vehicle in a reckless manner . . . .” However, joint

criminal conduct was set forth as the first theory of accomplice liability

in the trial information. It was also mentioned by the prosecution in the

October 13, 2009 preliminary hearing.                Thus, the charge to which

Rodriguez pled guilty embraced the concept of joint criminal conduct.

And Rodriguez has not challenged the sufficiency of the colloquy, only

the factual basis for the plea. See State v. Straw, 709 N.W.2d 128, 137–

38    (Iowa      2006)     (discussing      the   ineffective-assistance-of-counsel

requirements in the context of an alleged defect in the guilty plea

colloquy).

       In summary, Rodriguez cannot show that his attorney failed to

perform an essential duty in failing to challenge the factual basis of his

plea. Therefore we reject his claim of ineffective assistance of counsel. 5

       IV. Law Enforcement Initiative Surcharge.

       Rodriguez also appeals the part of his sentence requiring payment

of a $125 law enforcement initiative surcharge.              The court of appeals
vacated this fine because there was no statutory authority to apply it

with respect to vehicular homicide. Iowa Code section 911.3 authorizes

this surcharge only for specifically enumerated criminal violations, and

section 707.6A(2)(a) is not one of the listed offenses. 6 We agree with the

court of appeals and therefore vacate this part of Rodriguez’s sentence.


       5We do not reach the question whether Rodriguez’s guilty plea also has a factual
basis under an aiding and abetting theory of accomplice liability.
       6Iowa   Code section 911.3 states:
           1. In addition to any other surcharge, the court . . . shall assess a
       law enforcement surcharge of one hundred twenty-five dollars if an
                                        17

     V. Conclusion.

     Rodriguez’s plea had a factual basis, the district court properly

accepted his plea, and his counsel was not ineffective for failing to

challenge it. We affirm Rodriguez’s conviction and sentence except for

the part of the sentence imposing the law enforcement initiative

surcharge.

     COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT

JUDGMENT AFFIRMED IN PART AND VACATED IN PART.




________________________________
     adjudication of guilt . . . has been entered for a criminal violation under
     any of the following:
         a. Chapter 124, 155A, 453B, 713, 714, 715A, or 716[;]
        b. Section 719.7, 719.8, 725.1, 725.2, or 725.3.
