                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-1211
                                 Filed June 10, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CATRINA LASHAE DIXON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David F.

Staudt and James C. Bauch, Judges.



      The defendant appeals from her conviction and sentence for theft in the

second degree. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Peter Blink, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
                                         2


DANILSON, C.J.

       Catrina Dixon appeals from her conviction and sentence for theft in the

second degree, in violation of Iowa Code sections 714.1 and 714.2(2) (2013).

Dixon maintains she received ineffective assistance from trial counsel.

Specifically, she maintains counsel was ineffective for (1) allowing her to plead

guilty without a factual basis and for failing to file a motion in arrest of judgment

to challenge the plea, (2) failing to file a motion to suppress various statements

she made to police officers, and (3) failing to file a motion to dismiss due to a

speedy-indictment violation.

       Because we find a factual basis supports Dixon’s plea, counsel was not

ineffective for allowing her to plead guilty.     Moreover, because her claims

regarding failure to file a motion to suppress and a motion to dismiss are

meritless, counsel had no duty to pursue them. We affirm.

I. Background Facts and Proceedings.

       On January 20, 2013, Waterloo police were dispatched to the home of

Juliana and Michael Halsey following a report their home had been vandalized

and some items had been stolen. The Halseys reported to the officers that while

they were away for the evening, their daughter had allowed a few friends into the

home. The friends, including Dixon’s minor son, had participated in vandalizing

the home by throwing foodstuffs from cabinets, wiping feces on the counter, and

soaking the carpets with urine, water, milk, and soda. Additionally, the Halseys

reported several items of personal property had been stolen, including pieces of

jewelry and a laptop computer.
                                            3


         On January 23, 2013, one of the minors and his aunt voluntarily traveled

to the police station and admitted his role in the vandalism and theft. During the

interview, the aunt told officers she had heard the police were looking for the

minors from Dixon. The aunt stated Dixon told her that the boys had taken some

rosaries, a computer, and a GPS. At that time, the Halseys had not yet reported

their GPS missing.

         The same day, officers executed a search warrant at Dixon’s home. The

officers read the search warrant aloud and informed everyone present in the

home of their Miranda rights.1 The officers asked Dixon how she knew a GPS

had been stolen from the Halseys, and she maintained she had heard it from the

police. When she was informed that it had not been reported stolen until later,

she did not have a response. The officers searched Dixon’s bedroom and found

a coat, which held some of the stolen jewelry in the pocket. Dixon denied the

coat was hers, although it contained her credit cards and identification. She

claimed the coat belonged to her mother, who was staying as a guest at that

time, but the officers noted that the coat appeared to be a better fit for Dixon than

it did her mother. She also initially stated she had not used the credit cards for

multiple weeks. After the officers told Dixon they would be able to verify her

usage history, she admitted she had used the credit cards within the last week.

         On March 22, 2013, Dixon was charged by trial information with theft in

the second degree.




1
    See Miranda v. Arizona, 384 U.S. 436, 444–45 (1966).
                                              4


         The matter went to trial on February 25, 2014. On the first day, Juliana

and Michael Halsey testified to the value of the recovered jewelry, with one of the

rings appraised at approximately $2500.

         After one day of trial, Dixon accepted a plea agreement and entered an

Alford plea.2

         Dixon was sentenced on July 7, 2014. In accordance with the agreement,

she was sentenced to a term of incarceration not to exceed five years and

ordered to pay a fine of $750. Both the fine and sentence were suspended.

         Dixon appeals.

II. Standard of Review.

         A defendant may raise an ineffective-assistance claim on direct appeal if

she has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W. 2d 128, 133 (Iowa 2006). If

we determine the record is adequate, we may decide the claim. Id. We review

claims for ineffective assistance of counsel de novo. Id. This is our standard

because such claims have their basis in the Sixth Amendment to the United

States Constitution. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

III. Discussion.

         Dixon maintains counsel was ineffective (1) for allowing her to plead guilty

without a factual basis and for failing to file a motion in arrest of judgment to

challenge the plea, (2) for failing to file a motion to suppress various statements

she made to police officers, and (3) for failing to file a motion to dismiss due to a

speedy-indictment violation.

2
    See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                        5


      To prevail on a claim of ineffective assistance of counsel, Dixon must

prove by a preponderance of the evidence (1) the attorney failed to perform an

essential duty and (2) prejudice resulted from the failure. State v. Rodriguez, 804

N.W.2d 844, 848 (Iowa 2011). To prove counsel failed to perform an essential

duty, she must show “counsel’s representation fell below an objective standard of

reasonableness . . . under prevailing professional norms.”      See Strickland v.

Washington, 466 U.S. 668, 688 (1984).          Dixon must overcome a strong

presumption of counsel’s competence. Id. at 689. To establish prejudice, she

must show there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. at 694.   “The likelihood of a different result must be substantial, not just

conceivable.” State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015). We “will not

reverse where counsel has made a reasonable decision concerning trial tactics

and strategy, even if such judgments ultimately fail.”      Brewer v. State, 444

N.W.2d 77, 83 (Iowa 1989). The claim fails if either element is lacking. See

Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).

      We      generally preserve   ineffective-assistance-of-counsel   claims for

postconviction-relief proceedings. State v. Utter, 803 N.W.2d 647, 651 (Iowa

2011); see also Iowa Code § 814.7(3) (“If an ineffective assistance of counsel

claim is raised on direct appeal from the criminal proceedings, the court may

decide the record is adequate to decide the claim or may choose to preserve the

claim for determination under chapter 822.”). “Only in rare cases will the trial

record alone be sufficient to resolve the claim on direct appeal.” State v. Tate,

710 N.W.2d 237, 240 (Iowa 2006).         We prefer to reserve such claims for
                                            6


development of the record and to allow trial counsel to defend against the

charge. Id. Here, we find the record is adequate to review all of Dixon’s claims.3

       A. Factual Basis.

       Dixon maintains there was not a factual basis to support her Alford plea

and counsel was ineffective for allowing her to plead guilty.

       As our supreme court has stated:

       The district court may not accept a guilty plea without first
       determining that the plea has a factual basis. This requirement
       exists even where the plea is an Alford plea. Where a factual basis
       for a charge does not exist, and trial counsel allows the defendant
       to plead guilty anyway, counsel has failed to perform an essential
       duty. Prejudice in such a case is inherent. Therefore, our first and
       only inquiry is whether the record shows a factual basis for [the
       defendant’s] guilty plea . . . . In deciding whether a factual basis
       exists, we consider the entire record before the district court at the
       guilty plea hearing, including any statements made by the
       defendant, facts related by the prosecutor, the minutes of
       testimony, and the presentence report.

State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (internal citations

omitted). Additionally, here Dixon entered an Alford plea after trial began, and

we will consider that testimony as well. See State v. Finney, 834 N.W.2d 46, 62

(Iowa 2013) (“On a claim that a plea bargain is invalid because of a lack of

accuracy on the factual basis issue, the entire record before the district court may

be examined.”).



3
  In identifying the issue or issues presented on appeal, Dixon claims the guilty plea or
Alford plea was not knowingly, voluntarily, and intelligently entered.           However,
appellant’s brief fails to address this issue, and accordingly, we deem this issue waived.
See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on the
arguments [appellant] might have made and then search for legal authority and comb
the record for facts to support such arguments.”); see also Soo Line R.R. v. Iowa Dep’t
of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (“[The] random mention of an issue,
without analysis, argument or supporting authority is insufficient to prompt an appellate
court’s consideration.”).
                                        7


      “Our cases do not require that the district court have before it evidence

that the crime was committed beyond a reasonable doubt, but only that there be

a factual basis to support the charge.”     Id.   Here, we review the record to

determine if a factual basis supports the charge of theft in the second degree.

The elements require that property was stolen, Dixon exercised control over the

stolen property, Dixon either knew or reasonably should have known the property

was stolen, and she did not intend to promptly return it to the owner or deliver it

to a public officer. See Iowa Code §§ 714.1. Additionally, because she pled

guilty to theft in the second degree, the property must exceed $1000 in value.

See id. §§ 714.2(2).

      Upon our review of the record, we have little difficulty concluding there

was an adequate factual basis to support Dixon’s guilty plea.       Both a police

report included in the minutes of testimony and Juliana Halsey’s testimony

established that multiple pieces of jewelry had been stolen from the Halsey

home. The jewelry was recovered from Dixon’s home after being found in a coat

that had Dixon’s credit cards and identification in it. Although Dixon maintained

the coat was not hers, it was found in her bedroom and appeared to be her size.

Dixon’s mother told officers she had loaned Dixon the coat one week before.

This circumstantial evidence provides an adequate factual basis to support a

finding that Dixon exercised control over the property.     Additionally, although

Dixon denied knowledge of the stolen items, she had related to others that the

stolen items included a stolen computer, jewelry, and a GPS before the Halseys

reported their GPS was missing. Michael Halsey’s testimony establishes the

value of the recovered jewelry at more than $1000.
                                          8


       Because an adequate factual basis supports Dixon’s guilty plea, trial

counsel was not ineffective for allowing Dixon to plead guilty and did not have a

duty to file a motion in arrest of judgment.

       B. Failure to File Motion to Suppress.

       Dixon maintains trial counsel was ineffective for failing to file a motion to

suppress the statements she made to police officers in her home. However, it is

undisputed that Dixon was given a Miranda warning before speaking to officers.

Thus, her claim that she was in custody at the time she made the statements is

inapposite. Dixon does not contend her statements were involuntarily made.

       On these grounds, the district court would have denied any motion to

suppress. We will not find counsel incompetent for failing to pursue a meritless

issue. See State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).

       C. Failure to File Motion to Dismiss.

       Dixon maintains trial counsel was ineffective for failing to file a motion to

dismiss after the State violated the speedy-indictment rule. Dixon maintains she

understood herself to be in police custody on January 23, 2013, and this police

custody was equivalent to an arrest. Thus, she contends trial information filed on

March 22, 2013—fifty-eight days later—was in violation of Iowa Rule of Criminal

Procedure 2.33(2)(a).

       Dixon appears to believe that “in custody” as it relates to custodial

interrogations, and “arrest” are synonymous for the initiation of the speedy-

indictment rule, but they are not. Rule 2.33(2)(a) requires that an indictment

against the defendant must be brought within forty-five days of an arrest, unless

good cause to the contrary is shown or the defendant waived the right. Here,
                                        9


there is no question that Dixon was not formally arrested on January 23, 2013.

The officers did not inform Dixon she was under arrest, did not inform her of a

reason for an arrest, and she was not taken to appear before a committing

magistrate. See Iowa Code §§ 804.14, 804.21(1), 804.22. Rather, Dixon was

formally arrested on February 7, 2013, pursuant to an arrest warrant.

      Although Dixon maintains she reasonably believed she was under arrest

on January 23, 2013, “the reasonable-person rule used to determine the time of

a warrantless arrest in Wing is narrow and limited to those cases in which an

arrest is not promptly followed by any prosecution.” See State v. Penn-Kennedy,

862 N.W.2d 384, 390 (Iowa 2015) (citing State v. Wing, 791 N.W.2d 243, 252–53

(Iowa 2010)).     The reasonable-person test is not applicable here, and the

speedy-indictment rule was not violated. Thus, counsel had no duty to file the

motion to dismiss. See Brubaker, 805 N.W.2d at 171.

IV. Conclusion.

      Because we find a factual basis supports Dixon’s plea, counsel was not

ineffective for allowing her to plead guilty. Moreover, because the motion to

suppress and motion to dismiss were meritless issues, counsel had no duty to

pursue them. We affirm Dixon’s conviction and sentence.

      AFFIRMED.
