                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1932
                             Filed October 24, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SAVANNAH DAWN HAMMER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Odell G. McGhee II,

District Associate Judge.



      A defendant appeals her convictions and sentences for two counts of third-

degree theft. AFFIRMED.




      Joanne Cook of Cook Law Firm, PLLC, Urbandale, for appellant.

      Thomas J. Miller, Attorney General, and Kevin R. Cmelik, Israel J. Kodiaga,

and Kelli Huser (until withdrawal), Assistant Attorneys General, for appellee.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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POTTERFIELD, Presiding Judge.

       Savannah Hammer appeals her convictions and sentences for two counts

of third-degree theft in violation of Iowa Code section 714.2(3) (2017). Hammer

argues her trial counsel was ineffective for allowing her to plead guilty to a charge

for which there was no factual basis and for failing to investigate. In the alternative,

Hammer argues her claims should be preserved for postconviction relief.

I. Background Facts and Proceedings.

       Hammer was charged by trial information of taking merchandise from a

discount department store on February 23 and February 26, 2017. The minutes

of testimony reveal that on February 23, an employee witnessed a suspect place

items into her purse and walk out of the store without paying. The suspect left in

a black Ford Focus with temporary paper plates from Area Auto Sales and heavy

damage to the front of the car. The suspect was described as a white female with

brown hair between the ages of thirty and forty.

       On February 26, an employee witnessed a suspect place shirts into a bag

and leave without paying. The suspect left in a black Ford Focus with temporary

paper plates from Area Auto Sales. The suspect was described as a white female

with red hair, in her twenties, five feet and five inches tall, and weighing one

hundred and thirty pounds.        The employee described the suspect from the

February 26 theft as the same suspect from February 23.

       A sales employee for Area Auto Sales identified Hammer as the purchaser

of the vehicle from a photo taken of the suspect and the vehicle during the theft.

Records confirmed Hammer was the purchaser of the vehicle.                The vehicle
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described was parked in front of Hammer’s home when she was arrested.

Hammer was charged and pled guilty to stealing from the store on both occasions.

       Hammer appeals.

II. Standard of Review.

       Ineffective assistance of counsel claims are reviewed de novo. State v.

Finney, 834 N.W.2d 46, 49 (Iowa 2013).           Ineffective-assistance claims are

normally preserved for postconviction relief actions, but we will address them on

direct appeal when the record is sufficient to permit a ruling. Id.

III. Discussion.

       Hammer argues her trial counsel was ineffective for failing to raise a

sufficiency of the evidence claim, which we treat as a challenge to the factual basis

for the guilty plea, and for failing to investigate. “We will address on direct appeal

claims of ineffective assistance of counsel only if we determine the development

of an additional factual record would not be helpful and these elements can be

decided as a matter of law.” State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

“Ineffective-assistance claims require a showing by a preponderance of the

evidence both that counsel failed an essential duty and that the failure resulted in

prejudice.” State v. Coleman, 907 N.W.2d 124, 141 (Iowa 2018) (citation omitted).

       First, Hammer argues the evidence is insufficient to support her conviction.

Because Hammer pled guilty, she cannot challenge on appeal the strength of the

State’s case. State v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000). Hammer’s guilty

plea waived all defenses except those intrinsic to the plea itself. Id. “Generally,

ineffective assistance of counsel claims fall within this caterogy.”      Id.   While

Hammer does not explicitly argue there is not a factual basis to support her guilty
                                        4


plea, we interpret her argument as a challenge to her plea’s factual basis.

Prejudice is presumed where there is a lack of a factual basis. See State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

       “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.” Id. Here, an adequate factual basis exists to support

Hammer’s guilty plea. Hammer pled guilty to third degree theft: “theft of any

property not exceeding five hundred dollars in value by one who has before been

twice convicted of theft.” Iowa Code § 714.2(3).

       Hammer notes she is accused of two thefts occurring three days apart but

the suspect in each action is described differently. She argues the differences in

the descriptors mean she could not have possibly committed the crimes. The

descriptors of Hammer do not vary to such an extreme degree as to cast doubt on

her identification.

       Hammer does not contest she has been convicted of theft twice. Hammer

admitted to stealing from the store on February 23 and February 26 in her guilty

plea. Video surveillance exists of Hammer committing theft on both days; a police

officer positively identified Hammer as the suspect in the surveillance video. The

suspect in both thefts left in the same car—the car that was found outside

Hammer’s house during her arrest. The person who sold that vehicle to Hammer
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also recognized her from a photograph taken during the theft. We conclude there

is a factual basis for the district court to have accepted Hammer’s guilty plea.1

       Next, Hammer argues her trial counsel was ineffective for failing to

investigate. She claims her trial counsel must have failed to investigate because

competent counsel would have discovered the physical descriptors in each police

report are different. Hammer also argues her trial counsel failed to investigate her

mental-health history, possible affirmative defenses, and mitigating sentencing

factors. Hammer does not specify what her counsel would have found had he

investigated her mental health or mitigating factors or how that would have

prevented her from pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Because we believe this issue would benefit from development of an additional

factual record, we preserve this claim for possible postconviction relief.          See

Carroll, 767 N.W.2d at 641.

       We find Hammer’s trial counsel was not ineffective for failing to ensure her

guilty plea was supported by a factual basis. Hammer’s guilty plea is supported

by a factual basis. Any deficiencies of counsel must be raised in a post-conviction

application. We affirm the conviction and sentence of the district court.

       AFFIRMED.




1
  To the extent Hammer argues her plea was not knowing and voluntary because she
would not have pled guilty to a crime for which there was no factual basis, we reject her
claim. Because we find there was a factual basis and Hammer does not make any other
specific claims as to why her plea was not knowing and voluntary, we preserve any other
assertions that her plea was not knowing or voluntary for possible postconviction relief.
