                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-1511
                                  Filed July 6, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DANIEL BLAIN PIERCE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Greene County, Gary L.

McMinimee, Judge.



      A defendant challenges his plea of guilty to theft in the first degree.

AFFIRMED.



      Charles J. Kenville of Kenville Law Firm, P.C., Fort Dodge, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

         Daniel Pierce wants to “take back” his plea of guilty to first-degree theft for

stealing a Chevy Silverado pickup from the parking lot of the Wild Rose Casino in

Jefferson. Pierce argues he should be allowed to plead anew because of two

errors by defense counsel: (1) allowing Pierce to plead guilty when the record did

not reveal his intent to permanently deprive the owner of the truck and

(2) misadvising Pierce that he could be released on his own recognizance after

entering his guilty plea in Greene County without realizing Polk County

authorities had issued a warrant for his arrest.           Because we find counsel

performed with reasonable competence in regard to the factual-basis issue, we

affirm. But we preserve Pierce’s second claim for possible postconviction-relief

proceedings.

   I. Facts and Prior Proceedings

         Pierce was accused of a spree of vehicle thefts in a trial information filed

by the Greene County Attorney. The information alleged one count of ongoing

criminal conduct, a class “B” felony, and three counts of first-degree theft, class

“C” felonies. According to the minutes of evidence, witnesses were expected to

testify a Dodge Caravan was stolen from a Pleasant Hill residence on April 26,

2016, and recovered in the Wild Rose parking lot on May 1. The Silverado truck

was reported missing from the same lot on May 1 and was recovered in a farm

field outside of Dawson two days later.          Also on May 3, a Rippey resident

reported his Ford F-150 pickup missing; it was recovered by Baxter police on

May 5.
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       Pierce reached a plea bargain with the State on June 22, 2016. At the

July 5 plea hearing, the county attorney offered the following summary of the

agreement:

       The defendant is to plead guilty to one count of theft second
       degree, a [class] “C” felony. I believe that will be Count III of the
       Information. I will dismiss the remaining charges pending against
       him . . . . I have agreed to go along with whatever sentencing
       recommendation may be contained in his presentence investigation
       report . . . I am asking that the sentence run concurrently with the
       sentence he receives in Jasper County on an operating motor
       vehicle without owner’s consent charge. I will be asking that he be
       ordered to pay victim restitution to all victims, including the
       dismissed charges. Will be asking he be ordered to pay attorney
       fees and court costs. I will be recommending suspension of the
       minimum fine, and I will be agreeing to his release on his own
       recognizance after guilty plea proceedings here this morning.

       At that same hearing, Pierce admitted taking possession of the 2008

Chevy Silverado on May 1 in Jefferson. Pierce told the court the key was in the

ignition when he “climbed into the truck, started it, and took off with it.” Pierce

acknowledged, when he took possession of the truck, he had the specific intent

to deprive the owner of the vehicle. The district court accepted the guilty plea

and informed Pierce of his right to file a motion in arrest of judgment.

       As soon as Pierce returned to the Greene County jail following the plea

hearing, a jailer informed him “there was a warrant for [his] arrest in Polk County”

and a detainer had been pending for “the whole month and a half” he had been in

jail. When Pierce asked the jailer why he had not been notified earlier, she

stated he “didn’t ask.”

       In response to learning about the detainer, Pierce filed a handwritten

motion in arrest of judgment on July 22, 2016. He expressed his desire to “take

back his former plea of guilty,” alleging “the major reason” he entered the guilty
                                          4


plea was because he “would be released on OR [own recognizance] when in fact

the county attorney knew Polk County would file theft [first] charges and [he]

would not be released thus violating the terms of the plea agreement.”

       On August 15, the court held a hearing on Pierce’s motion in arrest of

judgment. Pierce testified he was not aware a charge was pending against him

in Polk County when he entered his guilty plea, though the Polk County arrest

warrant had issued on May 17, 2016—more than one month before he reached

an agreement with the Greene County Attorney. Pierce was adamant that had

he known he would not be released on his own recognizance pending

sentencing, he would not have agreed to enter the guilty plea:

       If I’d have known I wasn’t going home to see my daughter, I would
       have never made that plea. I ended up having to call her, my ten-
       year-old daughter then I turned around to call her and tell her I
       wasn’t coming home.

Pierce also testified he did not provide truthful information at his plea hearing:

       I admitted to stealing the truck with the intention to sell it or to
       deprive the individual of his vehicle and I had no intentions of
       depriving anybody of their vehicle. I was stranded up here and I
       was trying to get home. I was scared. My daughter was at home
       with my girlfriend. . . . I was panicking so I jumped in the truck to
       get close to Colfax so I would have a way home. I left the key in
       the truck. The key was in the truck when I took it, and I left the key
       in the truck.

Both the defense counsel and county attorney made professional statements at

the hearing that they were not aware of the Polk County detainer pending for

Pierce. Defense counsel blamed the county attorney for reneging on the plea

agreement, asserting “he should be aware . . . when he’s making that plea offer”

of the defendant’s status when the defendant is being held at the county jail.
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       Ten days after the hearing, the district court denied Pierce’s motion in

arrest of judgment. The court found “no violation of the plea agreement” because

Pierce “got what he bargained for, a recommendation by the county attorney that

he be released O/R in Greene County.” The court further stated: “[T]his court

has no doubt that at the time of the plea agreement, all parties assumed that the

defendant following his plea hearing would be able to return to his home to await

his sentencing hearing.” But the court declined to set aside the plea “based on

the contract doctrine of mutual mistake of fact.”

       The district court sentenced Pierce to an indeterminate ten-year term of

incarceration and suspended his $1000 fine. Pierce appeals his judgment and

sentence, seeking to plead anew.

   II. Preservation of Error and Standard of Review

       Generally, a motion in arrest of judgment would preserve error for a

defendant’s challenge to the guilty plea on appeal.         See Iowa R. Crim. P.

2.24(3)(a). But in this case, Pierce raises two issues on appeal that were not

squarely addressed in the court’s ruling on the motion in arrest of judgment.

First, Pierce’s motion did not challenge the factual basis for the theft charge. And

although Pierce denied his intent to deprive the owner of the vehicle in his

testimony at the motion-in-arrest hearing, the court did not mention a factual-

basis challenge in its order denying Pierce’s request to withdraw his plea.

Accordingly, we find Pierce must raise his challenge to the factual basis as a

claim of ineffective assistance of counsel. Second, Pierce’s motion alleged the

State violated the plea agreement by not ensuring his release from custody

between the plea and sentencing hearings.           On appeal, Pierce shifts gears,
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contending “the framing of error in this case as ineffective assistance of counsel

is appropriate.” According we also analyze the issue concerning the Polk County

warrant to see if Pierce received competent representation.

       Because ineffective-assistance claims are grounded in the Sixth

Amendment, our review is de novo. See State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012).    Pierce bears the burden to prove by a preponderance of the

evidence his plea counsel breached an essential duty and the breach resulted in

prejudice.   See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing

Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). The first element is

satisfied when the defendant shows the attorney performed “below the standard

of a ‘reasonably competent attorney.’” State v. Brothern, 832 N.W.2d 187, 192

(Iowa 2013) (quoting Strickland, 466 U.S. at 687). On the second element, when

the record reveals no factual basis for a guilty plea, we presume prejudice. See

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

    III. Analysis of Plea Claims

       A. Factual Basis

       Pierce alleges his counsel failed to ensure a factual basis existed for his

plea of guilty to first-degree theft. More specifically, Pierce claims the record at

the plea hearing did not demonstrate he had the intent to permanently deprive

the truck’s owner of the property. See Iowa Code § 714.1(1) (2016); see also

Schminkey, 597 N.W.2d at 789 (holding intent to permanently deprive the owner

of his property is an essential element of theft under section 714.1(1) 1). Pierce


1
 The court vacated the sentence in Schminkey because the defendant entered an Alford
plea, making no admissions with respect to his intent, and the minutes of evidence
                                          7


points to the plea colloquy where he admitted only an intent to “deprive” the

owner of the truck, without any reference to the permanency of that deprivation.

       In addition to Pierce’s statements at the plea hearing, we may consider

the minutes of testimony when deciding if the record supports a factual basis for

the guilty plea. See State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). Here,

the minutes stated the Silverado was taken from a casino parking lot. The owner

did not give Pierce permission “to take or use his truck in any manner.” The truck

was found two days later in a farm field north of Dawson. The circumstantial

evidence that Pierce drove the truck some twenty miles before abandoning it at a

remote location supports Pierce’s intent to deprive the owner of his truck on more

than a temporary basis. See State v. McCarty, No. 03-1151, 2004 WL 894553,

at *5 (Iowa Ct. App. Apr. 28, 2004) (distinguishing Schminkey because “McCarty

took the truck to a different town a significant distance from where it was stolen

and it was not recovered for several days”).

       Because the plea record reflects a factual basis for the theft charge,

counsel was not ineffective in allowing Pierce to plead guilty.

       B. Polk County Arrest Warrant

       We next turn to Pierce’s complaint about his pre-sentence custody status.

Pierce contends defense counsel was remiss in not seeking information on

outstanding arrest warrants. According to Pierce, with adequate investigation,

counsel would have learned from jail personnel that Polk County authorities



showed the defendant had been drinking alcohol the evening of the incident. 597
N.W.2d at 790–91 (“In our search for other facts or circumstances that might reveal
Schminkey’s intent in taking the pickup, we find none indicating that he intended to do
anything more than temporarily use the vehicle to go home or to another bar.”).
                                            8


stood poised to detain Pierce after he was released from custody in Greene

County. Pierce asserts he would not have accepted the State’s plea offer but for

the misinformation from his attorney that Pierce would be allowed to go home

between the plea and sentencing hearings. Pierce contends he received faulty

advice about a collateral consequence of his guilty plea.

       The State counters that the warrant and detainer out of Polk County were

not collateral consequences of his plea to the Greene County charge. The State

argues: “[I]n fact, the record does not show that these charges were related at

all.”2 Citing Saadiq v. State, 387 N.W.2d 315, 325 (Iowa 1986), the State further

contends, even if Pierce’s detention on the Polk County warrant was “something

akin to a collateral consequence,” Pierce’s ineffective-assistance claim fails

because the question was not whether Pierce received “misinformation” about

his custody status before sentencing but, rather, the extent of information that he

was entitled to receive before entering his guilty plea.

       In Saadiq, our supreme court explained: “Counsel’s duties in connection

with a defendant’s guilty plea include advising the defendant of available

alternatives and considerations important to counsel or the defendant in reaching

a plea decision.”3 387 N.W.2d at 325. In this case, Pierce stressed that being

released on his own recognizance and spending time with his daughter between

the guilty plea and sentencing was an important consideration in his decision to
2
  We do not have information in our record concerning the substance of the Polk County
charge or whether it involved the allegation that Pierce stole a van from Pleasant Hill and
then abandoned that vehicle in Jefferson before taking the truck from the casino lot.
3
  Saadiq relied on State v. Christensen, 201 N.W.2d 457, 459 (Iowa 1972), which in turn
quoted the ABA Standards relating to pleas of guilty, section 3.2(b), providing: “To aid
the defendant in reaching a decision, defense counsel, after appropriate investigation,
should advise the defendant of the alternatives available and of considerations deemed
important by [counsel] or the defendant in reaching a decision.”
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plead guilty. We disagree with the State’s contention that Pierce’s true pre-

sentencing status was not information he was entitled to receive before deciding

whether to plead guilty. When asked to recite the plea agreement on the record,

the county attorney included the following promise: “I will be agreeing to his

release on his own recognizance after guilty plea proceedings here this morning.”

Because the State enshrined pre-sentence release as an element of the plea

agreement, Pierce was entitled to rely on that promise when entering his guilty

plea.4

         We are also skeptical of the State’s argument that Piece negotiated only

for “his release from the Greene County jail, which he received.” The county

attorney stated he had no knowledge of the pending Polk County detainer, but

the county attorney’s lack of personal knowledge does not mean the State

fulfilled its promise that as part of the plea agreement Pierce would be released

on his own recognizance until the sentencing hearing—given that the information

held by the county jailers defeated Pierce’s expectation of going home. Cf. Kyles

v. Whitley, 514 U.S. 419, 437 (1995) (holding, in the context of exculpatory

material, “individual prosecutor has a duty to learn of any favorable evidence

known to the others acting on the government’s behalf in the case, including the




4
  Where the promise of presentencing release is important to a defendant’s decision to
enter a guilty plea, the denial of that release may be grounds for withdrawal of the guilty
plea. See United States v. Tindell, No. 3:06-cr-30, 2007 WL 208527, at *6 (E.D. Tenn.
Jan. 24, 2007) (granting Tindell’s motion to withdraw his guilty plea when he bargained
for presentencing release, so he could cooperate with the investigation in exchange for a
recommended reduction in his sentence, but the court declined to grant pretrial release,
thereby depriving Tindell of the benefit of his bargain).
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police”). But Pierce does not argue on appeal that the State reneged on the plea

agreement.

       Instead, the question is whether defense counsel breached a material duty

in not investigating the possibility that a warrant was pending for Pierce from

another jurisdiction, which would impede Pierce’s ability to be released on his

own recognizance pending sentencing. The State asserts “counsel would have

been required to call each of the ninety-nine county sheriffs’ offices to conclude

whether it had a pending warrant against his client.”           But the State also

acknowledges “there is no indication in the record . . . what steps, if any, trial

counsel took to determine whether [Pierce] would be detained by another

county.” As an alternative argument, the State suggests we could preserve this

issue for postconviction relief to allow further development of the facts.

       We find preservation for possible postconviction relief to be the

appropriate course here.     The current record is inadequate for us to resolve

whether material omissions by counsel induced Pierce to plead guilty. See State

v. Philo, 697 N.W.2d 481, 489 (Iowa 2005).         Accordingly, we affirm Pierce’s

conviction and preserve his ineffective-assistance-of-counsel claim concerning

the Polk County warrant for development in further proceedings.

       AFFIRMED.
