               IN THE SUPREME COURT OF IOWA
                               No. 19–0939

                            Filed April 3, 2020


STATE OF IOWA,

      Appellee,

vs.

CHARLES EDWARD ROSS,

      Appellant.


      Appeal from the Iowa District Court for Cerro Gordo County,

Karen Kaufman Salic, Judge.



      A defendant appeals his conviction for possession of a tool with the

intent to use it in the unlawful removal of a theft detection device, arguing

there was not a factual basis to support his guilty plea.       SENTENCE

VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS.



      Dylan J. Thomas, Mason City, for appellant.


      Thomas J. Miller, Attorney General, Katie Krickbaum, Assistant

Attorney General, Carlyle Dalen, County Attorney, and James O’Hollearn,

Assistant County Attorney, for appellee.
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CHRISTENSEN, Chief Justice.

        The dispositive issue in this case is whether a padlock secured to a

steel cable constitutes a “theft detection device” under Iowa Code section

714.7B(3) (2018).      Among other charges, the defendant pled guilty to

possessing a tool with the intent to use it in the unlawful removal of a theft

detection    device under section 714.7B(3) after he was found in

possession of bolt cutters that he used to cut the padlock off of a steel cable

wrapped around a riding lawn mower on display outside of a Mills Fleet

Farm.     He now argues his trial counsel was ineffective for allowing him

to plead guilty to this charge because the padlock-steel cable combination

was not a “theft detection device” under the statute. Thus, the defendant

maintains there was no factual basis to support his guilty plea to this

charge. We agree.

        I. Background Facts and Proceedings.

        Around 4:00 a.m. on September 24, 2018, Charles Ross and his

codefendant, Calvin Lacey, arrived at a Mason City Mills Fleet Farm in

a Penske rental truck. Ross used bolt cutters to cut the padlock off of

the steel cable that was wrapped around a riding lawn mower on display

outside of the store. He then helped Lacey load the lawn mower onto the
rental truck without permission to take the lawn mower or the intention to

return it to its lawful owner. As they were loading the lawn mower onto

the rental truck, a Mills Fleet Farm employee who was arriving for work

observed them and called the police. Ross and Lacey fled, but police

located them and conducted a traffic stop of their vehicle shortly thereafter.

The police searched the vehicle pursuant to a search warrant and

discovered bolt cutters, the lawn mower from the Mason City Mills Fleet

Farm, a ski mask, and methamphetamine, among other items.
                                            3

       On October 5, 2018, the State charged Ross by trial information with

theft in the second degree, a class “ D” felony, in violation of Iowa Code

sections 714.1 and 714.2(2); possession of a “tool, instrument or device to

remove [a] theft detection shielding device,” a serious misdemeanor, in

violation of Iowa Code section 714.7B(3); 1 and first offense of possession

of methamphetamine, a serious misdemeanor, in violation of Iowa Code

section 124.401(5). Ross filed a motion to dismiss his possession of

methamphetamine charge, which the district court subsequently denied

on January 22, 2019. On February 15, the State filed an amended trial

information to add a habitual offender enhancement to Ross’s theft charge.

On April 1, the State and Ross reached a plea agreement in which the

State agreed to drop the habitual offender enhancement to Ross’s theft

charge and jointly recommend a seven-year term of incarceration in

exchange for Ross’s guilty plea to theft in the second degree; possession of

a tool, instrument, or device with the intent to use it to unlawfully remove

a theft detection device; and possession of methamphetamine.

       With Ross’s consent, the district court relied on Ross’s written plea

of guilty and the minutes of testimony to accept his plea to the two

misdemeanor charges, including the                charge of possession of a tool,
instrument, or device with the intent to use it to unlawfully remove a theft

detection device in violation of Iowa Code section 714.7B(3). 2 In relevant



       1During  the district court proceedings, the charge at issue on appeal was
described in varying ways, such as possession of a tool to remove “a theft detection
shielding device” and “possession of a theft detection device.” However, the parties agree
that Ross ultimately pled guilty to the terms of Iowa Code section 714.7B(3) and that the
issue on appeal concerns the interpretation of “theft detection device” under section
714.7B(3).
       2Pursuant   to Iowa Rule of Criminal Procedure 2.8(2)(b) and our caselaw, the
district court has the discretion to waive the in-person colloquy with the defendant in
nonfelony cases if the defendant approves, “so long as [the] written guilty plea adequately
provides the court sufficient information from which the court can make a finding that the
                                            4

part, Ross admitted in his written plea that “on or about September 24,

2018, in Cerro Gordo County, IA[, he] possessed a tool, instrument, or

device with the intent to use it in the unlawful removal of a theft

detection device and the value of the items exceed[ed] $200.00.”

(Emphasis omitted.)          After an in-person colloquy concerning Ross’s

felony charge of theft in the second degree, the district court sentenced

Ross to three consecutive sentences totaling seven years. This included a

365-day term in jail for his conviction of possession of a tool to remove a

theft detection device with associated fines and surcharges.

       Ross filed a timely notice of appeal on May 31, 2019, asking us to

vacate his conviction for possession of a tool to remove a theft detection

device in violation of Iowa Code section 714.7B(3) because he received

ineffective assistance of counsel when he pled guilty to this charge without

a factual basis to support it.        We retained Ross’s appeal.

       II. Standard of Review.

       Ross concedes that he failed to file a motion in arrest of judgment in

order to preserve error on his challenge to the factual basis of his guilty

plea. Consequently, Ross contends that his trial counsel was ineffective

for allowing the district court to accept his guilty plea without a factual
basis supporting his charge of possession of a tool to remove a theft

detection device and for failing to file a motion in arrest of judgment after

the   district court accepted his plea.           Ineffective-assistance claims are

rooted in the Sixth Amendment of the United States Constitution and

article I, section 10 of the Iowa Constitution. State v. Brown, 930 N.W.2d

840, 844 (Iowa 2019).         We may decide such claims on direct appeal if

the appeal was already pending on July 1, 2019, when Senate File 589


plea is voluntarily and intelligently tendered, and that the court finds there is a factual
basis for the plea.” State v. Sutton, 853 N.W.2d 284, 294 (Iowa 2014).
                                      5

eliminating the ability to pursue ineffective-assistance claims on direct

appeal, took effect, see State v. Macke 933 N.W.2d 226, 231–232 (Iowa

2019), and the record is adequate to warrant a ruling, see Brown, 930

N.W.2d at 844.     Here, Ross’s challenge is properly before us on direct

appeal because he filed his notice of appeal on May 31, 2019, and we agree

with both parties that the record is adequate to warrant a ruling. Our

review is de novo for claims that the defendant’s guilty plea was due

to trial counsel’s ineffective assistance.    State v. Nall, 894 N.W.2d 514,

517 (Iowa 2017).

      III. Analysis.

      Ross claims his trial counsel rendered ineffective assistance by

allowing him to plead guilty to possession of a “tool, instrument, or device

with the intent to use it in the unlawful removal of a theft detection device,”

a serious misdemeanor, in violation of section 714.7B(3).          Iowa Code

§ 714.7B(3). To succeed on his ineffective- assistance claim, Ross “must

prove (1) counsel failed to perform an essential duty and (2) prejudice

resulted.” Brown, 930 N.W.2d at 855. Counsel fails to perform an

essential duty when he or she allows the defendant to plead guilty to a

charge for which a factual basis does not exist. Nall, 894 N.W.2d at 525.
“Prejudice is inherent in such a case.” Id. (quoting State v. Gines, 844

N.W.2d 437, 441 (Iowa 2014)). The success of Ross’s argument hinges on

whether the combination of the padlock and steel cable used to secure the

riding lawn mower on display outside of the Mills Fleet Farm constitutes a

“theft detection device” under section 714.7B(3).

      Section 714.7B(3) criminalizes the possession of “any tool,

instrument, or device with the intent to use it in the unlawful removal of

a theft detection device.” Iowa Code § 714.7B(3). Section 714.7B(4) defines

“theft detection device” as “any electronic or other device attached to
                                      6

goods, wares, or merchandise on display or for sale by a merchant.” Id.

§ 714.7B(4). Ross maintains that the padlock and steel cable combination

wrapped around the riding lawn mower does not fit this definition of a “theft

detection device” because it did not serve any clear theft detection

function and served only to prevent or deter thefts.

      According to Ross, interpreting the definition of “theft detection

device” broadly to include the combination at issue would lead to absurdity

and render the words “theft” and “detection” meaningless.        In contrast,

the State believes a “theft detection device” simply has to be something

“attached” to any item on display or for sale regardless of whether it will

immediately alert the owner to the property theft.       Therefore, we must

resolve the conflicting theories of “theft detection device” in order to

determine whether a factual basis supported Ross’s guilty plea.

      “The first step in our statutory interpretation analysis is to

determine whether the statute is ambiguous.” State v. Coleman, 907

N.W.2d 124, 135 (Iowa 2018). If the statutory language is unambiguous,

our examination of the statute ends with the plain language. Id. But

      “if reasonable minds could differ or be uncertain as to the
      meaning of the statute” based on the context of the statute,
      the statute is ambiguous and requires us to rely on principles
      of statutory construction to resolve the ambiguity.

Id. (quoting State v. Iowa Dist. Ct., 889 N.W.2d 467, 471 (Iowa 2017)). As

noted above, the legislature’s definition of “theft detection device”

presents at least two differing yet reasonable interpretations: Ross’s

interpretation that the device must clearly detect and indicate that an item

has been stolen and the State’s interpretation that a theft detection device is

anything “attached” to an item on display or for sale, regardless of whether

it immediately detects theft. Consequently, the statute is ambiguous

because both of these interpretations are reasonable, and we must rely on
                                      7

our tools of statutory construction to determine the meaning         of “theft

detection device” under Iowa Code section 714.7B.

      While we apply the rule of lenity in criminal cases, we still must

construe criminal statutes “reasonably and in such a way as to not defeat

their plain purpose.” Coleman, 907 N.W.2d at 136 (quoting State v. Hagen,

840 N.W.2d 140, 146 (Iowa 2013)).         Our goal in interpreting criminal

statutes “is to ascertain legislative intent in order, if possible, to give it

effect.” Id. (quoting State v. Finders, 743 N.W.2d 546, 548 (Iowa 2008)).

In doing so, we examine the legislature’s chosen statutory language, “not

what it should or might have said.” Auen v. Alcoholic Beverages Div., 679

N.W.2d 588, 590 (Iowa 2004). Moreover, if the statute does not define a

word or use it with an established meaning, we give the words their

“ordinary and common meaning by considering the context within which

they are used.” Id. It is not for us to “extend, enlarge, or otherwise change

the meaning of a statute.” Id. Finally, “[a]lthough the title of a statute

cannot limit the plain meaning of the text, it can be considered in

determining legislative intent.” State v. Tague, 676 N.W.2d 197, 201 (Iowa

2004) (quoting T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159,

163 (Iowa 1999)).
      Here, it’s clear from the statute’s plain language and its title—“Theft

detection devices—shield or removal prohibited”—that its purpose is to

prohibit people from using theft detection shielding devices or removing

theft detection devices. Iowa Code § 714.7B.        The legislature chose to

broadly define “theft detection device” as “any electronic or other device

attached to goods, wares, or merchandise on display or for sale for

merchant.”   Id. § 714.7B(4).   Yet, we must consider this broad definition

within the narrower context of the statute that it is used to prohibit the

removal of theft detection devices and the use of theft-shielding devices to
                                       8

determine whether the padlock-steel cable combination that Ross cut

with bolt cutters is a “theft detection device.” See Auen, 679 N.W.2d at

590.

       The State emphasizes the word “device” and quotes the online

Merriam-Webster definition of it as “a piece of equipment or a mechanism

designed to serve a special purpose or perform a special function” to

support its argument that the padlock-steel cable combination is a “theft

detection   device”   under    section      714.7B. Device, Merriam-Webster,

https://www.merriam-webster.com/dictionary/device [https://perma.cc/

8ZPS-HKJR].      However, as    Ross       points   out,   virtually   any   item,

including a price tag, could be considered a “theft detection device”

under section 714.7B(4). Interpreting the term by focusing on whether

something is simply a “device” would render the words “theft detection”

meaningless and ignore the statute’s focus on theft detection devices and

shielding devices that could be used to prevent theft detection.

Accordingly, we need to examine whether the                  padlock-steel cable

combination at issue detects theft in order to construe section 714.7B

“reasonably and in such a way as to not defeat [its] plain purpose.”

Coleman, 907 N.W.2d at 136 (quoting Hagen, 840 N.W.2d at 146).
       The statute says, “‘Theft detection device’ means any electronic or

other device attached to goods, wares, or merchandise on display or for sale

by a merchant.” Iowa Code § 714.7B(4). The phrase “electronic or other

device” is ambiguous, which should prompt us to examine the term being

defined. As we have said,

       [t]he legislature is, of course, entitled to act as its own
       lexicographer, and in this case it did so. However, when the
       legislative definition of a term itself contains ambiguity, we
       should hesitate before veering too far from the common
       meaning of that term.
                                      9

Porter v. Harden, 891 N.W.2d 420, 427 (Iowa 2017) (citation omitted).

Further, as Scalia and Garner explain in their treatise, “the word being

defined is the most significant element of the definition’s context.     The

normal sense of that word and its associations bear significantly on the

meaning of ambiguous words or phrases in the definition.” Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 232

(2012).

      The dictionary defines “detect” as “to discover or determine the

existence, presence, or fact of.” Detect, Webster’s Third New International

Dictionary (unabr. ed. 2002); see also Jack v. P & A Farms, Ltd., 822

N.W.2d 511, 516 (Iowa 2012) (“If the legislature has not defined words of a

statute, we may refer to prior decisions of this court and others, similar

statutes, dictionary definitions, and common usage.” (quoting Iowa Dep’t of

Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002))). Here, the padlock-

steel cable combination that Ross cut did nothing to detect or

determine that Ross was committing theft, as it did not alert anyone to

Ross’s actions in removing the combination or loading the lawn mower into

a rental truck to leave with it.   A substantial period of time could have

gone by before the Mills Fleet Farm even noticed that the lawn mower was
missing if the store employee had not witnessed Ross and Lacey loading the

lawn mower into their rental truck while he was arriving to work. It was

the store employee—not the padlock-steel cable combination—who detected

any theft. Ultimately, we agree with Ross that the padlock-steel cable

combination around the riding lawn mower was a theft prevention device,

not a theft detection device.   Nothing in section 714.7B prohibits a person

from possessing a tool with the intent to use it to unlawfully remove a theft

prevention device.
                                     10

      The statutory definition of “theft detection shielding device” within

the same subsection as the definition of “theft detection device” further

supports our holding emphasizing the need for a detection function in a

“theft detection device.” Specifically, section 714.7B(4) states that a “theft

detection shielding device” is any device “designed to shield merchandise

from detection by an electronic or magnetic theft alarm system or any other

system designed to alert a person of a possible theft.” Iowa Code § 714.7B(4)

(emphasis added). Consistent with our canon of construction noscitur a

sociis, we read words in context rather than in isolation. Peak v. Adams,

799 N.W.2d 535, 547 (Iowa 2011). This canon “summarizes the rule of

both language and law that the meanings of particular words may be

indicated or controlled by associated words.” Id. (quoting 11 Richard A.

Lord, Williston on Contracts § 32:6, at 432 (4th ed. 1999)). Simply put,

“words of a feather flock together.” Hugh Pattison Macmillan, Rt. Hon.

Lord, Law and Language, Presidential Address to the Holdsworth Club

(May 15, 1931). That is, the “device” must be a theft detection device, not

just any device attached to merchandise.

      If the legislature had intended to include devices that only served to

prevent—and not detect—theft within the meaning of “theft detection

device” in section 714.7B, it could have expressly stated so as other states

have done.    See Miss. Code Ann. § 97-23-93.1(1)(a) (West, Westlaw

through 2019 Reg. Sess.) (defining “theft detection device” as “any tag or

other device that is used to prevent or detect theft and that is attached to

merchandise held for resale by a merchant or to property of a merchant”);

W. Va. Code Ann. § 61-3A-4A(a)(1) (West, Westlaw through chs. 1-60 through

Mar. 12, 2020 Reg. Sess.) (same); Wis. Stat. Ann. § 943.50(1) (West, Westlaw

through 2019 Act 76) (same).       Nevertheless, the legislature did      not

incorporate any sort of prohibition against removing theft prevention
                                      11

devices. It is not for us to enlarge the statute based on what the

legislature might have said. Auen, 679 N.W.2d at 590. A “theft detection

device” under section 714.7B must detect theft instead of simply trying to

prevent it.

      For these reasons, we agree with Ross that the padlock-steel cable

combination he cut with bolt cutters did not constitute a “theft

detection device” under section 714.7B. Therefore, there was not a factual

basis to support Ross’s guilty plea based on the record before us. Ross’s

trial counsel was ineffective for allowing Ross to plead guilty to possessing

a tool with the intent to use it in the unlawful removal of a theft detection

device in violation of section 714.7B(3) and for failing to file a motion in

arrest of judgment after the district court accepted his plea. See Nall, 894

N.W.2d at 525 (explaining counsel fails to perform an essential duty and

prejudice is inherent when counsel allows a defendant to plead guilty to a

charge that is not supported by a factual basis).

      As we have explained before, there are two possible remedies when

the record does not contain a factual basis to support a guilty plea. First,

“[w]here the record establishes that the defendant was charged with the

wrong crime, we have vacated the judgment of conviction and sentence and
remanded for dismissal of the charge.” State v. Schminkey, 597 N.W.2d

785, 792 (Iowa 1999). Second, where “it is possible that a factual basis

could be shown, it is more appropriate merely to vacate the sentence and

remand for further proceedings to give the State an opportunity to establish

a factual basis.” Id. In this case, we do not see a possibility of establishing

a factual basis on remand. See Nall, 894 N.W.2d at 525. Accordingly, we

vacate the guilty plea to Iowa Code section 714.7B(3) and remand for

further proceedings. On remand, the State has the option of withdrawing

from the plea agreement and reinstating any charges it previously
                                   12

dismissed. See Yocum v. State, 891 N.W.2d 418, 419 (Iowa 2017) (per

curiam).

      IV. Conclusion.

      For these reasons, we vacate the sentence of the district court and

remand for further proceedings consistent with this opinion.

      SENTENCE VACATED AND CASE REMANDED FOR FURTHER

PROCEEDINGS.
