                     IN THE COURT OF APPEALS OF IOWA

                                     No. 17-0017
                               Filed February 21, 2018


STEPHEN BIGGS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, James M.

Richardson, Judge.



      A defendant appeals the denial of his application for postconviction relief.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

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

General, for appellee State.




      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.

       Stephen Biggs appeals the denial of his application for postconviction relief.

Biggs pled guilty to theft in the second degree, in violation of Iowa Code sections

714.1 and 714.2(2) (2011), and ongoing criminal conduct, in violation of section

706A.2(4). Biggs argues his trial counsel was ineffective for allowing him to plead

guilty without a factual basis.

       I.     Background Facts and Proceedings.

       Biggs was arrested at a gas station on October 22, 2012, after trying to pass

a check under a false name without identification. When questioned by the police,

Biggs gave a false name to match the check and told police he was driving his

boss’s vehicle with permission. The vehicle was stolen. Biggs was released from

jail the next day. On October 25, Biggs was found in another stolen vehicle in

Omaha, Nebraska, and again gave false information to the police concerning his

identity.

       A warrant was issued for theft in the second degree and ongoing criminal

conduct, and Biggs was arrested in December. In March 2013, Biggs completed

a drug court plea agreement. In that document, Biggs agreed there were sufficient

facts to justify the guilty plea he was entering; the document did not include the

elements of the crimes. In May, Biggs pleaded guilty after a colloquy with the trial

court about the rights he was waiving in order to enter a guilty plea. The factual

basis for the two crimes was not included in the colloquy; Biggs agreed the court

could use the minutes of testimony as a factual basis, and his plea was accepted.

Biggs requested immediate sentencing, and the court deferred judgment and

granted him admission into drug court.
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       In April 2015, Biggs’s deferred judgment was revoked due to multiple

violations of the drug-court program. He was sentenced on his original charges.

Biggs filed an application for postconviction relief. His application was denied in

December 2016.

       Biggs appeals.

       II.    Standard of Review.

       Postconviction-relief proceedings are “actions at law and are reviewed on

error.” Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, if the

applicant’s claims have constitutional implications, “we make our own evaluation

of the totality of the circumstances in a de novo review.” Id. De novo review is

used in claims of ineffective assistance of counsel. Id.

       III.   Discussion.

       Biggs argues his plea counsel was ineffective for allowing him to plead guilty

to a charge for which there was no factual basis. “There is a strong presumption

that the performance of counsel falls within the wide range of reasonable

professional assistance.” Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). To

determine whether counsel was ineffective for allowing Biggs to plead guilty, we

must determine whether there was an adequate factual basis for his guilty pleas

to theft and ongoing criminal conduct.

       A factual basis can be discerned from the entire record before the plea

taking court, specifically including four sources: “(1) inquiry of the defendant, (2)

inquiry of the prosecutor, (3) examination of the presentence report, and (4)

minutes of evidence.” State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010). “[T]he
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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.” Id.

       Biggs pleaded guilty to theft in the second degree, in violation of Iowa Code

sections 714.1 and 714.2(2). Although the trial information and the sentencing

order do not specify the subsection of 714.1, Biggs argues the language in the trial

information is closer to 714.1(1), theft by taking. The trial information describes

count two as: “Did knowingly take possession or control of the property of another,

said property having a value in excess of $1000 but not exceeding $10,000, with

the intent to deprive the owner thereof.” Biggs argues there is no information to

show the actual taking of the vehicle, merely exercising control of stolen property.

       Subsection 714.1(1) states that a person commits theft if the person “[t]akes

possession or control of the property of another, or property in the possession of

another, with the intent to deprive the other thereof.” The elements of theft by

taking are: “(1) the defendant took possession or control of property; (2) the

defendant did so with the intent to deprive another of that property; and (3) the

property belonged to, or was in the possession of, another at the time of the taking.”

State v. Nall, 894 N.W.2d 514, 518 (Iowa 2017). While there were no facts Biggs

stole the vehicle from the owner, Biggs’s possession and control of the vehicle are

sufficient evidence to support a finding there was a taking.           See State v.

Hershberger, 534 N.W.2d 464, 465–66 (Iowa Ct. App 1995) (finding section

714.1(1) does not require the State to show a defendant took property from the

victim, only that he took possession and control over it).

       The minutes of testimony reflect Biggs had possession of the pickup truck

and exercised control over the truck by driving it from Nebraska to Iowa. Biggs
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was not the rightful owner of the vehicle. Biggs initially concealed his identity to

law enforcement—evidence he knew the property was stolen. Biggs’s plea to theft

in the second degree is supported by a factual basis, and his counsel was not

ineffective for allowing him to plead guilty.

       Next, Biggs argues there is not a factual basis to support his plea to ongoing

criminal conduct under section 706A.2(4), which provides, “Acts of specified

unlawful activity. It is unlawful for a person to commit specified unlawful activity as

defined in section 706A.1.” “‘Specified unlawful activity’ means any act, including

any preparatory or completed offense, committed for financial gain on a continuing

basis, that is punishable as an indictable offense under the laws of the state in

which it occurred and under the laws of this state.” Iowa Code § 706A.1.

       Biggs argues there are no facts to support the element his offenses were

for financial gain. The minutes of testimony reflect Biggs presented another’s

checks as his own, gave police a false name, and was in possession of a stolen

vehicle on October 22, 2012. Three days later, Biggs was arrested in Omaha in

another stolen vehicle and again gave a false name to the police. Theft of two

vehicles and efforts to cash checks support Biggs’s actions were committed for

financial gain.

       The element that the offenses were committed on a continuing basis is more

difficult to glean from the documents before the plea court. “[A] continuing basis

may be found, even where predicate acts occur over a short period of time, if there

is a demonstrated relationship between the predicate acts and a threat of

continuing criminal activity.” State v. Agee, No. 02-0967, 2003 WL 22087479, at

*2 (Iowa Ct. App. Sept. 10, 2003). “[T]he relationship element of a pattern can be
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shown if the predicate acts ‘have the same or similar purposes, results,

participants, victims, or methods of commission or otherwise are interrelated by

distinguishing characteristics and are not isolated events.’” State v. Reed, 618

N.W.2d 327, 334 (Iowa 2000) (citation omitted).

       Here, the minutes of testimony briefly describe each of the two instances of

Biggs’s arrest with a stolen car; each of the two predicate acts occurring within a

short period of time appear to show a pattern as described in Reed. Id. However,

there was no information in the minutes to suggest Biggs intended to continue

stealing vehicles. See State v. Harrington, No. 08-2030, 2010 WL 2925696, at *3

(Iowa Ct. App. July 28, 2010) (finding three residential burglaries and a car theft in

the early morning hours of a single day, along with evidence the defendant was

unemployed, insufficient to support an inference of continued unlawful activity); cf.

Agee, 2003 WL 22087479, at *2 (finding evidence of stolen mail, checks and

deposit slips, and blank checks, among other evidence, indicated a threat of future

criminal activity).

       The State argues the record is sufficient to find a factual basis as opposed

to a determination of substantial evidence for a conviction.          Here, we are

concerned only with whether there are some “facts that support the offense.” Ortiz,

789 N.W.2d at 768. But the State’s argument does not address the element of

continuing basis, and our review shows no facts in the minutes to support that

element.

       Biggs’s plea to ongoing criminal conduct is not supported by a factual basis

on the record before us. Plea counsel did not fulfill the duty to Biggs to ensure a

factual basis for every crime to which he pleaded guilty. It is possible the State
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could show a factual basis to support the element of continuing basis. Where it is

possible a factual basis could be shown, we vacate and remand for further

proceedings to give the State an opportunity to establish a factual basis. See State

v. Schminkey, 597 N.W.2d 785, 792 (Iowa 1999). Therefore, we vacate Biggs’s

guilty plea to ongoing criminal conduct and remand for further proceedings.

      The district court’s denial of Biggs’s application for postconviction relief is

affirmed in part, vacated in part, and remanded.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
