                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1028
                               Filed July 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEANDRE GOODE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Cynthia H.

Danielson, Judge.



      DeAndre Goode appeals from the judgment and sentence imposed upon

his conviction of second-degree robbery. AFFIRMED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Patrick C. Jackson, County Attorney, and Lisa Schaeffer and

Tyron T. Rogers, Assistant County Attorneys, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
                                            2


POTTERFIELD, J.

       DeAndre Goode appeals from the judgment and sentence imposed upon

his conviction of second-degree robbery, contending there is insufficient

evidence of specific intent to support the conviction. He also contends his trial

counsel was ineffective in failing to object to the jury instructions and in failing to

move to exclude prior-conviction impeachment evidence. Finally, he argues the

district court’s written judgment—which ordered his sentence for second-degree

robbery be served consecutive to an unrelated sentence Goode was serving—

varies from the court’s oral announcement at the sentencing hearing that the

sentences would be served concurrently. We affirm the conviction, preserve

some of the ineffective-assistance-of-counsel claims, and remand for the entry of

a nunc pro tunc order to correct the judgment entry.

       I. Background Facts and Proceedings.

       Viewing the evidence presented at trial in the light most favorable to the

State, the record supports the following.

       About twenty minutes before midnight on Saturday, November 24, 2012,

George Petree returned home from the grocery store. He drove by three men

walking in the opposite direction Petree was traveling.         Petree looked in his

rearview mirror and noted the three men now walking in the same direction as he

was traveling. Petree parked on the street in front of his residence. As he was

carrying groceries to his house, out of the corner of his eye, Petree saw an

individual approaching him “really quick.” He turned, and a man Petree later

identified as DeAndre Goode hit him in the face. Petree was able to clearly see
                                         3


the assailant’s face. The punch knocked Petree into the railing of his porch and

then to ground.

       As he was falling to the ground, Petree saw two other men approaching.

Goode and the other two men repeatedly kicked and punched Petree in his back,

side, and head as he lay curled up in a ball on the ground. Petree repeatedly

yelled for help. One of the attackers said, “I have a gun. I want to shoot him.”

Petree responded by saying, “I have a daughter, please just take my money.”

The same man said “oh, you have money, huh.” Petree told him that his money

was in his wallet. One of the attackers took Petree’s wallet from his back pocket.

The beating continued. The men also took Petree’s cell phone and his coat. The

three attackers ran off across the street together.

       Petree’s neighbor, Lance Core, heard “a bunch of screaming” around

midnight. He looked out his window and saw three men kicking and punching

someone as he lay on the ground. (Core later learned the person on the ground

was Petree.) Core called the police. He estimated the assault lasted five to ten

minutes.

       Petree’s wallet contained $208 in cash.        His wallet also contained his

driver’s license, debit card, social security card, a card from his bank that

contained his bank account number and the bank’s routing number, some gift

cards, his mother’s food stamp card, and some probation cards. On the night of

the robbery, the police did find the food stamp card, the gift cards, and probation

cards. But Petree never got back his wallet, cash, driver’s license, debit card, the

card with his bank account information, or his social security card.
                                            4


       The Monday following the robbery, Petree called his bank and reported

that he had been robbed and needed to cancel his debit card. The bank issued

Petree a new card but purposely did not cancel his old card, hoping to see if

someone would use it. In December, someone did use Petree’s stolen debit

card, overdrawing his bank account. Petree called the police.

       During the subsequent investigation, the police learned that on December

10, 2012, someone began the online process of applying for a credit card to be

issued by US Bank in the name of George Petree. After an applicant accepts the

offer of credit, US Bank captures the IP address from which the acceptance is

made. The IP address for the card issued in the name of George Petree was

captured on December 13, 2012. The credit card application had been made

from an IP address registered to a Marietta Street apartment in Burlington—

DeAndre Goode had moved into that apartment in October.1                   The internet

account used to order the credit card was a Mediacom account created

December 3, 2012, at Goode’s address but registered in the name of Eric Moore.

No one by the name of Eric Moore lived at the apartment, and Goode testified he

did not know anyone with that name.



1
  The Marietta Street apartment was seven or eight blocks from George Petree’s home.
There was conflicting evidence whether Goode lived alone at the Marietta Street
apartment. The mother of Goode’s child, Brooke Johnson, said the apartment was
Marcus Hamb’s and that Goode moved in with Hamb when her relationship with Goode
deteriorated. Goode and his brother D’Juan Goode both testified the apartment was
Hamb’s and Hamb allowed Goode to move in. Shenterra Cratton testified Goode lived
there alone. The State offered rebuttal evidence that Goode informed his parole officer
that at first he was living with his brother Darren Goode at the Marietta Street apartment
but later listed no others living there with him. Jaime Baker testified Hamb was on
pretrial supervision in November and December 2012 and listed his address as being in
Rome, Iowa.
                                        5


         The new credit card was mailed to the address listed on the card

application, a North Third Street apartment in Burlington, where Megan Smith

lived.    Smith was a friend of Goode.      Someone called US Bank’s toll-free

telephone number on December 19, 2012, and activated the credit card. (A

person has to physically have the card in his or her possession to activate it.)

After activating the card, someone also called US Bank and requested a

personal identification number (PIN).    A PIN makes it possible to get cash

advances off the card. In order to get a PIN, a person must speak to a live

representative of the bank, and the call is recorded.      Police obtained the

recording of that telephone call. The voice on the recording was identified as

Marcus Hamb.

         Purchases were made using the US Bank-issued credit card in Petree’s

name on a number of occasions between December 19 and December 28, 2012,

including a December 19 online purchase from Xbox Live. On December 20,

2012, the card was used at a Wal-Mart. Video surveillance from the store was

obtained. Three people—Goode, Hamb, and Smith—were all present when the

card was used on December 20.        The car driven by the three on that date

belonged to Hamb’s mother.

         The police questioned Smith, who stated she was at Wal-Mart with Goode

and Hamb.      When Goode was interviewed, he admitted he was present on

December 19 when Hamb purchased the Xbox and on December 20 at the Wal-

Mart with Smith and Hamb. Goode denied any knowledge of a robbery or that

Hamb had used anything other than a gift card for those purchases.
                                           6


       Goode was charged with second-degree robbery. He filed a notice of an

alibi defense. At trial, Shenterra Cratton testified she was at Goode’s Marietta

Street apartment with Goode and his daughter all night on November 24, leaving

the morning of November 25. Goode testified his cousin, Alex Goode, drove him

to Brooke Johnson’s home on November 24, where they spent a few hours with

Goode’s daughter while Johnson got ready for work, and then Alex drove Goode

and his daughter back to the Marietta Street apartment. Alex left, and Goode

and his daughter stayed home that evening watching movies with Cratton.

       Goode was convicted of second-degree robbery and now appeals. He

contends there is insufficient evidence of specific intent to sustain the conviction,

trial counsel was ineffective in failing to object to the jury instructions and to prior-

conviction impeachment evidence, and the written sentencing order does not

comport with the district court’s oral announcement at the sentencing hearing.

       II. Scope and Standards of Review.

       The Court reviews a ruling on the sufficiency of the evidence for correction

of errors of law. State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014). We view

the evidence in the light most favorable to the State and uphold the finding of

guilt if the verdict is supported by substantial evidence. Id. at 439–40.

       We review claims of ineffective assistance of counsel de novo.                Id.;

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

       “When a party asserts that an inconsistency exists between an oral

sentence and a written judgment entry, we review the matter for correction of

errors at law.” State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995).
                                          7


         III. Discussion.

         A. Suffiiciency of evidence of specific intent.      Goode contends the

evidence does not establish that he acted with the necessary specific intent to

commit a theft or that he knew that someone he aided and abetted had that

specific intent. The State argues this claim was not adequately preserved. We

agree.

         At trial, Goode’s trial counsel moved for a directed verdict “based upon the

State’s ability to present a prima facie case that could support a conviction in this

case.” The motion for judgment of acquittal was “based on failure of the State to

provide a case that could support a conviction.”        In State v. Truesdell, 679

N.W.2d 611, 615 (Iowa 2004), our supreme court observed, “To preserve error

on a claim of insufficient evidence for appellate review in a criminal case, the

defendant must make a motion for judgment of acquittal at trial that identifies the

specific grounds raised on appeal.” As was the case in Truesdell, Goode’s trial

counsel did not specifically raise the sufficiency claim made on appeal and thus

the issue is not preserved. See 679 N.W.2d at 615.

         B. Ineffective assistance of counsel. Goode makes an alternative claim

that trial counsel was ineffective in failing to preserve his challenge to the

sufficiency of the evidence of specific intent.

                The failure of trial counsel to preserve error at trial can
         support an ineffective assistance of counsel claim. Ordinarily,
         ineffective assistance of counsel claims are best resolved by
         postconviction proceedings to enable a complete record to be
         developed and afford trial counsel an opportunity to respond to the
         claim. Yet, in some instances, the appellate record can be
         adequate to address the claim on direct appeal. When the record
         is adequate, the appellate court should decide the claim on direct
         appeal.
                                         8

Id. at 615–16.

       In order to succeed on his ineffective-assistance-of-counsel claim, a

defendant must establish by a preponderance of the evidence that (1) trial

counsel failed to perform an essential duty and (2) prejudiced resulted. State v.

Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010).               A claim of ineffective

assistance of counsel fails if the defendant is unable to prove either prong of the

test. Id. at 266.

       “To establish the first prong, the [defendant] must demonstrate the

attorney performed below the standard demanded of a reasonably competent

attorney.” Ledezma, 626 N.W.2d at 142.

              Considering the standard of reasonableness utilized in
       determining ineffective assistance claims, ineffective assistance is
       more likely to be established when the alleged actions or inactions
       of counsel are attributed to a lack of diligence as opposed to the
       exercise of judgment. Clearly, there is a greater tendency for
       courts to find ineffective assistance when there has been “an
       abdication—not an exercise—of . . . professional [responsibility].”
       Miscalculated trial strategies and mere mistakes in judgment
       normally do not rise to the level of ineffective assistance of counsel.
       Thus, claims of ineffective assistance involving tactical or strategic
       decisions of counsel must be examined in light of all the
       circumstances to ascertain whether the actions were a product of
       tactics or inattention to the responsibilities of an attorney
       guaranteed a defendant under the Sixth Amendment.

Id. at 142–43. “‘We will not find counsel incompetent for failing to pursue a

meritless issue.’” State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013) (citation

omitted).

       “To establish prejudice, the defendant must demonstrate the ‘reasonable

probability that, but for counsel’s unprofessional errors, the result of the
                                         9

proceeding would have been different.’” State v. Lane, 743 N.W.2d 178, 183

(Iowa 2007) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

              1. Failure to object to sufficiency of evidence. We conclude Goode

has failed to prove counsel was ineffective in not preserving the sufficiency claim.

The jury was instructed that to prove Goode guilty of robbery in the second

degree, the State had to prove

               1. On or about November 25, 2012, the defendant had the
       intent to commit a theft or aided and abetted another he knew had
       an intent to commit a theft.
               2. In carrying out the intended theft or to assist him in
       escaping from the scene, with or without the stolen property, the
       defendant (a) committed an assault or aided and abetted in an
       assault on George Petree.

The offense of theft is defined in section 714.1(1), which states that a person

commits theft when he “[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.” See State v. Schminkey, 597 N.W.2d 785, 788–89 (Iowa 1999). Goode

contends there is insufficient evidence Petree’s assailants had the specific intent

to comment a theft when the assault began.

       We note that because proof that a person acted with the specific purpose

of depriving the owner of his property requires a determination of what the

person was thinking when an act was done, it is seldom capable of being

established with direct evidence.     Id. at 789.   Consequently, the facts and

circumstances surrounding the act, as well as any reasonable inferences to be

drawn from those facts and circumstances, may be relied upon to ascertain the

person’s intent. Id.
                                            10


        Here, Petree identified Goode as the person who ran up to him, punched

him in the face, and started the attack. He saw two others join in the assault.

After one of the assailants stated, “I want to shoot him,” Petree told them just to

take his money. That assailant then said, “oh you have money, huh?” Even if

we assume the assailants had no intent to commit a theft until this point, the

continued assault and the taking of Petree’s wallet after this statement supports

an inference that the assailants then intended to commit a theft. See State v.

Oetken, 613 N.W.2d 679, 686 (Iowa 2000) (“An intent to commit theft may be

inferred from an actual breaking and entering of a building which contains things

of value.”).      The assault continued while Petree’s wallet was removed from

Petree’s pocket. From these facts and circumstances, a reasonable fact finder

could determine the defendant had, or aided and abetted another who had, the

specific intent to commit a theft and in carrying out the theft committed an

assault.     Goode thus cannot prove counsel breached a duty in failing to

challenge the sufficiency of the evidence of intent to commit a theft.

        Goode also asserts trial counsel was ineffective in not objecting to the

proposed jury instructions, which did not include an instruction on specific intent,

and in failing to move in limine to exclude evidence of Goode’s prior bad acts or

object to the State’s question about Goode having been previously convicted of

willful injury.

                  2. Failure to object to jury instructions. In Fountain, the defendant

was convicted of the offense of domestic abuse assault causing bodily injury.

786 N.W.2d at 262.           On appeal, the defendant argued trial counsel was

ineffective in failing to request a specific intent instruction, which is an element of
                                          11

assault. Id. The supreme court concluded the trial court should have instructed

the jury on specific intent, id. at 265, and trial counsel “should have been aware

of the case law declaring that assault includes an element of specific intent.” Id.

at 266. The court wrote, “After reviewing the facts of this case and the evidence

presented, we conclude only trial strategy could explain counsel’s failure to

request a specific intent instruction.” Id. at 266–67. The court observed, though,

that “[i]f the defense strategy is to deny that any assaultive contact occurred, the

individual elements of assault become unimportant.” Id. at 267.

         Here, trial counsel may have determined the individual elements of

robbery were “unimportant” because Goode was not challenging the elements of

the offense. See id. Rather, his defense was that he was not involved and

Petree had incorrectly identified him as one of the assailants. We preserve this

issue for possible postconviction relief proceedings.

               3. Failure to move to exclude or object to questioning about prior

conviction.    Goode acknowledged throughout his defense that he had been

recently released from prison when this offense occurred. Goode testified he

was home with Cratton and his daughter on the night Petree was attacked. To

support his defense, Goode offered evidence that he was on parole and was

subject to a 10:30 curfew.

         During the State’s cross-examination of Goode, the following colloquy took

place:

                Q. Okay. Now Marcus [sic], is it correct that you were
         convicted of willful injury causing serious injury in 2011? A. Yes, I
         was.
                Q. And that’s a felony offense? A. Yes it is.
                                         12


                 Q. And you told your—well, you told the—the jury through
          your attorney, that you spent time in custody because of that? A.
          Yes I did.

On appeal, Goode argues that “[a]lthough it was clear that [his] status as a

parolee would play a large role in his defense, Goode’s attorney did not move in

limine to exclude evidence of the specific crime for which Goode was on parole.

Neither did counsel object when the State asked Goode about his conviction.”

Goode contends the quoted exchange requires a new trial. The State responds

that defense counsel may have chosen not to object to the evidence of the

specific crime “to avoid speculation that Goode had been convicted of something

even more serious.” In light of the defendant’s extensive reliance on his being on

parole, trial counsel may have chosen not to object to this one reference to willful

injury.

          “[W]e must evaluate trial counsel’s actions from the perspective of when

the decision was made—during the course of trial.”         State v. Ondayog, 722

N.W.2d 778, 785 (Iowa 2006). “The fact that a particular decision was made for

tactical reasons does not, however, automatically immunize the decision from a

Sixth Amendment challenge. That decision must still satisfy the ultimate test:

‘whether under the entire record and totality of circumstances’ counsel performed

competently.”     State v. Graves, 668 N.W.2d 860, 881 (Iowa 2993) (citations

omitted). “Nonetheless, we do not delve into trial tactics and strategy when they

do not clearly appear to have been misguided.         In other words, we will not

reverse where counsel has made a reasonable decision concerning trial tactics

and strategy, even if such judgments ultimately fail.” Ondayog, 722 N.W.2d at

786. We preserve Goode’s claim of ineffective assistance in regard to the failure
                                        13


to object to the prior-conviction evidence for possible postconviction proceedings.

See id. at 787.

      C. Sentencing.

      Here, the district court sentenced Goode to a ten-year term of

incarceration. The court noted that it had limited discretion when sentencing

Goode:

              As everyone has mentioned, there is no choice as to your
      imprisonment. The only choice is between whether or not his
      sentence will be served concurrently with the prior sentence that
      was already imposed or will be made to run consecutively to the
      first sentence that has been imposed in an earlier personal injury
      felony.
              ....
              At this time the Court will order that the sentences run
      concurrently based in part on the fact that this sentence will have to
      be 85 percent completed before you are eligible for release on this
      sentence. I would like to believe that upon your release you will be
      motivated to change your ways. However, in the event that you are
      released and fail to comply with the terms and conditions of
      probation at that time, I think you can think that this would be the
      last sympathetic gesture from the court system. The case that it
      will run concurrently with is his Lee County Cause Number FECR
      7974.

But the written judgment entry provides: “The sentence imposed herein shall run

consecutively with the sentence imposed in Lee County Cause Number

FECR007974.”

      “[W]hen a judgment entry incorrectly differs from the oral rendition of the

judgment merely as a result of clerical error, the trial court holds the inherent

power to correct the judgment entry so that it will reflect the actual

pronouncement of the court.”     Hess, 533 N.W.2d at 527.       When the record

unambiguously reflects that a clerical error has occurred—as it does here—“we
                                         14


will direct the district court to enter a nunc pro tunc order to correct the judgment

entry.” Id.

       Iowa Code section 908.10(1) provides that a “new sentence of

imprisonment for conviction of a felony shall be served consecutively with the

term imposed for the parole violation, unless a concurrent term of imprisonment

is ordered by the court.” Here, the court ordered a concurrent term. We remand

to the district court for the entry of a nunc pro tunc order to correct the judgment

entry to “accurately reflect what was unambiguously pronounced at the

sentencing hearing.” Id. at 528.

       AFFIRMED AND REMANDED.
