State v. Schminkey

CARTER, Justice

(dissenting).

I dissent.

The record made before the district court during the guilty-plea proceeding adequately demonstrated a factual basis for the charge of theft of a motor vehicle. The minutes of testimony indicated that (1) the owner of a 1978 brown and tan Chevrolet pickup truck would testify that the vehicle was taken without permission on the evening of May 17, 1997; and (2) a Benton County deputy sheriff would testify that he was close enough to a fatal collision involving the stolen pickup to hear the sound of the impact and moments later arrived at the crash scene to find defendant sitting crossways, by himself, in the front seat of the missing pickup. Minutes of testimony are appropriate sources for establishing a factual basis under the decisions of this court. See State v. Fluhr, 287 N.W.2d 857, 868 (Iowa 1980), overruled on other issues by State v. Kirchoff, 452 N.W.2d 801, 804-05 (Iowa 1990); State v. Marsan, 221 N.W.2d 278, 280 (Iowa 1974).

*793 When a defendant pleads guilty, strong evidence of actual guilt is not required even if the defendant protests his innocence. United States v. Tunning, 69 F.3d 107, 111-12 (6th Cir.1995). Several courts that have considered the standard that should be applied in determining the factual basis for a guilty plea have agreed that the standard should be enough evidence to withstand a directed verdict at trial. United States v. Webb, 433 F.2d 400, 403 (1st Cir.1970); In re Guilty Plea Cases, 395 Mich. 96 , 235 N.W.2d 132, 145 (1975); State v. Genereux, 272 N.W.2d 33, 34 (Minn.1978).

I submit that indicia of a prima facie case is the only practical standard to be employed because to require a greater showing will inappropriately • involve the court in factual determinations based on the type of abbreviated factual record that can be made available at a guilty-plea proceeding. This is particularly true in this ease because the element under consideration is the defendant’s intent, which is seldom capable of direct proof. State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998). To require a greater showing will also require the court to substitute its judgment for that of defendant and defendant’s counsel concerning whether defendant would in fact be convicted if a trial were held.

If the indicia of a prima facie case is utilized as the standard for establishing a factual basis, the minutes of testimony in the present case were sufficient indicia that the State had a prima facie case. As a general proposition in prosecutions charging theft, possession of property recently taken without permission establishes a prima facie case that a theft has been perpetrated by the possessor of the missing property. See State v. Brightman, 252 Iowa 1278, 1284 , 110 N.W.2d 315, 316-18 (1961). This court has consistently applied this rule in cases involving prosecutions for theft of a motor vehicle. State v. Rosewall, 239 N.W.2d 171, 173-74 (Iowa 1976); State v. Everett, 157 N.W.2d 144, 146 (Iowa 1968), overruled on other issues by State v. Hawkins, 203 N.W.2d 555, 556-57 (Iowa 1973); State v. Girdler, 251 Iowa 868, 873 , 102 N.W.2d 877, 879 (1960).

A helpful illustration of the application of this principle in a vehicle theft situation similar to the present case is found in Everett . There, the evidence showed that a motor vehicle had been left on the lot of a used car dealer at the close of business on October 18, 1965. On that evening, that vehicle was observed being driven on the streets of Cedar Rapids and later parked behind a tavern in Cedar Rapids. Still later in the evening, defendant was apprehended while driving the vehicle. Defendant was convicted at trial of larceny of a motor vehicle. On appeal the presumption of guilt to which I have referred was utilized as the basis for upholding the conviction notwithstanding defendant’s testimony that he had only borrowed the car.

The majority attempts to distinguish these cases on the basis that the intent to keep the property was not made an issue on those appeals. This overlooks the fact that the inference of guilt applied therein encompassed all elements of the offense of larceny of a motor vehicle. This was expressly .recognized in Rosewall in which this court states:

Under our holding in Everett the admitted possession by defendants of the recently stolen motorcycle creates an inference barring a motion for directed verdict. The inference is not limited to any particular element of larceny. When it arises guilt of the crime of larceny is inferred.

Rosewall, 239 N.W.2d at 174 . The elements of the former statutory crime of larceny of a motor vehicle are sufficiently similar to the present statutory crime of theft that the principle established in the cases under discussion should be applied in the same manner.

In concluding that the showing of a factual basis in the present case was inadequate, the majority opinion misapplies our *794 holding in Brainard v. State, 222 N.W.2d 711 (Iowa 1974). In Brainard the court set forth detailed standards for establishing a knowing and voluntary plea of guilty through direct colloquy between the court and the defendant. Although Brainard was a prosecution for larceny of a motor vehicle and there are statements in the opinion that the factual basis presented was inadequate, the court’s finding of inadequacy is with regard to the limited extent of the colloquy with the defendant to establish the intent with which he had acted. The case cannot be a holding that the factual basis presented was inadequate in toto because the specially concurring opinion necessary for the five-person majority expressly declined to find an inadequate factual basis and expressed the view that an adequate factual basis had been shown. The discussion of factual basis in Fluhr, 287 N.W.2d at 867 , should also be viewed as a discussion of what was deemed an inadequate colloquy with the defendant in attempting to gain his admission concerning the intent element of the crime. This is borne out by the fact that the court ordered that defendant be permitted to plead anew (a remedy for an uninformed guilty plea) as contrasted to remanding the case to permit the State to further show a factual basis.

The court’s primary concern regarding factual basis in Fluhr was stated as follows:

Nor do the facts that the [written] plea form indicated that defendant had discussed the elements and facts of the crime with his attorney and that the attorney certified, on a separate form, that he was satisfied that the plea was factually justified overcome any of the plea’s deficiencies.... [R]eliance by a trial court upon an attorney’s declaration which fails to detail the facts upon which he bases his conclusion constitutes an impermissible delegation by the court of its duty to determine the existence of a factual basis.

Fluhr, 287 N.W.2d at 867 . The Fluhr opinion does state that the minutes of testimony in that case were inadequate to show that defendant intended to keep the property that was the subject of the theft charge to which he had pleaded guilty. I submit that the court was only declaring that the minutes of testimony would not be considered a substitute for personal inquiry of the defendant concerning criminal intent when the defendant before the court had recollection of the circumstances of the crime and had not declared an intent to enter an Alford plea. The court makes no reference to departing from the general rule that indicia of a prima facie case satisfies the factual-basis element. If the court did find the minutes of testimony were inadequate to show factual basis on a record that contained indicia of a prima facie case, I submit that this was an incorrect statement of the law. It was also a comment that was not necessary to the opinion because of the court’s election to permit the defendant to plead anew as the result of not having been fully informed of the elements of the crime.

The present case differs substantially from Brainard and Fluhr because the colloquy between the court and the defendant concerning the intent element of the crime is not an issue here. The defendant disavowed any memory of the circumstances surrounding the alleged crime. In such circumstances, factual basis should be deemed to have been adequately shown through minutes of testimony that give indicia of a prima facie case.

The holding of the majority in the present case, which purports to be based on the best interests of the defendant, will instead deny this defendant and other defendants similarly situated an opportunity to make a plea bargain notwithstanding the fact that the State has made a prima facie showing of guilt on one of the charges to which the defendant has agreed to plead guilty. I would hold that the showing of factual basis in the present case was ade *795 quate and proceed to consider the other issues raised on appeal.

McGIVERIN, C.J., and HARRIS, and LARSON, JJ. join this dissent.