IN THE COURT OF APPEALS OF IOWA

No. 18-0265

Filed September 26, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ROBERT ANTHONY COOPER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Odell G. McGhee II, 

District Associate Judge.

Defendant appeals his conviction and sentence after pleading guilty to 

fourth-degree theft. AFFIRMED.

Jessica Maffitt of Benzoni Law Office, PLC, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney 

General, for appellee.

Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.

Robert Cooper appeals his conviction and sentence after he entered into 

an Alford1 plea for fourth-degree theft. First, Cooper claims that he received 

ineffective assistance of counsel because his counsel allowed him to enter into the 

Alford plea even though there was no factual basis for the plea. Second, Cooper 

argues that the district court erred by accepting the plea due to the lack of factual 

basis. We find there was factual basis in the record to support the plea and 

therefore the ineffective-assistance-of-counsel claim fails and the district court did 

not err by accepting the plea. 

I. Background Facts and Proceedings

On August 6, 2017, H.B. left a black Samsung Galaxy S5 cellphone in an 

unlocked vehicle, which was parked in a parking lot, while he went to work. H.B. 

left the vehicle unattended between 3:00 p.m. and 9:00 p.m. When H.B. returned 

to the vehicle, the cellphone was no longer inside. H.B. suspected that the 

cellphone was lost until his stepfather received several calls from the cellphone by 

an anonymous person who would not speak. 

On November 10, law enforcement received a call from a company that 

processes used electronics stating they had received a stolen cellphone 

notification for a phone deposited into a kiosk located inside a Wal-Mart in 

Altoona.2 A Wal-Mart employee told law enforcement that the cellphone was 

 

1 North Carolina v. Alford, 400 U.S. 25, 37 (1970) (permitting a defendant to plead guilty 

to a crime without admitting participation in the underlying facts that constitute the crime). 

2 This kiosk is called an ecoATM, which is “an unstaffed kiosk that exchanges cash for 

electronic devices through an automated process. When used for such a transaction, the 

machine takes photographs and also requires a fingerprint and a scan of the seller’s 

driver’s license.” People v. Braxton, 72 N.Y.S.3d 238 (N.Y. App. Div. 2018). 
3

deposited in the kiosk on October 7. The employee also disclosed that when a 

person deposits a cellphone into the kiosk, that person must provide their 

information and a photograph, and the cellphone is held for thirty days before being 

transferred to another company that will resell the cellphone. Wal-Mart provided 

law enforcement with a video of the person depositing the cellphone in the kiosk. 

Based on this information, law enforcement identified Robert Cooper as the person 

who deposited the cellphone. 

Law enforcement contacted Cooper about the cellphone. Cooper stated 

that he fixes cellphones and he frequently deposits cellphones in the kiosk in 

exchange for cash. He also stated that he purchases used cellphones from 

Goodwill and other sources. At first, Cooper told law enforcement that he was not 

sure how he obtained the specific cellphone because he purchases many used 

cellphones and had multiple Samsung Galaxy S5 phones at one point. Later, 

Cooper stated that he remembered purchasing a bin at Goodwill that contained 

various items, including two Samsung Galaxy S5 cellphones. He also said that he 

did have the receipt, but the receipt only indicated that he purchased a bin from 

Goodwill; specific items were not listed on the receipt. Law enforcement spoke 

with the Goodwill store that Cooper identified, and an employee informed them

that Goodwill store does not sell or recycle cellphones and it would be rare for them 

to miss a cellphone when organizing items for sale. 

On November 28, Cooper was arrested for third-degree theft.

3

 On January 

18, 2018, Cooper entered into an Alford plea to a lesser-included offense, theft in 

 

3 The definition of theft used in this case refers to a person who “[e]xercises control over 

stolen property, knowing such property to have been stolen, or having reasonable cause 
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the fourth-degree.4 Cooper appeals his conviction and sentence, asserting his 

counsel was ineffective for allowing him to enter into the plea without a factual 

basis and the district court erred in accepting the plea without a factual basis. 

II. Standard of Review

We review the claim of a lack of factual basis to an Alford plea for the 

correction of errors at law. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001); 

State v. Martin, 778 N.W.2d 201, 202 (Iowa Ct. App. 2009). However, ineffectiveassistance-of-counsel claims are reviewed de novo, and this would include such 

claims that are coupled with the claimed lack of factual basis. Keene, 630 N.W.2d 

at 581.

III. Assistance of Counsel

The first claim that Cooper raises is that he received ineffective assistance 

of counsel because his counsel allowed him to enter into an Alford plea when there 

was no factual basis for the guilty plea. For a claim of ineffective assistance of 

counsel to succeed, the defendant must prove that counsel failed to perform an 

essential duty and that such failure caused the defendant to be prejudiced. State 

v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). The defendant must prove these 

 

to believe that such property has been stolen, unless the person’s purpose is to promptly 

restore it to the owner or to deliver it to an appropriate public officer.” Iowa Code § 714.1(4) 

(2017). 

4 Fourth-degree theft is a serious misdemeanor and is defined as “[t]he theft of property 

exceeding two hundred dollars in value but not exceeding five hundred dollars in value.” 

Iowa Code § 714.2(4). The minutes of evidence state that the value of the cellphone was 

$500. Cooper acknowledged in the petition to plead guilty that the minutes of evidence

would be used to make a determination on the evidence for guilt. Cooper did assert that 

the valuation in the minutes of evidence may be inaccurate; however, he did not assert 

such argument until the reply brief. “We have long held that an issue cannot properly be 

asserted for the first time in a reply brief.” State v. Walker, 574 N.W.2d 280, 288 (Iowa 

1998). 
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requirements by a preponderance of the evidence. State v. Schminkey, 597 

N.W.2d 785, 788 (Iowa 1999). 

“We will find counsel failed to perform an essential duty if defense counsel 

allows the defendant to plead guilty to a charge for which no factual basis exists 

and thereafter fails to file a motion in arrest of judgment challenging the plea.” 

Brooks, 555 N.W.2d at 448. “Prejudice in such a case is inherent.” Schminkey, 

597 N.W.2d at 788. “On the other hand, where a factual basis exists for the plea, 

counsel usually will not be found ineffective for allowing the defendant to plead 

guilty.” Brooks, 555 N.W.2d at 448. When determining whether there is factual 

basis for a guilty plea, the entire record must be taken into consideration. Id. 

“[G]eneral criminal intent is an element of all theft offenses.” Eggman v. 

Scurr, 311 N.W.2d 77, 79 (Iowa 1981). There are differing degrees of intent 

required for different definitions of theft, and the relevant definition in this case 

requires knowledge. Id; see also Iowa Code § 714.1(4). The relevant definition 

provides for an inference of knowledge:

The fact . . . that the person is a dealer or other person familiar with 

the value of such property and has acquired it for a consideration 

which is far below its reasonable value, shall be evidence from which 

the court or jury may infer that the person knew or believed that the 

property has been stolen.

Iowa Code § 714.1(4). 

Cooper told law enforcement that he fixes cellphones and also purchases 

old cellphones from Goodwill and other retailers. He stated that he used the kiosk 

to deposit cellphones and receive money in return. Since Cooper is in the business 

of purchasing, fixing, and reselling cellphones, he may have either known or had 
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“reasonable cause to believe” the device was procured by illegitimate means

because he is familiar with the value of various cellphones. See id.

Additionally, an “inference has long been drawn that exclusive possession 

of recently stolen property, if unexplained or falsely explained, indicates that the 

defendant received it with guilty knowledge.” State v. Post, 286 N.W.2d 195, 203 

(Iowa 1979). When law enforcement first telephoned Cooper, he explained that 

he deposits many cellphones in the kiosk at Wal-Mart and was unsure which

cellphone the officer was referring to. After the officer described the cellphone to 

Cooper, the line went dead. The officer was able to get in contact with Cooper 

again, and Cooper claimed he had no idea how he obtained the cellphone because 

he had multiple Samsung Galaxy S5 phones. However, he changed his story and 

said that he did purchase the cellphone from Goodwill. While he claimed that he 

could provide proof of purchase, he admitted that the receipt did not list the 

individual items that he purchased. Cooper’s various and contradicting 

explanations as to how he came into possession of the cellphone may infer that 

Cooper obtained the cellphone with guilty knowledge. See id. 

Furthermore, law enforcement contacted the Goodwill store that Cooper

claimed to have bought the cellphones from and was told that the store did not sell

or recycle any cellphones. The Goodwill employee also stated that it would be a 

rare occurrence for employees to overlook a cellphone when preparing items for 

sale. Since it is a rare occurrence to find a cellphone in one of those Goodwill bins, 

let alone find two as Cooper later claimed, the inference is that Cooper provided a 

false explanation, which indicates Cooper obtained the cellphone with guilty 

knowledge. See id. 
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Based on the record, there is factual basis for the Alford plea. Since there 

is factual basis to support the plea, Cooper’s claim of counsel failing an essential 

duty fails and ineffective assistance of counsel has not been proven. See Brooks, 

555 N.W.2d at 448. 

IV. District Court’s Acceptance of Plea

Cooper also claims that the district court erred in accepting the Alford plea 

despite the lack of factual basis. “The district court may not accept a guilty plea 

without first determining the plea has a factual basis,” and such requirement 

applies when the plea is an Alford plea. Schminkey, 597 N.W.2d at 788. As stated 

in the previous section, there is factual basis to support the Alford plea. Because 

a factual basis exists, the district court did not err in accepting the plea. 

V. Conclusion

We conclude there was factual basis to support the entering and 

acceptance of an Alford plea for fourth-degree theft. 

AFFIRMED.