IN THE COURT OF APPEALS OF IOWA No. 16

- 1638 Filed September 27, 2017
STATE OF IOWA, Plaintiff

- Appellee,

vs. ANTAVIEON JACKSON , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple (plea) and John J. Bauercamper (sentencing) , Judge s

.

Antavieon Jackson appeals his conviction and sentence follo wing a n Alford plea to second

- degree theft

. AFFIRMED.

Mark C. Smith , State Appellate Defender, and Robert P. Ranschau , Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, and Darrel L. Mullins , Assistant Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.2

MULLINS, Judge. Antavieon Jackson appeals his conviction and sentence following an Alford 1 plea to second

- degree theft. Jackson claims his trial counsel was ineffective in allowing him to submit a plea for which there is no factual basis and the sentencing court abused it s discretion in imposing a prison sentence. I. Background Facts and Proceedings
In October 2015 , Jackson and Erika Loftus w ere seen on camera at a bank maki ng six empty
- envelope ATM deposits and immediately withdrawing funds. The deposits and withdrawals involved Loftus’s account, and resulted in a negative account balance. Jackson and Loftus were charged with second

degree theft , by deception

. A trial resulted in a hung jury for Jackson, and Loftus was found guilty. Prior to Jackson’s second trial, he enter ed an Alford plea as charged

. The court relied on the minutes of testimony to establish a factual basis for the plea with no objection fro m Jackson. The court sentenced Jackson to a prison term not to exceed five years. The sentencing court considered Jackson ’ s crimi nal record, numerous convictions in the three years he was not in prison, failure to cooperate with preparation of the presen tence investigation report (PSI) , 2 struggle with substance abstinence, and completion of only four of fourteen attempted treatment programs

. He appeals.

1 See generally North Carolina v. Alford , 400 U.S. 25 (1970). 2 See Iowa Code § 901.3 (2015). Jackson refused to answer questions about his family when completing his PSI.3

II. Standard of Review Claims of ineffective assistance of counsel are reviewed de novo. State v. Clay , 824 N. W .2d 488, 494 (Iowa 2012). I neffective

- assistance claims may be reviewed on direct appeal if the record is adequate. Id. Challenges to sentences within statutory limits are reviewed for abuse of discretion. State v. Thomas , 547 N.W.2d 223, 225 (Iowa 1996).
III. Ineffective - Assistance - of - Counsel Claim
A. Factual Basis for the Plea Jackson was charged by trial information with “theft 2 nd degree” alleging he and Loftus obtained “possession or control of property, . . . or transfer of ownership of pr operty of another by deception

. . . in violation of [Iowa Code] § 714.1 and § 714.2(2). ” He pled guilty as charged, but now Jackson claims there is no factual basis for his guilty plea

. Jackson’s argument relies on his belief the deposit envelopes were not empty. Guilty pleas, including Alford pleas, will not be accepted without a factual basis

. State v. Schminkey , 597 N.W.2d 785, 788 (Iowa 1999). To determine whether a factual basis exists we may consider the record in its entirety. Id. ; see also State v. Finney , 834 N.W.2d 46 , 63 (Iowa 2013). Upon Jackson’s decision to submit an Alford plea , t he district court relied on the t rial information and minutes of t estimony to determine whether a factual ba sis for the plea exists

. The minutes of testi mony listed witnesses who would testify to Jackson’s identity on surveillance videos and bank records showing empty
- envelope deposits , withdrawals, and overdrafting. His co

- defendant, Loftus , did not testify in the first trial, but was expected to testify in the second4

trial to the empty

- envelope deposit s, withdrawal s, and her relationship with Jackson. Furthermore, Jackson testified at his first trial that he deposited five of the six empty envelopes. At the plea hearing, he responded to the d istrict court that he understood th e elements of the charged crime and stipulated that a jury hearing the evidence presented in the minutes of testimony could find him guilty beyond a reasonable doubt. Jackson is correct that under the facts alleged in this case, intent to deceive must be shown

. However , circumstantial evidence may support a finding of intent in theft by deception

. State v. Rivers , 588 N. W .2d 408, 410 (Iowa 1998). Considering Jackson’s testimonial admission at his first trial and the facts presented in the minutes of testimony, there is a factual basis for conclud ing he had the intent to deceive when he withdrew money from the ATM

. Accordingly , a factual basis for Jackson’s Alford plea exist s

. In his supplemental brief, 3 Jackson relies on State v. Nall , 894 N.W.2d 514 (Iowa 2017), arguing there was no deprivation of property without the consent of another person . In Nall , the defendant was charged with theft by taking following use and deposit of counterfeit checks and money orde rs

. 894 N.W.2d at 516

– 17;

see Iowa Code § 714.1(1) (2013)

. Nall’s convictions for theft by taking were reversed because the transactions were approved before the bank discovered her deposits were fraudulent , meaning the funds taken by Nall were not witho ut
consent

. Nall

, 894 N.W.2d a t 525. Jackson argues the Nall court’s ruling following fraudulent deposits should be applied here

.

3 After Jackson filed a notice of additional authorities, we invited supplemental briefing.5 Jackson’s trial information charges him with theft in the second degree, in violation of Iowa Code sections 714.1 and 714 .2(2), but specifies the theft was “by deception,” a clear invocation of section 714.1(3). See Iowa Code § § 714.1, 4 .1(3), 5 .2(2) 6 (2015)

. A trial information need only provide enough information for a defendant to have sufficient notice of the charge and prepare a defense. State v. Johnson , 356 N.W.2d 576, 578 (Iowa Ct. App. 1984). Specific reference to a particular code section is unnecessary. 7 See State v. Davidson , 245 N.W.2d 321, 324 (Iowa 1976).
In additio n to theft

- by

- deception language in the trial information, during the plea colloquy , the district court read the charge aloud to Jackson us ing the phrases “by deception,” “knowingly dece ived,” and “in the deception.” Although the trial information does not recite section 714.1(3), the district court clearly identified “ by deception ” as the method by which Jackson committed the theft , and Jackson indicated he understood the charge when as ked . T he trial information and court colloquy put Jackson on notice that his charge was , in fact , theft by deception under Iowa Code section 714.1(3). Jackson’s Nall argument is based on a theft

- by

- taking charge. See Iowa Code § 714.1(1); Nall

, 894 N.W.2d at 525. Jackson , however, was charged with theft by deception , rendering the comparison inapplicable

. See Iowa Code § 714.1(3) ; Nall

, 894 N.W.2d at 525

.

4 Section 714.1 identifies in numbered paragraphs the various ways in which theft can be committed. 5 Section 714.1(3) provides a person commits theft when the person “obtains . . . property of another, by deception.” 6 Section 714.2(2) defines the classifi cation of second degree theft. 7 The better practice is to identify the specific section und er which a defendant is charged and to reference that section during the plea , sentence proceedings , and judgment entry.6

B. Ineffective Assistance on Plea Entry Jackson claims his counsel was ineffective for al lowing him to submit a guilty plea to a charge for which there is no factual basis. To succeed on an ineffective

- assistance

- of

- counsel claim a plaintiff must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington , 466 U.S. 668, 687 (1984). F ailure to prove one element relieves a court from review of the other. Id. at 697

. Allowing a defendant to submit a plea of guilty for which there is no factual basis is a breach of an essential duty. Schminkey , 597 N.W.2d at 788. However, we have determined a factual basis exists for Jackson’s Alford plea to theft by deception. Because counsel has no duty to raise a meritless claim, we find counsel’s failure to object to the plea was not in error. State v. Fountain , 786 N.W.2d 260, 263 (Iowa 2010). Because counsel performed proficiently , the ineffective

- assistance claim fails.
IV. Abuse of Discretion Claim Jackson claims the sentencing court abused its discretion in im posing a prison sentence not to exceed five years

. A n abuse of discretion will be found for

a ction taken on grounds clearly untenable or to an unreasonable exten t

. State v. Rodriguez

, 636 N.W.2d 234, 239 (Iowa 2001). Actions are untenable where they

are not supported by substantial evidence or based on correct application of law. Id. A sentencing court may consider all relevant factors, including “the nature of the offense, the attending circumstances, the defendan t’s age, character, and propensities or chances at reform.” State v. Johnson , 513 N.W.2d 717, 719 (Iowa 1994).7
Jackson requested probation but the sentencing court rejected his request

. The court stated it considered the nature of the offense and Jack son’s criminal record , which include d theft a nd felony conviction s

. Reasons need not be given for a court’s rejection of a sentencing suggestion

. State v. Loyd , 530 N.W.2d 708, 714 (Iowa 1995)

. The court stated the factors it considered for Jackson’s se ntence , which are supported by the record described above

. We conclude the court did not abuse its discretion in sentencing. We affirm Jackson’s conviction and sentence.
AFFIRMED.