STATE of Iowa, Appellee, v. Ricardo ORTIZ, Appellant.
No. 09-0895.
Supreme Court of Iowa.
Oct. 15, 2010.
789 N.W.2d 761
Thomas J. Miller, Attorney General, Mary E. Tabor (until withdrawal) and then Thomas S. Tauber, Assistant Attorneys General, and Darin J. Raymond, County Attorney, for appellee.
BAKER, Justice.
The State seeks further review from the court of appeals’ decision to vacate the sentence of the defendant, Ricardo Ortiz, following his guilty plea to robbery in the first degree in violation of
I. Background Facts and Proceedings.
Ricardo Ortiz pleaded guilty to robbery in the first degree in violation of
Another resident, F.T., was in the master bedroom and did not see the intruders, but he did contact police. The deputies located and pursued the intruders’ car. The intruders lost control of their car, and it became lodged in a snow bank. Three individuals fled, and two individuals, including Ortiz, were apprehended in the car. Ortiz’s footprints matched foot treads found outside of K.S. and F.T.’s home. Ortiz admitted to the police they entered the house “to see what they could get.” He admitted to wearing a black stocking cap and a red bandanna covering his face. Ortiz also carried a black trash bag to carry stolen goods.
Deputies found a fixed five-inch knife with a black rubber handle and a silver metal hatchet located near the snow bank where the intruders’ car stopped. The record does not indicate that a box cutter or utility knife was ever found. David Zamora, one of the participants, told the deputies that Michael Carson, another participant, “threw something and he thought it was a knife out of the back window prior to going into the ditch.”
Ortiz pleaded guilty to robbery in the first degree. As part of his plea, Ortiz waived his right to file a motion in arrest of judgment. He was sentenced to a term of twenty-five years with a seventy percent mandatory minimum.
During the plea colloquy, the court was confused as to what additional elements triggered first-degree robbery as opposed to second-degree robbery. The prosecutor advised the judge that first-degree robbery requires the additional element that the defendant “purposely inflict serious injury or attempt to inflict serious injury or is armed with a dangerous weapon.” Ortiz and his trial counsel discussed the additional first-degree robbery element off the record. Then, the following conversation occurred:
THE COURT: All right. Uh, I think my last question, Mr. Sloan [defense counsel], was are you prepared to address which one of those options under 711.2 might apply to this particular case? MR. SLOAN: I—I believe it is armed with a dangerous weapon, Your Honor.
THE COURT: All right. Uh, Mr. Ortiz, do you agree that either you or someone with whom you were, uh, participating in this robbery with was
armed with a dangerous weapon? DEFENDANT: Yes. THE COURT: All right. Have, uh, you, uh, visited with Mr. Sloan about what’s involved and what the definition of a dangerous weapon is? DEFENDANT: Yes.
THE COURT: Ok Mr. Raymond [the prosecutor], are you satisfied with the factual basis? MR. RAYMOND: I am, Your Honor.
Earlier in the colloquy, Ortiz also admitted he “purposely put someone in fear of a serious injury.” At the end of the colloquy, the court accepted Ortiz’s plea. Subsequently, Ortiz filed a notice of appeal asserting ineffective assistance of counsel alleging that his trial counsel failed to file a motion in arrest of judgment. Specifically, he alleged there was no factual basis in the record that anyone participating in the robbery possessed a dangerous weapon within the meaning of
We transferred the case to the court of appeals. The court of appeals found the record contained no factual basis that anyone involved in the robbery used a dangerous weapon and vacated the district court’s sentence. We granted further review.
II. Scope of Review.
Normally we review challenges to guilty pleas for correction of errors at law. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006);
III. Preservation of Error.
To preserve error for appeal, generally, defendants challenging a guilty plea must file a motion in arrest of judgment prior to sentencing. State v. Gant, 597 N.W.2d 501, 503-04 (Iowa 1999). We recognize an exception to this general rule for ineffective assistance of counsel claims. Keene, 630 N.W.2d at 581. Nevertheless, the State contends Ortiz did not properly preserve error because Ortiz, as part of his plea agreement, waived his right to file a motion in arrest of judgment; therefore, Ortiz cannot allege on appeal his counsel was ineffective for not filing a motion in arrest of judgment. If we accept the State’s argument, then Ortiz’s plea agreement would waive his right to challenge the factual basis of his plea; such a result empowers the State to deprive defendants of their right to effective counsel as a condition of the plea bargaining process, an untenable result. See State v. Philo, 697 N.W.2d 481, 484-85 (Iowa 2005) (noting that counsel’s failure to file a motion in arrest of judgment when defendant’s plea lacks a factual basis constitutes ineffective counsel). We adhere to precedent. Ineffective counsel claims are an exception to our error preservation requirements. Id. at 485.
IV. Discussion and Analysis.
To prove ineffective assistance, the defendant must demonstrate by a preponderance of evidence that “(1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). Defense counsel violates an essential duty when counsel permits defendant to plead guilty and waive his right to file a motion in arrest of judgment when there is no factual basis to support defendant’s guilty plea. Philo, 697 N.W.2d at 485;
Therefore, to succeed on the essential duty prong, Ortiz must demonstrate the record lacks a factual basis to support his guilty plea to first-degree robbery. First-degree robbery requires the accused to commit robbery “armed with a dangerous weapon.”
A. Dangerous Weapon Defined Generally.
Initially,
A “dangerous weapon” is any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed, except a bow and arrow when possessed and used for hunting or any other lawful purpose.
The record contains facts demonstrating that a small utility knife or box cutter was present during the robbery. These instruments do not have the primary purpose of inflicting death or injury, nor were they designed for that purpose. There is no factual basis in the record to support that a dangerous weapon under this definition was used in the robbery.
B. Dangerous Weapon Per Se.
Dangerous weapons include but are not limited to any offensive weapon, pistol, revolver, or other firearm, dagger, razor, stiletto, switchblade knife, knife having a blade exceeding five inches in length, or any portable device or weapon directing an electric current, impulse, wave, or beam that produces a high-voltage pulse designed to immobilize a person.
The State argues that because K.S. described the weapon as “a box cutter knife that contained a razor blade” and because
[i]t is apparent from the context that the term “razor” as used in the former statute [
Iowa Code section 695.1 (1977)] and insection 702.7 is limited to the straight razor, a common shaving instrument before invention of the safety razor.
State v. Durham, 323 N.W.2d 243, 245 (Iowa 1982).
The State argues our finding in Durham, that the term “razor” is limited to a straight razor, is dicta and urges us to reexamine this issue. We decline to do so and reaffirm Durham. The term “razor” as used in
Even were we to reexamine Durham, our result remains the same. We recognize that some other courts have found the term “razor” to encompass box cutter instruments that contain a razor blade on the basis of legislative intent. See, e.g.,
Moreover, “[i]f a criminal statute is ambiguous we resolve any doubt in favor of the accused.” State v. Finders, 743 N.W.2d 546, 548 (Iowa 2008). The Virginia Supreme Court invoked this same rule of lenity when it held a box cutter was not a razor within the meaning of its weapons possession statute. Harris v. Commonwealth, 274 Va. 409, 650 S.E.2d 89, 91 (2007). In Harris, the defendant, a convicted felon, was convicted of possession of a concealed weapon, a box cutter, in violation of
The current dictionary definition of the term “razor” refers to both a straight razor and a safety razor. A box cutter is neither; it is defined as “a small cutting tool that is designed for opening cardboard boxes and typically consists of a retractable razor blade in a thin metal sheath.” Merriam-Webster’s Collegiate Dictionary 148 (11th ed.2004). Furthermore, when a razor was added to the list of items that could not lawfully be carried concealed, see 1884 Acts ch. 143, the term “razor” was defined as “a knife with a keen edge and broad back, used for shaving.” A Dictionary of the English Language 828 (1885); see also A Dictionary of the English Language 1187 (1880) (defining the term “razor” as “[a] knife or instrument for shaving off beard or hair”).
Id. at 91 (footnote omitted). The court then noted it was required to construe ambiguous penal statutes narrowly and the definitional differences between a razor and a box cutter required the court to conclude that a box cutter was not a razor within the meaning of the statute. Id.
We find this reasoning persuasive. Simply put, a box cutter is not a razor. While the two instruments may be capable of posing similar threats if misused, the instruments are different in design and utility. It would be speculative for us to conclude that the legislature intended a box cutter to constitute a per se dangerous weapon when it classified a razor as such. A criminal statute’s ambiguity requires this court to construe the ambiguity narrowly. We continue to hold a box cutter is not a razor within the meaning of
C. Dangerous Weapon in Manner Used.
Finally,
Additionally, any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being, is a dangerous weapon.
The first question under this definition is whether a box cutter “when so used, is capable of inflicting death upon a human being.”
The last requirement under this definition of dangerous weapon is whether the defendant “actually used [the instrument] in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other.”
Our past cases suggest that a defendant objectively indicates intent to inflict harm when the defendant engages in a personal confrontation with another while possessing an instrument capable of causing bodily harm. Greene held that steel shards placed under a victim’s car tires were not used as a dangerous weapon. Id. at 538. However, the court posited
[i]f the shards were held in the defendant’s hand in a personal confrontation with a victim, there would be little doubt that they were dangerous weapons, as they would have been used in a manner indicating an intent to kill or injure.
Id. Similarly, we have held that a three foot metal pipe was actually used as a dangerous weapon when the defendant stood over his victim “poised to strike.” State v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000); see also State v. Hill, 258 Iowa 932, 936, 140 N.W.2d 731, 733 (1966) (“It has been said, and we agree, that the character of a dangerous weapon attaches by adoption when the instrument is applied or is carried for use against another in furtherance of an assault.”). Thus we determine that a box cutter may be “used in such a manner as to indicate that the defendant intends to inflict death or serious injury.”
Before turning to the record, we must determine the evidentiary threshold required for district courts to accept a guilty plea.
We now turn to the record to determine if the record demonstrates a factual basis that Ortiz possessed a dangerous weapon and indicated intent, through use of the box cutter, to cause severe bodily harm to the victim, K.S. The minutes of evidence state that K.S. saw a “box cutter type knife that contained a razor blade” in the left hand of the lead intruder into her home. The intruder was “waving” the box cutter and caused K.S. to be frightened and yell. Also, the minutes of evidence detail a personal altercation between the intruder possessing the box cutter and K.S. in the hallway as well a struggle between the two with the bedroom door.
Ortiz made statements at his plea colloquy that tend to show that a dangerous weapon was used in the robbery. Ortiz admitted during his colloquy that he “purposely put someone in fear of a serious injury.” We think this admission tends to establish that an intruder used an instrument “in such a manner as to indicate that the defendant intends to inflict death or serious injury.”
The record, when viewed as a whole, demonstrates facts similar to the personal confrontation contemplated in Greene and present in Lambert. Greene, 709 N.W.2d at 537-38; Lambert, 612 N.W.2d at 815. The record shows K.S. identified a box cutter or utility knife in the left hand of the lead intruder, the intruder was waving the instrument while in the house, K.S. was scared, K.S. was confronted by this man in the hallway, K.S. struggled with this man opening and closing a bedroom door, and Ortiz admitted he “purposely put someone in fear of a serious injury.” We find the record demonstrates a factual basis that an “instrument [was] . . . actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other.”
V. Disposition.
Because the record contained a factual basis to support a finding that a dangerous weapon was used in the robbery, Ortiz’s counsel did not breach an essential duty when he permitted Ortiz to plead guilty to first-degree robbery or when he declined to file a motion in arrest of judgment. See State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004) (defense counsel does not have a duty to assert challenges that lack merit).
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.