STATE v. PENNEY, 705 N.W.2d 507 (Iowa App. 2005)

No. 05-0291Court of Appeals of Iowa.
Filed September 14, 2005

Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.

Roy Penney appeals from his conviction and sentence following the entry of his guilty plea for aggravated misdemeanor forgery.AFFIRMED.

Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Ralph Marasco, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.

HECHT, J.

Roy Penney appeals from his conviction and sentence following the entry of his guilty plea for aggravated misdemeanor forgery. We affirm.

I. Background Facts and Proceedings.
On April 5, 2004, Roy Penney attempted to negotiate a cashier’s check with the EZ Money Check Cashing Center in Des Moines. The employee handling the matter became suspicious of the check’s authenticity and telephoned the bank on which the check was purportedly drawn. When the employee learned the bank had not issued a check payable to Penney, she contacted police. When she refused to accept the check, Penney became argumentative, insisting the check was valid. Penney’s persistence promptly subsided, however, when he was informed that police had been summoned. He quickly exited the facility, leaving behind both the check and his driver’s license.

Penney was later apprehended and charged with a felony count of forgery. The State subsequently amended the information to charge aggravated misdemeanor forgery, and the district court accepted Penney’s Alford plea[1] on January 20, 2005. The district court then imposed and suspended a two-year term of imprisonment. Penney now appeals alleging plea counsel was ineffective in permitting him to plead guilty to a charge for which a factual basis was not established. In particular, Penney contends plea counsel should have challenged the plea because the record is barren of a factual basis for a determination that Penney (1) knew the check was forged, or (2) intended to defraud anyone by presenting the check for payment. Moreover, Penney claims the evidence of his flight cannot suffice to provide a factual basis for his alleged intent to defraud.

II. Scope and Standard of Review.
Where the ineffectiveness of counsel is alleged in connection with the entry of the guilty plea, we perform de novo review of the entire record. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Where the defendant chooses to raise claims on appeal and where the record is adequate to review the actions of trial counsel, we may decide the ineffectiveness claim on direct appeal. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984).

III. Discussion.
On appeal, Penney claims plea counsel breached an essential duty in allowing him to plead guilty to a charge for which no factual basis exists. See Iowa R. Crim. P. 2.8(2)(b). Aggravated misdemeanor forgery is committed where the defendant, with specific intent to defraud, transfers a forged writing affecting legal relations. Iowa Code § 715A.2(2)(b) (2003). Penney does not dispute the fact the check in question was forged. He instead contends the record did not permit the district court to find Penney possessed the requisite intent to defraud.

While the district court need not extract a confession from the defendant to accept a guilty plea, whether the district court may accept an Alford plea is conditioned on its ability to find factual support for every element of the offense from sources other than the defendant, namely the minutes of testimony, statements made by the defendant and the prosecutor during the plea proceeding, and the presentence investigation report. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). Although Penney waived reporting of the plea proceeding and no record of it was generated, the minutes of testimony do provide a factual basis sufficient to establish that Penney (1) attempted to cash a forged check, (2) upon being confronted with the forgery, vehemently argued the check was authentic, and (3) fled the scene when informed that police had been summoned, and in his haste left behind both his driver’s license and the check he claimed was authentic.

Flight may constitute circumstantial evidence of consciousness of guilt. State v. Marsh, 392 N.W.2d 132, 134 (Iowa 1986). Although flight is not necessarily indicative of ongoing criminal activity, it may be if the circumstances surrounding a suspect’s efforts to avoid the police allow a rational conclusion that flight indicates a consciousness of guilt. State v. Kreps, 650 N.W.2d 636, 644 (Iowa 2002). We conclude the timing and manner of Penney’s flight suffice, when combined with other evidence presented in the minutes of testimony, to supply a factual basis for the district court’s determination that Penney intended to defraud others when he attempted to cash the forged check. Finding each element of the charge is established in the record, we conclude plea counsel could not have breached a duty by allowing Penney to plead guilty. Because a failure to prove plea counsel’s breach of an essential duty is fatal to a claim of ineffective assistance of counsel, State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999), we affirm.

AFFIRMED.