Guilty Plea to Felony Eluding of a Law Enforcement Vehicle Reversed

State v. Philo, _____ N.W.2d _____ (Iowa 2005)(No. 56/0183)
Mark Philo contended that his attorney was ineffective because he failed to file a motion in arrest of judgment. Philo pleaded guilty in Black Hawk County District Court to felony eluding of a law enforcement vehicle, as well as theft of a motor vehicle and third offense possession of marijuana. After accepting the guilty plea, the district court ordered Philo to serve up to five years for eluding, and the eluding sentence was to be served consecutively to a theft sentence imposed by the district court in Buchanan County (Philo’s criminal activity began in Buchanan County where he stole a vehicle. He pleaded guilty in Buchanan County to theft and was sentenced to serve up to five years.). Philo appealed, contending a motion in arrest of judgment should have been filed because there was no factual basis in the record to support the guilty plea to felony eluding and his guilty plea was not voluntary nor intelligently made.

The Supreme Court, Cady, J., vacates a decision of the court of appeals and reverses the district court in connection with the eluding charge. The Court finds that the record is not sufficient to support a plea of guilty to eluding law enforcement while participating in a public offense. See section 702.13, Iowa Code. The Court observes that “once a participant in a public offense has left the crime scene and has eluded any pursuers, the person is no longer ‘participating in a public offense’ under the statute.”

Although the evidence in this case reveals Philo was eventually pursued for the public offense of motor vehicle theft, there was no evidence that the pursuit was connected to the withdrawal from the crime scene. Instead, the record only reveals that the vehicle Philo was operating in Black Hawk County was taken from Buchanan County sometime prior to the eluding incident in Black Hawk County and that police only pursued Philo after a random license plate check showed the vehicle was reported as stolen. Moreover, the crime scene does not expand beyond the area where the crime is committed. It is significant that our legislature not only defined participation to commence when the first act occurs towards the commission of the offense, but described withdrawal from the scene in the context of the “intended crime.” This shows the scene is tied to the area where those acts, beginning with the first act, occur that directly result in the commission of the offense. Once the offense has been committed, the scene is defined, and participation can only extend beyond the scene in the event of a pursuit that takes place prior to withdrawal. We agree with Philo that the record failed to reveal a factual basis to support the “participating in a public offense” element of the offense of felony eluding.

By allowing Philo to plead guilty to felony eluding and to waive his right to file a motion in arrest of judgment, Philo’s counsel breached an essential duty. Doggett, 687 N.W.2d at 101-02. “Additionally, prejudice is inherent under the circumstances.” State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (citing State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999)).

The Court vacates the sentence and remands to the district court to allow the State an opportunity to establish a factual basis for felony eluding (If a factual basis for the pleas is not established, the guilty plea should be set aside.). The Court preserves Philo’s appeal regarding confusion about the plea agreement for postconviction relief (The status of the postconviction relief claim depends upon the district court decision regarding the factual basis for the guilty plea on the eluding charge.).

District Court Correctly Decided Custody Issue Involving Member of the National Guard Called to Active Duty

In re Marriage of Grantham, _____ N.W.2d _____ (Iowa 2005)(No.51/03-2100)
The marriage of Tammara Sue Grantham and Michael Grantham was dissolved on July 11, 2000. They were granted joint custody of their two children. Michael was awarded primary physical care. Tammara was ordered to pay child support. In August 2002, Michael was called to active duty with the Iowa National Guard. Michael proposed to have his mother care for the children while he was on active duty. Tammara objected. An attempt at settlement failed. Tammara filed a petition with the Iowa District Court for Butler County for orders granting her custody of the children and directing Michael to pay child support. Michael was served with Tammara’s petition while he was on active military duty at the National Guard armory in Estherville. His attorney requested a stay of proceedings until Michael returned to civilian status, citing the Soldiers and Sailors Civil Relief Act (SSCRA). The district court denied the stay. Temporary orders placing the children with Tammara were entered. About a year later, while Michael was still on active duty,, trial was held on the petition for permanent change of custody. The district court held permanent physical care of the children should be changed from Michael to Tammara, provisions were made for visitation by Michael, and he was ordered to pay child support. The district court considered matters that had occurred during the year the children had been in Tammara’s physical care. Michael appealed the district court order.

The Supreme Court, Carter, J., rejects a decision by the court of appeals which found the SSCRA required entry of a stay of the temporary placement proceedings, and that evidence of developments while the children were in Tammara’s custody should not have been considered. The Supreme Court notes that the SSCRA does not mandate a stay in every case involving a parent who is called to active military duty. “To warrant a stay under this legislation, it must be determined that substantial rights of the absent serviceman will be prejudiced if the effort to postpone the proceedings is denied.” The Court observes:

The district court found that Michael attempted to conceal the arrangement for his mother’s custody of the children pursuant to a military family care plan until it was too late for Tammara to seek judicial relief before he was called to active duty. The record strongly supports that finding. To allow Michael to continue the temporary custody proceeding until after his return to civilian status would have been a serious denial of Tammara’s rights. As parent and joint custodian of the children, her claim to temporary custody was clearly superior to that of Michael’s mother. That she would receive temporary custody on an application to the court was an almost certain occurrence. Under the circumstances presented, Michael’s representation through legal counsel, who called witnesses advocating his position, including Tammara’s own father, resulted in no substantial prejudice of Michael’s rights. He has failed to indicate in any manner how his personal presence at the hearing would have changed the result.

The Court also finds that it was proper for the district court to consider evidence about the children from the period of time while Michael was on active duty and they were in Tammara’s physical custody.

In ordering a change of the children’s primary care, the district court found that, beginning almost immediately following the dissolution decree, Michael has maintained a persistent pattern of conduct that has served to diminish the children’s relationship with their mother. He has refused to acknowledge her presence when he and the children are in her company. He has refused to allow the children to acknowledge her presence in public settings. He has inappropriately involved the children in communicating to their mother matters concerning the children’s well-being that should have been discussed privately between their parents. Indeed, Michael has consistently refused to have any direct communication with Tammara throughout the period following the dissolution decree and openly avowed at trial that this behavior would continue. In In re Marriage of Bolin, 336 N.W.2d 441 (Iowa 1983), we observed:

Even though the parents are not required to be friends, they owe it to the child to maintain an attitude of civility, act decently toward one another, and communicate openly with each other. One might well question the suitability as custodian of any parent unable to meet these minimum requirements.

Bolin, 36 N.W.2d at 447. The district court correctly found that Michael’s conduct in this regard has been a continuing blemish on his parental role.

The record further reflects that, following the dissolution decree and prior to Michael’s active military duty, the children’s demeanor toward and respect of their mother was less than appropriate. That situation has improved substantially since their placement with their mother pursuant to the court’s temporary order. In summary, as the district court concluded, “circumstances have significantly changed since the entry of the decree and Tammy is presently the most effective parent to both children.”

The Court vacates the court of appeals decision and affirms the district court.