State of Iowa v. Christopher Lee Roby Jr.

S
                IN THE SUPREME COURT OF IOWA
                               No. 19–0551

          Submitted September 17, 2020—Filed November 20, 2020


STATE OF IOWA,

      Appellee,

vs.

CHRISTOPHER ROBY,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County, Alan T.

Heavens and Kellyann M. Lekar, Judges.



      Defendant seeks further review of court of appeals decision rejecting

his claim that his guilty plea to speeding barred his subsequent conviction

for eluding while speeding based on double jeopardy grounds. DECISION

OF    COURT     OF   APPEALS     AND    DISTRICT     COURT      JUDGMENT

AFFIRMED.



      Waterman, J., delivered the opinion of the court, in which all justices

joined.



      Marti D. Nerenstone, Council Bluffs, for appellant.
                                 2

      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, Brian J. Williams, County Attorney, and Elizabeth

O’Donnell and Yeshimebet Abebe, Assistant County Attorneys, for

appellee.
                                    3

WATERMAN, Justice.

      In this appeal, we must decide whether a defendant, simply by

paying a speeding ticket, can avoid a charge of eluding while speeding for

the same police chase. The defendant, then age seventeen, received a

speeding citation to which he pled guilty without pleading guilty to his

accompanying charge of eluding. Months later after he turned eighteen,

the State formally charged him by trial information with eluding while

speeding. On advice of counsel, the defendant pled guilty to the eluding

charge and several unrelated offenses.
      On appeal, the defendant’s new counsel argues that speeding is a

lesser included offense of eluding while speeding and that his first lawyer

was ineffective for failing to challenge the eluding charge on double

jeopardy grounds. We transferred the case to the court of appeals, which

rejected his double jeopardy claim and other issues raised on appeal. We

granted the defendant’s application for further review.

      On our review, we determine that speeding is a lesser included

offense that at trial would merge into a conviction for eluding while

speeding.    Double jeopardy principles generally prohibit a second

punishment for the same offense. Here, however, the defendant pled guilty

to speeding, a scheduled violation, without a prosecutor present or any

agreement to dismiss or foreclose the eluding charge. The defendant also

had received notice of an eluding charge. Under these circumstances, we

hold that the defendant cannot use double jeopardy principles as a sword

to defeat the more serious eluding charge. We let the court of appeals

decision stand on the defendant’s other claims and affirm his convictions

and sentences.
                                       4

        I. Background Facts and Proceedings.

        On October 23, 2017, Sergeant Steve Bose was driving his marked

police patrol car in Waterloo when he noticed a silver Chevy Impala with

fresh front-end damage traveling in the opposite direction. Sergeant Bose

executed a U-turn to investigate further. As he did so, the Impala rapidly

accelerated. Sergeant Bose activated his emergency lights, and the driver

failed to stop. Sergeant Bose next activated his siren, but the driver sped

away.

        During the ensuing chase, the driver drove off the roadway and
through the lawns of three homes. The Impala reached speeds of fifty-five

miles per hour in a twenty-five-mile-per-hour zone. The driver eventually

ditched the Impala in a backyard and fled on foot. Sergeant Bose radioed

the driver’s description and stayed with the Impala and its passengers.

Another officer apprehended the driver, identified as Christopher Lee Roby

Jr., then age seventeen.

        The police report shows Roby was charged with eluding and

interference with official acts and was issued citations for driving without

a license, reckless driving, and speeding. As a minor, he was released to

his mother without being held to answer for the eluding charge.             In

November, Roby, still age seventeen, pled guilty to driving without a

license, speeding, and reckless driving, all of which are scheduled

violations. There was no reported hearing involving a prosecutor. Nor did

the State agree to forgo the eluding charge. To the contrary, on May 23,

2018, after Roby turned eighteen, the State filed a criminal complaint for

the eluding charge and a magistrate issued an arrest warrant.

        Officers learned that Roby was staying with his girlfriend, Tiara Bell,
who drove a black 2013 Chevy Malibu. Officers saw Roby and Bell leave

her apartment and get into the Chevy. As officers spoke with Roby and
                                     5

Bell, they smelled a “fresh green” odor of marijuana on Roby and Bell and

searched them but found nothing. Bell told the officers that there was

marijuana inside the apartment. Officers obtained a search warrant for

the apartment and located a small plastic bag of marijuana by the bed

where Roby slept and a larger bag of marijuana on the TV stand in the

bedroom. Bell told the officers that they shared the marijuana but that

“Roby gets the weed.”

      On June 5, the State filed a trial information that charged Roby with

eluding—speed over twenty-five miles per hour over the limit pursuant to
Iowa Code section 321.279(2) (2017)—based on the October 23, 2017

police chase. On July 11, the State filed a criminal complaint that charged

Roby with possession of a controlled substance with intent to deliver, and

on August 16, the State filed a trial information with the same charge.

      On August 30, personnel at Allen Hospital contacted child

protection workers at the Iowa Department of Human Services to report

the admission of a thirteen-year-old patient who was around eight weeks

pregnant. At the Allen Child Protection Center, the patient disclosed that

she had sex with Roby several times. Roby admitted having sex with the

victim after his eighteenth birthday. On September 26, the State filed a

criminal complaint charging Roby with third-degree sexual abuse, and on

October 5, the State filed a trial information with the same charge.

      On March 28, 2019, Roby pled guilty to the eluding charge and

agreed to a two-year sentence. On that same date, Roby pled guilty to the

other charges. The court sentenced Roby to five years for the possession

charge and ten years for the sexual abuse charge, with all sentences to

run concurrently.
      Roby filed this direct appeal, raising multiple issues, including that

his trial counsel was ineffective for failing to challenge his eluding charge
                                           6

on double jeopardy grounds based on his guilty plea to speeding in the

same incident. We transferred the case to the court of appeals, which

affirmed Roby’s convictions. The court of appeals held that Roby failed to

establish a double jeopardy violation and rejected his other claims. Roby

applied for further review, which we granted.

       II. Standard of Review.

       “On further review, we have the discretion to review all or some of

the issues raised on appeal or in the application for further review.” State

v. Clay, 

824 N.W.2d 488

, 494 (Iowa 2012). We choose to review only the
ineffective-assistance-of-counsel claim regarding double jeopardy. We let

the court of appeals decision stand as our final decision regarding the

remaining issues.

       We review an alleged failure to merge convictions as required by

statute for correction of errors at law. State v. West, 

924 N.W.2d 502

, 504

(Iowa 2019); State v. Love, 

858 N.W.2d 721

, 723 (Iowa 2015). We review

constitutional double jeopardy claims de novo.                State v. Lindell, 

828 N.W.2d 1

, 4 (Iowa 2013). “Our review of claims of ineffective assistance of

counsel is de novo.” State v. Ortiz, 

905 N.W.2d 174

, 179 (Iowa 2017).

       III. Analysis.

       Roby argues that speeding is a lesser included offense of eluding

while speeding and that upon his guilty plea to speeding, the State could

no longer prosecute him for eluding. We must therefore decide whether

speeding merges with eluding while speeding and, if so, whether Roby’s

guilty plea to speeding constitutes a double jeopardy bar to the eluding

charge such that his former counsel provided constitutionally defective

representation by allowing him to plead guilty to eluding.1


       1Ineffective assistance is properly before us. See State v. Macke, 

933 N.W.2d 226

,

228 (Iowa 2019) (holding amendments in Senate File 589, amending Iowa Code sections
                                             7

        The State argues that we should preserve Roby’s ineffective-

assistance-of-counsel claims for future postconviction-relief proceedings.

We may address ineffective-assistance-of-counsel claims “when the record

is sufficient to permit a ruling.” State v. Wills, 

696 N.W.2d 20

, 22 (Iowa

2005).     We conclude that the record is adequate to address Roby’s

ineffective-assistance-of-counsel claim based on the merits of his double

jeopardy argument.

        In order to establish ineffective assistance of counsel, a defendant

“must demonstrate (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). For the reasons explained below, we find that Roby’s

double jeopardy claim lacks merit, and therefore, his counsel breached no

duty.

        A. Whether Speeding Is a Lesser Included Offense of Eluding

While Speeding. We have not previously addressed whether speeding is

a lesser included offense that merges with eluding while speeding. To

answer this question, we begin with the applicable statutes. Iowa Code

section 701.9 provides, “No person shall be convicted of a public offense

which is necessarily included in another public offense of which the person

is convicted.” This statute “codifies the double jeopardy protection against

cumulative punishments.”            State v. Halliburton, 

539 N.W.2d 339

, 344

(Iowa    1995).       “The    Double      Jeopardy      Clause     prohibits     multiple

punishments for the same offense” and thereby “prevents a court from

imposing a greater punishment than the legislature intended.”

Id. (emphasis added).2 The

legislature defines the offenses and can provide

814.6 and 814.7, dealing with ineffective-assistance-of-counsel claims do not apply
retroactively to an appeal from a judgment and sentence entered before July 1, 2019).
        2The Double Jeopardy Clause of the United States Constitution provides: “[N]or

shall any person be subject for the same offence to be twice put in jeopardy of life or limb
                                            8

for multiple punishments for separate offenses that overlap. See State v.

Johnson, 

950 N.W.2d 21

, ___ (Iowa 2020). “If the Double Jeopardy Clause

is not violated because the legislature intended double punishment,

section 701.9 is not applicable and merger is not required.” 

Halliburton, 539 N.W.2d at 344

.

       In determining whether the legislature provided for double

punishment, our first step is to apply the legal-elements test that

compares “the elements of the two offenses to determine whether it is

possible to commit the greater offense without also committing the lesser
offense.”

Id. Here, the State

charged Johnson with eluding pursuant to

Iowa Code section 321.279(2) and speeding pursuant to section 321.285.

Under the eluding statute,

       [t]he driver of a motor vehicle commits an aggravated
       misdemeanor if the driver willfully fails to bring the motor
       vehicle to a stop or otherwise eludes or attempts to elude a
       marked official law enforcement vehicle that is driven by a
       uniformed peace officer after being given a visual and audible
       signal as provided in this section and in doing so exceeds the
       speed limit by twenty-five miles per hour or more.

Iowa Code § 321.279(2) (emphasis added).                 Section 321.285, in turn,

requires that drivers obey the posted speed limit.

Id. § 321.285. A

violation of section 321.285 is an element of section 321.279(2).                   It is

impossible to violate section 321.279(2) (eluding while exceeding the speed

limit by twenty-five miles per hour) without violating section 321.285

(speeding).

Id. §§ 321.279(2), .285;

cf. People v. Esparza-Treto, 

282 P.3d 471

, 479 (Colo. App. 2011) (concluding that “one cannot commit the

offense of vehicular eluding without also committing the offense of reckless



. . . .” U.S. Const. amend. V. The Iowa Constitution provides: “No person shall after
acquittal, be tried for the same offence.” Iowa Const. art. I, § 12. Roby does not request
a different analysis under the Iowa Constitution.
                                     9

driving”).   According to the legal-elements test, these offenses should

merge.

      We turn to the second step in the double jeopardy analysis:

“[W]hether the legislature intended multiple punishments for both

offenses.” 

Halliburton, 539 N.W.2d at 344

. The court of appeals held that

there was no double jeopardy violation because, under State v. Rice, the

conditions resulting in varying degrees of eluding are differing sentencing

levels rather than lesser included offenses of eluding and, in any event,

“there is a clear legislative intent to impose cumulative punishments.” 

661 N.W.2d 550

, 551 (Iowa Ct. App. 2003). In our view, Rice is inapposite.

      First, the offenses at issue in Rice were eluding and operating while

intoxicated (OWI).

Id. The Rice court

concluded that each statute was

“meant to protect against a different form of illegal conduct” and that

merger “would thwart the legislative design” of the OWI statute, specifically

its subsequent-offense enhancement scheme and mandatory minimums.

Id. at 551–52.

      Second, the Rice court merely stated it was “inclined” to agree that

the eluding statute defined one offense “with three possible sentencing

levels” while also observing “[i]t is not readily apparent” whether the OWI

statute was a lesser included offense, or rather, “one of several possible

sentencing enhancements.”

Id. at 551.

Regardless, the Rice court, without

deciding that issue, expressly held that even if an OWI was a lesser

included offense of eluding, there was a “clear legislative intent to impose

cumulative punishments.”

Id. Here, the lesser

included offense is not OWI, but speeding. Eluding

while speeding and speeding both involve a driver exceeding the posted
speed limit and thereby endangering others. Moreover, unlike the OWI

statute, the speeding statute lacks subsequent-offense enhancements.
                                    10

Compare Iowa Code § 321.285 with § 321J.2(2). See also Johnson, 950

N.W.2d at ___ (holding the legislature intended separate punishments for

possession of marijuana and eluding while possessing marijuana, in light

of subsequent offense enhancements for simple possession). We see no

clear legislative intent to impose cumulative punishments. We now hold

that speeding is a lesser included offense of eluding while speeding. The

speeding conviction should merge with the eluding conviction. See State

v. Forbes, No. A–3861–04T43861–04T4, 

2007 WL 879570

, at *1 (N.J.

Super. Ct. App. Div. Mar. 26, 2007) (per curiam) (determining that
defendant’s speeding and reckless driving convictions merged with the

eluding conviction); State v. Mulder, 

755 S.E.2d 98

, 106 (N.C. Ct. App.

2014) (“[W]e hold that Defendant was unconstitutionally subjected to

double jeopardy when he was convicted of speeding and reckless driving

in addition to felony fleeing to elude arrest based on speeding and reckless

driving.”). The State does not argue otherwise.

      Accordingly, if a jury had found Roby guilty of speeding and eluding

while speeding for the same incident, the speeding conviction would merge

into the eluding conviction, and the court would sentence him for eluding

alone. See Iowa Code § 701.9. So was Roby’s counsel ineffective for not

arguing his speeding conviction precluded his eluding conviction? We turn

to that question next.

      B. Whether the Defendant May Use the Double Jeopardy Clause

as a “Sword” to Avoid Prosecution on the More Serious Charge. The

United States Supreme Court has “recognized that the Double Jeopardy

Clause prohibits prosecution of a defendant for a greater offense when he

has already been tried and acquitted or convicted on the lesser included
offense.”   Ohio v. Johnson, 

467 U.S. 493

, 501, 

104 S. Ct. 2536

, 2542
                                    11

(1984). However, the same principle does not necessarily apply when the

defendant pleads guilty to the lesser included offense.

      In Ohio v. Johnson, an Ohio grand jury indicted the defendant for

murder, involuntary manslaughter, aggravated robbery, and grand theft.

Id. at 495, 104

S. Ct. at 2538–39. Johnson pled guilty to “involuntary

manslaughter and grand theft, but pleaded not guilty to . . . murder and

aggravated robbery.”

Id. at 494, 104

S. Ct. at 2538.     The trial court

accepted his guilty pleas and granted his motion to dismiss the other

offenses on double jeopardy grounds.

Id. The Ohio Court

of Appeals and
Ohio Supreme Court affirmed.

Id. The United States

Supreme Court

reversed and held that “prosecuting respondent on the two more serious

charges would not constitute the type of ‘multiple prosecution’ prohibited

by the Double Jeopardy Clause.”

Id. Indeed, “ending prosecution

now

would deny the State its right to one full and fair opportunity to convict

those who have violated its laws.”

Id. at 502, 104

S. Ct. at 2542.

      The Johnson Court held that double jeopardy was not implicated

because

      [t]he acceptance of a guilty plea to lesser included offenses
      while charges on the greater offenses remain pending, . . . has
      none of the implications of an “implied acquittal” which
      results from a verdict convicting a defendant on lesser
      included offenses rendered by a jury charged to consider both
      greater and lesser included offenses.

Id. at 501–02, 104

S. Ct. at 2542. In so holding, the Supreme Court

determined that the “respondent should not be entitled to use the Double

Jeopardy Clause as a sword to prevent the State from completing its

prosecution on the remaining charges.”

Id. at 502, 104

S. Ct. at 2542.

Thus, the State could proceed with its prosecution on the murder and
aggravated robbery charges.

Id. 12

      Our court of appeals applied Ohio v. Johnson in State v. Trainer, 

762 N.W.2d 155

, 157–59 (Iowa Ct. App. 2008). In Trainer, the defendant was

charged with trespass and four counts of first-degree harassment in

violation of Iowa Code sections 716.7 and 

708.7(2). 762 N.W.2d at 156

.

Initially, Trainer pled not guilty to the trespass charge.

Id. A few weeks

later, the State charged Trainer by trial information with four counts of

first-degree harassment in violation of Iowa Code sections 708.7(1)(b) and

708.7(2) and second-degree burglary in violation of sections 713.1 and

713.5(2).

Id. Trainer then pled

guilty to the trespass charge, which the
State resisted because it was a lesser included offense of burglary.

Id. The magistrate denied

the State’s resistance, and subsequently, Trainer moved

to dismiss the burglary charge on double jeopardy grounds.

Id. at 157.

The district court granted the motion, ruling that trespass was a lesser

included offense of second-degree burglary.

Id. The court of

appeals

reversed, holding that the State could prosecute the greater offense.

Id. at 159.

Although the trespass and burglary charges were charged separately,

the court of appeals did not consider this fact dispositive.

Id. at 158–59.

Instead, the court agreed with other courts following Johnson that

      when a defendant pleads guilty to a lesser-included charge
      with the knowledge of a greater charge pending in a separate
      indictment or about to be filed in a separate indictment, the
      defendant [i]s not allowed to use double jeopardy as a sword
      to avoid prosecution of the greater offense.

Id. at 159;

see also State v. Kameroff, 

171 P.3d 1160

, 1163 (Alaska Ct.

App. 2007) (“We see no reason to allow Kameroff to use the Double

Jeopardy Clause as a sword to preclude the State from pursuing the felony

charges where he was fully aware that the State was actively proceeding

on those charges.”); State v. Gonzalez, 

677 N.E.2d 1207

, 1211 (Ohio Ct.
App. 1996) (explaining that the defendant could not rely on the double
                                            13

jeopardy clause to avoid further prosecution because she attempted “to

manipulate the proceedings” and “to use the double jeopardy clauses as a

sword”).3

       We are bound by Johnson under the Federal Constitution and reach

the same conclusion under the Iowa double jeopardy clause. Roby was

initially charged with eluding and given a citation for speeding. He pled

guilty to speeding without a court hearing or the prosecutor’s knowledge

or involvement. The State, for legitimate reasons, waited six months until

Roby’s eighteenth birthday to file the formal criminal complaint for
eluding.4 But the State never agreed that Roby’s payment of his speeding

        3Johnson remains long-standing, settled law. See, e.g., Buchanan v. Angelone,

103 F.3d 344

, 350 (4th Cir.1996) (“[T]he Court’s reasoning [in Johnson] applies equally
to a case involving multiple indictments brought in a single prosecution.”), aff’d, 

522 U.S. 269

, 

118 S. Ct. 757

(1998); Boze v. Broglin, No. 89–2947, 

1991 WL 65425

, at *2 (7th Cir.
Apr. 23, 1991) (The defendant’s double jeopardy claim had “no merit” because “[h]ere, as
in Johnson, Boze attempted to resolve part of the charges against him, while the State
objected to the dismissal of the greater charge without a trial and appealed the trial
court’s decision.”); United States v. Quinones, 

906 F.2d 924

, 928 (2d Cir. 1990) (Double
jeopardy did not bar the superseding indictment because the defendant “precipitated the
two proceedings by the strategy of suddenly tendering his plea” and his “attempt to use
double jeopardy as a sword involved an affirmative misrepresentation to the government
by defense counsel.”); People v. Super. Ct. of San Diego Cnty., 

6 Cal. Rptr. 2d 242

, 250
(Ct. App. 1992) (“The case which most closely resembles this case, and from which we
receive the most guidance, is Ohio v. Johnson . . . .”); Boze v. State, 

514 N.E.2d 275

, 277
(Ind. 1987) (“Where the defendant has an active hand in arranging the disposition of the
causes so he might benefit from the results, he waives any double jeopardy claims.”);
State v. Freeman, 

689 P.2d 885

, 894–95 (Kan. 1984) (The State could continue
prosecution when the defendant “attempted to do the same thing as Johnson did in Ohio,
to use the double jeopardy clause to prevent the State from completing its prosecution
on the greater charges.”); Righetti v. Eighth Jud. Dist. Ct. of Nev., 

388 P.3d 643

, 645 (Nev.
2017) (en banc) (“When the charging document alleges multiple theories for a single
offense, linking them with ‘and/or,’ an accused may not undercut the State’s charging
decision by pleading guilty to only some of the theories alleged without the State’s
affirmative consent.”), aff’d, No. 73015, 

2019 WL 1772303

(Nev. Apr. 19, 2019); State v.
King, 

48 P.3d 396

, 405 (Wyo. 2002) (“We also embrace the Johnson decision and hold
that the district court was in error in ordering dismissal of Count 2.”).
        4After his arrest for eluding, Roby was issued the speeding citation and released

to his mother’s care without being held to answer in court. The speedy indictment rule
for eluding was not triggered by his arrest because he was a minor. See Iowa R. Crim.
P. 2.33(2)(a). The prosecution of simple misdemeanor speeding citations falls outside
Iowa Code chapter 232, governing juvenile court proceedings. See Iowa Code § 321.482.
As such, Roby was able to plead guilty to speeding and pay the scheduled fine in autumn
                                           14

ticket ended his criminal liability for eluding. Nor has Roby ever claimed

he pled guilty to speeding with the understanding the eluding charge

would go away. There was no such plea agreement. To the contrary, Roby

ultimately pled guilty to eluding while speeding.

       We hold that Ohio v. Johnson applies here and that Roby is not

allowed to use double jeopardy as a sword to defeat his conviction for

eluding under these circumstances.              His guilty plea counsel was not

required to raise a challenge that lacked merit and, therefore, breached no

duty. Roby’s ineffective-assistance-of-counsel claims fail.5




2017 without being required to answer in juvenile court regardless of whether the State
had prosecuted him for eluding at that time through delinquency proceedings. Once
Roby turned age eighteen the following May, the State could file the eluding charge in
district court, which it did. See

id. § 803.5. This

avoided the need for a waiver hearing
in juvenile court pursuant to Iowa Code section 232.45.
       5Ordinarily,


       whenever the government is allowed to proceed with a greater charge after
       a guilty plea to a lesser included offense, as in Johnson, the government is
       nevertheless barred from punishing the defendant more than once for the
       “same offense.” To avoid multiple punishments for the same offense, a
       trial court must vacate duplicate convictions and sentences for a single
       offense.
6 Wayne R. LaFave et al., Criminal Procedure § 25.1(d), at 781 (4th ed. 2015) (footnotes
omitted); see also 

Boze, 514 N.E.2d at 277

–78 (remanding case to vacate conviction on
lesser included battery charge after defendant was convicted of attempted murder).
        Based on our decision today, a speeding conviction would merge with a conviction
for eluding while speeding in the same proceeding. We would then remand for
resentencing to vacate the conviction on the lesser included offense. That remedy,
however, is not available under the procedural posture of this appeal. Roby pled guilty
to speeding in a separate proceeding over a year before he pled guilty to eluding, the
subject of this appeal. He never appealed his 2017 speeding conviction or the scheduled
fine paid for that simple misdemeanor. Nor does he ask us in this appeal to vacate his
2017 speeding conviction. This appeal is from his 2019 conviction for eluding. His 2019
sentence did not include the scheduled fine for speeding. Accordingly, we do not remand
the case for resentencing.
                                    15

      IV. Disposition.

      For these reasons, we affirm the decision of the court of appeals

(although based on different reasoning on the double jeopardy claim), and

we affirm the district court’s convictions and sentences.

      DECISION OF COURT OF APPEALS AND DISTRICT COURT

JUDGMENT AFFIRMED.

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