04 October 2012
We have all had clients who insist on pleading guilty. Unfortunately the defendant must make a factual basis for the plea. On occasion that is difficult. In the last instance of this I have experienced, the charge was stealing a vehicle which is a class D felony carrying a sentence of not more than five years. The defendant and his friends, though, only wanted to get from one place to another, not steal the vehicle. Unauthorized use of a motor vehicle is not a felony but an aggravated misdemeanor carrying a sentence of two years. The agreement was that the defendant plead to a felony and be sentenced to the five year term. The choice is to allow your client to plead to something he did not do or find some other charge to which he can plead. Judges don't much care for defendants pleading guilty to something they didn't do or to go through the most of the guilty plea colloquy and then reject the plea because no factual basis can be made. In other words, a defendant must be able to tell the judge that he committed the crime for which he is charged. Lying is not an option. An attorney can not allow a client to tell him one thing and then get in front of the judge and tell the judge something different. I did have a client tell me one time that he would just lie: "I'm a criminal and criminals lie". That may be the case but contrary to public perception, attorneys are not criminals and do not lie or they do not remain attorneys for long. But back to the point, it appeared to me that since the defendant did take the car, without permission, and contrary to the wishes of the owner, and he had control of it, that he could make a factual basis for misappropriation of property. It is a close call, but since under Iowa law there are now innumerable methods by which one can be accused of theft, it can work. The vehicle may not have been stolen, but it certainly was misappropriated. The distinction between "stolen" and "misappropriated" is murky, but apparently the legislature seems to think there is enough of a difference to call it by a different name. The car was certainly misappropriated and the defendant is now safely incarcerated in the Iowa prison system where he gave every indication of wanting to be.