Scott Charles Marinovic v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-0957
Filed November 17, 2022

SCOTT CHARLES MARINOVIC,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, James S.

Heckerman, Judge.

Scott Marinovic appeals the denial of his application for post-conviction

relief. AFFIRMED.

Guy K. Weinstein of Roth Weinstein, LLC, Omaha, Nebraska, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.

Considered by Vaitheswaran, P.J., Ahlers, J., and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
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DOYLE, Senior Judge.

Scott Marinovic appeals the denial of his application for post-conviction

relief (PCR). He contends he received ineffective assistance of counsel during the

criminal proceedings that resulted in his second-degree-theft conviction and the

probation-revocation proceedings that followed. He claims his counsel failed to

properly investigate the theft charges, ensure he entered an intelligent guilty plea

supported by a factual basis, research double-jeopardy and due-process

concerns, and represent him effectively during the probation-revocation

proceedings.

I. Background Facts and Proceedings.

The State charged Marinovic with theft by taking after he drove away with

a Jeep left running outside a business. Marinovic pled guilty to second-degree

theft in exchange for the State’s agreement not to pursue a habitual offender

sentencing enhancement. The district court accepted Marinovic’s plea and

imposed the sentence the parties agreed on: a five-year suspended sentence with

a two-year term of probation.

Less than three weeks later, the State alleged Marinovic violated the terms

of his probation by failing to report to the intake appointment with his probation

officer. Marinovic admitted the probation violation but contested the disposition.

After a hearing, the district court imposed the original five-year sentence.

Marinovic applied for PCR, challenging the five-year sentence. He alleged

his right to counsel was violated when he received deficient representation during

the criminal and probation-revocation proceedings. The PCR court denied his

PCR application after a hearing.
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II. Scope of Review.

We generally review the denial of a PCR application for correction of errors

at law. See Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021). We review

claims of ineffective assistance of counsel and other claims of a constitutional

nature de novo. See id. We give weight to the PCR court’s findings but are not

bound by them. See id.

III. Ineffective Assistance of Counsel.

To succeed on a claim of ineffective assistance of counsel, Marinovic must

show his counsel failed to perform an essential duty and prejudice resulted. See

id. We may affirm if he fails to prove either breach of duty or prejudice. See id.

We presume counsel acted competently unless it is shown that counsel’s

performance fell below the normal range of competency. See id.

A. Theft conviction.

Marinovic first challenges his counsel’s performance in representing him

during the criminal proceedings on the theft charge. He complains his counsel

failed to adequately investigate the merits of the theft charge or engage in

discovery. But only pre-plea breaches affecting the voluntary and intelligent nature

of the plea itself survive the guilty plea. See State v. Carroll, 767 N.W.2d 638, 644

(Iowa 2009).

On the question of the voluntary and intelligent nature of his plea, Marinovic

complains counsel failed to explain the written guilty plea adequately. He

complains that he did not read the document and only signed it because he wanted

to get out of jail. In support of his claim, Marinovic notes that the plea agreement

included three separate statements about his ability to pay for counsel; rather than
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initialing the one that applied, Marinovic wrote his initials next to all three

statements. But Marinovic never claims he would have insisted on going to trial if

counsel had performed competently, so there is no showing of prejudice. See id.

(“The burden to prove prejudice in this context will require the party seeking relief

to prove a reasonable probability of a different outcome had the breach not

occurred; i.e., that but for counsel’s breach of duty, the party seeking relief would

not have pled guilty and would have elected instead to stand trial.”).

Marinovic also alleges his counsel breached a duty by allowing him to plead

guilty to a charge when the record did not reveal a factual basis to support it. If

counsel allows a defendant to plead guilty without a factual basis, counsel fails to

perform an essential duty and prejudice is inherent. State v. Perkins, 875 N.W.2d

190, 193 (Iowa Ct. App. 2015). In determining whether there is a factual basis for

a plea, we look at the entire record before the district court at the time of the guilty-

plea hearing. See id. That record may include “statements made by the

defendant, facts related by the prosecutor, the minutes of testimony, and the

presentence report.” Id. (citation omitted).

The State alleged that Marinovic committed second-degree theft by

“[t]ak[ing] possession or control of the property of another . . . with the intent to

deprive the other thereof.” Iowa Code § 714.1(1) (2020) (emphasis added); accord

State v. Clay, 824 N.W.2d 488, 497 (Iowa 2012). An intent to permanently deprive

the owner of the property is an essential element of theft under section 714.1(1).

State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999). Marinovic claims the

record does not show he intended to permanently deprive the owner of the Jeep.

“Because proof that the defendant acted with the specific purpose of depriving the
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owner of his property requires a determination of what the defendant was thinking

when an act was done, it is seldom capable of being established with direct

evidence.” Id. We may instead rely on the facts surrounding the act and any

reasonable inferences drawn from them to determine a defendant’s intent. See id.

The record at the time of the plea hearing show Marinovic intended to

permanently deprive the owner of the Jeep. Marinovic took the Jeep after the

owner left it running outside a restaurant in Council Bluffs; he was driving it two

days later during a traffic stop in Omaha. Both how long Marinovic had the Jeep

and how far he drove it shows an intent to permanently deprive. Compare id. at

790-91 (concluding no factual basis showed the defendant intended to

permanently deprive the owner of the vehicle because the defendant crashed it

only hours later just seven or eight miles from where it was taken), with State v.

McCarty, No. 02-1033, 2004 WL 894553, at *4-5 (Iowa App. Apr. 28, 2004)

(concluding there was substantial evidence the defendant intended to permanently

deprive owner of a vehicle recovered several days after the theft in a town about

two hours away). Because a sufficient factual basis exists for Marinovic’s plea,

counsel was not ineffective.

B. Probation revocation.

Marinovic contends his counsel provided ineffective assistance before and

during the probation revocation. He alleges that if counsel had acted competently,

Marinovic would have accepted a plea deal for a 180-day sentence. Instead, he

claims counsel engaged in an unreasonable strategy of admitting the probation

violation but contesting the disposition. As a result, the court reinstated the five-

year sentence.
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Again, Marinovic has not shown prejudice. There is no showing that

Marinovic would have received a 180-day sentence as he claims. The prosecutor

testified that she told Marinovic that she would not agree to less than 180-days,

“that there would be either prison or possibly 180 days but that we were never in

a place where that came to an agreement.” The prosecutor could only speculate

when asked if she would have accepted a 180-day sentence on the contempt

charge, but her answer casts doubt:

I will tell you it’s difficult to say now, and this is why. As we
were trying to work on this, Mr. Marinovic could have had the option
at drug court . . . .
But given his behavior on probation and even at the end of
our hearing, . . . he’s not a person who comes across in a way to
encourage leniency.
I don’t know if I would agree to the 180 days because we had
already done it before, and then he comes back with the same
behavior on a subsequent probation case, and it had only been a few
years difference.
So I don’t know. I feel like, because we never got there, I can’t
positively say, I mean, and quite frankly, had, you know, there been
discussions that never happened, who’s to say?
I mean, we’ve had some people who have gone out of their
way to be apologetic, get themselves back in treatment, I mean,
things that they’re not doing on probation to kind of basically beg for
another chance or, you know, to ask for some leniency, and that was
just not the dynamic here.

Moreover, both the prosecutor and Marinovic’s counsel testified that Marinovic

refused to accept a sentence of more than 150-days incarceration.

C. Substantive due process and double jeopardy.

A Nebraska criminal complaint charged that Marinovic “did unlawfully

receive, retain, or dispose of stolen movable property of [the owner of the Jeep],

knowing or believing it has been stolen, without the intent to return it to the owner.”

Marinovic pled no contest and was sentenced to sixty days in jail. Some months
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later Iowa charged him with theft of the Jeep. Marinovic contends his Iowa

conviction violated his right to substantive due process and double-jeopardy

protections1 because he was previously charged with and convicted of theft by

receiving stolen property in Nebraska.

It is established that one act can be charged as a crime and punished by

two different states, without regard to which state made it to the courthouse first:

When assessing jurisdiction in criminal matters, courts are
governed by the concept of dual sovereignty. Under that doctrine,
even if we assume the elements of first-degree murder in Missouri
are identical to those of the charge of murder that could have been
brought against Bradley in Iowa, each state was free to prosecute
the crime without regard to the other. See Heath v. Alabama, 474
U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387, 394 (1985). In
defining its own criminal code, each state exercises its own
sovereignty when determining what acts will constitute “an offense
against its peace and dignity . . . .” Id. at 89, 106 S.Ct. at 437–38, 88
L.Ed.2d at 394–95. Therefore, a single act delineated a crime by two
different states is an offense against each, and may be punished by
both. Id.
Enforcing its own criminal laws is a primary
function of a state’s sovereignty:
To deny a State its power to enforce its criminal
laws because another State has won the race to the
courthouse “would be a shocking and untoward
deprivation of the historic right and obligation of the
States to maintain peace and order within their
confines.” Bartkus [v. People of State of Ill.], 359 U.S.
[121], at 137, 79 S.Ct. [676], at 685[, 3 L.Ed.2d 684]
(1959).

State v. Bradley, 637 N.W.2d 206, 215-16 (Iowa Ct. App. 2001) (quoting Heath,

474 U.S. at 93), overruled on other grounds by State v. Jenkins, 788 N.W.2d 640

(Iowa 2010). See also State v. Wemett, No.11-1736, 2013 WL 105346, at *1-2

(Iowa Ct. App. Jan. 9, 2013), further review denied (Mar. 15, 2013). Under the

1 Marinovic fails to cite either the state or federal constitution in support of his claim.
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holding of Heath and the principles of dual sovereignty, Nebraska’s prosecution

would not have barred Iowa’s prosecution of Marinovic for theft of the Jeep.

Because there is no merit to Marinovic’s claim, counsel was not ineffective

by failing to raise the issue. See State v. Halverson, 857 N.W.2d 632, 635 (Iowa

2015) (“Counsel, of course, does not provide ineffective assistance if the

underlying claim is meritless.”).

AFFIRMED.