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State of Iowa v. Barry Lynn Spencer

January 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
BARRY LYNN SPENCER, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Calhoun County, William C. Ostlund, Judge.

The opinion of the court was delivered by: Vogel, J.

A defendant appeals his conviction and sentence for assault causing bodily injury. AFFIRMED.

Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.

Barry Lynn Spencer, appeals his conviction and sentence for assault causing serious injury in violation of Iowa Code section 708.2(4) (2011), a class D felony.*fn1 He claims his trial counsel was ineffective for failing to file a motion in arrest of judgment, and failing to object at both the plea proceeding and the sentencing because of the alleged lack of factual basis for the plea. Because trial counsel was not ineffective, we affirm.

Our review of ineffective-assistance-of-counsel claims is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). In order to succeed on his claim, Spencer must prove by a preponderance of evidence (1) counsel failed to perform an essential duty, and (2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, Spencer must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See State v. Bugley, 562 N.W.2d 173, 178 (Iowa 1997). The ultimate test is whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competency. Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). Although we often preserve claims of ineffective assistance of counsel for post-conviction relief proceedings, we will consider such claims on direct appeal if the record is adequate to resolve them. State v. Henderson, 804 N.W.2d 723, 725 (Iowa Ct. App. 2011). We find the record is adequate to address Spencer's claims on direct appeal.

Spencer contends his trial counsel was ineffective for failing to challenge the adequacy of his guilty plea in a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a) ("A motion in arrest of judgment is an application by the defendant that no judgment be rendered on a finding, plea, or verdict of guilty."). He claims there was no factual basis to support the plea. A district court may not accept a guilty plea without first determining that the plea has a factual basis. State v. Hallock, 765 N.W.2d 598, 603 (Iowa Ct. App. 2009). The court may determine a factual basis for a guilty plea by (1) inquiry of the defendant, (2) inquiry of the prosecutor, (3) examination of the presentence report, or (4) reference to the minutes of testimony. State v. Hightower, 587 N.W.2d 611, 614 (Iowa Ct. App. 1998).

Spencer pleaded guilty to committing assault without intent to inflict serious injury, but causing serious injury. See Iowa Code § 708.2(4). Assault is a general intent crime, done without justification, and any of the following:

1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.

2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

3. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another

Id. §708.1. Justification is an affirmative defense to assault, rather than an element of the crime. State v. Delay, 320 N.W.2d 831, 833 (Iowa 1982). Because it is an affirmative defense, a defendant asserting it has the burden of going forward with sufficient evidence to show the defense applies. State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997). At that point, the burden shifts to the State to disprove the justification defense beyond a reasonable doubt. Delay, 320 N.W.2d at 834. Any guilty plea taken in conformity with Iowa Rule of Criminal Procedure 2.8 waives all defenses and objections. State v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000).

Here, Spencer signed a written plea of guilty and the district court engaged him in a discussion regarding his competency to enter a plea, whether he understood the charges, and the constitutional rights he would be surrendering if he chose to enter a guilty plea. Spencer stated to the district court he understood the rights he was waiving and pleaded guilty to assault causing serious injury. Next, the district court asked Spencer to provide a factual basis for the plea. Counsel for Spencer responded by stating, "Your honor I think the defendant has clearly entered a plea pursuant to the statute. He is reluctant to say more, and I don't think he's required to." The district court, however, continued and questioned Spencer, particularly because he stated he was concerned about establishing the serious injury element.*fn2 When asked about the charge, Spencer answered the victim did not receive an injury to her mouth and her teeth because of an act he committed. The court then asked:

THE COURT: All right. And would you agree with me that based upon the minutes of testimony and based upon the investigative reports that you have reviewed from your reading of those ...


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