Appeal from the Iowa District Court for Keokuk County, Joel D. Yates (first motion to amend trial information) and Myron L. Gookin (guilty plea and sentencing), Judges, and Crystal S. Cronk (second motion to amend trial information), District Associate Judge.
A defendant appeals his conviction for carrying weapons.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, and John E. Schroeder, County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
The defendant, Donald Storm, appeals his conviction for carrying weapons, in violation of Iowa Code section 724.4(1) (2011). He argues his trial counsel was ineffective in allowing him to plead guilty to an offense for which there was no factual basis and in failing to file a motion in arrest of judgment based on the lack of a factual basis. He also argues counsel was ineffective in failing to object to the State's multiple amendments to the trial information, which constituted wholly new and difference offenses, and in failing to move for dismissal for failing to comply with the speedy indictment requirement. Because we find the record is insufficient to determine whether Storm provided a sufficient factual basis, and whether a motion to dismiss based on the amendments to the trial information would be meritless, we preserve those issues for postconviction relief. To the extent Storm makes an independent argument his counsel was ineffective for failing to object to the indictment for the weapons charge as violating the speedy indictment rule, such a motion would be without merit, and his counsel was therefore not ineffective.
I. Background Facts and Proceedings
Storm and Hollis Van De Heuvel have adjoining property. On April 25, 2012, Hollis and his son, Cory, were burning grass near Storm's fence. According to Storm his fence poles were burned. According to the statement of Cory attached to the minutes of testimony, Storm drove "on the fence row on his side and confronted [Hollis]." The Van De Heuvels told the sheriff deputies Storm threatened them and then drove away in his truck. They then heard five to six gun shots, though they did not see anyone fire a gun due to the smoke from the burning grass.
Storm was arrested that day on a complaint accusing him of intimidation with a dangerous weapon, in violation of Iowa Code section 708.6. On May 7 the State moved to amend the complaint from intimidation with a dangerous weapon to going armed with intent, in violation of Iowa Code section 708.8. The court allowed the amendment. On July 6, the State again moved to amend the trial information to reflect four additional counts: two counts of assault using a dangerous weapon under Iowa Code section 708.1(2) and (3) and two counts of harassment in the first degree under Iowa Code section 708.7(1)(b) and 708.7(2)(a) and (b). These amendments were approved by the court on July 20. The information was amended yet again on August 22 replacing the charge of going armed with intent to the offense of carrying weapons, in violation of Iowa Code section 724.4(1), an aggravated misdemeanor.
That same day Storm filed a written plea of guilty to the offense of carrying weapons. For the factual basis of his guilty plea, typed on the document is, "I knowingly transported a pistol in a vehicle. I also shouted at Cory VandenHeuvel [sic], saying 'Have you killed anyone lately?'" Handwritten additions or substitutions were as follows: the word "loaded" was inserted before the word "pistol"; "Upon a public highway/road" was inserted after the word "vehicle"; the word "anyone" was altered so it read "any OLD MEN." The paragraph shows the handwritten initials "SHS" in the margin. The same day the district court imposed a six-month sentence, suspended the sentence, and placed Storm on probation. He now appeals.
II. Standard of Review and Ineffective-Assistance Principles
Storm claims his trial counsel was ineffective for allowing him to plead guilty when there was not a factual basis established. Ineffective-assistance-of-counsel claims are reviewed de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Failure to file a motion in arrest of judgment does not bar a challenge to a guilty plea if the failure to file the motion resulted from ineffective assistance of counsel. State v. Bearse, 748 N.W.2d 211, 217 (Iowa 2008). Trial counsel is ineffective when counsel's performance falls below the normal range of competency and the inadequate performance prejudices the defendant's case. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Prejudice is shown by demonstrating a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). When a defendant raises a claim of ...