Appeal from the Iowa District Court for Linn County, Jane F. Spande, District Associate Judge.
Tucker appeals his sentences for assault while displaying a dangerous weapon and harassment in the first degree.
Mark C. Smith, State Appellate Defender, and David A. Adams (until withdrawal) and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Elena Wolford, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
I. Factual and Procedural Background
On July 17, 2012, Ronald Tucker was charged by trial information with assault while displaying a dangerous weapon (domestic abuse), in violation of Iowa Code sections 708.1 and 708.2A(2) (2011), and harassment in the first degree, in violation of Iowa Code sections 708.7(1) and 708.7(2). On September 12, 2012, in exchange for the State's recommendation that Tucker's sentence be suspended, Tucker presented a "consent to waive presence" at his plea and sentencing hearings. In the consent, he agreed his attorney could present his pleas of guilty without a formal record being made and the court could immediately impose a sentence. Tucker simultaneously filed a waiver of rights and plea of guilty, whereby he pleaded guilty to assault while displaying a dangerous weapon (non-domestic abuse), and harassment in the first degree. The court imposed a 360-day sentence on each count, suspended the sentences, and placed Tucker on probation.
In his waiver of rights, Tucker admitted the State "can prove all of the elements" of the offenses. In the consent form, he agreed the minutes of testimony "are substantially correct" and that "there is a factual basis for the charge(s) for which I am now pleading guilty." The minutes established that on June 12, 2012, Tucker went to the home of Marcia Jackson. After pounding on the back door, Jackson allowed Tucker to enter her home. Jackson informed Tucker she did not want to work on the problems in their relationship. Tucker grabbed her face, telling her it would get worse. He also struck her on the head. Jackson started to walk down the hall to retrieve her cell phone to call for assistance. Tucker grabbed a large kitchen knife, approached Jackson, and threatened to kill her and her children and burn down her home if she picked up her phone. Jackson and Tucker then sat on the couch and had a conversation, during which Tucker kept the knife in his hand. Once they finished talking, Tucker grabbed her by the hair, pushed his knuckles and hand into her face, and said he would "make her pay, if not now, in five years, that he would make her pay, make no mistake." Once Tucker left, Jackson called the police.
Tucker now appeals his sentence, asserting two bases of error. First, he claims counsel was ineffective for failing to object to the lack of factual basis supporting his guilty plea to the harassment charge. Second, he asserts the district court entered an illegal sentence by not merging the assault and harassment convictions.
II. Ineffective Assistance of Counsel
We review ineffective-assistance-of-counsel claims de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). To succeed on an ineffective assistance of counsel claim, the defendant must show trial counsel failed to perform an essential duty, and prejudice resulted from counsel's failure. Id. Counsel fails to perform an essential duty when there is no factual basis to support a guilty plea, the defendant nonetheless pleads guilty, and counsel fails to file a motion in arrest of judgment challenging the plea. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
The crime of harassment is committed:
[W]hen the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person . . . . A person commits harassment in the first degree when the person commits ...