Appeal from the Iowa District Court for Woodbury County, John D. Ackerman (plea) and Jeffrey L. Poulson (sentencing), Judges.
Jeremy Lillich challenges the sufficiency of his Alford plea to possession with intent to deliver a controlled substance (methamphetamine) and guilty plea to carrying weapons (knives).
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Patrick Jennings, County Attorney, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
Jeremy Lillich challenges his Alford plea to possession with intent to deliver methamphetamine and guilty plea to carrying weapons (knives), claiming trial counsel was ineffective for failing to file a motion in arrest of judgment challenging the factual basis for his pleas. We find a sufficient factual basis exists to support the guilty plea with respect to the possession with intent to distribute charge. However, there is no evidence in the record as to whether the knives found on his person or in his vehicle were concealed, which is a necessary element of the crime as charged. Therefore, we affirm Lillich's conviction for possession with intent to deliver, but vacate his sentence for carrying weapons and remand.
The minutes of testimony establish the following facts. On May 31, 2012, officers observed Lillich driving a car belonging to his girlfriend outside of a Select Mart, which "is a common place for low-level street level drug dealers to hang out . . . ." Because there was an outstanding warrant and pending charges against him, police stopped Lillich as he was driving away, placed him under arrest, and searched his person. Lillich was carrying a small bag of marijuana, as well as 1.64 grams of methamphetamine wrapped in part of a sandwich baggie, a digital scale, and approximately one dozen unused plastic bags. Lillich also had two knives on his person—a pocket knife and a black Smith and Wesson. Police further found a "Japanese-type sword" approximately eighteen inches long and another knife eight to nine inches long near the center console in the car, both sheathed, as well as two large black folding knives elsewhere in the vehicle.
Lillich's cell phone was also confiscated. Upon a search of the phone, police found various text messages sent immediately prior to and leading up to Lillich's arrest. According to the minutes of testimony, an officer was prepared to testify these messages "indicate sales of illegal substances or the planning of the future sales of illegal substances." Further testimony would explain that, based on the text messages and a letter Lillich wrote while in jail, Lillich had intended to distribute the methamphetamine and then later receive payment.
On January 7, 2013, Lillich entered an Alford plea to possession with intent to distribute, and on January 8, a written guilty plea was entered with regard to the carrying weapons charge. On January 24, the district court sentenced Lillich to a term of imprisonment not to exceed ten years on the possession with intent charge and a term not to exceed two years on the carrying weapons count, the terms to be served concurrently.
Lillich now appeals, claiming a lack of factual basis showing he intended to distribute the methamphetamine. He asserts the amount of methamphetamine found on his person is more consistent with personal use, and he did not have large amounts of cash in his possession, which he claims indicates that he had not recently sold any drugs. He further asserts he was not properly charged with a violation of Iowa Code section 724.4(1) (2011), because the language of the plea agreement in combination with the minutes of testimony do not prove Lillich went armed with a knife concealed on or about his person. Therefore, counsel was ineffective for failing to file a motion in arrest of judgment challenging the factual basis of his pleas.
We review ineffective assistance of counsel claims de novo. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). To establish an ineffective assistance claim, the defendant must show trial counsel failed to perform an essential duty and that he was prejudiced by this failure. Id. Counsel fails in an essential duty when the defendant is permitted to plead guilty and then waives his right to file a motion in arrest of judgment when there is no factual basis supporting the defendant's guilty plea. Id. In such a case, prejudice is inherent. Id. To determine whether a factual basis exists, we review all evidence in the record before the district court. Id.
To establish the crime of possession with intent to distribute a controlled substance, the State must prove the defendant knowingly possessed the drug with the intent to deliver it to another. See Iowa Code § 124.401(1)(c)(6); State v. Scalise, 660 N.W.2d 58, 63 (Iowa 2003). Here, the record establishes a sufficient factual basis showing Lillich intended to deliver the methamphetamine found in his pocket. He was located in a "known drug hot spot" with a scale, baggies, and methamphetamine packaged in a manner consistent with distribution. Additionally, the text messages found in his cell phone, in combination with the letter, are enough to establish Lillich intended to "front" the methamphetamine to others and receive payment later. This further negates his argument little money was found on his person at the time of his ...