Appeal from the Iowa District Court for Delaware County, Thomas A. Bitter (guilty plea) and Michael J. Shubatt (sentencing), Judges.
Richard Blanchard appeals from judgment and sentences entered upon his guilty pleas to two counts of lascivious acts with a child and one count of third-degree sexual abuse.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, and John W. Bernau, County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Danilson, JJ.
Richard Blanchard appeals from judgment and sentences entered upon his guilty pleas to two counts of lascivious acts with a child and one count of third-degree sexual abuse. Because the complaining witness was fourteen years of age, the record shows as a matter of law that the defendant did not commit the crime of lascivious acts with a child. Plea counsel breached an essential duty in allowing Blanchard to enter the guilty pleas to lascivious acts with a child. We invalidate the entire plea agreement by vacating all of his convictions and remand to the district court.
I. Background Facts and Proceedings.
The minutes of evidence indicate H.P., age fourteen, told a police officer that on July 29, 2012, Richard Blanchard sucked on her breast, leaving a hickey; bit her breast, leaving a mark; and penetrated her vagina with his finger. H.P. also informed the officer that on July 30, Blanchard penetrated her vagina with his finger, performed oral sex on her, and then engaged in sexual intercourse with her. When questioned, Blanchard stated things "went too far" with H.P. He admitted sucking on her breast and placing his finger in her vagina, and the next day having sex with her. He stated she consented after "he pressed the issue several times."
Blanchard, age twenty-four, was charged with two counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(c)(4) (2011), and two counts of lascivious acts with a child, in violation of section 709.8—all class "C" felonies.
Blanchard pleaded guilty to one count of third-degree sexual abuse and two counts of class "D" lascivious acts with a child, and agreed to consecutive sentences being imposed on the two lascivious acts convictions. In exchange, the State agreed to dismiss the other third-degree sexual abuse count and make no recommendation when the defendant argued for a deferred judgment on the third-degree sexual abuse count.
On appeal, Blanchard contends plea counsel was ineffective in allowing him to plead guilty without a factual basis. He also contends the sentencing court considered improper factors. Because we vacate the convictions and remand, we need not address Blanchard's sentencing challenge.
II. Scope and Standards of Review.
We review claims of ineffective assistance of counsel de novo. State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To establish an ineffective-assistance-of-counsel claim, a defendant must show by a preponderance of the evidence that: (1) counsel ...