from the Iowa District Court for Calhoun County, William C.
Ostlund (plea) and Joel E. Swanson (sentencing), Judges.
defendant challenges the factual basis for her guilty plea to
going armed with intent.
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
a fight with her boyfriend, Suez Ann Smith drew her Pink Lady
.38 special revolver, and as he left her apartment, she fired
through the closed door, barely missing him. The State
originally charged her with intimidation with a dangerous
weapon, a class "C" felony. In exchange for her
guilty plea, the State reduced the charge to going armed with
intent, a class "D" felony. She now claims her
attorney was ineffective in allowing her to plead guilty when
the record revealed no factual basis to support the
"going" element of the amended charge. Because the
existing record does not show the proof of movement necessary
to sustain a conviction for going armed, we vacate
Smith's sentence and remand to give the State an
opportunity to establish a factual basis.
Facts and Prior Proceedings
to the minutes of evidence, A.T. called the Lake City police
just before 3:00 a.m. to report his girlfriend, Smith,
"pulled a handgun" on him and fired a shot in his
direction as he was leaving her apartment. Police responded
to the apartment and found "a single bullet hole in the
door approx[imately thirty-six] inches from the floor and
right in the middle of the door."
admitted firing the shot. She also gave police consent to
search her apartment. Officers seized the Pink Lady revolver
from a case in Smith's bedroom closet. They also seized
ammunition from the bedroom nightstand.
State filed a trial information in October 2015, accusing
Smith of intimidation with a dangerous weapon, in violation
of Iowa Code section 708.6 (2015). The minutes of evidence
included the expected testimony of A.T. and police officers
who searched Smith's apartment and heard Smith's
admission to shooting the gun. Smith reached a plea agreement
with the State in May 2016, and entered an Alford
to the reduced charge of going armed with intent, in
violation of section 708.8. The sentencing court imposed an
indeterminate five-year prison term. Smith now appeals.
Standard of Review/Legal Principles for Attacking
ineffective-assistance claims are grounded in the Sixth
Amendment, our review is de novo. State v. Clay, 824
N.W.2d 488, 494 (Iowa 2012). Smith bears the burden to prove
by a preponderance of the evidence her plea counsel breached
an essential duty and the breach resulted in prejudice.
See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)
(citing Strickland v. Washington, 466 U.S. 668,
687-88 (1984)). If counsel permitted Smith to plead guilty
and to waive her right to file a motion in arrest of judgment
when the record revealed no factual basis to support the
plea, counsel breached an essential duty. See State v.
Philo, 697 N.W.2d 481, 485 (Iowa 2005). In the absence
of a factual basis, we presume prejudice. See State v.
Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). This
presumption of prejudice occurs both when the defendant was
charged with the wrong crime and when it is possible the
State can establish a factual basis on remand. See State
v. Gines, 844 N.W.2d 437, 441 (Iowa 2014) (remanding to
give the State an opportunity to establish a factual basis
for separate acts of intimidation with a dangerous weapon).
Analysis of ...