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State v. Smith

Court of Appeals of Iowa

May 17, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
SUEZ ANN SMITH, Defendant-Appellant.

         Appeal from the Iowa District Court for Calhoun County, William C. Ostlund (plea) and Joel E. Swanson (sentencing), Judges.

         A defendant challenges the factual basis for her guilty plea to going armed with intent.

          Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          TABOR, Judge.

         During 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.

         I. Facts and Prior Proceedings

         According 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."

         Smith 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.

         The 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 plea[1] 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.

         II. Standard of Review/Legal Principles for Attacking Plea

         Because 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).

         III. Analysis of ...


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