from the Iowa District Court for Harrison County, James S.
Heckerman (guilty plea) and Jeffrey L. Larson (sentencing),
Winchester appeals his judgment and sentence for sexual abuse
in the third degree, to which he pled guilty.
C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Winchester appeals his conviction, judgment, and sentence for
sexual abuse in the third degree, to which he pled guilty on
September 19, 2016. On October 13, 2016, Winchester filed a
motion in arrest of judgment, which the district court denied
as untimely. Winchester appeals, claiming his counsel
provided ineffective assistance because his plea was not
knowing or voluntary and his counsel should have objected to
certain victim-impact statements. Our review is de novo.
See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).
ineffective-assistance-of-counsel claims are considered in
postconviction relief proceedings." State v.
Vance, 790 N.W.2d 775, 785 (Iowa 2010). When the record
is sufficient to address an ineffective-assistance-of-counsel
claim, we resolve the claim on direct appeal. Id.
claims his plea was not knowing and voluntary because of
purported inconsistencies in the record. He also complains he
was not informed he was pleading to a forcible felony for
which a suspended sentence is not an option. There is no
indication in the record he was informed he was pleading to a
forcible felony. The transcript of the sentencing hearing
leaves the impression the parties thought a suspended
sentence was an option. A defendant is required to be
informed of the maximum and minimum penalties of an offense.
See Iowa R. Crim. Pro. 2.8(2)(b)(2). If he was not
informed that the charge to which he pled guilty was not
eligible for a suspended sentence, then the plea may not have
been intelligently made. We cannot resolve this issue on the
record before us, so we preserve it for possible
postconviction relief. See State v. Johnson, 784
N.W.2d 192, 198 (Iowa 2010).
regard to the plea proceeding itself, Winchester claims there
were inconsistences as to which count of the trial
information he was pleading, notes there are some
inconsistencies as to which year the sexual abuse occurred,
contends the court stated and he provided a factual basis for
elements of a crime that are derived from more than one code
the guilty plea, the court stated Winchester was pleading
guilty to count II of the trial information. Winchester in
fact pled guilty "to the charge of sexual abuse in the
third degree, " consistent with count II of the trial
information, which provides Winchester is accused of
"sexual abuse in the [thi]rd degree in violation of Iowa
Code [s]ection 709.4(2)(b)[ (2011)], a class C
[f]elony." Winchester's written guilty plea stated:
"I hereby plead guilty to the charge of sexual abuse in
the third degree in violation of the Code of Iowa [s]ections
709.1 [and] 709.4(2)(b)." Similarly, the order entered
following the guilty plea states Winchester pled guilty to
"Count II: Sexual Abuse in the [Third] Degree in
violation of Iowa Code [s]ection[s] 709.1 and
709.4(2)(b)." There are no identified inconsistencies
with regard to the applicable code section at the plea
proceeding itself. Thus, Winchester has failed to show his
trial counsel breached an essential duty. See Dempsey v.
State, 860 N.W.2d 860, 868 (Iowa 2015) (noting a
claimant must show "trial counsel failed to perform an
essential duty" that "resulted in prejudice").
only factual inconsistency with regard to the guilty plea is
that-when providing the factual basis at the hearing and in
his written guilty plea-Winchester admitted the offense
occurred in 2012, while the trial information for count II
states the offense occurred in 2011. But the time at which
the crime was committed is not an essential element of the
crime. See State v. Griffin, 386 N.W.2d 529, 532
(Iowa Ct. App. 1986) (finding, where the relevant statute
does not make a particular time period a material element of
the offense, "the exact time of the act is not
material"); see also Iowa Code § 709.4
(defining sexual abuse in the third degree as performing a
sex act "under any of the following circumstances,
" all relating to age, mental capacity, or family
relationship but none relating to a date or time); State
v. Schneider, No. 14-1113, 2015 WL 2394127, at *8 (Iowa
Ct. App. May 20, 2015) (discussing cases addressing the
time-frame issue). Winchester does not dispute that an
offense committed in 2012-as opposed to 2011-would also
otherwise satisfy the elements of section
709.4(2)(b). Nor has he claimed he would not have pled
guilty had his counsel identified this error at the plea
hearing; accordingly, Winchester has also failed to prove
prejudice. See State v. Utter, 803 N.W.2d 647, 654
(Iowa 2011) ("[T]o prove prejudice, [the applicant] must
establish that 'but for counsel's breach of duty,
[he] would not have pled guilty and would have elected
instead to stand trial.'" (citation omitted)).
Winchester's element claim, the district court informed
him at the plea hearing that the applicable charge required
the State to prove he "performed a sex act" on a
victim that "was [twelve] or [thirteen] years old"
while he was "four or more years older than her"
and he and the victim were not cohabitating as husband and
wife, which Winchester claims blurs the requirements of
section 709.4(2)(b) and section 709.4(2)(c)(4). Section 709.4
provides, in relevant part:
A person commits sexual abuse in the third degree when the
person performs a sex act under any of the ...