from the Iowa District Court for Johnson County, Marsha A.
appeals his conviction for assault on persons engaged in
certain occupations causing bodily injury.
J. Bishop, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
Davis appeals his conviction for assault on persons engaged
in certain occupations causing bodily injury. We find Davis
has failed to show he received ineffective assistance on the
ground defense counsel permitted him to plead guilty where
there was not an adequate factual basis for the plea. There
is an adequate factual basis in the record, and we affirm
Background Facts & Proceedings
to the minutes of testimony, on November 22, 2016, Davis was
an inmate at the Johnson County jail. Sergeant Demetrius
Marlowe went to speak with Davis about an argument Davis was
having with another inmate. The minutes state, "Sgt.
Marlowe asked the Defendant to open the door in the hallway
to walk to holding and the Defendant punched Sgt. Marlowe in
the jaw without warning. The Defendant struggled with
officers and continued to yell threats at Sgt. Marlowe."
was charged with assault on persons engaged in certain
occupations causing bodily injury, in violation of Iowa Code
section 708.3A(3) (2016), an aggravated misdemeanor. Davis
signed a written guilty plea to the charge, in which he
stated, "I did assault a peace officer in uniform
causing bodily injury." The court accepted Davis's
plea, finding "from an examination of Defendant's
written guilty plea and from a review of the trial
information, together with the minutes of testimony, that
there is a factual basis for Defendant's plea of
guilty." Davis was sentenced to a term of imprisonment
not to exceed two years, to be served concurrently with other
sentences he was serving. Davis now appeals, claiming he
received ineffective assistance of counsel.
Standard of Review
conduct a de novo review of claims of ineffective assistance
of counsel. State v. Maxwell, 743 N.W.2d 185, 195
(Iowa 2008). To establish a claim of ineffective assistance
of counsel, a defendant must prove (1) counsel failed to
perform an essential duty and (2) prejudice resulted to the
extent it denied the defendant a fair trial. Id. A
defendant's failure to prove either element by a
preponderance of the evidence is fatal to a claim of
ineffective assistance. State v. Polly, 657 N.W.2d
462, 465 (Iowa 2003).
claims he received ineffective assistance because defense
counsel permitted him to plead guilty when there was not an
adequate factual basis for his plea. He states while there
may have been an adequate factual basis based on the minutes
of testimony to show he assaulted Sergeant Marlowe, the
minutes do not provide a factual basis to show Sergeant
Marlowe suffered a bodily injury. ...