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State v. Markley

Court of Appeals of Iowa

October 25, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
RYAN LEE MARKLEY, Defendant-Appellant.

         Appeal from the Iowa District Court for Johnson County, Mary E. Chicchelly, Judge.

         Ryan Markley appeals his convictions and sentences after pleading guilty to assault with intent to commit sexual abuse without injury and burglary in the second degree. AFFIRMED.

          Mark C. Smith, State Appellate Defender, Stephan J. Japuntich (until withdrawal), Assistant Appellate Defender, and Kent A. Simmons, Bettendorf, for appellant.

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

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          DOYLE, JUDGE

         Ryan Markley appeals his convictions and sentences after pleading guilty to second-degree burglary and entering an Alford plea[1] to assault with intent to commit sex abuse without injury. Markley contends his trial counsel was ineffective in allowing him to plead guilty without a factual basis. He also contends the sentencing court abused its discretion in imposing indeterminate terms of incarceration not to exceed two years on the assault offense and ten years on the burglary offense, and in ordering the sentences be served consecutively.

         I. Ineffective Assistance of Counsel.

         Markley contends his trial counsel was ineffective in allowing him to plead guilty without a factual basis for his pleas. We review these claims de novo. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To prove ineffective assistance, Markley must demonstrate "(1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice." State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)). Counsel fails to perform an essential duty if counsel allows the defendant to plead guilty when no factual basis for a charge exists. See State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014). In such cases, prejudice is inherent. See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Therefore, we only need address the existence of a factual basis for the guilty pleas. See Gines, 844 N.W.2d 437, 441 (Iowa 2014); Schminkey, 597 N.W.2d at 788.

         For a factual basis for the guilty plea to exist, the record as a whole must reveal facts that satisfy all elements of the offense. See Ortiz, 789 N.W.2d at 767-68. "[T]he record does not need to show the totality of the evidence necessary to support a guilty conviction, but need only demonstrate facts that support the offense." Id. at 768. In determining whether a factual basis exists, "we consider the entire record before the district court at the guilty plea hearing, " which may include statements made by the defendant and the prosecutor, the minutes of evidence, and a presentence investigation (PSI) report (if one exists). Schminkey, 597 N.W.2d at 788; accord State v. Finney, 834 N.W.2d 46, 57 (Iowa 2013) (finding the minutes of evidence provided a factual basis for the defendant's guilty plea). The court must determine the existence of a factual basis even when the plea is under Alford. See State v. Klawonn, 609 N.W.2d 515, 521 (Iowa 2000).

         A. Factual basis for the assault charge.

         Markley first claims a factual basis did not exist for the offense of assault with intent to commit sex abuse without injury. We are not persuaded. In reviewing the entire record before the district court, and without considering the suppressed evidence, we are satisfied there is a sufficient factual basis to support Markley's guilty plea to the assault offense. The minutes of evidence[2]state Markley's epithelial DNA was on the underwear the assaulted woman wore the night of the attack (collected in the victim's sexual assault kit). The record further shows her blood was found on Markley's jeans. Markley's wallet was found beneath the exterior window that was used to gain access to the woman while she slept, and Markley's fingerprints were on the window. A boot print also connected Markley to the scene of the assault. Markley immediately showered upon learning the police were coming to his apartment. The woman scratched her attacker during the assault, and there were fresh scratch marks on Markley's torso when the police arrived at his apartment.

         The intent element of the offense is difficult to prove by direct evidence; however, intent may be established "by circumstantial evidence and by inferences reasonably to be drawn from the conduct of the defendant and from all the attendant circumstances in the light of human behavior and experience." State v. Allnutt, 156 N.W.2d 266, 271 (Iowa 1968), overruled on other grounds by State v. Gorham, 206 N.W.2d 908 (Iowa 1973). The specific intent to commit sexual abuse is present, not by a mere preparation for the act, but when the overt act so approaches accomplishment that it amounts to the beginning of the consummation. See State v. Radeke, 444 N.W.2d 476, 478 (Iowa 1989); State v. Roby, 188 N.W. 709, 714 (Iowa 1922). In reviewing the attendant circumstances and Markley's conduct, the record sufficiently establishes Markley's intent to commit sexual abuse. Therefore, a sufficient factual basis supports Markley's guilty plea to the offense of assault with intent to commit sex abuse without injury.

         B. Factual basis for ...


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