from the Iowa District Court for Fayette County, John J.
Dearborn appeals from his convictions and sentences for the
offenses of possession of a controlled substance within a
jail, and burglary in the third degree.
J. Bishop, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Doyle and Mullins, JJ.
Dearborn appeals from his convictions and sentences for the
offenses of possession of a controlled substance (marijuana)
within a jail and burglary in the third degree, both class
"D" felonies. He contends his trial counsel was
ineffective in permitting him to plead guilty to burglary in
the third degree when the record did not support a factual
basis for the charge. Dearborn also contends that, because
the district court did not adequately inform him of the
nature of the charges as required by Iowa Rule of Criminal
Procedure 2.8(2)(b), his plea was not knowingly and
voluntarily made and his trial counsel was therefore
ineffective in permitting him to plead guilty to both
charges. Upon our review, we vacate the conviction on the
burglary charge and remand for further proceedings.
Background Facts and Proceedings.
December 29, 2016, a resident of Arlington, Iowa reported to
the Fayette County Sheriff's Office that she observed two
persons enter and remove items from an abandoned house that
had been condemned by the city. Following the report, a deputy
contacted the mayor, who confirmed the city did not grant
anyone permission to enter the property or to remove items.
Deputies located Dearborn in a residence next door to the
abandoned house. In a conversation with the deputies,
Dearborn admitted to entering the abandoned house and to
removing several items. Dearborn was arrested for burglary
and transported to the Fayette County Jail.
arrival at the Fayette County Jail, Dearborn was twice asked,
once by a deputy and once by a jailer, if he possessed any
guns, knives, drugs, or other contraband on him, to which he
replied "no." Dearborn was taken to a booking area.
A detention officer searched Dearborn and found two bags of
marijuana in his front pockets.
was charged by trial information with introducing,
possessing, and/or conveying a controlled substance
(marijuana) into or within a jail (Count I), in violation of
Iowa Code section 719.7 (2016), and burglary in the third
degree (Count II), in violation of section 713.6A. Dearborn
initially entered a plea of not guilty. The State then filed
a motion to amend the trial information to allege Dearborn
was a habitual offender. Following a plea agreement, the State
agreed to withdraw the habitual-offender sentencing
enhancement and to recommend imposition of suspended,
consecutive sentences with probation. On April 5, 2017,
Dearborn appeared before the district court and entered
Alford pleas on the marijuana and burglary
the plea hearing, the court inquired into the terms of the
plea agreement. The State noted that part of the reason for
the plea agreement was its concern over whether the structure
Dearborn entered "would be considered an occupied
structure or not." Dearborn's trial counsel mirrored
the same concerns stating, "I was concerned that there
may not be a factual basis for a plea" but ultimately
believed there was a factual basis for the plea
"inasmuch as the house was a place for safekeeping of
district court accepted Dearborn's pleas to both the
marijuana and burglary charges, finding that a factual basis
for the pleas existed and that the pleas were knowingly and
voluntarily made. Dearborn requested immediate sentencing,
and the court ordered Dearborn to serve a term not to exceed
five years in prison on each charge. The prison sentences
were suspended, and Dearborn was placed on supervised
probation for a term of two-to-five years. The court ordered
that if the prison sentences were later imposed, they would
be served consecutive to each other.
appeals. He contends his trial counsel was ineffective in
permitting him to plead guilty to third-degree burglary when
the record did not support a factual basis for that charge.
Dearborn also contends his trial counsel was ineffective in
permitting him to plead guilty to both charges because his
pleas were not intelligently and voluntarily made because the
district court did not adequately inform him of the nature of
the charges required by rule 2.8(2)(b).
Standard of Review.
review ineffective-assistance-of-counsel claims, which are
rooted in the Sixth Amendment of the United States
Constitution, de novo. See State v. Thorndike, 860
N.W.2d 316, 319 (Iowa 2015); State v. Finney, 834
N.W.2d 46, 49 (Iowa 2013); see also Everett v.
State, 789 N.W.2d 151, 159 (Iowa 2010). "In a
criminal case, an ineffective-assistance-of-counsel claim
'need not be raised on direct appeal from the criminal
proceedings in order to preserve the claim for postconviction
relief purposes.'" Everett, 789 N.W.2d at
156 (quoting Iowa Code § 814.7(1)). However, such claims
may be raised on direct appeal when the record is adequate to
permit a ruling. See Finney, 834 N.W.2d at 49;
State v. Willis, 696 N.W.2d 20, 22 (Iowa 2005). The
record here allows us to review Dearborn's
ineffective-assistance claims on direct appeal.
Lack of Factual Basis-Burglary Charge.
argues his trial counsel was ineffective for allowing him to
plead guilty to burglary in the third degree without a
factual basis. Dearborn entered an Alford plea to
the charge of burglary in the third degree. He claims the
minutes of testimony provided no evidence that he entered an
"occupied structure, " a necessary element of the
succeed on a claim of ineffective assistance of counsel,
Dearborn must demonstrate "(1) his trial counsel failed
to perform an essential duty, and (2) this failure resulted
in prejudice." State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006) (quoting Strickland v. Washington,
466 U.S. 668, 687 (1984)). "Where a factual basis for a
charge does not exist, and trial counsel allows the defendant
to plead guilty anyway, counsel has failed to perform an
essential duty." State v. Schminkey, 597 N.W.2d
785, 788 (Iowa 1999). In such a case, prejudice is inherent.
accepting a plea of guilty, the court must determine the plea
has a factual basis. See Iowa R. Crim. P. 2.8(2)(b);
State v. Sisco, 169 N.W.2d 542, 548 (Iowa 1969).
"This requirement exists even where the plea is an
Alford plea." Schminkey, 597 N.W.2d at
788. "The factual basis must be contained in the record,
and the record, as a whole, must disclose facts to satisfy
all elements of the offense." State v. Ortiz,
789 N.W.2d 761, 767-68 (Iowa 2010). A factual basis may be
determined from (1) statements of the defendant; (2)
statements of the prosecutor; (3) examination of the
presentence report; and (4) the minutes of evidence. See
id. at 768; State v. Schminkey, 597 N.W.2d 785,
788 (Iowa 1999). We need only be satisfied the facts support
the crime, "not necessarily that the defendant is
guilty." State v. Keene, 630 N.W.2d 579, 581