from the Iowa District Court for Polk County, David May,
defendant appeals his conviction asserting his attorney
provided ineffective assistance and the court erred in
assessing him restitution and court costs related to a
G. Warutere of Warutere Law Firm, P.L.L.C., Clive, for
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., McDonald, J., and Scott, S.J.
Tejeda Jr. appeals following his conviction for possession of
a controlled substance-methamphetamine-with the intent to
deliver, in violation of Iowa Code section 124.401(1)(b)(7)
(2016), a class "B" felony. He asserts his counsel
provided ineffective assistance by permitting him to plead
guilty to the offense when the record lacks a factual basis
to support the guilty plea. He also claims counsel was
ineffective in pressuring or coercing him to plead guilty and
in failing to subpoena a witness for trial. Finally, he
asserts the court erred in assessing him restitution and
court costs connected to the dismissed drug-tax-stamp count.
prove counsel provided ineffective assistance, Tejeda must
prove counsel failed to perform an essential duty and he
suffered prejudice as a result. See State v. Ortiz,
789 N.W.2d 761, 764 (Iowa 2010). Both elements must be proved
by a preponderance of the evidence. See id.
Ineffective-assistance claims are usually preserved for
postconviction-relief proceedings because the record on
direct appeal is rarely adequate to address such claims.
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
However, an ineffective-assistance challenge based on
counsel's failure to ensure the record has a factual
basis to support a guilty plea is typically resolved on
direct appeal because "[i]f a factual basis existed,
counsel was not ineffective for failing to file a motion in
arrest of judgment; if a factual basis does not exist, then
counsel was ineffective." State v. Brooks, 555
N.W.2d 446, 448 (Iowa 1996). Prejudice is presumed if a
factual basis does not exist in the record. Ortiz,
789 N.W.2d at 764-65.
asserts there is an insufficient factual basis to support the
conclusion he intended to deliver the methamphetamine in his
possession. He notes the transcript of the guilty plea
hearing shows the following:
THE COURT: And you intended to deliver [the methamphetamine]
to another person?"
THE DEFENDANT: So they say. Yes. Yes. He asserts this
"hesitation" results in a lack of a factual basis.
He also claims the court failed to indicate it was relying on
the minutes ...