from the Iowa District Court for Cerro Gordo County, Karen
Kaufman Salic, District Associate Judge.
challenges his conviction and sentence for burglary in the
C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
Brown pleaded guilty to burglary in the third degree, in
violation of Iowa Code sections 713.1 and 713.6A (2017). In
this direct appeal, he contends his guilty plea lacked a
factual basis, the prosecutor breached the plea agreement,
and the prosecutor had a disqualifying conflict of interest.
first and second claims are presented as claims of
ineffective assistance of counsel. Because a claim of
ineffective assistance arises out of the constitutional
guarantee to have the assistance of counsel for one's
defense, our review is de novo. See Everett v.
State, 789 N.W.2d 151, 155 (Iowa 2010). To succeed on an
ineffective-assistance claim a defendant must show "(1)
counsel failed to perform an essential duty; and (2)
prejudice resulted." State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008).
first address Brown's claim his guilty plea lacked a
factual basis. "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. Prejudice is inherent in such a case." State
v. Nall, 894 N.W.2d 514, 525 (Iowa 2017). In
establishing a factual basis for a guilty plea, the district
court can "(1) inquir[e] of the defendant, (2) inquir[e]
of the prosecutor, and (3) examin[e] the presentence
report." State v. Finney, 834 N.W.2d 46, 56
(Iowa 2013). In addition, the district court may look to the
minutes of testimony where the minutes are acknowledged
during the plea colloquy. See id. at 57. When this
court reviews whether there is a factual basis for the plea,
the relevant inquiry is whether the record before the
district court as a whole supports a factual basis for each
element of the offense. See State v. Amadeo, No.
11-1426, 2012 WL 2122262, at *3-4 (Iowa Ct. App. June 13,
2012) (collecting cases).
issue here, to commit a burglary, one must enter an occupied
structure with "no right, license, or privilege to do
so." See Iowa Code § 713.1. Brown contends
his counsel was ineffective in allowing to him plead guilty
because Brown had permission to enter the occupied structure
at issue. The plea record shows the occupied structure at
issue is an apartment. In February 2017, the tenants returned
to the apartment and noticed the back door ajar. They
notified police. After some searching, the tenants found a
mobile phone in the apartment belonging to neither of them.
The police later determined the phone belonged to Brown. One
of the tenants also discovered several bottles of her
prescription drugs were missing. When the police contacted
the landlord, the landlord reported that "someone by the
name of Eric had contacted him saying that he was a really
good friend of [one of the tenants] and that she wanted help
moving her stuff out and he was going to take the stuff to a
new location." The landlord explained he authorized Eric
to enter the apartment for this purpose. The minutes of
testimony establish Brown was not friends with the tenants,
was not authorized by them to be in the apartment, and was
not helping them move.
entry into the apartment obtained by deceit of the landlord
is sufficient to establish a constructive breaking and a
factual basis for the guilty plea. See Judy E.
Zelin, Annotation, Maintainability of Burglary Charge
Where Entry into Building Is Made with Consent, 58
A.L.R.4th 335 (1987) ("It has been held that where the
requisite consent for entry into premises is obtained by
fraud or deceit, there is no true consent, and burglary
charges are maintainable under a statutory scheme not
requiring actual breaking and entering.").
"Constructive breaking occurs when entry is obtained by
any manner other than physical force, such as by fraud or
trick." State v. Madison, No. 00-1859, 2002 WL
570714, *2 (Iowa Ct. App. Feb. 20, 2002); see State v.
Schoo, No. 03-0999, 2004 WL 2173328, at *1 (Iowa Ct.
App. Sept. 29, 2004) (relying on definition of constructive
breaking). "The law is clear that entry to a home
procured by means of fraud is the legal equivalent of entry
by force and constitutes a constructive breaking."
State v. Carey, 165 N.W.2d 27, 47 (Iowa 1969)
(Garfield, C.J., dissenting). Other states have reached
similar conclusions. See Commonwealth v. Labare, 416
N.E.2d 534, 536 n.3 (Mass. App. Ct. 1981)
("[C]onstructive breaking is also a breaking within the
meaning of the law. And a constructive breaking is one that
is accomplished by trick or threat."); Smallwood v.
State, 930 So.2d 448, 451 (Miss. Ct. App. 2006)
("Evidence was presented to support a finding of
constructive breaking in that Smallwood was deceptive in
using the name of O'Harroll's friend for the purpose
of gaining entry to the house."); State v.
Ortiz, 584 P.2d 1306, 1308 (N.M. Ct. App. 1978)
("Where the consent to enter is obtained by fraud,
deceit or pretense, the entry is trespassory because the
entry is based on a false consent; that is, the entry is
outside the consent that was given.").
our statute defines the offense in terms of entry without
right, license, or privilege to do so rather than
"breaking, " the same principle applies. Here, the
right of entry was obtained by fraud and deceit and legally
was no right of entry at all. See Johnson v. State,
921 So.2d 490, 508 (Fla. 2005) ("Consent obtained by
trick or fraud is actually no consent at all and will not
serve as a defense to burglary."). Counsel did not
breach an essential duty in failing to raise a
non-meritorious objection to the ...