from the Iowa District Court for Black Hawk County, George L.
McFarland appeals his convictions, following guilty pleas, to
two drug charges. AFFIRMED.
R. McCarthy of Clemens, Walters, Conlon, Runder & Hiatt,
L.L.P., Dubuque, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.
McFarland appeals his convictions, following guilty pleas, to
one count of possession of a controlled substance and one
count of possession of a controlled substance with intent to
deliver. He first contends his pleas were involuntary because
the district court failed to state on the record the source
of its factual-basis determinations. He additionally argues his
pleas were involuntary because the district court accepted
them without first ensuring he understood the terms of the
plea agreement. Because McFarland waived his right to file a
motion in arrest of judgment, he brings both claims under an
ineffective-assistance-of-counsel framework. See
Iowa R. Crim. P. 2.24(3)(a) ("A defendant's failure
to challenge the adequacy of a guilty plea proceeding by
motion in arrest of judgment shall preclude the
defendant's right to assert such challenge on
appeal."); State v. Weitzel, 905 N.W.2d 397,
401 (Iowa 2017) ("[I]f the guilty plea resulted from
ineffective assistance of counsel, the defendant can
challenge the plea under the rubric of ineffective assistance
review ineffective-assistance-of-counsel claims de novo.
State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2017). To
succeed on his claims, McFarland "must establish by a
preponderance of the evidence that '(1) his trial counsel
failed to perform an essential duty, and (2) this failure
resulted in prejudice.'" Id. (quoting
State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017));
accord Strickland v. Washington, 466 U.S. 668, 687
(1984). We "may consider either the prejudice prong or
breach of duty first, and failure to find either one will
preclude relief." State v. McNeal, 897 N.W.2d
697, 703 (Iowa 2017) (quoting State v. Lopez, 872
N.W.2d 159, 169 (Iowa 2015)). When challenging a guilty plea
through a claim "of ineffective assistance of counsel,
the defendant satisfies the prejudice prong if he or she can
show 'there is a reasonable probability that, but for
counsel's error he or she would not have pleaded guilty
and would have insisted on going to trial.'"
Weitzel, 905 N.W.2d at 402 (quoting State v.
Straw, 709 N.W.2d 128, 138 (Iowa 2006)).
first consider McFarland's claim that his counsel was
ineffective in not recognizing the district court's
failure to state on the record the source of its
factual-basis determinations and therefore allowing McFarland
to enter his pleas involuntarily and then waive his right to
file a motion in arrest of judgment to challenge the plea.
Due process requires that a guilty plea be entered
voluntarily. State v. Loye, 670 N.W.2d 141, 150
(Iowa 2003). In Finney, the supreme court considered
whether the district court is required to identify the parts
of the record that provide a factual basis for a guilty plea.
834 N.W.2d at 55. The court "reaffirm[ed] that under
rule 2.8(2)(b), the district court is required to provide the
factual basis supporting the plea on the record at the plea
hearing" because a guilty plea is not voluntary
"unless the defendant possesses an understanding of the
law in relation to the facts." Id. (citations
omitted). In this case, McFarland's guilty plea was
entered orally at a plea hearing. At the hearing, the court
explained the nature of the charges and potential penalties.
When questioned by the court "how do you plead" as
to each of the charges, McFarland responded,
"Guilty." The court accepted the pleas, concluding
they were "freely, voluntarily, and intelligently made
and there is a factual basis for each." However,
McFarland made no admissions at the hearing concerning the
charges, a presentence investigation report had yet to be
prepared, and the court did not specify the source of its
factual-basis determinations or otherwise elaborate what
facts developed the necessary factual bases.
generally undisputed that the district court failed to
properly identify the parts of the record that provided
factual bases for McFarland's guilty pleas and defense
counsel failed to point out this deficiency and thereafter
allowed McFarland to waive his right to file a motion in
arrest of judgment to challenge the plea. However, we find
the record inadequate to decide whether McFarland was
prejudiced by counsel's failures and repeat our position
that the "circumstances underlying the defendant's
willingness to go to trial are facts that should be permitted
to be more fully developed" in a postconviction-relief
proceeding. State v. Delacy, N.W.2d,, 2017 WL
1735684, at *4 (Iowa Ct. App. 2017), further review
denied (Jan. 16, 2018); see also State v.
Gaston, No. 16-1957, 2017 WL 4317310, at *2 (Iowa Ct.
App. Sept. 27, 2017), further review denied (Nov.
22, 2017); State v. Iddings, No. 15-1597, 2017 WL
246049, at *5 (Iowa Ct. App. June 7, 2017); State v.
Bascom, No. 15-2173, 2017 WL 1733115, at *1 (Iowa Ct.
App. May 3, 2017), further review denied (Jan. 16,
2018); State v. Taylor, No. 16-0762, 2017 WL
1735682, at *1-2 (Iowa Ct. App. May 3, 2017). The record is
inadequate for us to determine whether McFarland would have
insisted on proceeding to trial had the district court
identified the source of its factual-basis determinations or
otherwise elaborated on the factual underpinnings supporting
its acceptance of McFarland's pleas. We therefore
preserve this claim for postconviction-relief proceedings.
See State v. Johnson, 784 N.W.2d 192, 196-98 (Iowa
consider McFarland's claim that his counsel rendered
ineffective assistance in allowing him to plead guilty
without ensuring he was fully aware of the terms of the plea
agreement and allowing him to waive his right to file a
motion in arrest of judgment to challenge his pleas on the
same ground. "If a plea agreement has been reached by
the parties, the court shall require the disclosure of the
agreement in open court at the time the plea is
offered." Iowa R. Crim. P. 2.10(2). In this case, the
plea agreement was not recited until after McFarland's
guilty pleas were tendered and accepted. The agreement, which
the court honored, provided McFarland would, among other
things, serve consecutive terms of incarceration of one and
five years on the two charges. On appeal, McFarland contends
he "believed that pursuant to the terms of the plea
agreement, . . . he and his counsel were going to request for
a more lenient sentence, specifically a halfway house, "
and he "did not understand that he was bound by the
terms of the plea agreement which consisted of prison
review is limited to the record, and any other extraneous
matters are to be disregarded. See In re Marriage of
Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994). Lacking
in the record is any evidence that McFarland had any
understanding of the terms of the plea agreement different
from the terms recited to the court. We decline to simply
accept McFarland's understanding of the plea agreement as
stated in his appellate brief, as it is not a sufficient
substitute for a trial record. Cf. Smith v. Iowa Bd. of
Med. Exam'rs, 729 N.W.2d 822, 827 (Iowa 2007)
("The district court's recitation of these matters
in its ruling is not a substitute for the required appellate
record."). Absent a record to support McFarland's
stated understanding of the plea agreement underlying his
claim of ineffective assistance of counsel, we affirm his
convictions. Because the record is inadequate to resolve this
ineffective-assistance-of-counsel claim, we preserve it for
postconviction-relief proceedings. See Johnson, 784
N.W.2d at 196-98.