from the Iowa District Court for Jefferson County, Mary Ann
Haynes appeals his conviction after pleading guilty to one
count of sexual exploitation of a minor.
C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
Haynes pled guilty to one count of sexual exploitation of a
minor. On appeal, he challenges the existence of a factual
basis to support his plea. Because Haynes did not attack his
plea by motion in arrest of judgment, he raises his claim
under an ineffective-assistance-of-counsel rubric. See
State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011)
(considering the defendant's challenge to the factual
basis for his guilty plea as a claim of ineffective
assistance of counsel even though the defendant failed to
preserve error on the claim by filing a motion in arrest of
judgment). Our review is therefore de novo. See id.
("We review claims of ineffective assistance of counsel
de novo."). Haynes must prove by a preponderance of the
evidence both that his counsel failed to perform an essential
duty and prejudice resulted. See id. If counsel
allowed him to plead guilty without a factual basis for his
plea, we presume prejudice. See id. at 849. The
question is whether the record shows a factual basis to
support his plea. See id.
is a sufficient factual basis to support a guilty plea if the
record at the time of the guilty plea, as a whole, discloses
facts to satisfy each element of the offense. See Rhoades
v. State, 848 N.W.2d 22, 29 (Iowa 2014); State v.
Ortiz, 789 N.W.2d 761, 767-68 (Iowa 2010). The record
does not need to support the defendant's guilt, but it
needs to demonstrate facts that support the offense. See
Ortiz, 789 N.W.2d at 768. In determining whether the
record provides a sufficient factual basis to support the
plea, we review the prosecutor's statements, the
defendant's statements, the minutes of evidence, and
"the presentence report, if available at the time of the
plea." Rhoades, 848 N.W.2d at 29.
pled guilty to sexual exploitation of a minor under Iowa Code
section 728.12(1) (2016). That section makes it unlawful to
"employ, use, persuade, induce, entice, coerce, solicit,
knowingly permit, or otherwise cause or attempt to cause a
minor to engage in a prohibited sexual act or in the
simulation of a prohibited sexual act." Iowa Code §
728.12(1). A prohibited sexual act occurs when there is
sexual contact by any of the following:
1. Penetration of the penis into the vagina or anus.
2. Contact between the mouth and genitalia or by contact
between the genitalia of one person and the genitalia or anus
of another person.
3. Contact between the finger or hand of one person and the
genitalia or anus of another person, except in the course of
examination or treatment by a person licensed pursuant to
chapter 148, 148C, 151, or 152.
4. Ejaculation onto the person of another.
5. By use of artificial sexual organs or substitutes therefor
in contact with the ...