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State v. Ross

Court of Appeals of Iowa

July 18, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
QUINCY THOMAS ROSS, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Mark R. Lawson (plea) and Nancy S. Tabor (sentencing), Judges.

         Quincy Ross appeals his convictions and sentences entered following guilty pleas to one count of possession of a controlled substance with intent to deliver and one count of child endangerment without injury. CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED FOR RESENTENCING.

          Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Mullins and McDonald, JJ. Tabor, J., takes no part.

          DANILSON, CHIEF JUDGE.

         Quincy Ross appeals his convictions and sentences following guilty pleas for possession of a controlled substance with intent to deliver and child endangerment without injury. He contends his trial counsel provided ineffective assistance for failing to challenge his guilty plea to the child-endangerment charge on factual-basis grounds. Ross also claims the district court erred in refusing to consider additional evidence in mitigation of his punishment.

         I. Background Facts and Proceedings.

         On October 30, 2016, Davenport Police Department conducted surveillance on Quincy Ross's residence as part of an ongoing narcotics investigation. During the surveillance, officers observed Ross and a small child-later identified as Ross's son-exiting a vehicle that Ross had parked in front of his residence. The police were aware Ross had warrants out for his arrest and that he was barred from driving. When officers attempted to make contact, Ross fled on foot towards his residence with his son following him. Once Ross was in his residence, he slammed the door, which hit his son and caused a laceration over his left eye. Ross eventually exited his residence peacefully and was placed into custody.

         Ross was charged with one count of possession of a controlled substance with intent to deliver; one count of child endangerment; and one count of operating a motor vehicle while license barred, as a habitual offender. Ross was given notice of the State's intent to pursue a habitual-offender enhancement due to his prior felony convictions. An agreement was reached in which Ross would plead guilty to the possession charge and a lesser-included offense of child endangerment without injury in exchange for the State dismissing the operating-a-motor-vehicle- while-barred charge. Additionally, the State would be able to make any recommendation at the time of sentencing; however, it would not pursue the habitual-offender sentencing enhancement, and if the State recommended incarceration, it would recommend concurrent sentences. On his written guilty plea for the child-endangerment offense, Ross handwrote that he "put my child at risk by running toward house and away from police."

         Ross was informed during his plea-taking hearing and in his written guilty plea that to challenge the plea he must file a motion in arrest of judgment. The court accepted Ross's guilty pleas to one count of possession with intent to deliver and one count of child endangerment without injury. Ross did not file a motion in arrest of judgment. During his sentencing hearing, Ross presented two exhibits that he filed earlier that morning consisting of certificates of completion of varying programs and letters from family, friends, and from the Salvation Army describing its program and Ross's request for admittance into the program. The court refused to consider the letters and sentenced Ross to an indeterminate ten-year prison term for the possession offense and an indeterminate two-year term for the child-endangerment offense, to be served concurrently. No mandatory minimum or habitual-offender enhancements were imposed. Ross now appeals.

         II. Scope and Standards of Review.

         "We review claims of ineffective assistance of counsel de novo because the claims implicate the defendant's Sixth Amendment right to counsel." State v. Perkins, 875 N.W.2d 190, 192 (Iowa Ct. App. 2015) (citing State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015)).

         We review the sentence imposed in a criminal case for correction of errors at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not reverse "absent an abuse of discretion or some defect in the sentencing procedure." Id.

         III. Discussion.

         A. Factual Basis. Ross contends his guilty plea to the charge of child endangerment lacked a factual basis and, consequently, his counsel was ineffective for allowing him to enter the guilty plea and failing to challenge the plea through a motion in arrest of judgment. Ross argues there was a lack of evidence on the knowledge element of the child-endangerment charge.

         Generally, a defendant must file a motion in arrest of judgment in order to challenge a guilty plea. State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006). If a defendant fails to file a motion in arrest of judgment after the court has informed the defendant of their obligation to do so, they cannot directly appeal from the guilty plea. Iowa Rs. Crim. P. 2.8(d), .24(3)(a); see also Straw, 709 N.W.2d at 132. When counsel fails to file such a motion, a defendant may attack the plea on appeal through a claim of ineffective assistance of counsel. Perkins, 875 N.W.2d at 192.

         To prevail on a claim of ineffective assistance of counsel, the defendant must show by a preponderance of the evidence that (1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Thorndike, 860 N.W.2d at 320.

         "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. Gines, 844 N.W.2d 437, 441 (Iowa 2014) (quoting State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999)). "Prejudice is inherent in such a case." Id. Therefore, our "only inquiry is whether the record shows a factual basis for the guilty plea." Id. "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." Statev. Ortiz, 789 N.W.2d 761, 767-68 (Iowa 2010). "A factual basis can be discerned from four sources: (1) inquiry of the defendant, (2) inquiry of the prosecutor, (3) examination of the presentence report, and (4) minutes of evidence." Id. at 768. Moreover, "the record ...


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