from the Iowa District Court for Scott County, Mark R. Lawson
(plea) and Nancy S. Tabor (sentencing), Judges.
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.
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
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.
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.
Background Facts and Proceedings.
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
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."
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
Scope and Standards of Review.
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)).
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."
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
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.
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.
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