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State v. Kingery

Court of Appeals of Iowa

August 1, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
PAUL MARK KINGERY, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         Paul Kingery appeals the convictions entered following his Alford pleas to two counts of lascivious acts with a child.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          MULLINS, Judge.

         Paul Kingery appeals the convictions entered following his Alford[1] pleas to two counts of lascivious acts with a child.

         I. Background Facts and Proceedings

         On February 10, 2017, Kingery was charged by trial information with sexual abuse in the second degree, a class "B" felony. The charge was based on acts committed between January 1, 2012 and December 31, 2015, against C.K., a person under the age of twelve.

         The parties subsequently reached a plea agreement under which Kingery would enter Alford pleas to the amended charges of two counts of lascivious acts with a child, class "C" felonies, in return for the State's agreement to not file any charges relating to a separate complainant and to recommend an indeterminate term of incarceration not to exceed ten years on each count, to run consecutively. The agreement further provided there would be no mandatory minimum term of incarceration and Kingery would be immediately eligible for parole.

         At the plea hearing on July 31, 2017, Kingery advised the court he agreed to the terms of the plea agreement, stated his decision to enter Alford pleas was a voluntary choice, and acknowledged he would receive a benefit by entering the Alford pleas. Kingery acknowledged the minutes of evidence provided strong evidence of actual guilt for the original charge. The court found the minutes provided a sufficient factual basis for both counts of lascivious acts with a child, accepted Kingery's plea, and set the matter for sentencing on September 15.

         On September 7, Kingery filed a pro-se document in which he challenged the facts and legal definition of a sex act and asked the court to continue the trial. In his motion, Kingery stated the plea agreement was not in his best interests and asserted he only entered the pleas because of his concerns about C.K. and he did not want to rip the family apart. He also claimed he was not asked for any supporting witnesses by his defense counsel and listed several people who could provide testimony relating to skin care and the type of massages he performs. Kingery included definitions for pubes, genitals, vulva, breasts, arouse, lascivious, lewd, and lustful, without reference to the source of the definitions. The court directed the motion would be considered at the time of sentencing.

         At the sentencing hearing on September 15, the court interpreted the letter as a motion for a new trial or motion in arrest of judgment and denied it, finding the plea was made knowingly, intelligently, and voluntarily and the grounds listed in the letter were insufficient to withdraw the plea or grant a new trial. The court then entered judgment and imposed the sentence in accordance with the plea agreement. Kingery appeals.

         II. Analysis

         A. Factual Bases

         Kingery claims his Alford pleas lacked factual bases and the court therefore erred in accepting the pleas. Kingery specifically argues the information contained in the minutes of evidence was insufficient to support a finding of the requisite intent or contact with the requisite bodily location of the offense.

         In determining whether factual bases support Kingery's pleas, we consider the entire record, as a whole, to determine if the elements of the offenses have been satisfied. See State v. 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 does not need to show the totality of the ...


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