from the Iowa District Court for Linn County, Russell G.
Keast (plea) and Angeline M. Wilson (judgment and sentence),
District Associate Judges.
Lurkens appeals after pleading guilty to domestic abuse
J. Goldensoph, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
appeal arises out of a conviction for domestic abuse assault.
Shawn Lurkens was charged with domestic abuse assault by
strangulation, in violation of Iowa Code section 708.2A(1)
and (2)(d) (2017), an aggravated misdemeanor. Lurkens entered
a written guilty plea to the lesser-included charge of
domestic abuse assault, in violation of section 708.2A(1) and
(2)(a), a simple misdemeanor. In his written guilty plea,
Lurkens agreed the minutes of evidence were factually
accurate and indicated the court could rely on them as a
factual basis for his guilty plea. The minutes state that
Lurkens "placed [his wife] in a headlock using his
forearm and bicep around her neck and throat area . . . for
approximately 30 seconds and that she was starting to lose
consciousness at the time he let go." The court accepted
the guilty plea and later sentenced Lurkens to serve two days
in jail, and ordered him to pay court costs and complete the
Iowa Domestic Abuse Program. Lurkens now appeals this
conviction, claiming his counsel provided ineffective
assistance by allowing him to accept the plea deal when there
was not a factual basis for the plea.
standard of review for guilty pleas resulting from
counsel's ineffective assistance is de novo. State v.
Utter, 803 N.W.2d 647, 651 (Iowa 2011), overruled on
other grounds by Schmidt v. State, 909 N.W.2d 778 (Iowa
2018). When the record is inadequate, we preserve
ineffective-assistance-of-counsel claims for potential
postconviction-relief proceedings. See State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010). Because the
record is adequate here, we will consider the merits of
with all ineffective-assistance-of-counsel claims, [a
defendant] must establish [their] counsel failed to perform
an essential duty and prejudice resulted from such
failure." Utter, 803 N.W.2d at 652 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Courts are required to determine whether a factual basis
exists before accepting a plea. Iowa R. Crim. P. 2.8(2)(b).
To determine whether a factual basis exists, "the entire
record before the district court may be examined."
State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013).
"If an attorney allows a defendant to plead guilty to an
offense for which there is no factual basis and to waive the
right to file a motion in arrest of judgment, the attorney
breaches an essential duty." State v. Philo,
697 N.W.2d 481, 485 (Iowa 2005). When this occurs, prejudice
is inherent. State v. Schminkey, 597 N.W.2d 785, 788
argues the minutes of evidence "don't
necessarily" establish a factual basis for simple
domestic abuse assault, but rather, they establish domestic
abuse assault by strangulation. Therefore, Lurkens concludes,
a factual basis for the plea did not exist and his plea
counsel was ineffective. He requests that his conviction be
reversed and his case remanded for further proceedings.
on a review of the record, we have no difficulty in
concluding there is an adequate factual basis to support
Lurkens's guilty plea to domestic abuse assault. The
"assault" portion of domestic abuse assault means
an assault as defined in section 708.1. Iowa Code §
708.2A(1). "Assault" under section 708.1 includes,
"[a]ny act which is intended to cause pain or injury to,
or which is intended to result in physical contact which will
be insulting or offensive to another, coupled with the
apparent ability to execute the act," or "[a]ny act
which is intended to place another in fear of immediate
physical contact which will be painful, injurious, insulting,
or offensive, coupled with the apparent ability to exercise
the act." Id. § 708.1(2)(a), (b). When
determining whether there is a factual basis for the guilty
plea, we may look to the minutes of evidence. See
Finney, 834 N.W.2d at 62. The minutes recount how
Lurkens had his wife in a headlock for approximately thirty
seconds during which she began to lose consciousness. Lurkens
does not dispute these facts. We ...