from the Iowa District Court for Marion County, Martha L.
Mertz (plea) and Dustria A. Relph (sentencing), Judges.
Pion appeals after pleading guilty to violating a custodial
C. Heinicke of Kragnes & Associates, P.C., Des Moines,
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
Pion appeals the judgment and sentence entered after he pled
guilty to violating a custodial order by refusing to return
his child to the mother after visitation. See Iowa
Code § 710.6 (2017) (stating a relative of a child who
violates a custodial order commits a class "D"
felony). Pion argues his counsel was ineffective by
permitting him to plead guilty without a factual basis.
Additionally, Pion contends the district court abused its
discretion by imposing a five-year suspended sentence instead
of granting him a deferred judgment. We reject Pion's
arguments and affirm the district court's judgment and
standard of review for guilty pleas resulting from
counsel's ineffective assistance is de novo. See
State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011),
overruled on other grounds by Schmidt v. State, 909
N.W.2d 778, 789 (Iowa 2018). "As with all
ineffective-assistance-of-counsel claims, [the defendant]
must establish . . . 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)). Generally, we
preserve claims of ineffective assistance of counsel for
postconviction-relief proceedings to allow the record to be
developed. See State v. Gomez Garcia, 904 N.W.2d
172, 186 (Iowa 2017); State v. Virgil, 895 N.W.2d
873, 879 (Iowa 2017). However, we may resolve the claim on
direct appeal if the record before us is adequate. See
Virgil, 895 N.W.2d at 879. Here, we conclude the record
is adequate for review.
are required to determine whether a factual basis exists
before accepting a plea. See 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. See State v.
Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
claims his counsel was ineffective by allowing him to plead
guilty without a factual basis. He pled guilty to violating
Iowa Code section 710.6, which provides, as relevant here:
A relative of a child who, acting in violation of an order of
any court which fixes, permanently or temporarily, the
custody or physical care of the child in another, takes and
conceals the child, within or outside the state, from the
person having lawful custody or physical care, commits a
class "D' felony.
Code § 710.6 (2015). Iowa Criminal Jury Instruction
1000.10, published by the Iowa Bar Association, sets forth
the elements of the crime as follows:
1. On or about the day of ___, 20 ___, (custodian) had
[custody] [physical care] of ...