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State v. Pion

Court of Appeals of Iowa

October 24, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JONATHON HANS PION, Defendant-Appellant.

          Appeal from the Iowa District Court for Marion County, Martha L. Mertz (plea) and Dustria A. Relph (sentencing), Judges.

         Jonathon Pion appeals after pleading guilty to violating a custodial order.

          John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

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

          DOYLE, JUDGE.

         Jonathon 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 sentence.

         The 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.

         Courts 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).

         Pion 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.

         Iowa 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 ...

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