from the Iowa District Court for Polk County, Robert J.
challenges his guilty plea to arson in the second degree.
C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Katie M. Krickbaum,
Assistant Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
Larry Gross Jr. pleaded guilty to arson in the second degree,
in violation of Iowa Code sections 712.1 and 712.3 (2017). In
this direct appeal, Gross contends his guilty plea lacked a
factual basis and his conviction must be vacated.
defendant failed to challenge his guilty plea in the district
court by filing a motion in arrest of judgment.
"Generally, a defendant's failure to file a motion
in arrest of judgment bars a direct appeal of [a guilty
plea]." State v. Hopwood, No. 13-1480, 2014 WL
5476008, at *1 (Iowa Ct. App. Oct. 29, 2014); accord
Iowa R. Crim. P. 2.8(2)(d) ("The court shall inform the
defendant that any challenges to a plea of guilty based on
alleged defects in the plea proceedings must be raised in a
motion in arrest of judgment and that failure to so raise
such challenges shall preclude the right to assert them on
appeal."). However, a defendant can challenge a guilty
plea indirectly "if the failure to file a motion in
arrest of judgment resulted from ineffective assistance of
counsel." Hopwood, 2014 WL 5476008, at *1;
accord Rhoades v. State, 848 N.W.2d 22, 28 (Iowa 2014)
("[A] defendant may attack his or her guilty plea on the
ground the defendant did not receive effective assistance of
counsel as required under the Sixth Amendment to the United
States Constitution because there was no factual basis to
support the defendant's guilty plea.").
Gross failed to file a motion in arrest of judgment to
challenge his guilty plea, his claim is necessarily asserted
within the ineffective-assistance framework. Although a claim
of ineffective assistance of counsel is frequently
categorized as an exception to our error preservation rules,
that categorization is not entirely accurate.
"Ineffective assistance of counsel . . . is a
stand-alone constitutional claim attacking the performance of
a criminal defendant's counsel." State v.
Johnson, 416 P.3d 443, 451 (Utah 2017). "While such
a claim necessarily requires the court to look at the
substantive issue the defendant argues his counsel should
have raised, and whether the substantive issue had any merit,
the substantive issue is only viewed through the lens of
counsel's performance." Id.
this court, as a court of error correction, would not address
a claim not presented to the district court or an error not
preserved in the district court. See Iowa Code
§ 602.5103(1) (providing the court of appeals
"constitutes a court for the correction of errors at
law"); Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002) ("It is a fundamental doctrine of appellate
review that issues must ordinarily be both raised and decided
by the district court before we will decide them on
appeal."). However, the Code specifically authorizes
appellate courts to address a claim of ineffective assistance
of counsel on direct appeal from criminal proceedings.
See Iowa Code § 814.7(2) ("A party may,
but is not required to, raise an ineffective assistance claim
on direct appeal from the criminal proceedings if the party
has reasonable grounds to believe that the record is adequate
to address the claim on direct appeal."). Because the
Code authorizes our review of a constitutional claim of
ineffective assistance of counsel on direct appeal from a
criminal proceeding, we proceed to the merits.
order to succeed on a claim of ineffective assistance of
counsel, a defendant must prove: (1) counsel failed to
perform an essential duty; and (2) prejudice resulted."
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008)
(citing Strickland v. Washington, 466 U.S. 668, 687
(1984)); accord Jones v. State, 545 N.W.2d 313, 315
(Iowa 1996). "Where 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. Schminkey, 597 N.W.2d 785, 788
(Iowa 1999). Furthermore, when counsel allows a defendant to
plead guilty to a crime that is not supported by a factual
basis, prejudice is inherent. See State v. Ortiz,
789 N.W.2d 761, 764-65 (Iowa 2010); State v. Keene,
630 N.W.2d 579, 581 (Iowa 2001); Schminkey, 597
N.W.2d at 788.
the district court accepts a guilty plea, the district court
must satisfy itself the guilty plea is supported by a factual
basis. See Iowa R. Crim. P. 2.8(2)(b); State v.
Amadeo, No. 11-1426, 2012 WL 2122262, at *1 (Iowa Ct.
App. June 13, 2012). "A factual basis can be discerned
from . . .: (1) inquiry of the defendant, (2) inquiry of the
prosecutor, (3) examination of the presentence report, and
(4) minutes of evidence." Ortiz, 789 N.W.2d at
768; accord Amadeo, 2012 WL 2122262, at *1. The
relevant inquiry is whether the record before the district
court supports a factual basis for each element of the
offense. See Rhoades, 848 N.W.2d at 29;
Amadeo, 2012 WL 2122262, at *3-4 (collecting cases).
The court need "only be satisfied that the facts support
the crime, 'not necessarily that the defendant is
guilty.'" Keene, 630 N.W.2d at 581 (quoting
1A Charles Alan Wright, Federal Practice and
Procedure § 174 (1999)).
determine whether Gross's guilty plea is supported by a
factual basis, we first turn to the elements of the offense.
The Code defines arson as follows:
Causing a fire or explosion, or placing any burning or
combustible material, or any incendiary or explosive device
or material, in or near any property with the intent to
destroy or damage such property, or with the knowledge that
such property will probably be destroyed or damaged, is
arson, whether or not any such property is actually destroyed
or damaged. Provided, that where a person who owns said
property which the defendant intends to destroy or damage, or
which the defendant knowingly endangers, consented to the
defendant's acts, and where no insurer has been exposed
fraudulently to ...