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State v. Gross

Court of Appeals of Iowa

November 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
LARRY LEROY GROSS JR., Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

         Defendant challenges his guilty plea to arson in the second degree.

          Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Katie M. Krickbaum, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.

          MCDONALD, JUDGE.

         Defendant 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.

         The 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.").

         Because 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.

         Typically, 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.

         "In 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.

         Before 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)).

         To 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 ...

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