from the Iowa District Court for Scott County, John Telleen
(plea) and Mark J. Smith (sentencing), Judges.
Houston appeals her convictions for possession of marijuana
and carrying weapons, claiming a lack of factual basis for
the carrying-weapons plea, and the court erred in sentencing.
Legue of Legue Law, PC, Davenport, for appellant.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
Houston appeals her conviction and sentence for possession of
marijuana and carrying weapons. She contends her counsel
provided ineffective assistance in allowing her to plead
guilty to a carrying-weapons charge without a factual basis,
and the district court abused its discretion in imposing
sentence. We find the court applied her guilty plea to the
wrong carrying-weapons count and vacate that conviction. We
remand for further proceedings.
Background Facts & Proceedings
30, 2017, Houston was pulled over by law enforcement for
speeding. The officer could smell marijuana inside the
vehicle and asked Houston and her passenger to step out of
the vehicle. The officer began to search the vehicle and
found two small baggies of marijuana and 9mm ammunition in
the center console. Houston indicated to the officer the
marijuana in the console belonged to both her and her
passenger and she had a loaded 9mm gun in her purse with an
Illinois permit to carry a weapon. The gun and permit were
found in her purse; the permit did not authorize the carrying
of a concealed weapon. The officer also found more marijuana
and a .22-caliber pistol in a black backpack in the back seat
of the vehicle within reach of both the driver and passenger
seats. Houston denied knowing who owned the weapon in the
backpack. The officer arrested Houston for
possession of marijuana, first offense, and carrying weapons.
28, the State filed a trial information accusing Houston of
four counts: Count I, conspiracy to possess with intent to
deliver marijuana, in violation of Iowa Code section
124.401(1)(d) and (e) (2017); Count II, possession with
intent to deliver marijuana, in violation of section
124.401(1)(d) and (e); Count III, carrying weapons by going
armed with a .22-caliber pistol, in violation of section
724.4(1); and Count IV, carrying weapons by going armed with
a 9mm pistol, in violation of section 724.4(1).
October 11, Houston and the State filed a memorandum of plea
agreement drafted by the State. The plea agreement provided
as the proposed disposition: "The Defendant will plead
guilty to Count 4 as charged. Defendant will plead to the
lesser included offense of Possession of a Controlled
Substance (Marijuana 1st offense). The State will
dismiss Counts 2 and 4 with costs to the Defendant." The
agreement was signed by Houston, her attorney, and the
assistant county attorney. In her written plea, Houston
stated, "I possessed marijuana in the center console for
personal use; I legally owned a 9mm handgun but impermissibly
had it in my purse."
court's order accepting her plea stated Houston had
entered pleas to Counts I and III. The plea hearing was not
recorded or reported. The order accepting the plea does not
indicate Houston agreed to plead to Count III instead of
Count IV. No record indicates Houston's counsel made any
objection or attempt to clarify with the court which weapons
charge Houston was pleading to.
represented Houston at her sentencing hearing, but Houston
did not appear. Her counsel waived reporting and record of
the hearing. Houston requested a deferred judgment in light
of having no prior criminal history. During the sentencing
hearing, the court made a statement that "there has been
a lot of gun crime" prior to entering
sentence. The court imposed a two-day suspended
sentence for the possession offense and thirty-days suspended
sentence for the weapons charge, as well as applicable fines
and surcharges. Houston was placed on probation. Houston