from the Iowa District Court for Black Hawk County, Bradley
J. Harris, Judge.
Buenneke challenges the factual basis for two pleas entered
as part of an agreement involving multiple charges.
C. Smith, State Appellate Defender, (until withdrawal) and
Theresa R. Wilson, Assistant Appellate Defender, for
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and and Doyle,
Buenneke entered Alford pleas to second-degree
robbery and first-degree theft as part of a plea agreement
involving multiple charges. In his first appeal, this court
found that the record failed to establish Buenneke's
"active participation in or encouragement" of the
crimes and remanded the case to allow the State to establish
a factual basis. State v. Buenneke, No. 17-1056,
2018 WL 1433748, at *3 (Iowa Ct. App. Mar. 21, 2018). On
remand, the district court considered additional minutes of
evidence, including surveillance video, and found a factual
basis for Buenneke's pleas:
[Buenneke] entered the store prior to his codefendant,
[Marlon] Harris, looked around with no legitimate purpose,
and then left the store holding the door for Harris and
another customer. [Buenneke] returned to the store a short
time later and remained in the store for nearly 9 minutes
without attempting to purchase any items. During this time,
[Buenneke] intervened in an altercation between Harris and
another customer and continually looked out the windows of
the store. As Harris was leaving, [Buenneke] positioned
himself between Harris and a customer in the store to allow
Harris to leave without physical confrontation.
These acts of [Buenneke] establish a factual basis that [he]
aided and abetted Harris who committed a robbery and a theft
from the person.
appeal, Buenneke again challenges the factual basis for his
pleas to second-degree robbery and first-degree theft,
alleging his counsel was ineffective by allowing him to plead
guilty. We review his claim de novo. See State v.
Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).
succeed on his claim of ineffective assistance of counsel,
Buenneke must prove by a preponderance of the evidence: (1)
breach of an essential duty and (2) prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Counsel breaches an essential duty by permitting a defendant
to plead guilty and waive the right to move in arrest of
judgment when no factual basis supports the plea. See
Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). In such
cases, we presume prejudice. Id. We look at the
entire record before the district court at the time of the
plea to determine whether a factual basis for the plea
exists. See State v. Finney, 834 N.W.2d 46, 62 (Iowa
2013). That includes inquiry of the defendant, inquiry of the
prosecutor, examination of the presentence investigation
report, and minutes of the evidence. See State v.
Ortiz, 789 N.W.2d 761, 768 (Iowa 2010). To determine a
factual basis exists, the evidence need not show the
defendant is guilty beyond a reasonable doubt, only that
there is sufficient evidence by which a jury could find the
defendant guilty. See Finney, 834 N.W.2d at 50.
parties and district court contemplated that Buenneke could
have committed the offenses of second-degree robbery and
first-degree theft as either a principal or as an aider and
abettor. See Iowa Code § 703.1 (2017) (stating
punishment for a person who aids or abets in the commission
of a public offense is the same as that of a principal).
To sustain a conviction on the theory of aiding and abetting,
the record must contain substantial evidence the accused
assented to or lent countenance and approval to the criminal
act either by active participation or by some manner
encouraging it prior to or at the time of its commission. The
State must prove the accused knew of the crime at the time of
or before its commission. However, ...