IN THE COURT OF APPEALS OF IOWA
No. 14-1884
Filed September 10, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAKOTA LEE PROVIN,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
A defendant appeals following his guilty plea, challenging the factual basis
and whether the plea was voluntary and intelligent. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie K. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Tyler J. Buller,
Assistant Attorneys General, Thomas J. Ferguson, County Attorney, and Peter
Blink, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, J.
Dakota Provin appeals his conviction for going armed with intent, a class
“D” felony, in violation of Iowa Code section 708.8 (2013). Provin argues the
district court did not define the term “dangerous weapon,” and as a result, his
plea did not contain a factual basis and was not made intelligently and
voluntarily.
Provin engaged in a fight with his cousin. Witnesses observed Provin with
a serrated folding saw and a utility pocketknife in his hand, threatening to stab his
cousin. Police arrived and recovered the weapons from the scene. Provin
admitted to bringing a knife to use in the fight and threatening to stab his cousin.
Provin pled guilty pursuant to a plea agreement. In the plea colloquy, he
gave the court permission to rely on the minutes of testimony in establishing a
factual basis. The court accepted the plea and sentenced him in accordance
with the plea agreement. On appeal, Provin claims his counsel provided
ineffective assistance and that he was prejudiced as a result.
Ineffective-assistance-of-counsel claims are reviewed de novo. State v.
Gines, 844 N.W.2d 437, 440 (Iowa 2014). To prove ineffective assistance of
counsel, Provin must show his counsel failed to perform an essential duty and he
was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998). Both prongs of
this test must be satisfied; if we find one prong to be lacking, we need not decide
the remaining element. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).
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Ineffective-assistance-of-counsel claims are generally preserved for
postconviction proceedings. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa
1989). Where the record is clear and plausible strategy and tactical decisions do
not explain counsel’s actions, this court may resolve claims of ineffective
assistance of counsel on direct appeal. Id.
Iowa Rule of Criminal Procedure 2.8(2)(b) requires that a court shall not
accept a guilty plea “without first determining that the plea is made voluntarily
and intelligently and has a factual basis.” Iowa R. Crim. P. 2.8(2)(b). Provin
claims his guilty plea could not have been intelligently made because the court
failed to “define the legal term ‘dangerous weapon’” during the plea colloquy. In
this case, the record is not adequate to address claims involving whether the
plea was made intelligently and voluntarily, so we preserve that claim for possible
postconviction-relief proceedings. However, we conclude the record is adequate
to address the claim of whether there was a factual basis to support the guilty
plea, and we address this issue here.
Provin contests whether there was an adequate factual basis to establish
that either the saw and/or pocketknife he brought to the fight was a dangerous
weapon. “[T]he entire record before the district court may be examined” to
determine whether a plea contains a factual basis. State v. Finney, 834 N.W.2d
46, 62 (Iowa 2013). If counsel permits a client to plead guilty to a crime for which
there is no factual basis, prejudice is presumed. State v. Ortiz, 789 N.W.2d 761,
764 (Iowa 2010). Looking at the entire record, we have little difficulty in
concluding there was an adequate factual basis to support the fact Provin’s knife
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and saw were dangerous weapons. Iowa Code section 702.7 outlines three
definitions for a “dangerous weapon.” Here, Provin’s pocketknife and saw can be
defined as a dangerous weapon by use; “any instrument or device of any sort
whatsoever which is actually used in such a manner as to indicate that the
defendant intends to inflict death or serious injury upon the other, and which,
when so used, is capable of inflicting death upon a human being, is a dangerous
weapon.” Id. at 767. When asked by the court during the plea colloquy, Provin
agreed when used in the manner in which he intended to use the knife and the
saw, either item could have inflicted serious injury. Provin argues the record had
to show he actually used the weapon(s) to support this definition. The supreme
court in Ortiz determined the definitional requirement is satisfied when the
defendant “objectively manifests . . . his or her intent to inflict serious harm upon
the victim.” Id. Actual use is not required. See id.
As to the factual-basis claim, Provin’s trial counsel was not ineffective
because the guilty plea had a factual basis to support the element that Provin
was armed with a dangerous weapon. We preserve for possible postconviction-
relief proceedings Provin’s claim that his plea was not made intelligently or
voluntarily.
AFFIRMED.