IN THE COURT OF APPEALS OF IOWA
No. 14-1099
Filed October 14, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CICERO McGEE,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, Nathan A.
Callahan, District Associate Judge.
Defendant appeals from the judgment and sentence following his guilty
plea for public intoxication, third offense. VACATED AND REMANDED.
John Slavik of Braun, White, L.L.P., Charles City, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Linda Fangman, County Attorney, and Emily Zerkel, Assistant County
Attorney, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, Chief Judge.
Cicero McGee appeals from the judgment and sentence following his
guilty plea for public intoxication, third offense. He maintains he received
ineffective assistance from trial counsel. Specifically, he maintains trial counsel
was ineffective for allowing him to plead guilty without a factual basis to support
the charge. Because we find there was not a factual basis to support McGee’s
plea, counsel failed to provide effective assistance. We vacate the judgment and
remand for proceedings consistent with this opinion.
I. Background Facts and Proceedings.
On September 11, 2013, McGee was charged with public intoxication,
third offense. He initially pled not guilty but later entered a written guilty plea
through counsel.
As part of the written guilty plea, McGee indicated the court could rely on
the minutes of testimony and trial information to establish a factual basis. The
trial information states, in part:
On Sunday, August 11, 2013 at approximately 1356 hours, officers
were dispatched to Covenant Medical Center for a disorderly call.
While en route to the call, officers were advised that the defendant
was yelling at the staff and loudly using profanity. Upon arrival,
officers placed the defendant in custody. . . . Officers were advised
by medical staff that the defendant had been transported to the
hospital by Waterloo Fire . . . .
Additionally, an incident report from the Waterloo police department was included
in the minutes of testimony. It states, in part:
On Sunday, August 11, 2013 at approximately 1356 hours, I was
dispatched to Covenant Hospital for a disorderly patient. Upon
arrival, I met with Officer Bram, who had detained the offender
(Cicero McGee). McGee had slurred speech, and watery,
bloodshot eyes. He was also unsteady on his feet. Apparently
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McGee had been transported to Covenant by Waterloo Fire, who
had been previously dispatched to the area of Eureka and Vermont
for a subject passed out in the grass.
The district court accepted McGee’s guilty plea and entered judgment. He was
sentenced to a jail term of 365 days with all but thirty days suspended. McGee
appeals.
II. Standard of Review.
We review claims of ineffective assistance of counsel de novo. State v.
Finney, 834 N.W.2d 46, 49 (Iowa 2013). “Although we normally preserve
ineffective-assistance claims for postconviction relief actions, ‘we will address
such claims on direct appeal when the record is sufficient to permit a ruling.’” Id.
(quoting State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005)).
III. Discussion.
McGee maintains trial counsel was ineffective for allowing him to plead
guilty to public intoxication without a factual basis to support the charge. Here,
the record is sufficient to allow us to address his claim on direct appeal.
To prevail on a claim of ineffective assistance of counsel, McGee must
prove by a preponderance of the evidence the attorney failed to perform an
essential duty and prejudice resulted from the failure. See State v. Rodriguez,
804 N.W.2d 844, 848 (Iowa 2011). If counsel allowed McGee to plead guilty to a
charge for which no factual basis exists, counsel failed to perform an essential
duty. See State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). In such a case,
prejudice is inherent. Id. (“[I]f a factual basis does not exist, then counsel was
ineffective.).
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We do not believe a factual basis supports McGee’s guilty plea for public
intoxication.1 McGee was arrested at the hospital after he “had been yelling at
the medical staff, and was loudly using profanity and being disruptive.” However,
even if the hospital is a public place, McGee was not there voluntarily and thus
did not have the required general intent to violate the statute. In State v. Lake,
476 N.W.2d 55, 57 (Iowa 1981), our supreme court held the defendant was not
guilty of public intoxication when she stepped outside of her private vehicle into
the public street while intoxicated. The court reached the conclusion because
“[the defendant’s] action taken in submission to police authority will negate the
volition required for even a general intent crime.” Here, the police report
indicates McGee was “transported to Covenant [Hospital] by Waterloo Fire, who
has been previously dispatched to the area of Eureka and Vermont for a subject
passed out in the grass.” McGee was brought to the hospital by emergency
personnel—possibly even without his knowledge. Additionally, we do not know
what or whose lawn McGee had been transported from. A front lawn of a single
or family residence is generally a private place. See State v. Paye, 865 N.W.2d
1, 7 (Iowa 2015) (“Our conclusion is consistent with decisions of other holding
that the front porch or front yard of a personal’s own residence is not a public
place when that person has not extended a generalized invitation to the public
. . . .”). Moreover, the fact McGee was presumably exposed to public view while
passed out in the grass is not in and of itself a violation. See Lake, 476 N.W.2d
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Iowa Code section 123.46(2) (2013) prohibits an individual from being intoxicated in a
public place. “Public place” is further defined as “any place, building, or conveyance to
which the public has or is permitted access.” Iowa Code § 123.3(36).
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at 56 (concluding the interior of a car is not a public place even though it is in a
public view).
Because the record before us does not establish a factual basis for
McGee’s guilty plea, we find counsel was ineffective for allowing McGee to plead
guilty. We vacate the judgment and remand to permit the State to attempt to
make the necessary showing. See State v. Burtlow, 299 N.W.2d 665, 670 (Iowa
1980) (“The mere failure of the record to show a factual basis for a guilty plea
does not require that a conviction be set aside. The judgment is vacated and the
case is remanded to permit the State to attempt to make the necessary
showing.”).
VACATED AND REMANDED.