IN THE COURT OF APPEALS OF IOWA
No. 15-0196
Filed December 9, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
HARRY JAY PERKINS JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Henry W. Latham II
(plea) and Joel W. Barrows (sentencing), Judges.
A defendant appeals his conviction and sentence, based upon a guilty
plea, alleging counsel was ineffective in allowing him to plead guilty without a
factual basis. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
Harry Perkins Jr. appeals his conviction and sentence following his guilty
plea to domestic abuse assault, third offense, in violation of Iowa Code section
708.2A(4) (2013), a class “D” felony. Perkins asserts his trial counsel was
ineffective in allowing him to plead guilty to domestic abuse assault without a
factual basis for the crime.
I. Background Facts and Proceedings
On January 24, 2014, Perkins assaulted his on-again/off-again girlfriend,
Camilla.1 Camilla told police she and Perkins were drinking alcohol and got into
a verbal argument when Perkins pushed her, kicked her, and stomped on her
hand causing it to break. Camilla told police she and Perkins were living together
at the time of the assault. Police arrested Perkins on March 24, 2014.
On April 11, 2014, the State filed a trial information charging Perkins with
domestic abuse assault, third offense, in violation of Iowa Code section
708.2A(4), a class “D” felony, and willful injury resulting in serious injury, in
violation of Iowa Code section 708.4(1), a class “C” felony. On September 5,
2014, Perkins entered into a written plea agreement, agreeing to plead guilty to
domestic abuse assault in exchange for a dismissal of the willful-injury charge
and the State’s agreement not to pursue an habitual offender enhancement.
That same day, Perkins entered a plea of guilty on the record and the court
accepted it. During the plea colloquy, Perkins denied living with Camilla within
the previous year. The State did not challenge Perkins’s denial.
1
Camilla and Perkins do not have any children together and have never been married.
3
On September 25, 2014, Perkins filed a pro se motion in arrest of
judgment. On October 2, 2014, Perkins’s counsel filed another motion in arrest
of judgment and a motion to withdraw as counsel. On October 9, 2014, Perkins
withdrew his motions in arrest of judgment. On November 12, 2014, Perkins
reasserted his motion in arrest of judgment on the record, again claiming that he
had not lived with Camilla in over a year. Perkins’s counsel then refiled his
motion to withdraw. The following day, the court granted counsel’s motion to
withdraw, appointed new counsel to represent Perkins, and set a hearing on the
motion in arrest of judgment. On December 31, 2014, Perkins again withdrew
his motion in arrest of judgment, and the court proceeded to sentencing,
imposing a sentence of an indeterminate term not to exceed five years, with a
one-year mandatory minimum. Perkins appeals.
II. Standard of Review
In order to challenge a guilty plea on appeal, a defendant must file a
motion in arrest of judgment.2 State v. Bearse, 748 N.W.2d 211, 218 (Iowa
2008); see also Iowa R. Crim. P. 2.24(3)(a). However, when a defendant raises
a claim that counsel was ineffective in allowing him to plead guilty to a charge
that lacked a factual basis, he may challenge the guilty plea on appeal. State v.
Finney, 834 N.W.2d 46, 49 (Iowa 2013). We review claims of ineffective
assistance of counsel de novo because the claims implicate the defendant’s
Sixth Amendment right to counsel. State v. Thorndike, 860 N.W.2d 316, 319
(Iowa 2015). An ineffective-assistance-of-counsel claim may be raised and
2
Perkins filed two motions in arrest of judgment but later withdrew both of them.
4
decided on direct appeal when the record is adequate to address the claim. Iowa
Code § 814.7(2), .7(3). To succeed on a claim of ineffective assistance of
counsel, the defendant must show by a preponderance of the evidence: “(1) his
trial counsel failed to perform an essential duty, and (2) this failure resulted in
prejudice.” Thorndike, 860 N.W.2d at 320 (quoting State v. Adams, 810 N.W.2d
365, 372 (Iowa 2012)); accord. Strickland v. Washington, 466 U.S. 668, 687
(1984). “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. Prejudice in such a case is inherent.” State v. Schminkey, 597
N.W.2d 785, 788 (Iowa 1999) (citation omitted); see also State v. Ortiz, 789
N.W.2d 761, 764–65 (Iowa 2010).
III. Analysis
Perkins contends his attorney was ineffective in allowing him to plead
guilty to domestic abuse assault without a factual basis. We find the record
adequate to address this claim. See State v. Utter, 803 N.W.2d 647, 651 (Iowa
2011).
Iowa Rule of Criminal Procedure 2.8(2)(b) requires a district court to find a
factual basis supporting the guilty plea before accepting it. A factual basis differs
from the evidence required at a trial to prove a defendant’s guilt beyond a
reasonable doubt. Finney, 834 N.W.2d at 62 (“Our cases do not require that the
district court have before it evidence that the crime was committed beyond a
reasonable doubt, but only that there be a factual basis to support the charge.”).
Establishing a factual basis requires the defendant “to acknowledge facts that are
consistent with the elements of the crime.” Rhoades v. State, 848 N.W.2d 22, 30
5
(Iowa 2014). When a defendant challenges the factual basis to support a guilty
plea, our court examines the entire record before the district court at the guilty-
plea hearing. Finney, 834 N.W.2d at 62. Generally, this includes “any
statements made by the defendant, facts related by the prosecutor, the minutes
of testimony, and the presentence report.” Schminkey, 597 N.W.2d at 788.
Perkins entered a plea of guilty to domestic abuse assault, third offense, in
violation of Iowa Code section 708.2A(4). Section 708.2A(1) provides “domestic
abuse assault” means an assault as defined in section 708.1, which is domestic
abuse as defined in section 236.2, subsection 2, paragraph ‘a’, ‘b’, ‘c’, or ‘d’.” 3
Section 708.2A does not include paragraph (e) of section 236.2(2), which
provides an assault is “domestic abuse” if it is “between persons who are in an
intimate relationship or have been in an intimate relationship and have had
contact within the past year of the assault.” At the plea proceeding, Perkins
specifically denied living with Camilla both at the time of the assault and in the
year leading up to the assault. See Iowa Code § 236.2(2)(a), (d). He had never
been married to Camilla and did not have any children with her. See id.
3
Domestic abuse is defined in section 236.2(2) as
[C]ommitting assault as defined in section 708.1 under any of the
following circumstances:
a. The assault is between family or household members who
resided together at the time of the assault.
b. The assault is between separated spouses or persons divorced
from each other and not residing together at the time of the assault.
c. The assault is between persons who are parents of the same
minor child, regardless of whether they have been married or have lived
together at any time.
d. The assault is between persons who have been family or
household members residing together within the past year and are not
residing together at the time of the assault.
6
§ 236.2(2)(b), (c). Perkins admitted that he had been in an intimate relationship
with Camilla. See id. § 236.2(2)(e). At the sentencing hearing, the State
conceded on the record that Perkins’s motion in arrest of judgment was a valid
challenge to the plea proceeding. The State acknowledged that section
708.2A(1) did not extend to paragraph (e) of section 236.2(2). The record shows
“that all parties understand that there is a potential problem with the factual basis
that [Perkins] gave,” but all also assumed that withdrawal of the motion in arrest
of judgment would constitute a waiver of any future postconviction challenge to
the plea proceeding. The State also asserted that a jury could find the two were
cohabiting based upon Camilla’s statements to police contained within the
minutes of testimony that she and Perkins lived together at the time of the
assault.
The State’s argument is a misapplication of the principles reviewed in
Finney. The lesson from Finney is that a guilty-plea colloquy that results in minor
omissions of facts may be supplemented by other portions of the record in the
district court, including the minutes of testimony. See 834 N.W.2d at 62. There
is no suggestion in Finney that a plea-taking court should look to other portions of
the record to determine whether the defendant’s denial of an element of an
offense would be rejected by a jury. Our law will not permit a court to accept a
guilty plea when a defendant affirmatively maintains a denial of facts necessary
to support an element of the crime.4 See Rhoades, 848 N.W.2d at 30. “Nothing
4
The State asks us to find Perkins’s plea constituted an Alford plea. At the sentencing
hearing, Perkins admitted he could be convicted of domestic abuse assault and asked
the court to consider his plea an Alford plea; a request the court denied. We agree with
7
in [the Finney] opinion . . . should be construed as an invitation to district courts
to short circuit rule 2.8(2)(b) when taking a guilty plea.” 848 N.W.2d at 62.
When a defendant specifically denies an element of the offense charged,
as Perkins did here, “it is error for the court to find that a factual basis exists
when the defendant actively contests a fact constituting an element of the
offense in the absence of circumstances warranting the conclusion that the
defendant’s protestations are ‘unworthy of belief.’” State v. Elphic, No. 14-0600,
2015 WL 408092, at *4 (Iowa Ct. App. Jan. 28, 2015) (quoting United States v.
Culbertson, 670 F.3d 183, 190–91 (2d Cir. 2012)). We conclude that a factual
basis to support a guilty plea is so fundamental that it cannot be waived. See id.;
see also United States v. Adams, 448 F.3d 492, 502 (2d Cir. 2006) (“A lack of a
factual basis for a plea is a substantial defect calling into question the validity of
the plea. ‘Such defects are not technical, but are so fundamental as to cast
serious doubt on the voluntariness of the plea,’ and require reversal and remand
so that the defendant may plead anew or stand trial.” (quoting Godwin v. United
States, 687 F.2d 585, 591 (2d Cir. 1982) (citations omitted))). Therefore, we
reverse and remand Perkins’s conviction and sentence for domestic abuse
assault, third offense, for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
the district court that Perkins entered a plea of guilty, not an Alford plea, and decline to
consider his plea in the context of an Alford plea on appeal.