IN THE COURT OF APPEALS OF IOWA
No. 15-1835
Filed April 6, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KRISTI SUE DEMPSEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Douglas C.
McDonald, Judge.
Kristi Dempsey appeals the judgment and sentence entered following her
guilty plea for possession of cocaine. AFFIRMED.
Lauren M. Phelps of Lauren M. Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
Kristi Dempsey pled guilty to possession of cocaine, first offense. The
district court sentenced her to serve 120 days in jail but suspended the sentence
and placed her on probation.
On appeal, Dempsey contends (1) her plea attorney was ineffective in
(a) failing to challenge the factual basis for the plea and (b) failing to argue the
plea was unknowing and involuntary, and (2) the district court abused its
discretion in failing to grant her a deferred judgment.
I. Ineffective Assistance of Counsel
Generally, we do not decide ineffective-assistance-of-counsel claims on
direct appeal but reserve them for postconviction proceedings. State v. Tate,
710 N.W.2d 237, 240 (Iowa 2006). “However, we depart from this preference in
cases where the record is adequate to evaluate the appellant’s claim.” Id.
Dempsey and the State agree the record is inadequate to address her
claim that the plea was unknowing and involuntary. Accordingly, we preserve
that claim for postconviction relief. The record is adequate to address
Dempsey’s factual-basis claim. See State v. Schminkey, 597 N.W.2d 785, 788
(Iowa 1999). We proceed to the merits of that claim.
To prove ineffective assistance, Dempsey must establish the breach of an
essential duty and prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984). “If trial counsel permits a defendant to plead guilty and waives the
defendant’s right to file a motion in arrest of judgment when there is no factual
basis to support the defendant’s guilty plea, trial counsel breaches an essential
duty” and “we presume prejudice.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa
3
2014). Conversely, if there is a factual basis to support a plea, the ineffective-
assistance claim must fail. See State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa
2011). “At the time of the guilty plea, the record must disclose facts to satisfy all
elements of the offense.” Rhoades, 848 N.W.2d at 29.
The elements of this offense are knowing or intentional possession of a
controlled substance (cocaine) unless the substance was obtained directly from,
or pursuant to a valid prescription or as otherwise authorized by the chapter.
See Iowa Code § 124.401(5) (2013). A first-offense violation is a serious
misdemeanor. Id.
Dempsey made the following attestation in her written guilty plea: “I had in
my home a substance I knew to be powder cocaine in my home without
authorization or prescription in Scott County, Iowa.” This attestation alone
arguably establishes a factual basis for the possession charge. However,
Dempsey contends the cocaine could have been her husband’s because it was
found in a “jointly occupied” area of their apartment. Her argument is based on
the distinction our courts have made between actual and constructive possession
of drugs. See, e.g., State v. Reed, ___ N.W.2d ___, ___, 2016 WL 756680, at
*10-15 (Iowa 2016); State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013); State v.
Bash, 670 N.W.2d 135, 137-38 (Iowa 2003). But those opinions resolved
challenges to the sufficiency of the evidence underlying findings of guilt. When
evaluating challenges to the factual basis for a plea, “we do not require the
record to show the totality of evidence necessary to support a guilty conviction.”
Rhoades, 848 N.W.2d at 29 (citation omitted).
4
This record includes much more than Dempsey’s acknowledgment in her
written plea. A Scott County deputy sheriff attested he saw Dempsey and her
husband meet with a suspected drug dealer, and Dempsey’s husband admitted
to being with her when the cocaine was purchased. In detailed minutes of
testimony, the same deputy who signed the affidavit described seeing a man and
woman in the suspected drug dealer’s vehicle. The deputy recounted a
confidential informant’s statement that both Dempsey and her husband were
crack-cocaine addicts. A neighbor told the deputy that Dempsey and her
husband obtained crack almost every day. Finally, with Dempsey and her
husband’s consent, the deputy entered their apartment and found cocaine
underneath the bathroom sink. In short, the record was replete with information
supporting the elements of the crime.
Dempsey attempts to impugn the reliability of some of this information.
She argues the confidential informant’s information was dated and was hearsay,
and the neighbor to whom the deputy spoke had a grudge against her for using a
racial slur. Dempsey cites no authority requiring a court to reject certain
information supporting a factual basis simply because a fact-finder might reject
the evidence at trial. In fact, we have an obligation to review the entire record to
determine whether there is an objective factual basis for the crime. See State v.
Finney, 834 N.W.2d 46, 62 (Iowa 2013). The statements cited by the deputy
sheriff together with the discovery of cocaine, the deputy’s observations, and
Dempsey’s plea statement provide a factual basis for the plea to possession of a
controlled substance. Accordingly, counsel was not ineffective in failing to
challenge the plea on this ground.
5
II. Sentence
Dempsey next contends the district court abused its sentencing discretion
in failing to grant her a deferred judgment. A deferred judgment is a sentencing
option that can be imposed in the discretion of the court. See State v. Soppe,
374 N.W.2d 649, 653 (Iowa 1985). The provision “authorizes the court, with the
defendant’s consent, to defer judgment and place the defendant on probation.”
State v. Keutla, 798 N.W.2d 731, 734 (Iowa 2011) (emphasis added). The
record contains no evidence Dempsey consented to a deferred judgment; her
plea agreement simply listed “120 days suspended, $315.00 fine” as the
“sentencing concessions.” While the plea agreement was not binding on the
court, we can discern no abuse of discretion in the court’s decision to accept the
sentencing concessions agreed to by Dempsey rather than imposing a deferred
judgment she did not agree to.
We affirm Dempsey’s judgment and sentence for possession of cocaine.
AFFIRMED.