IN THE COURT OF APPEALS OF IOWA
No. 16-0281
Filed October 12, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DANIEL JOSEPH KANE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly,
Judge.
Daniel Joseph Kane appeals his conviction and sentence following a guilty
plea for forgery and possession of a controlled substance. AFFIRMED.
Jane M. White of Jane M. White Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
Daniel Joseph Kane appeals his conviction and sentence following a guilty
plea for forgery and possession of a controlled substance, alleging his counsel
was ineffective in allowing him to plead guilty to crimes for which there was an
inadequate factual basis. We affirm.
In February 2016, a plea and sentencing hearing was held where Kane
pled guilty to the above offenses. Kane was sentenced to five years in prison on
each count, to run consecutively to each other and concurrent to charges in three
other cases pursuant to the parties’ plea agreement. Kane appeals.
Because Kane challenges his guilty plea based on the ineffective
assistance of his counsel, our review is de novo. See State v. Ortiz, 789 N.W.2d
761, 764 (Iowa 2010). In order to prove an ineffective-assistance-of-counsel
claim, Kane must show by a preponderance of the evidence that counsel
(1) failed to perform an essential duty and (2) prejudice resulted. See State v.
Tompkins, 859 N.W.2d 631, 637 (Iowa 2015).
“A factual basis is required for a guilty plea.” State v. Velez, 829 N.W.2d
572, 576 (Iowa 2013). “In evaluating whether a factual basis exists to support a
guilty plea, we may examine ‘the minutes of testimony, statements made by the
defendant and the prosecutor at the guilty plea proceeding, and the presentence
investigation report.’” Id. (citation omitted). “[T]he ‘record does not need to show
the totality of evidence necessary to support a guilty conviction, but it need only
demonstrate the facts that support the offense.’” Id. (citation omitted); see also
Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014) (noting the record need only
“demonstrate[] the facts to support the elements of the offense”). In the present
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matter, Kane waived the presentence investigation, so we review the other
portions of the record for a factual basis. See Velez, 829 N.W.2d at 576.
We address first the charge and plea to forgery. The minutes of testimony
state, in relevant part, an individual’s car had been burglarized and a checkbook
had been taken. Three checks were then written on the account without that
individual’s consent, one of which Kane presented at a store in February 2015
with the individual’s signature. Video surveillance from the store shows Kane
writing and presenting the check. At the plea hearing, Kane admitted he
received the check from a third party, “presented [the same] check that wasn’t
mine, that somebody else had signed, and presented it for money.” When asked
if he “kn[e]w that it was fraudulent,” Kane responded, “Well, I was told that it
wasn’t, but I kind of thought that it was somebody’s, but I didn’t know for sure.”
Kane then confirmed he did not know the individual whose signature was on the
check, he did not know either of the owners of the account upon which the check
was written, and neither of those owners provided him the check.
On appeal, Kane alleges there was an insufficient factual basis to support
the element of intent for the forgery charge because of his statement he “kind of
thought that [the check] was somebody’s, but I didn’t know for sure.” See Iowa
Code § 715A.2 (2015) (providing the elements for forgery include “intent to
defraud or injure anyone, or with knowledge that the person is facilitating a fraud
or injury to be perpetrated by anyone”). However, the minutes of testimony
support that the check at issue was stolen and neither of the owners on the
account authorized the use of the checks. Kane admitted the check did not
belong to him, he did not know the owners of the account, neither provided him
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the check, and he “kind of thought that it was somebody’s.” 1 Based on these
circumstances, we conclude there was a sufficient factual basis for Kane’s plea.
See State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999) (“[T]he facts and
circumstances surrounding the act, as well as any reasonable inferences to be
drawn from these facts and circumstances, may be relied upon to ascertain the
defendant’s intent.”); see also State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013)
(affirming the district court’s finding of a factual basis and noting “the minutes of
testimony provide sufficient evidence from which a jury could infer that [the
defendant] had the requisite intent”). Accordingly, his counsel was not
ineffective. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[C]ounsel
has no duty to raise an issue that has no merit.”).
With regard to the charge of possession of a controlled substance, at the
hearing, Kane admitted he “had in [his] pocket a couple of Vicodin pills.” He
further stated he had “Vicodin, hydrocodone” pills “in [his] possession when [he]
was arrested” for unrelated charges. On appeal, Kane argues there is nothing in
the record to confirm what the pills were, such as a chemical analysis. Kane also
argues there is nothing in the record to confirm whether there is any difference
between Vicodin or hydrocodone, the substances Kane admitted to possessing,
and acetaminophen and hydrocodone bitartrate, the substances Kane was
charged with possessing.
1
Kane also affirmatively stated, “Yes, sir,” when asked by the Court, “Did you at the time
and place charged in that Trial Information commit those offenses?” The Court then
later asked him, “Mr. Kane, do you want me to accept your guilty plea because you are
in fact guilty of the crimes of possession of a controlled substance and forgery?” Kane
responded, “Yes, sir.”
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As to Kane’s first argument, there is evidence in the record to show what
the pills were—namely, the admission of Kane, which was supported by the
minutes of testimony, where the pills were identified by the arresting officers who
found them on Kane’s person. Second, Kane’s argument that a discrepancy
exists between the trial information and Kane’s admission is unpersuasive. Kane
was charged with possession of acetaminophen and hydrocodone bitartrate;
Kane admitted to possession of hydrocodone, and Vicodin is a brand name for
hydrocodone. See United States v. Smith, 573 F.3d 639, 645 (8th Cir. 2009)
(identifying “hydrocodone” as “a powerful painkiller sold under brand names such
as Vicodin and Norco”); United States v. Katz, 445 F.3d 1023, 1026 (8th Cir.
2006) (identifying hydrocodone as generic Vicodin); Krusemark v. Astrue, 725 F.
Supp. 2d 829, 833 n.1 (S.D. Iowa 2010) (“Vicodin is hydrocodone bitartrate and
acetaminophen.”); Huisman v. Astrue, 707 F. Supp. 2d 842, 846 (N.D. Iowa
2010) (defining Vicodin as “acetaminophen and hydrocodone”).
Accordingly, we affirm Kane’s conviction and sentence.
AFFIRMED.