IN THE COURT OF APPEALS OF IOWA
No. 15-2027
Filed November 23, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT COREY PORTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rebecca Goodgame
Ebinger (plea) and Lawrence P. McLellan (judgment and sentence), Judges.
Defendant appeals his conviction for delivery of a controlled substance.
AFFIRMED.
David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles
City, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins and Kevin Cmelik,
Assistant Attorneys General, for appellee.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Robert Corey Porter pled guilty to delivery of a controlled substance, in
violation of Iowa Code section 124.401(1)(c)(1) (2013), referring to a substance
containing a detectable amount of heroin. Porter’s only issue is that the court
erred in accepting the defendant’s plea because of a lack of a factual basis.
Although Porter failed to file a motion in arrest of judgment, we address the
merits of his argument.
Laboratory testing of one of the several bags collected at the time of
Porter’s arrest showed that bag contained only traces of cocaine, though Porter
admitted several times he had obtained heroin. During the plea colloquy Porter
stated, “I—we met up with my dealer, and we put our money together, gave him
the money. He gave us—he gave me the drugs, and from there we split it up.”
The district court questioned Porter further:
THE COURT: So your dealer gave you the heroin, and then
you distributed the heroin to other people who had given you
money to get the heroin?
DEFENDANT: That were in the vehicle with me, yeah.
THE COURT: Okay. So on that day, on or about June 3rd,
you received the heroin from your dealer, and then you gave that
heroin to the other people; is that correct?
DEFENDANT: Yeah.
THE COURT: And did you know that the substance you
were dealing with was, in fact, heroin?
DEFENDANT: Yeah.
THE COURT: And did you know that you were handing it to
other people?
DEFENDANT: Yeah. I was aware, yeah.
We review claims of ineffective assistance of counsel de novo. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective
assistance of counsel, the [defendant] must demonstrate both ineffective
3
assistance and prejudice”, the defendant must prove these elements by a
preponderance of the evidence. Id. at 142. “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) (citations
omitted).
When “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.’” State v. Velez, 829 N.W.2d 572, 576 (Iowa 2013).
Additionally, our supreme court has held “[t]he defendant’s admission on the
record of the fact supporting an element of an offense is sufficient to provide a
factual basis for that element.” State v. Philo, 697 N.W.2d 481, 486 (Iowa 2005)
(citation omitted). The transcript of the guilty plea proceeding contains
admissions made by Porter of facts sufficient to support all the elements of the
crime. Therefore, Porter’s admissions provide a sufficient factual basis for the
plea. Pursuant to Iowa Court Rule 21.26(1)(a), (c), and (e), we affirm the district
court.1
AFFIRMED.
1
In his brief Porter contends counsel was ineffective for allowing Porter to enter the plea
because there was no heroin and thus no factual basis. We do not address whether
Porter’s plea was made knowingly, voluntarily, and intelligently because that issue was
not specifically raised as an issue for review. Iowa R. App. P. 6.903(2)(c).