IN THE COURT OF APPEALS OF IOWA
No. 17-0451
Filed February 21, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
HECTOR JOSE TEJEDA, JR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David May, Judge.
A defendant appeals his conviction asserting his attorney provided
ineffective assistance and the court erred in assessing him restitution and court
costs related to a dismissed count. AFFIRMED AND REMANDED.
Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Clive, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., McDonald, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2
SCOTT, Senior Judge.
Hector Tejeda Jr. appeals following his conviction for possession of a
controlled substance—methamphetamine—with the intent to deliver, in violation of
Iowa Code section 124.401(1)(b)(7) (2016), a class “B” felony. He asserts his
counsel provided ineffective assistance by permitting him to plead guilty to the
offense when the record lacks a factual basis to support the guilty plea. He also
claims counsel was ineffective in pressuring or coercing him to plead guilty and in
failing to subpoena a witness for trial. Finally, he asserts the court erred in
assessing him restitution and court costs connected to the dismissed drug-tax-
stamp count.
I. Ineffective Assistance.
To prove counsel provided ineffective assistance, Tejeda must prove
counsel failed to perform an essential duty and he suffered prejudice as a result.
See State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). Both elements must be
proved by a preponderance of the evidence. See id. Ineffective-assistance claims
are usually preserved for postconviction-relief proceedings because the record on
direct appeal is rarely adequate to address such claims. State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006). However, an ineffective-assistance challenge
based on counsel’s failure to ensure the record has a factual basis to support a
guilty plea is typically resolved on direct appeal because “[i]f a factual basis
existed, counsel was not ineffective for failing to file a motion in arrest of judgment;
if a factual basis does not exist, then counsel was ineffective.” State v. Brooks,
555 N.W.2d 446, 448 (Iowa 1996). Prejudice is presumed if a factual basis does
not exist in the record. Ortiz, 789 N.W.2d at 764–65.
3
A. Factual Basis. Tejeda asserts there is an insufficient factual basis to
support the conclusion he intended to deliver the methamphetamine in his
possession. He notes the transcript of the guilty plea hearing shows the following:
THE COURT: And you intended to deliver [the
methamphetamine] to another person?”
THE DEFENDANT: So they say. Yes. Yes.
He asserts this “hesitation” results in a lack of a factual basis. He also claims the
court failed to indicate it was relying on the minutes of evidence to provide a factual
basis.
We note the transcript of the guilty plea hearing goes on after the excerpt
cited by Tejeda:
THE COURT: Well, there are—one or two things is true: either
you intended to share or sell it to another, or you didn’t. So did you
intend to share or sell it with another person?
THE DEFENDANT: Yes.
Whatever hesitation Tejeda reads into the transcript from his answer to the court’s
first question regarding his intent is cleared up in the subsequent exchange. In
addition, the factual basis inquiry is an objective inquiry of the entire record before
the plea court, and the court’s failure to state its consideration of the minutes of
evidence is of no consequence. See State v. Finney, 834 N.W.2d 46, 62 (Iowa
2013) (“The failure of the district court in this case to explain on the record the
evidence supporting his finding of a factual basis is thus an omission unrelated to
the substantive claim being made.”). Upon our review of the guilty plea transcript
and the minutes of evidence, we conclude there is a factual basis to support the
guilty plea, and thus, counsel’s failure to challenge the factual basis through a
motion in arrest of judgment does not amount to ineffective assistance.
4
B. Coercion. Next, Tejeda claims counsel was ineffective by coercing or
pressuring him to plead guilty. He cites three factors that he says “lean” towards
finding he was pressured to plead guilty: (1) his hesitation to say he intended to
deliver the methamphetamine, (2) his inability to post bond and his request for
immediate sentencing upon his plea of guilty, and (3) the fact his guilty plea was
entered on the Friday before his jury trial was set to begin. However, he concedes
the trial record alone may not be sufficient to resolve this claim on direct appeal,
and he asks that we preserve for postconviction-relief proceedings. We agree the
record is insufficient to address this claim, and it is preserved for possible
postconviction relief proceedings. See State v. Johnson, 784 N.W.2d 192, 198
(Iowa 2010).
C. Witness. Tejeda also claims counsel was ineffective in failing to
subpoena for trial a witness Tejeda thought would provide favorable testimony.
Tejeda fails to indicate in his brief what witness counsel failed to subpoena or what
testimony that witness might provide. He only notes “the trial record alone may be
insufficient to resolve this claim on direct appeal,” and he asks that the claim be
preserved. Where the record is insufficient to resolve an ineffective assistance
claim on direct appeal, we “must preserve it for a postconviction-relief proceeding,
regardless of the court’s view of the potential viability of the claim.” Id. This claim
is likewise preserved.
5
II. Sentencing.
Finally, Tejeda asserts this case must be remanded because in the written
sentencing order he was assessed court costs and restitution related to the drug
tax stamp charge that was dismissed.
At sentencing, the district court addressed Tejeda’s responsibility for
restitution and court costs, saying, “Court concludes Defendant has no reasonable
ability to pay restitution or his fees and costs and will enter ‘zero’ in that portion of
the order.” However, the written sentencing order provided: “Pursuant to the plea
agreement, Defendant is ordered to: (1) pay restitution if restitution is due on any
of the dismissed counts/cases; and (2) pay court costs on any dismissed
counts/cases.”1
“[W]here there is a discrepancy between the oral pronouncement of
sentence and the written judgment and commitment, the oral pronouncement of
sentence controls.” State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995) (citation
omitted).
[W]hen a judgment entry incorrectly differs from the oral rendition of
the judgment merely as a result of clerical error, the trial court holds
the inherent power to correct the judgment entry so that it will reflect
the actual pronouncement of the court. The district court may correct
a clerical error in a judgment entry through issuance of a nunc pro
tunc order.
Id. at 527 (citations omitted).
Because we conclude the provision regarding restitution and court costs in
the written sentencing order was the result of a clerical error, we remand this case
1
The plea agreement articulated on the record did not contain a statement that Tejeda
would be responsible for court costs or restitution related to the dismissed count.
6
for the entry of a nunc pro tunc order so that the written sentencing order conforms
with the court’s oral pronouncement at sentencing.
III. Conclusion.
We affirm Tejeda’s conviction as we find a factual basis to support his guilty
plea, but we remand this case for the entry of a nunc pro tunc order correcting the
sentencing order. Tejeda’s remaining ineffective-assistance claims are preserved
for postconviction-relief proceedings.
AFFIRMED AND REMANDED.