IN THE COURT OF APPEALS OF IOWA
No. 17-0871
Filed May 2, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NORRIS WINDELL MCFARLAND JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Norris McFarland appeals his convictions, following guilty pleas, to two drug
charges. AFFIRMED.
Taryn R. McCarthy of Clemens, Walters, Conlon, Runder & Hiatt, L.L.P.,
Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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MULLINS, Judge.
Norris McFarland appeals his convictions, following guilty pleas, to one
count of possession of a controlled substance and one count of possession of a
controlled substance with intent to deliver. He first contends his pleas were
involuntary because the district court failed to state on the record the source of its
factual-basis determinations.1 He additionally argues his pleas were involuntary
because the district court accepted them without first ensuring he understood the
terms of the plea agreement. Because McFarland waived his right to file a motion
in arrest of judgment, he brings both claims under an ineffective-assistance-of-
counsel framework. See Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s failure to
challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment
shall preclude the defendant’s right to assert such challenge on appeal.”); State v.
Weitzel, 905 N.W.2d 397, 401 (Iowa 2017) (“[I]f the guilty plea resulted from
ineffective assistance of counsel, the defendant can challenge the plea under the
rubric of ineffective assistance of counsel.”).
We review ineffective-assistance-of-counsel claims de novo. State v.
Lopez, 907 N.W.2d 112, 116 (Iowa 2017). To succeed on his claims, McFarland
1
We expressly note McFarland does not argue on appeal that his pleas were unsupported
by factual bases; he only argues his pleas were rendered involuntary because the court
failed to state on the record the source of its factual-basis determinations. See State v.
Finney, 834 N.W.2d 46, 61–62 (Iowa 2013) (discussing the difference between a factual-
basis challenge and a claim of due-process involuntariness); see also Rhoades v. State,
848 N.W.2d 22, 29 (Iowa 2014) (“We have recognized at least two ways a defendant may
attack his or her guilty plea. First, a defendant may attack his or her guilty plea on the
ground the defendant did not receive effective assistance of counsel as required under
the Sixth Amendment to the United States Constitution because there was no factual basis
to support the defendant’s guilty plea. Second, a defendant may show he or she did not
make a knowing and intelligent waiver of a constitutional right when pleading, even if
overwhelming evidence shows a factual basis exists.”).
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“must establish by a preponderance of the evidence that ‘(1) his trial counsel failed
to perform an essential duty, and (2) this failure resulted in prejudice.’” Id. (quoting
State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v.
Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice
prong or breach of duty first, and failure to find either one will preclude relief.” State
v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d
159, 169 (Iowa 2015)). When challenging a guilty plea through a claim “of
ineffective assistance of counsel, the defendant satisfies the prejudice prong if he
or she can show ‘there is a reasonable probability that, but for counsel’s error he
or she would not have pleaded guilty and would have insisted on going to trial.’”
Weitzel, 905 N.W.2d at 402 (quoting State v. Straw, 709 N.W.2d 128, 138 (Iowa
2006)).
We first consider McFarland’s claim that his counsel was ineffective in not
recognizing the district court’s failure to state on the record the source of its factual-
basis determinations and therefore allowing McFarland to enter his pleas
involuntarily and then waive his right to file a motion in arrest of judgment to
challenge the plea. Due process requires that a guilty plea be entered voluntarily.
State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003). In Finney, the supreme court
considered whether the district court is required to identify the parts of the record
that provide a factual basis for a guilty plea. 834 N.W.2d at 55. The court
“reaffirm[ed] that under rule 2.8(2)(b), the district court is required to provide the
factual basis supporting the plea on the record at the plea hearing” because a guilty
plea is not voluntary “unless the defendant possesses an understanding of the law
in relation to the facts.” Id. (citations omitted). In this case, McFarland’s guilty plea
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was entered orally at a plea hearing. At the hearing, the court explained the nature
of the charges and potential penalties. When questioned by the court “how do you
plead” as to each of the charges, McFarland responded, “Guilty.” The court
accepted the pleas, concluding they were “freely, voluntarily, and intelligently made
and there is a factual basis for each.” However, McFarland made no admissions
at the hearing concerning the charges, a presentence investigation report had yet
to be prepared, and the court did not specify the source of its factual-basis
determinations or otherwise elaborate what facts developed the necessary factual
bases.
It is generally undisputed that the district court failed to properly identify the
parts of the record that provided factual bases for McFarland’s guilty pleas and
defense counsel failed to point out this deficiency and thereafter allowed
McFarland to waive his right to file a motion in arrest of judgment to challenge the
plea. However, we find the record inadequate to decide whether McFarland was
prejudiced by counsel’s failures and repeat our position that the “circumstances
underlying the defendant’s willingness to go to trial are facts that should be
permitted to be more fully developed” in a postconviction-relief proceeding. State
v. Delacy, ___ N.W.2d ___, ___, 2017 WL 1735684, at *4 (Iowa Ct. App. 2017),
further review denied (Jan. 16, 2018); see also State v. Gaston, No. 16-1957, 2017
WL 4317310, at *2 (Iowa Ct. App. Sept. 27, 2017), further review denied (Nov. 22,
2017); State v. Iddings, No. 15-1597, 2017 WL 246049, at *5 (Iowa Ct. App. June
7, 2017); State v. Bascom, No. 15-2173, 2017 WL 1733115, at *1 (Iowa Ct. App.
May 3, 2017), further review denied (Jan. 16, 2018); State v. Taylor, No. 16-0762,
2017 WL 1735682, at *1–2 (Iowa Ct. App. May 3, 2017). The record is inadequate
5
for us to determine whether McFarland would have insisted on proceeding to trial
had the district court identified the source of its factual-basis determinations or
otherwise elaborated on the factual underpinnings supporting its acceptance of
McFarland’s pleas. We therefore preserve this claim for postconviction-relief
proceedings. See State v. Johnson, 784 N.W.2d 192, 196–98 (Iowa 2010).
We next consider McFarland’s claim that his counsel rendered ineffective
assistance in allowing him to plead guilty without ensuring he was fully aware of
the terms of the plea agreement and allowing him to waive his right to file a motion
in arrest of judgment to challenge his pleas on the same ground. “If a plea
agreement has been reached by the parties, the court shall require the disclosure
of the agreement in open court at the time the plea is offered.” Iowa R. Crim. P.
2.10(2). In this case, the plea agreement was not recited until after McFarland’s
guilty pleas were tendered and accepted. The agreement, which the court
honored, provided McFarland would, among other things, serve consecutive terms
of incarceration of one and five years on the two charges. On appeal, McFarland
contends he “believed that pursuant to the terms of the plea agreement, . . . he
and his counsel were going to request for a more lenient sentence, specifically a
halfway house,” and he “did not understand that he was bound by the terms of the
plea agreement which consisted of prison time.”
Our review is limited to the record, and any other extraneous matters are to
be disregarded. See In re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App.
1994). Lacking in the record is any evidence that McFarland had any
understanding of the terms of the plea agreement different from the terms recited
to the court. We decline to simply accept McFarland’s understanding of the plea
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agreement as stated in his appellate brief, as it is not a sufficient substitute for a
trial record. Cf. Smith v. Iowa Bd. of Med. Exam’rs, 729 N.W.2d 822, 827 (Iowa
2007) (“The district court’s recitation of these matters in its ruling is not a substitute
for the required appellate record.”). Absent a record to support McFarland’s stated
understanding of the plea agreement underlying his claim of ineffective assistance
of counsel, we affirm his convictions. Because the record is inadequate to resolve
this ineffective-assistance-of-counsel claim, we preserve it for postconviction-relief
proceedings. See Johnson, 784 N.W.2d at 196–98.
AFFIRMED.