                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0870
                               Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CORION JAMAL PURSLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David P.

Odekirk, Judge.



      Corion Pursley appeals the convictions entered following his guilty pleas to

two counts of second-degree burglary and one count of third-degree burglary.

AFFIRMED.




      Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Clive, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

       Corion Pursley appeals the convictions entered following his guilty pleas to

two counts of second-degree burglary and one count of third-degree burglary. He

contends his counsel was ineffective in failing to: (1) challenge his guilty pleas to

the second-degree-burglary charges on factual-basis grounds, (2) file a motion to

suppress evidence obtained in a search of a vehicle involved in the crimes, (3) file

a motion for a bill of particulars, and (4) pursue an intoxication defense before

allowing him to plead guilty.

I.     Background Facts and Proceedings

       The following facts can be gleaned from the minutes of evidence. In the

early morning hours of December 27, 2015, Sam Roberts encountered four young

males at a gas station in Cedar Falls. At 4:48 a.m., Roberts called the police and

advised these individuals followed him home from the gas station and were

knocking on his front door. Roberts described the vehicle the subjects were driving

as a “smaller silver colored SUV, possibly a Honda Pilot that had a handicap sticker

hanging in the window.”

       At 5:07 a.m., Larry and Judy Timmins contacted law enforcement and

reported they were awoken in their home when someone walked into their master

bedroom as they slept. The suspects fled when Larry directed Judy to call the

police. Larry observed the suspects fleeing in what appeared to be a “light colored

minivan.” Officers arrived and discovered a rock had been thrown through a glass

door, several drawers throughout the residence had been rummaged through, and

the doors on two refrigerators in the home were left open. However, Judy’s purse

and laptop were left untouched.
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        At 6:07 a.m., Virginia Berg called the police and reported she thought

someone was in her neighbor’s residence.               This residence belonged to the

Clippertons, who were out of town on the morning in question. Officers arrived at

the Clipperton residence and discovered the front door had been kicked in, the

apartment had been “ransacked,” and, again, the refrigerator door had been left

open.

        At 6:27 a.m., Nikki Nielsen contacted law enforcement and advised “some

people busted down her door and entered her residence.” The subjects fled when

Nielsen confronted them. Nielsen stated the subjects were in a silver SUV and

advised one of the subjects was wearing a Bears jersey and stocking hat.

Sometime during the foregoing course of events, Margo Campbell heard pounding

on her porch door. Because she was near the door at the time, Margo opened it

and observed three males standing on her porch. The subjects were surprised

when Margo opened the door. They paused and then asked if “Jimmy” was home.

Margo advised they had the wrong house, upon which the subjects left in what

Margo described as a “white SUV.”

        A short time after Nielsen’s report of an intrusion, a description of the

suspect vehicle was relayed to patrol officers. Officers subsequently initiated a

traffic stop on a silver Honda Pilot.1 The vehicle was occupied by four males, one

of whom was wearing a Bears jersey and stocking hat. The vehicle’s occupants—

the driver, Ny’Jawon Alexander; and passengers, Pursley, Jacane Campbell, and


1
  Around this time, another officer was reviewing video footage at the gas station where
Roberts initially encountered the subjects. At approximately 4:46 a.m., the video depicted
a silver Honda Pilot near the front doors of the gas station. The license plate on the vehicle
in the video matched the license plate of the vehicle officers stopped.
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D.C.2—were all detained separately. At the scene, Pursley advised officers the

vehicle belonged to his girlfriend. The driver of the vehicle, Alexander, provided

officers with verbal and written consent to search the vehicle. During the ensuring

search, property was discovered bearing the name of the Clippertons. Officers

decided to discontinue the search at this time and apply for a search warrant. The

vehicle was impounded and a search warrant was applied for. Sasha Nelson came

to the police station where the codefendants were being held and advised officers

the silver Honda Pilot belonged to her.

          In a subsequent interview, after waiving his Miranda rights, Pursley stated

the vehicle belonged to Sasha, but made no statements related to the burglaries.

Pursley advised an officer he had smoked marijuana and “sipped” alcohol the prior

day and had taken “illegal Xanex pills” a week ago, but stated he was “sober now

though.” In their interviews, Alexander, Campbell, and D.C. denied any knowledge

of the burglaries. In a second interview two days later, Alexander admitted the

group “burglarized three or four houses.”

          Pursley was charged by trial information with two counts of second-degree

burglary and one count of third-degree burglary. Pursley ultimately pled guilty as

charged. At the plea hearing, Pursley stipulated to the court’s consideration of the

minutes of evidence in determining whether factual bases supported his pleas. As

to the second-degree-burglary charges, Pursley admitted he broke into occupied

structures not open to the public with the intent to commit a theft therein and he

did not have any right, license, or privilege to do so. Pursley initially requested



2
    D.C. was a juvenile at the time of these events.
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immediate sentencing, but after the court advised him of his right to file a motion

in arrest of judgment to challenge his plea, he requested sentencing at a later date.

Thereafter, Pursley filed a motion in arrest of judgment, contending he “did not fully

understand the plea proceedings” and he “now wishes to withdraw his plea of guilty

and set this matter for trial.” Pursley subsequently withdrew this motion. The

district court sentenced Pursley in accordance with the parties’ plea agreement.

As noted, Pursley appeals.

II.    Discussion

       Pursley asserts his counsel was ineffective in a number of respects. We

review ineffective-assistance-of-counsel claims de novo. State v. Henderson, 908

N.W.2d 868, 874 (Iowa 2018). To succeed on a claim of ineffective assistance of

counsel, Pursley “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.’” State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (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)). A failure to register meritless motions or arguments does not amount to

ineffective assistance of counsel. See State v. Tompkins, 859 N.W.2d 631, 637

(Iowa 2015).

       A.      Factual Bases

       Pursley contends his guilty pleas to the second-degree burglary charges

lacked factual bases and his counsel was therefore ineffective in allowing him to
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enter the pleas and thereafter failing to challenge them by way of a motion in arrest

of judgment. Specifically, Pursley argues there was no evidence to support a

finding that he intended to commit a theft at the Timmins or Nielsen residences.

He further argues his express admission to the court at the plea proceeding that

he broke into the occupied structures with the intent to commit a theft is not

supported by other evidence and therefore cannot provide factual bases for the

pleas.

         “Defense counsel violates an essential duty when counsel permits

defendant to plead guilty . . . when there is no factual basis to support defendant’s

plea.” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010); accord State v. Nall, 894

N.W.2d 514, 525 (Iowa 2017). Likewise, counsel violates an essential duty when

counsel fails to challenge a plea lacking a factual basis by way of motion in arrest

of judgment. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Prejudice is

presumed under these circumstances. See Nall, 894 N.W.2d at 525. If Pursley’s

pleas were supported by factual bases, then his counsel was not ineffective.

         “In deciding whether a factual basis exists, we consider the entire record

before the district court at the guilty plea hearing, including any statements made

by the defendant, facts related by the prosecutor, the minutes of testimony, and

the presentence report,” if any. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa

1999). “This record, as a whole, must disclose facts to satisfy the elements of the

crime.” State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). We must only “be

satisfied that the facts support the crime, ‘not necessarily that the defendant is

guilty.’” Id. (citation omitted). Evidence that the crime was committed by the
                                           7

defendant beyond a reasonable doubt is not necessary. State v. Finney, 834

N.W.2d 46, 62 (Iowa 2013).

       Iowa Code section 713.1 (2015) defines the act of burglary as follows: “Any

person, having the intent to commit a . . . theft therein, who, having no right, license

or privilege to do so, enters an occupied structure, such occupied structure not

being open to the public, . . . commits burglary.” Such an act amounts to burglary

in the second degree when it is perpetrated “in or upon an occupied structure in

which one or more persons are present.” Iowa Code § 713.5(1)(b).

       Pursley only challenges the intent-to-commit-theft element. The court had

before it the minutes of evidence, Pursley’s statements (specifically the statement

that the crimes were committed with an intent to commit theft), and the facts related

by the prosecutor. Upon our de novo review of these materials, we are satisfied

the facts support the crime and conclude factual bases existed for both of the

challenged pleas. Counsel was therefore not ineffective in allowing Pursley to

enter the pleas or in failing to challenge the pleas by way of a motion in arrest of

judgment.

       B.     Motion to Suppress

       Next, Pursley argues his counsel was ineffective in failing to file a motion to

suppress evidence obtained in the search of the vehicle involved in the burglary

spree. He argues the consent given by Alexander before the initial search at the

scene of the crime was invalid because Alexander had neither actual nor apparent

authority to consent to the search. He alternatively argues Alexander’s consent

was not voluntarily given. We need not address the validity of consent, as we

agree with the State’s argument that, had counsel filed a motion to suppress the
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evidence obtained in the vehicle search, the motion would have been meritless

because Pursley, as a mere passenger in a vehicle he did not own, had no

reasonable expectation of privacy in the vehicle and therefore no standing to

challenge the search. See Rakas v. Illinois, 439 U.S. 128, 148–50 (1978); State

v. Halliburton, 539 N.W.2d 339, 342–43 (Iowa 1995).              In the alternative,

Alexander’s consent was not the only exception to the warrant requirement present

in this case. Specifically, the requirement of a warrant is excepted “when probable

cause and exigent circumstances exist at the time” of the search. State v. Storm,

898 N.W.2d 140, 145 (Iowa 2017). “The inherent mobility of motor vehicles

satisfies the exigent-circumstances requirement.” Id. The string of forced entries,

the “ransacked” status of the involved residences, and the fact that Pursley and

his cohorts generally matched the descriptions provided in all accounts provided

the police with probable cause to believe the vehicle contained stolen property.

See State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006) (defining probable cause).

       Because we conclude a motion to suppress evidence obtained in the

vehicle search would have been meritless, counsel was not ineffective in failing to

raise it. See Tompkins, 859 N.W.2d at 637.

       C.     Bill of Particulars

       Pursley argues the trial information under which he was charged “did not

list the occupied structures which [he] allegedly broke into” and “[w]ith the [t]rial

[i]nformation’s failure to state with particularity which residence each count related

to, [his] counsel ought to have filed a motion for bill of particulars.” The quoted

caselaw Pursley cites to support his argument provides the following:
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              To avoid a violation of a criminal defendant’s right to due
       process of law, an indictment or trial information and its
       accompanying minutes of evidence that charges a defendant with
       multiple counts of the same crime should in some manner
       differentiate among the charges.

State v. See, 805 N.W.2d 605, 607 (Iowa Ct. App. 2011) (emphasis added). Here,

the minutes of evidence expressly listed the structures Pursley allegedly entered

and unambiguously explained the second-degree-burglary charges concerned the

two occupied structures—the Timmins and Nielsen residences—while the third-

degree-burglary charge concerned the unoccupied structure—the Clipperton

residence. The trial information and minutes of evidence sufficiently provided

Pursley with the particularity he now claims he did not receive. We find counsel

was not ineffective in failing to file a motion for bill of particulars.

       D.      Intoxication Defense

       Finally, Pursley contends his counsel was ineffective in allowing him to

plead guilty without first pursuing an intoxication defense, despite being aware of

grounds for pursuing it. Pursley forwards the conclusory statement that “[b]y

allowing [him] to plead guilty without pursuing the defense, counsel was

ineffective.” Pursley provides us with no analysis on if or why he was prejudiced

from this alleged breach of duty. When challenging a guilty plea through a claim

of ineffective assistance of counsel, “in order to satisfy the prejudice requirement,

the defendant must show that there is a reasonable probability that, but for

counsel’s errors, he or she would not have pleaded guilty and would have insisted

on going to trial.” State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). There is no

evidence in the record, and Pursley does not even argue, that, had counsel

pursued an intoxication defense, he would have forgone the guilty plea and
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insisted on proceeding to trial. Because Pursley did not meet his burden to show

prejudice, his ineffective assistance of counsel claim fails.

III.   Conclusion

       We find Pursley’s counsel was not ineffective as alleged. We therefore

affirm Pursley’s convictions.

       AFFIRMED.
