                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0394
                             Filed October 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHARLES P. TATUM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith

(motion to suppress and plea), and Paul L. Macek (sentencing), Judges.



      The defendant appeals his guilty pleas and sentences. AFFIRMED.



      Lauren M. Phelps, Davenport, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.

       Charles Tatum appeals from his guilty pleas and the resulting sentences.

On appeal, Tatum claims: (1) the district court erred in denying his motion to

suppress; (2) there is not a factual basis to support his guilty plea for assaulting a

peace officer; (3) trial counsel was ineffective for failing to object to his guilty plea

for assaulting a peace officer; and (4) the district court abused its discretion when

it sentenced him to incarceration rather than deferring judgment.

I. Background Facts and Proceedings.

       Based on two separate events that occurred in July 2016, Tatum was

charged by trial information with possession of a controlled substance with intent

to deliver (marijuana) and failure to affix a drug tax stamp (FECR378714), and

carrying weapons (AGCR378826).

       On September 14, Tatum was a passenger in a car stopped by law

enforcement officers. When the officers reached the vehicle, they could smell

the odor of burnt marijuana.       The officers searched the vehicle and found a

grinder with marijuana residue and a marijuana cigarette; both were within the

reach of Tatum’s seat in the car. The officers advised Tatum they were going to

place him under arrest for the marijuana cigarette, and Tatum fled on foot.

Officers Tyler Gratz and Matthew Lovelady chased him. According to Officer

Lovelady’s report:

       After a short foot pursuit, with my left hand I was able to get hold of
       Tatum’s shirt and pull him towards me at the same time Officer
       Gratz was able to get hold of Tatum’s shirt. While doing this,
       Tatum swung his body around and with his left hand and with a
       closed fist, struck me on the left side of my forehead.
                                          3


After Tatum was taken to the jail, 3.7 grams of crack cocaine were found in his

sock.      Tatum was charged with possession of a controlled substance (crack

cocaine); assault on a peace officer; interference with official acts; and

possession       of   a   controlled   substance   (marijuana),   second   offense

(FECR380147).

         Tatum filed a motion to suppress, arguing the warrantless search of the

vehicle was illegal because the owner/driver of the vehicle had told the officers

they could not search. Tatum maintained that if the officers had not searched the

vehicle, they would not have stated they were arresting him for the found

marijuana, and none of the other charges would have followed.

         The State filed a resistance to the motion, arguing Tatum lacked standing

to challenge the validity of the search because as a passenger he did not have a

legitimate expectation of privacy. Alternatively, the State claimed that even if

Tatum had standing to challenge the search, the officers had probable cause for

the search based on the smell of burnt marijuana emanating from the vehicle.

         At the hearing on the motion, Tatum stipulated that he was a passenger in

the vehicle that was searched. The court denied Tatum’s motion to suppress,

stating:

         [B]ased on the stipulation that the defendant was a passenger in
         the motor vehicle, the Court finds that he does not have standing
         and there’s no reason to produce evidence because of the lack of
         standing to object to the search of a motor vehicle in which he was
         a passenger, and State v. Halliburton[1] clearly says that, and,
         therefore, the Court overrules the motion for that reason.




1
    539 N.W.2d 339, 342 (Iowa 1995).
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         Tatum reached a plea agreement with the State, which involved all three

of the foregoing cases. The agreement provided that Tatum would plead guilty to

possession of a controlled substance (crack cocaine); assault on a peace officer;

possession of a controlled substance with intent to deliver (marijuana); and

carrying weapons. The State would dismiss the rest of the charges and would

make no recommendation at sentencing.

         On January 18, 2017, the district court accepted Tatum’s plea in open

court.    Regarding Tatum’s plea for assaulting a peace officer, the following

exchange took place between the court and Tatum:

                 THE COURT: You’re also pleading guilty to Count 2, assault
         on persons engaged in certain occupations, in violation of Iowa
         Code Section 708.3A(3) [(2016)]. Under that section it reads that:
         A person who commits an assault, as defined in section 708.1,
         against a peace officer, jailer, correctional staff, member or
         employee of the board of parole, health care provider, employee of
         the Department of Human Services, employee of the Department of
         Revenue, or firefighter, whether paid or volunteer, who knows that
         the person against whom the assault is committed is a peace
         officer, jailer, correctional staff, member or employee of the board
         of parole, health care provider, employee of the Department of
         Human Services, employee of the Department of Revenue, or
         firefighter who causes bodily injury or mental illness is guilty of an
         aggravated misdemeanor.
                 ....
                 Did you understand the definition of assault on persons
         engaged in certain occupations?
                 TATUM: Yes, sir.
                 THE COURT: Did you understand the penalty which may be
         imposed upon your plea of guilty to this offense?
                 TATUM: Yes, sir.
                 THE COURT: Before you can be found guilty of this offense,
         the State must prove beyond a reasonable doubt each of the
         following: That on or about September 14, 2016, in Scott County,
         State of Iowa, you did assault Davenport Police Officer Matthew
         Lovelady.
                 TATUM: Yes, sir.
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               THE COURT: Number two, that you knew that the
       Davenport police officer was in fact a police officer; and, number
       three, that you did so without any type of justification.
               Did you understand the elements the State must prove
       beyond a reasonable doubt to the satisfaction of a jury of twelve
       people before you can be convicted of this offense?
               TATUM: Yes, sir
               ....
               THE COURT: In Count 2, can you tell me what you did in
       order to be charged with assaulting a police officer?
               TATUM: I attempted to flee and the officer reached out and
       grabbed me, and I turned around and swung at the officer.
               THE COURT: All right. You knew he was a police officer; is
       that correct?
               TATUM: Yes.
               THE COURT: You said you swung at him; is that correct?
               TATUM: Yes.
               THE COURT: And that occurred on September 14, 2016, in
       Scott County, Iowa; is that correct?
               TATUM: Yes.
               ....
               THE COURT: And what is your plea to Count 2, assaulting a police
       officer, guilty or not guilty?
               TATUM: Guilty.

Following his guilty pleas, Tatum filed a pro se “motion requesting new counsel

and plea withdrawal.”       In the motion, Tatum maintained his plea should be

withdrawn because “it was entered by faulty advice from counsel” and “it was

entered unintelligently.”

       At the onset of the sentencing hearing, Tatum’s counsel informed the

court Tatum had filed a motion in arrest of judgment and a motion to substitute

counsel but Tatum had decided to withdraw the motions and proceed to

sentencing, and Tatum confirmed it. The court considered Tatum’s extensive

criminal history as well as the fact that he was out on bond for the charges in

case FECR378714 when he committed the other criminal acts. The court also

considered the report from the presentence investigation (PSI), noting, “Mr.
                                           6


Tatum, the PSI report says this, ‘The defendant scored in intensive risk for

violence and intensive risk for victimization. The defendant’s incarceration is

recommended.’” Tatum was sentenced to a term of incarceration not to exceed

ten years.

       He appeals.

II. Discussion.

       A. Motion to Suppress.

       Tatum maintains the district court erred in denying his motion to suppress

evidence in case FECR380147.

       Tatum cannot directly appeal the district court’s denial of his motion to

suppress; his guilty plea waived any such right. See State v. Door, 184 N.W.2d

673, 674 (Iowa 1971) (“We have repeatedly held a guilty plea is not only a

confession of guilt but is, itself, a conviction of the highest order. Such a plea

waives all irregularities except that the information or indictment charges no

offense and the right to challenge the plea itself.”).

       Our case law allows Tatum to appeal from his guilty plea if his counsel

failed to investigate or file a meritorious motion to suppress. See State v. Carroll,

767 N.W.2d 638, 643 (Iowa 2009) (holding claims of ineffective assistance

arising from counsel’s failure to investigate or file a meritorious motion to

suppress can survive a guilty plea). But that is not the case here. The motion to

suppress was filed, and the district court denied it. Moreover, although Tatum

mentions that he may raise his claim under the ineffective-assistance framework,

it does not appear that he has actually done so. Tatum has not articulated how

counsel breached a duty in such an instance, and he does not offer any
                                         7


explanation of how he believes he was prejudiced. He also failed to cite any

case law in support of the necessary framework. We do not consider this claim

further.   See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite an authority in

support of an issue may be deemed waiver of that issue.”); State v. Walden, No.

02-0445, 2003 WL 1041148, at *2 (Iowa Ct. App. Mar. 12, 2003) (“Because [the

defendant] fails to articulate any arguments to that end, the point is moot.

Therefore, we need not consider [the defendant’s] claim.” (citation omitted)).

       B. Factual Basis: Assaulting a Peace Officer.

       Tatum maintains the district court erred in accepting his guilty plea for

assaulting a peace officer because there is not a factual basis to support it.

Specifically, he claims there is nothing in the record to support a finding he

intended to cause pain, injury, insult, or offense to the officer, or to place him in

fear of such contact.

       Because Tatum was advised of the need to file a motion in arrest of

judgment if he wanted to withdraw his plea and he ultimately withdrew the motion

without having the district court hear or decide it, Tatum has not preserved this

claim. 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 a challenge on direct appeal.”); see

also DuTrac Cmty. Credit Union v. Hefel, 893 N.W.2d 282, 293 (Iowa 2017)

(“Generally, we will not decide an issue presented to us on appeal that was not

presented to and decided by the district court.”).

       Tatum also argues counsel was ineffective for allowing him to withdraw his

motion in arrest of judgment when there was not a factual basis to support his
                                         8


plea. Such an argument is an exception to our error-preservation requirement.

See, e.g., State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).

       “If a defendant enters a plea of guilty to a crime and the record fails to

disclose a factual basis, defense counsel failed to provide effective assistance.

Additionally, prejudice in inherent under the circumstances.”          Id. (citation

omitted). When determining if there is a factual basis to support the plea, we

consider “the minutes of testimony, statements made by the defendant and the

prosecutor at the guilty plea hearing, and the presentence investigation report.”

Id.   The record does not need to establish that Tatum committed the crime

beyond a reasonable doubt, “but only that there be a factual basis to support the

charge.” State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013).

       Because proof that Tatum intended to cause pain, injury, insult, or offense

to the officer, or to place him in fear of such contact “requires a determination of

what the defendant was thinking when an act was done, it is seldom capable of

being established with direct evidence.” 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 those facts and circumstances, may

be relied upon to ascertain the defendant’s intent.” Id.

       Here, Tatum was attempting to flee from the officers; when the officers

reached him and were able to get a hand on his clothing, Tatum hit one of the

officers in the head with a closed fist. Tatum argues that rather than intending to

hit or harm the officer, “it is just as likely that he simply was flailing around to

keep his balance” and “the blow was actually an accident.” However, during his

colloquy with the court, Tatum admitted “[he] turned around and swung at the
                                           9


officer.” Because the natural consequence of swinging a closed fist at the officer

is to causing pain, injury, insult, or offense to the officer, or to place him in fear of

such contact, there is a factual basis to support the finding Tatum had the

requisite intent. See State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004) (“[A]n

actor will ordinarily be viewed as intending the natural and probable

consequences that usually follow from his or her voluntary act.”). In reaching this

conclusion, we have not considered the statements Tatum made at sentencing,

as those were not part of the record before the district court at the time Tatum

entered his guilty plea. See Schminkey, 597 N.W.2d at 787 (noting “the ultimate

focus in this case is on the record before the district court at the time of the guilty

plea proceedings”).

       Because a factual basis supports that Tatum had the specific intent to

assault the police officer, counsel was not ineffective for allowing Tatum to

withdraw his motion in arrest of judgment.

       C. Sentencing.

       Tatum maintains the district court abused its discretion when it sentenced

him to a period of incarceration not to exceed ten years.

       Although Tatum maintains he could have been successful with a less-

restrictive sentence, he also concedes that the sentences he received were

within the statutory limits and are cloaked with a strong presumption in their

favor. See State v. Lloyd, 530 N.W.2d 708, 713 (Iowa 1995). Tatum has several

arguments about why the court should have exercised its discretion differently,

but he has not established that the court made a reversible error. See State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002) (“We will not reverse the decision of
                                        10


the district court absent an abuse of discretion or some defect in the sentencing

procedure.”).

      Tatum asked the court to defer judgment for all four of his convictions; the

court decided that was not appropriate, noting that Tatum had assaulted a police

officer while out on bond for two other cases; had an extensive criminal history,

which “clearly suggest[ed he was] not good at following rules”; and had “scored

in intensive risk for violence and intensive risk for victimization.” We cannot say

the sentence imposed by the district court was unreasonable or an abuse of

discretion. See State v. Hopkins, 860 N.W.2d 550, 545 (Iowa 2015) (“On our

review, we do not decide the sentence we would have imposed, but whether the

sentence imposed was unreasonable.”).

      We affirm Tatum’s convictions and sentences.

      AFFIRMED.
