                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1268
                               Filed July 18, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

QUINCY THOMAS ROSS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Lawson (plea)

and Nancy S. Tabor (sentencing), Judges.



      Quincy Ross appeals his convictions and sentences entered following guilty

pleas to one count of possession of a controlled substance with intent to deliver

and one count of child endangerment without injury. CONVICTIONS AFFIRMED,

SENTENCES VACATED, AND REMANDED FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ. Tabor, J.,

takes no part.
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DANILSON, Chief Judge.

      Quincy Ross appeals his convictions and sentences following guilty pleas

for possession of a controlled substance with intent to deliver and child

endangerment without injury. He contends his trial counsel provided ineffective

assistance for failing to challenge his guilty plea to the child-endangerment charge

on factual-basis grounds. Ross also claims the district court erred in refusing to

consider additional evidence in mitigation of his punishment.

I. Background Facts and Proceedings.

      On October 30, 2016, Davenport Police Department conducted surveillance

on Quincy Ross’s residence as part of an ongoing narcotics investigation. During

the surveillance, officers observed Ross and a small child—later identified as

Ross’s son—exiting a vehicle that Ross had parked in front of his residence. The

police were aware Ross had warrants out for his arrest and that he was barred

from driving. When officers attempted to make contact, Ross fled on foot towards

his residence with his son following him. Once Ross was in his residence, he

slammed the door, which hit his son and caused a laceration over his left eye.

Ross eventually exited his residence peacefully and was placed into custody.

      Ross was charged with one count of possession of a controlled substance

with intent to deliver; one count of child endangerment; and one count of operating

a motor vehicle while license barred, as a habitual offender. Ross was given notice

of the State’s intent to pursue a habitual-offender enhancement due to his prior

felony convictions. An agreement was reached in which Ross would plead guilty

to the possession charge and a lesser-included offense of child endangerment

without injury in exchange for the State dismissing the operating-a-motor-vehicle-
                                          3


while-barred charge.      Additionally, the State would be able to make any

recommendation at the time of sentencing; however, it would not pursue the

habitual-offender sentencing enhancement, and if the State recommended

incarceration, it would recommend concurrent sentences. On his written guilty

plea for the child-endangerment offense, Ross handwrote that he “put my child at

risk by running toward house and away from police.”

       Ross was informed during his plea-taking hearing and in his written guilty

plea that to challenge the plea he must file a motion in arrest of judgment. The

court accepted Ross’s guilty pleas to one count of possession with intent to deliver

and one count of child endangerment without injury. Ross did not file a motion in

arrest of judgment. During his sentencing hearing, Ross presented two exhibits

that he filed earlier that morning consisting of certificates of completion of varying

programs and letters from family, friends, and from the Salvation Army describing

its program and Ross’s request for admittance into the program. The court refused

to consider the letters and sentenced Ross to an indeterminate ten-year prison

term for the possession offense and an indeterminate two-year term for the child-

endangerment offense, to be served concurrently. No mandatory minimum or

habitual-offender enhancements were imposed. Ross now appeals.

II. Scope and Standards of Review.

       “We review claims of ineffective assistance of counsel de novo because the

claims implicate the defendant’s Sixth Amendment right to counsel.” State v.

Perkins, 875 N.W.2d 190, 192 (Iowa Ct. App. 2015) (citing State v. Thorndike, 860

N.W.2d 316, 319 (Iowa 2015)).
                                          4


         We review the sentence imposed in a criminal case for correction of errors

at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not reverse

“absent an abuse of discretion or some defect in the sentencing procedure.” Id.

III. Discussion.

         A. Factual Basis. Ross contends his guilty plea to the charge of child

endangerment lacked a factual basis and, consequently, his counsel was

ineffective for allowing him to enter the guilty plea and failing to challenge the plea

through a motion in arrest of judgment. Ross argues there was a lack of evidence

on the knowledge element of the child-endangerment charge.

         Generally, a defendant must file a motion in arrest of judgment in order to

challenge a guilty plea. State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006). If a

defendant fails to file a motion in arrest of judgment after the court has informed

the defendant of their obligation to do so, they cannot directly appeal from the guilty

plea. Iowa Rs. Crim. P. 2.8(d), .24(3)(a); see also Straw, 709 N.W.2d at 132.

When counsel fails to file such a motion, a defendant may attack the plea on appeal

through a claim of ineffective assistance of counsel. Perkins, 875 N.W.2d at 192.

         To prevail on a claim of ineffective assistance of counsel, the defendant

must show by a preponderance of the evidence that (1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see also Thorndike, 860 N.W.2d at 320.

         “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.”    State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014) (quoting State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999)). “Prejudice is inherent in such a
                                           5

case.” Id. Therefore, our “only inquiry is whether the record shows a factual basis

for the guilty plea.” Id. “The factual basis must be contained in the record, and the

record, as a whole, must disclose facts to satisfy all elements of the offense.” State

v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010). “A factual basis can be discerned

from four sources: (1) inquiry of the defendant, (2) inquiry of the prosecutor, (3)

examination of the presentence report, and (4) minutes of evidence.” Id. at 768.

Moreover, “the record does not need to show the totality of the evidence necessary

to support a guilty conviction, . . . it need only demonstrate facts that support the

offense.” Id.

       Iowa Code section 726.6(1)(a) (2015) provides,

       [A] person who is the parent, guardian, or person having custody or
       control over a child . . . commits child endangerment when the person
       . . . [k]nowingly acts in a manner that creates a substantial risk to a
       child or minor’s physical, mental or emotional health or safety.

“We interpret the word ‘knowingly’ in this statute to mean ‘the defendant acted with

knowledge that [he or] she was creating substantial risk to the child’s safety.’”

State v. Leckington, 713 N.W.2d 208, 214 (Iowa 2006) (alteration in original)

(citation omitted). “[I]t is the appreciation of the risk to the child or minor posed by

one’s conduct that creates criminal culpability under this statute.” State v. Millsap,

704 N.W.2d 426, 430 (Iowa 2005).

               Section 726.6(1)(a) requires a showing of substantial risk to a
       child’s physical health or safety. It does not require proof that the
       conduct was negligent or reckless, although such actions may create
       a substantial risk. The above discussion also makes it unnecessary
       to prove that the physical risk to a child’s health or safety is likely.
       Rather a showing that the risk is real or articulable will suffice.

State v. Anspach, 627 N.W.2d 227, 232–33 (Iowa 2001).
                                            6


       Ross argues the record does not establish that he knowingly acted in a

manner to create a substantial risk to his son. He contends the confrontation

between the police and himself was not violent and argues his son merely followed

him into his residence and his son appeared to have accidentally hit his head in

the process of following his father.

       The court had before it the minutes of evidence, Ross’s consent to rely on

the minutes of evidence to establish a factual basis for his guilty plea, the

presentence investigation, and Ross’s statement in his written guilty plea admitting

he put his child at risk. Upon our de novo review, we are satisfied the facts support

the offense and conclude a factual basis for the challenged plea to child

endangerment existed. Therefore, we find defense counsel did not breach an

essential duty in allowing Ross to enter the plea or in failing to file a motion in arrest

of judgment to challenge his plea. We affirm his conviction for child endangerment.

       B. Sentencing. Ross also argues the district court erred and abused its

discretion by refusing to consider additional evidence in mitigation of his

punishment.     Specifically, Ross argues the court failed to consider letters of

support from family and friends, along with a letter of acceptance into a Salvation

Army program.

       Before the sentencing hearing, the defense filed certificates of completion

of various programs and courses Ross obtained while in jail. The defense also

filed several letters from Ross’s family and friends for the court’s consideration

during sentencing. The defense explained to the court the letters were not from

victims when the court inquired about the authors. The court first stated, “[O]nly

victims are allowed to speak,” and subsequently stated,
                                          7


       Well, I’m not going to consider them. They’re not victims. He can
       tell me about what support he has. The State has an opportunity to
       present other character references and you didn’t give them that
       opportunity. You can put them there for your prison people or [the
       presentence investigation] people.

However, the State made no objection to the exhibits.

       “An abuse of discretion will only be found when a court acts on grounds

clearly untenable or to an extent clearly unreasonable.” State v. Hopkins, 860

N.W.2d 550, 553 (Iowa 2015) (citation omitted). “We give sentencing decisions by

a trial court a strong presumption in their favor.” Id.

       “When a sentencing court has discretion, it must exercise that discretion.”

State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). “Failure to exercise that discretion

calls for a vacation of the sentence and a remand for resentencing.” Id. Iowa Code

section 901.2(1) mandates, “[T]he court shall receive from the state, from the

judicial district of department of correctional services, and from the defendant any

information which may be offered which is relevant to the question of sentencing.”

Moreover, the court “may consider information from other sources.” Iowa Code

§ 901.2(1). In statutory provisions, the use of the word “‘shall’ imposes a duty,”

“‘must’ states a requirement,” and “‘may’ confers a power.”            Iowa Code

§ 4.1(30)(a)–(c).

       The sentencing court appeared to believe it could not consider the letters

because the letters were not from victims. We presume the court’s concern was

related to victims’ rights and limitations found in Iowa Code chapter 915.

Specifically, Iowa Code section 915.21 allows a victim to provide a written or oral

victim-impact statement without being subject to an oath or cross-examination.

However, “victim” is limited to someone who has “suffered physical, emotional, or
                                            8


financial harm,” but can include the victim’s immediate family if such a victim has

died, become incompetent, or is a minor. Iowa Code § 915.10(3).

       Regardless, Ross was not attempting to present evidence from a victim, but

rather mitigating evidence as permitted by section 901.2(1). If the situation had

been one where the letters were mailed to the court by the individuals themselves

rather than presented by the defendant, then the letters may have qualified as

information “from other sources.” However, the letters and documents were filed

by the defendant before the sentencing hearing and clearly the defendant desired

the exhibits be considered for sentencing purposes. Thus, pursuant to section

901.2(1), the court was under a duty to consider defendant’s mitigating evidence

in sentencing—at least absent an objection by the State.1             Moreover, before

pronouncing judgment and sentence, the court must receive and examine “all

pertinent information.” Iowa Code § 901.5.

       Our supreme court has long held a defendant is entitled to fundamental

fairness at sentencing.      State v. Drake, 259 N.W.2d 862, 867 (Iowa 1977),

abrogated on other grounds by State v. Kaster, 469 N.W.2d 671, 673 (Iowa 1991).

Here, whether we describe the failure to accept mitigating evidence as an “abuse

of discretion, procedural conduct prejudicial to defendant, circumstances which

manifest inherent unfairness and injustice, or conduct which offends the public



1
  We acknowledge defense counsel did not formally request admission of the exhibits but
any formal offer of the exhibits would have been futile after the court explained she was
not going to consider them. We also acknowledge the State could object or seek
additional time to consider the exhibits. However, any objection that the letters were not
prepared by victims should be denied. Iowa Code § 901.2(1); see also State v. Gahagen,
No. 16-0209, 2017 WL 2461463, at *5 (Iowa Ct. App. June 7, 2017) (holding court failed
to exercise discretion in refusing to consider relevant information on the issue of
sentencing).
                                          9


sense of fair play,” we conclude Ross’s sentences must be vacated and this

proceeding be remanded for resentencing. See id. at 867 (quoting State v. Delano,

161 N.W.2d 66, 74 (Iowa 1968)); see also State v. Ashley, 462 N.W.2d 279, 281

(Iowa 1990) (concluding “Iowa Code sections 901.2 through 901.4 reflect the

legislature’s concern for orderly presentation of information to the court for

sentencing purposes and the fundamental notion of fairness”).2

       On this record, we are also unable to conclude there was substantial

compliance by permitting the defendant to discuss some of the contents of his

exhibits as suggested by the dissent. We are not convinced Ross’s rendition, or

his counsel’s rendition, of the exhibits’ contents would have had the same impact

upon a sentencing court under these facts. Informing the sentencing court of a

job, a change of lifestyle, a place to live, and other positive characteristics and

accomplishments via letters and exhibits from an employer, representatives of

facilities or organizations, as well as family and friends, was influential mitigating

evidence not fully considered by the court.         We, therefore, vacate Ross’s

sentences and remand for resentencing.

       CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED

FOR RESENTENCING.

       McDonald, J., concurs; Mullins, J., concurs in part and dissents in part.




2
  Even probationers and parolees are entitled to a revocation hearing, permitting the
individual “to be heard in person and to present witnesses and documentary evidence,”
among other rights. Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
                                         10


MULLINS, Judge (concurring in part and dissenting in part).

       I concur in the decision to affirm the child endangerment conviction. I write

separately to respectfully dissent from the decision to vacate the sentences and

remand for resentencing. Our standard of review should be for abuse of discretion

in the sentencing decision, not for legal error or abuse of discretion on a matter of

evidence if such error does not show an abuse of discretion in the sentencing

decision.

       Ross argues the district court erred and abused its discretion by refusing to

consider additional evidence in mitigation of his punishment. Specifically, Ross

argues the court failed to consider letters of support from family and friends along

with a letter acknowledging Ross’s request for admission into a Salvation Army

program. We review the sentence imposed in a criminal case for correction of

errors at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not

reverse “absent an abuse of discretion or some defect in the sentencing

procedure.” Id.

       The sentencing hearing was scheduled for 8:30 a.m. on July 28, 2017. At

7:00 a.m. that day, defense counsel filed with the clerk of court two proposed

exhibits: the first containing certificates of completion of various programs and

courses Ross completed while in jail, and the second containing several letters

from Ross’s family and friends and the Salvation Army Adult Rehabilitation Center.

During the hearing, defense counsel identified those exhibits for the court. When

the court inquired about the authors, counsel explained that the letters were not

from victims. The court then stated “Well, I’m not going to consider them. They’re

not victims. He can tell me about what support he has.” Although counsel made
                                            11


no formal offer of the exhibits into evidence, the combined general docket shows

the exhibits were exhibits (no longer proposed exhibits) at 9:01 a.m.3

         If the record ended there, I might be concurring with the majority. But, we

must examine the entire record, because “[a]n abuse of discretion will only be

found when a court acts on grounds clearly untenable or to an extent clearly

unreasonable.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). “We give

sentencing decisions by a trial court a strong presumption in their favor.” Id.

“When a sentencing court has discretion, it must exercise that discretion.” State

v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). “Failure to exercise that discretion calls

for a vacation of the sentence and a remand for resentencing.” Id.

         Iowa Code section 901.2(1) mandates the court “shall receive from the

state, from the judicial district of department of correctional services, and from the

defendant any information which may be offered which is relevant to the question

of sentencing.”       Moreover, the court “may consider information from other

sources.” Iowa Code § 901.2(1). The use of the word “shall” imposes a duty,

“must” states a requirement, and “may” confers a power. Id. § 4.1(30)(a)–(c).

Although the sentencing transcript record contains no formal offer of Ross’s

proposed exhibits and contains no verbal indication the court admitted the exhibits

in evidence, I interpret the combined general docket to mean the proposed exhibits

filed at 7:00 a.m. were admitted into evidence and docketed at 9:01 a.m. As such,

the exhibits were “received” by the court from the defendant. See id. § 901.2(1).

The contents of the letters can be characterized as providing unsworn facts and



3
    The record does not show an exhibit maintenance order. See Iowa Ct. R. 16.412(2)(c).
                                        12


opinions concerning family circumstances and employment and rehabilitation

potential. Thus, they were relevant to the question of sentencing. See id.

             A sentencing court has a duty to consider all the
      circumstances of a particular case. We do not believe however, it is
      required to specifically acknowledge each claim of mitigation urged
      by a defendant. Furthermore, the failure to acknowledge a particular
      sentencing circumstance does not necessarily mean it was not
      considered. Instead, we review a sentence for an abuse of discretion
      based on the entire record, and look to see if the reasons articulated
      by the trial court are sufficient to enable us to determine if an abuse
      of discretion occurred.

State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995) (citation omitted).

      When the district court stated it refused to consider the letters, it also told

counsel, Ross “can tell me about what support he has.”            Defense counsel

proceeded to make a thorough recommendation and argument in support. In

response to remarks by defense counsel, the court inquired as to the voluntary

placement status of the Salvation Army program and with regard to making

placement a condition of probation, the court stated: “Doesn’t appear from that

letter they accept that, but maybe they do.”       Thus, the court had read and

considered the Salvation Army letter—defendant’s second exhibit—though not

orally admitted into evidence.

      Ross then spoke in mitigation and was given a full opportunity to say what

he wanted, and did so in a lengthier manner than we often see. He told the court

he made a mistake and was really sorry, that he has two sons and wanted an

opportunity to make things right so his younger son “doesn’t take these steps that

I made in my life.” He told the court a lot of people look up to him and he asked

for mercy so he could make things right with his family and better himself. He

explained he had a job waiting for him, wanted to make things right for his sons’
                                         13


sake and was sorry for putting his family through this. Ross’s allocution takes

eighteen lines of the sentencing transcript. When the court announced its reasons

for imposing the sentence, it stated:

               Now, I’ve read this PSI, and I’ve heard what you said today
       and I see your things that you’ve done in jail, and I’m glad you’ve
       been productive in the jail. You’re lucky that this is one jail that has
       a lot of programs that do help people, but it’s not our fault that you
       didn’t get substance abuse treatment in the jail.
               That’s your fault, and it’s based on—and today, based on this,
       I’m looking at a history of somebody since back in 2003, 2005,
       frankly, your actions speak louder than your words. You’ve got an
       8-year-old son and today is the first time that you’re sorry that you
       put him through this? Where have you been the last eight years?
               You’ve been in prison. You’ve been continuing to use
       substances since you’ve been off parole, and you’ve been deceptive.
       You’ve been deceptive to those people back there about your life and
       your relationships. You’ve been deceptive to yourself, and that’s not
       the type of person who’s gonna be successful on probation, and
       that’s why—plus these are assaultive kind of behaviors.
               Every single time there’s all these failures to appear with
       warrants issued, failure to appear, warrants issued, probation, parole
       violation. You knew in May that part of your parole was not to use
       drugs, and you continued to do that.
               THE DEFENDANT: That’s why I’m seeking if you can give me
       some type of help. I don’t think prison will help me, ma’am.
               THE COURT: Well, obviously you didn’t seek the community
       help that was available in this community. Salvation Army has been
       there for years. It’s voluntary. You haven’t been in that. You haven’t
       taken advantage—now that you’re gonna be sent to prison again, all
       of a sudden you’re willing to go. You’ve got all these judgments that
       you haven’t paid and past things.
               You’ve been unemployed, yet you seem to have enough
       money to buy drugs. Frankly, your priorities have not been in the
       right place. You’ve not been accepted to drug court. That might
       have been a good place for you, but I’m not in charge of that program.
       They have specific criteria, and yours haven’t been accepted. The
       Residential Corrections Facility isn’t gonna accept somebody who’s
       got a history of violence like you do.
               We’ve—frankly, we don’t have any other community
       resources that I think are appropriate or that you’ve availed yourself
       of up until maybe now you’re saying that you’re gonna go to the
       Salvation Army, but I don’t believe at this time that probation is an
       appropriate disposition, and I’m going to not suspend the sentence,
                                         14


       and I’m gonna order that you be delivered to the Iowa Department of
       Corrections.

       On my review of the entire record, I would find that, although the court

announced it would not consider the letters, its thorough and interactive recitation

of reasons for its sentencing decision in fact responded to the primary themes

contained in the letters. The court invited Ross to tell her what he wanted her to

know from the letters; and, although he did not reference the letters in his

statements in mitigation, his summarized remarks to the court embodied their

essence. The court did nothing to limit or hinder his ability to allocute. He was

given the opportunity to say what he wanted. The court then explained its reason

for the sentence in detail, reciting numerous facts and factors it considered. After

carefully reviewing the entire record, it is clear to me the court considered all the

relevant and pertinent facts and circumstances, and did not abuse its discretion in

its sentencing decision.

       I would affirm the sentence.
