                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0250
                               Filed June 24, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

COLBY RAY PUCKETT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Mills County, James S. Heckerman

(plea) and Gregory W. Steensland (sentencing), Judges.



      Colby Puckett challenges his plea of guilty to second-degree murder.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Colby Puckett, Anamosa, pro se.

      Thomas J. Miller, Attorney General, Kelli Huser and Doug Hammerand,

Assistant Attorneys General, and Eric Hansen, County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.

      Colby Puckett appeals following judgment and sentence imposed upon his

plea of guilty to second-degree murder, contending there is not a factual basis to

support the plea. In a pro se brief, Puckett also asserts his trial counsel offered

ineffective assistance, which should negate his plea.

      Based on the minutes of testimony and the in-court colloquy, we conclude

a sufficient factual basis for the plea was established. The record before this

court is not adequate to address the issues raised in the pro se brief, but they

may be asserted in a possible postconviction relief proceeding.

      I. Background Facts and Proceedings.

      On February 1, 2013, Puckett was caring for thirteen-month-old A.M., his

girlfriend’s daughter. Around 10:00 or 10:30 in the morning, A.M. began crying.

Puckett was irritated A.M. woke him, and he shook her. After shaking A.M.,

Puckett noticed the child appeared dazed, her cry softened, and her color

changed. Puckett placed A.M. on the bed and left the room for a few minutes.

When he returned, A.M. was allegedly face down on the floor with her head on

the entertainment center.    A.M. was coughing, blood was coming out of her

mouth, one of her arms was shaking, and she was unconscious. Puckett called

his mother, who came to the house. At 10:59 a.m., the 911 dispatch center

received a call that a one-year-old child had fallen off a bed, was unconscious,

and not breathing. The child was taken by helicopter to a hospital, where it was

determined her retinas were detached and there was severe swelling of the

brain. A.M. was declared brain dead on February 2, 2013. An autopsy was

performed.   The cause of A.M.’s death was head injuries, including bilateral
                                        3


subdural and subarachnoid hemorrhage with extensive cerebral edema.             The

medical examiner concluded the death was a homicide.              The minutes of

testimony indicate three doctors (Drs. Suzanne Haney, John Halgren, and

Patricia Kirby) would testify A.M.’s injuries were consistent with abusive head

trauma.

      Puckett was charged with first-degree murder and child endangerment

and faced a life-without-possibility-of-parole sentence. He pled guilty to second-

degree murder. At the plea hearing, the following colloquy occurred:

             THE COURT: I’m sure Mr. Murphy [defense counsel] has
      gone over all of this with you but we just need to make a record
      with respect to that. You understand that if this matter went to trial
      the State would have to prove that on or about the first day of
      February of this year that you conducted yourself in a manner—it’s
      my understanding that the State’s allegations are—or at least what
      the defendant’s position is on this—that the child was shaken by
      the defendant? They would also have to prove that as a result of
      being shaken by the defendant that the child died; and that,
      additionally, the State would have to prove that the defendant acted
      with malice aforethought. That’s my understanding of the elements
      of murder in the second degree.
             MR. HAMMERAND [prosecutor]: That is correct, Your
      Honor.
             THE COURT: Sir, is that what you did?
             THE DEFENDANT: Yes, Your Honor. I woke up and [A.M]
      was crying. I tried to get her to calm down. I didn’t intend to hurt
      her or have her pass away.
             THE COURT: Okay. I understand that you didn’t intend for
      her to die, and I don’t think that’s even what the State’s position is.
      But the State’s position is that you did intend to cause some harm.
             THE DEFENDANT: Yes, sir.
             MR. MURPHY: You have to say that audibly.
             THE COURT: Is that correct?
             THE DEFENDANT: Yes, sir.
             THE COURT: There was a discussion we had in chambers
      with respect to the exact language that we’re going to use here.
      And so under the—definition of malice aforethought what—the
      discussion was in regard to whether or not you had a fixed purpose
      or a design to do some physical harm to the child. And in my
      discussions with Mr. Murphy he indicated to me that when you
                                         4


       grabbed the child and shook the child, although you did not intend
       to kill the child, you did intend to cause some harm to that child. Is
       that accurate or is that not accurate?
                THE DEFENDANT: It’s accurate, Your Honor.
                THE COURT: Okay. Is it agreeable with the parties the Court
       incorporate the minutes attached to the trial information for
       establishing a factual basis—additional factual basis for the guilty
       plea?
                MR. HAMMERAND: Yes, Your Honor. And we also filed
       additional minutes as well.
                THE COURT: Very well. So do you have any objection to the
       minutes or the additional minutes being—
                MR. MURPHY: No, Your Honor.
                THE COURT: —considered for that purpose?
                MR. MURPHY: Yes.

       Further discussion occurred, and the court then asked defense counsel if

there was any legal reason the plea should not be accepted. Defense counsel

responded, “No, Your Honor. We’ve exhaustively investigated this case, not only

physically but factually, and, of course, it’s somewhat draconian in that 70

percent is 70 percent. I think the outcome could have been worse and that’s why

we agreed to this plea.” On January 13, 2014, the court entered judgment upon

the conviction of second-degree murder, imposing the mandatory sentence.1

Puckett now appeals.

       II. Scope and Standard of Review.

       To challenge a guilty plea, a defendant must file a motion in arrest of

judgment. Iowa R. Crim. P. 2.24(3). A defendant’s failure to file a motion in

arrest of judgment will not bar a challenge to the plea if the failure resulted from

ineffective assistance of counsel. State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). However, here the State concedes the district court did not adequately


1
 See Iowa Code § 902.12 (requiring a person serving a sentence for second-degree
murder to serve a minimum of seven-tenths of the maximum term).
                                          5


inform the defendant that failure to file a motion in arrest of judgment waived his

appeal rights. At the plea hearing the court informed Puckett, “[I]f for any reason

you wish to challenge the sufficiency of these guilty plea proceedings, it will be

necessary for you to file a motion in arrest of judgment within 45 days of today’s

date and no less than five days prior to the date scheduled for sentencing.”

Thus, although Puckett did not file a motion in arrest of judgment, we conclude

his appeal is properly before us. State v. Worley, 297 N.W.2d 368, 370 (Iowa

1980) (finding that a defendant is not precluded from challenging a plea on

appeal where the record does not show that anyone informed the defendant that

failure to file a motion in arrest precludes an appeal on the issue).

       Because ineffective-assistance-of-counsel claims are grounded in the

Sixth Amendment to the United States Constitution, our review of whether

counsel permitted Puckett to enter a guilty plea without a factual basis is de

novo. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

       III. Discussion.

       “A defendant is entitled to the effective assistance of counsel in the plea-

bargaining process.” Id. We generally preserve claims of ineffective assistance

for postconviction-relief actions but will consider their merits on direct appeal if an

adequate record exists. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).

       In order to succeed on an ineffective-assistance claim, the defendant must

show (1) counsel failed to perform an essential duty and (2) the failure resulted in

prejudice. State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012). “Reversal is

warranted only where a claimant makes a showing of both elements.” Dempsey,

860 N.W.2d at 868. “To demonstrate prejudice in the plea-bargaining process ‘a
                                         6


[claimant] must show the outcome of the plea process would have been different

with competent advice.’” Id. at 869.

       Factual basis. Here, Puckett asserts the record does not establish “malice

aforethought,” an essential element of second-degree murder.           See State v.

Myers, 653 N.W.2d 574, 579 (Iowa 2002). “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. Schminkey, 597

N.W.2d 785, 788 (Iowa 1999). “Prejudice in such a case is inherent.” Id.

       One element required for a person to commit second-degree murder is

that the act of killing another person is done with malice aforethought. State v.

Lyman, 776 N.W.2d 865, 877 (Iowa 2010). “Malice aforethought requires the

actor to have ‘a fixed purpose or design to do physical harm to another that

exists before the act is committed.’” Id. (quoting Myers, 653 N.W.2d at 579). “It

does not mean mere spite, hatred, or ill will, but does signify that state of

disposition which shows a heart regardless of human life.”         Id. (citation and

internal quotation marks omitted). “It is well-settled law that murder in the second

degree is a general intent crime only requiring proof of malice aforethought.” Id.

“Because this element is a state of mind, circumstantial evidence is generally

used to prove malice.” State v. Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003).

       “‘[W]e 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.’”         State v.

Gines, 844 N.W.2d 437, 441 (Iowa 2014) (quoting Schminkey, 597 N.W.2d at

788). Here, an inference of malice is supported by the record. The defendant
                                            7


acknowledged at the plea proceeding that when he grabbed the child and shook

the child, he “did intend to cause some harm to that child.” The minutes of

testimony also include his statement to the investigating officer that “he was

irritated that [the child] woke him up because he was tired.”2

       The nature and severity of the victim’s injuries also support an inference of

malice aforethought. Dr. Suzanne Haney told Deputy Bob McALeer the child

suffered detached retinas, severe swelling of the brain, and blood around her

brain. The coroner determined the death was a homicide. And three doctors

would testify the injuries were consistent with abusive head trauma. Dr. Julia

Goodin, the state medical examiner, also observed “multiple contusions of the

forehead    and    scalp;   multiple    subgaleal    contusions;    bilateral   subdural

hemorrhages; diffuse subarachnoid hemorrhage; marked cerebral edema; retinal

hemorrhages bilateral; hemorrhages along the optic nerves, bilateral; subdural

hemorrhage along the spinal cord; laceration of the frenulurn and right lower lip;

two small abrasions on right cheek; and abrasion of the nose.” See Myers, 653

N.W.2d at 579-80 (noting minutes of testimony of medical examiner, who would

testify the “child was shaken, slammed and that the manner of death is

homicide”; the defendant’s statements to officers; and the defendant’s

statements during plea proceeding provided factual basis); State v. Rhode, 503

N.W.2d 27, 39 (Iowa Ct. App. 1993) (noting malice may be inferred from



2
  In his pro se brief, Puckett contends the State has “no proof he set out to willingly do
harm to the minor.” As noted above, the defendant’s own statement was that “it’s
accurate” he “did intend to cause some harm to that child.” Moreover, his brief notes
“his actions were due to the lack of his own medication and immature choices. He could
no longer afford the medication to help control his anger,” which is, at a minimum, an
implicit acknowledgement that he was angry.
                                          8


evidence that defendant intentionally slammed child’s head against a hard

surface causing severe head injury).

       Based on the minutes of testimony and the in-court colloquy, we conclude

a sufficient factual basis for the plea was established.

       Pro se claims.    Puckett’s pro se brief also asserts his plea “was not

knowing and intelligent, but planned, forced and coerced.”      He points to the

court’s statements noted above that refer to an in-chambers discussion.        He

alleges trial counsel should have challenged his competency to enter a knowing

and voluntary plea, asserting he has been diagnosed with “ADHD and bipolar

disorder” and “was without his medication for a long time.” 3       Puckett also

contends his trial counsel did not adequately investigate and that trial counsel

was operating under a conflict of interest. The record before this court is not

adequate to address these issues, but they may be asserted in a possible

postconviction relief proceeding. See Sate v. Thacker, 862 N.W.2d 402, 411

(Iowa 2015).

       AFFIRMED.




3
 We presume a defendant is competent to stand trial. See Lyman, 776 N.W.2d at 874.
The defendant bears the burden to prove the defendant’s incompetence by a
preponderance of the evidence. Id.
