                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0707
                              Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER MICHAEL RETMAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy,

Judge.



      Christopher Retman appeals following his guilty plea to arson in the third

degree. AFFIRMED.



      Karmen Anderson of Anderson & Taylor, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., May, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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MAHAN, Senior Judge.

       Christopher Retman appeals, challenging the factual basis for his guilty plea

to the charge of arson in the third degree. Upon our review, we affirm.

       Retman contends his counsel was ineffective in allowing him to plead guilty

to the arson charge without a factual basis.1 To prevail on his claim,2 Retman must

show counsel (1) failed to perform an essential duty and (2) prejudice resulted.

See Strickland v. Washington, 466 U.S. 668, 687 (1984). If counsel allows a

defendant to plead guilty without a factual basis, counsel has breached a duty and

we presume the defendant was prejudiced. See State v. Rodriguez, 804 N.W.2d

844, 849 (Iowa 2011).

       A guilty plea may not be accepted by a court without the court first

determining the plea is supported by a factual basis.            See Iowa R. Crim.

P. 2.8(2)(b). When analyzing a record to determine if the record supports a factual

basis for a plea, courts “do not require the record to show the totality of evidence

necessary to support a guilty conviction, but only that the record demonstrates the

facts to support the elements of the offense.” Rhoades v. State, 848 N.W.2d 22,

29 (Iowa 2014). A factual basis can be discerned from “(1) the prosecutor’s

statements, (2) the defendant’s statements, (3) the minutes of testimony, and


1  Iowa Code section 814.7 was recently amended, eliminating direct-appeal
ineffective-assistance-of-counsel claims. See 2019 Iowa Acts ch. 140, § 31
(codified at Iowa Code § 814.7 (2019)). This amendment applies only
prospectively and therefore does not apply to this case, which was pending on July
1, 2019. See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019).
2 Generally, a defendant’s failure to file a motion in arrest of judgment bars a direct

appeal of the conviction, see Iowa R. Crim. P. 2.24(3)(a), but this failure does not
bar a challenge to a guilty plea if the failure to file a motion in arrest of judgment
resulted from ineffective assistance of counsel, as alleged by Retman, see State
v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).
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(4) the presentence report, if available at the time of the plea.” Id. In reviewing

minutes of testimony, the court will consider police reports that include a

defendant’s statements. See id. at 31.

       To determine whether Retman’s guilty plea is supported by a factual basis,

we first turn to the elements of the offense. The Code defines arson as follows:

              Causing a fire or explosion, or placing any burning or
       combustible material, or any incendiary or explosive device or
       material, in or near any property with the intent to destroy or damage
       such property, or with the knowledge that such property will probably
       be destroyed or damaged, is arson, whether or not any such property
       is actually destroyed or damaged.

Iowa Code § 712.1(1).

       “Arson is arson in the first degree when the presence of one or more

persons can be reasonably anticipated in or near the property which is the subject

of the arson, or the arson results in the death of a fire fighter, whether paid or

volunteer.” Id. § 712.2.

       Arson which is not arson in the first degree is arson in the second
       degree when the property which is the subject of the arson is a
       building or a structure, or real property of any kind, or standing crops,
       or is personal property the value of which exceeds five hundred
       dollars.[3]

Id. § 712.3. “Arson which is not arson in the first degree or arson in the second

degree is arson in the third degree.” Id. § 712.4.

       The record in this case reflects the following.          Retman drove onto

Christopher Cook’s property,4 threw a lit and smoking cylinder object at Cook’s



3 This statute was amended effective July 1, 2019, to increase the value of property
to seven hundred fifty dollars. See 2019 Iowa Acts ch. 140, § 10 (codified at Iowa
Code § 712.3 (2019)).
4 Cook was a witness in a case Retman was involved in.
                                           4


residence from his moving vehicle, and then drove away. The “cylinder object,”

later determined to be a firework, landed on top of a dumpster near Cook’s

vehicles. The dumpster was burned, but the firework eventually extinguished on

its own due to moisture on the dumpster lid.

       The State charged Retman with arson in the third degree and tampering

with a witness, but an agreement was reached in which Retman would plead guilty

to arson in the third degree and the tampering-with-a-witness charge would be

dismissed. Retman’s written guilty plea stated: “I placed an incendiary device, a

smoke grenade, adjacent to a building on Chris Cook’s property in Jasper County,

IA on 10/1/18, knowing that it would likely cause damage thereon.”

       Evidence in the record provided a factual basis to support his plea of arson

in the third degree. See Iowa Code § 712.1(1) (defining one alternative of arson

as “placing any burning or combustible material . . . in or near any property . . . with

the knowledge that such property will probably be destroyed or damaged”). But

Retman contends because he pled guilty to the “explosive or incendiary device”

alternative of the statute and because a firework “smoke bomb is not an explosive

or incendiary device,” his plea lacked a factual basis. Cf. id. § 712.1(1) (defining

another alternative of arson as “placing any . . . incendiary or explosive device . . .

in or near any property . . . with the knowledge that such property will probably be

destroyed or damaged”).

       Even accepting, arguendo, Retman’s claim that a firework “smoke bomb” is

not an explosive or incendiary device,5 we find his factual-basis argument


5See State v. Durgin, 328 N.W.2d 507, 509 (Iowa 1983) (distinguishing fireworks,
specifically excluded under the Code definition of explosives, from explosive
                                          5


unpersuasive. The State charged Retman with arson in the third degree, without

setting forth any specific theory of the case:

       Arson in the Third Degree, a violation of Iowa Code section(s) 712.1,
       712.4, in that on or about October 1, 2018 in Jasper County, Iowa,
       the Defendant directly and unlawfully committed arson in the third
       degree upon the personal property of Christopher and Elizabeth
       Cook, the value of which does not exceed $500.

       The State’s charge against Retman carried with it all included offenses. See

Iowa R. Crim. P. 2.22(3) (stating “[i]n all cases, the defendant may be found guilty

of any offense the commission of which is necessarily included in that with which

the defendant is charged”); cf. State v. Lipsey, No. 13-1062, 2014 WL 3931434, at

*2 (Iowa Ct. App. Aug. 13, 2014). Iowa Code section 712.1(1) sets forth different

modes of committing the offense of arson, and sections 712.2 and 712.3 provide

for circumstances in which those offenses in section 712.1(1) qualify as arson in

the first degree or second degree. “Arson which is not arson in the first degree or

arson in the second degree is arson in the third degree.” Id. § 712.4.

       It was the district court’s obligation to determine whether there was a factual

basis supporting Retman’s guilty plea to the crime charged. Cf. State v. Gross,

No. 18-0048, 2018 WL 6120052, at *3 (Iowa Ct. App. Nov. 21, 2018) (“The statute

sets forth different modes of committing the offense of arson in the second

degree. . . . While the prosecutor thought the “building or structure” alternative

was applicable here, that did not preclude the district court from inquiring about




devices, and holding fireworks were pyrotechnic devices manufactured for the
purpose of producing visible or audible effect); 4 Robert R. Rigg, Iowa Practice
Series: Criminal Law § 9:15 (2019-2020 ed.) (same); see also Iowa Code § 702.21
(“An ‘incendiary device’ is a device, contrivance, or material causing or designed
to cause destruction of property by fire.”).
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another mode of committing the offense. . . . Instead, it was the district court’s

obligation to determine whether there was a factual basis supporting the

defendant’s guilty plea to the crime charged.”). As noted above, Retman’s guilty

plea to arson in the third degree was supported by a factual basis. See Iowa Code

§§ 712.1(1), 712.4. Accordingly, defense counsel was not ineffective in failing to

challenge the plea on that basis.

      AFFIRMED.
