                IN THE SUPREME COURT OF IOWA
                               No. 17–0807

                            Filed May 31, 2019


REVETTE SAUSER,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Delaware County,

Thomas A. Bitter, Judge.



      Applicant for postconviction relief appeals a district court decision

denying her claim for ineffective assistance of counsel. DECISION OF

COURT        APPEALS      VACATED;   DISTRICT      COURT      JUDGMENT

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.



      Webb L. Wassmer of Wassmer Law Office, P.L.C., Marion, for

appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller and Susan

Krisko, Assistant Attorneys General, and John W. Bernau, County

Attorney, for appellee.
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CADY, Chief Justice.

      In this appeal from a ruling by the district court that denied an

application for postconviction relief, we consider whether a factual basis

existed for the element of confinement to support a plea of guilty to the

crime of kidnapping in the second degree. The court of appeals affirmed

the decision of the district court.       On further review, we vacate the

decision of the court of appeals, reverse the decision of the district court,

and remand the case for further proceedings.        We conclude a factual

basis to support the confinement element of the crime of kidnapping is

not established by evidence that the defendant impeded the victim’s

movement by pointing a handgun at the victim for a period of time before

shooting and killing him.

      I. Background Facts and Proceedings.

      Revette Ann Sauser and Terry Sauser were married for twelve

years. Their marriage was plagued for years by discord and strife. On

April 3, 2011, Revette shot Terry with a handgun. The incident occurred

as Terry was sitting in a chair in the living room of their home. He was

intoxicated, and a verbal altercation ensued.          Revette retrieved a

handgun located in the house and concealed it on her person. She then

pulled the gun out and pointed it at Terry for a period of time before the

verbal altercation abruptly ended when the gun was fired. Revette then

called emergency responders to report that she shot Terry. Terry died

shortly after law enforcement officers arrived at the home.

      Sauser was charged by trial information with murder in the first

degree in violation of Iowa Code section 707.2 (2011). A plea bargain was

reached between the State and Sauser shortly before trial was to begin.

Pursuant to the plea bargain, the State amended and substituted the

trial information to charge Sauser with kidnapping in the second degree
                                     3

in violation of section 710.3, voluntary manslaughter in violation of

section 707.4, and going armed with intent in violation of section 708.8.

      Sauser then entered a plea of guilty to the three charges on

February 1, 2012. She also waived her right to file a motion in arrest of

judgment, and the case proceeded to immediate sentencing. The district

court sentenced Sauser to twenty-five years of incarceration for the

kidnapping conviction, ten years’ incarceration for the voluntary

manslaughter conviction, and five years for a going-armed-with-intent

conviction. The court ordered the sentences be served consecutively.

      Sauser subsequently filed an application for postconviction relief.

Among other claims, she asserted her trial counsel was ineffective for

permitting her to plead guilty to the kidnapping charge because no facts

were presented to show that she committed the essential element of

confinement.

      After years of legal maneuvering, a hearing was held on the

postconviction relief claim. Her original trial counsel testified he believed

the confinement element was established because Sauser told him she

pointed the gun at the victim “for some time” before discharging it. The

plea colloquy was also made a part of the postconviction relief record.

During the plea colloquy, Sauser acknowledged she took the gun into the

living room knowing she was “going to confine Terry,” and she used the

gun “to keep [Terry] confined in that space.”

      The district court found Sauser was not denied effective assistance

of counsel. It denied her application for postconviction relief. It found a

factual basis for confinement existed to support the plea of guilty and

further found Sauser failed to establish relief under her other claims.

      Sauser appealed from the district court ruling. Her sole claim of

error relates to the lack of a factual basis to support the element of
                                    4

confinement.   As a part of this claim, she argued the district court

should have informed her of the legal definition of confinement during

the plea colloquy.

      We transferred the case to the court of appeals. It affirmed the

decision of the district court. It held that Saucer’s trial counsel did not

provide ineffective assistance because a factual basis did exist for the

plea and she was not entitled to be informed about the law governing the

meaning of confinement. Sauser sought, and we granted, further review.

      II. Standard of Review.

      We generally review the denial of an application for postconviction

relief for correction of errors at law. Goosman v. State, 764 N.W.2d 539,

541 (Iowa 2009).

      III. Analysis.

      In order to prevail on an ineffective-assistance-of-counsel claim, a

defendant must demonstrate both that “(1) . . . trial counsel failed to

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

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006); see also Strickland v.

Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2065 (1984).

Defense counsel violates an essential duty under the first prong by

allowing a defendant to plead guilty to a charge that lacks a factual

basis. State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005); see also State v.

Doggett, 687 N.W.2d 97, 101–02 (Iowa 2004). Under the second prong, a

defendant is required to show the results of the proceeding would have

been different but for counsel’s error.      Philo, 697 N.W.2d at 485.

Because Sauser’s kidnapping sentence relied entirely on her guilty plea,

prejudice would be established if counsel was ineffective.

      Accordingly, Sauser must establish that the record is devoid of a

factual basis supporting the kidnapping conviction. See State v. Ortiz,
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789 N.W.2d 761, 765 (Iowa 2010) (explaining the defendant must

demonstrate the record is lacking a factual basis to support a first-degree

burglary charge in order to prevail on the essential-duty prong of

ineffective assistance of counsel).     An essential element of kidnapping

requires a person to confine or remove another from one place to another

without authority. Iowa Code § 710.1. Thus, the narrow issue we face is

whether the record contains a factual basis to demonstrate Sauser

confined the victim in a manner to support an independent kidnapping

charge.

      A factual basis must be found within the record, and the record as

a whole must contain facts to satisfy each element of the offense. Ortiz,

789 N.W.2d at 767–68.          A factual basis may be determined from four

sources: “(1) the prosecutor’s statements, (2) the defendant’s statements,

(3) the minutes of testimony, and (4) the presentence report.” Rhoades v.

State, 848 N.W.2d 22, 29 (Iowa 2014).

      The State argues a factual basis for the confinement element of the

crime was established by testimony presented at the postconviction relief

hearing by Sauser’s trial counsel, the minutes of testimony, and Sauser’s

statements made during the plea colloquy. In response, Sauser initially

claims her statements at the plea colloquy cannot be used to help

establish a factual basis because the district court failed to explain the

meaning of the word “confinement” to her as a part of the colloquy.

      We find it unnecessary to address the claim that the district court

was required to inform Sauser of the meaning or definition of

confinement. Her claim on appeal is not that her plea was not voluntary,

but whether a factual basis exists. State v. Finney, 834 N.W.2d 46, 61–

62 (Iowa 2013) (distinguishing a voluntariness claim from a claim based

on a lack of factual basis).
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      We recently reviewed our law governing the quantity and quality of

evidence needed to support a kidnapping conviction associated with the

conviction of another crime in State v. Robinson, 859 N.W.2d 464, 467–

78 (Iowa 2015). Overall, for the crime of kidnapping to be punished as a

separate offense, the confinement (or removal) must be beyond that

which would ordinarily be associated with the other underlying offense.

Id. at 477. In other words, it must be more than “an inherent incident of

[the] commission of the [other] crime.” State v. Rich, 305 N.W.2d 739,

745 (Iowa 1981). This requirement generally means such confinement

must have an independent role from the other crime, so that it

“substantially increases the risk of harm to the victim, significantly

lessens the risk of detection, or significantly facilitates escape following

the consummation of the offense.” Robinson, 859 N.W.2d at 478 (quoting

Rich, 305 N.W.2d at 745). Importantly, we also recalled the underlying

rationale for permitting an independent conviction for kidnapping was

that it made the underlying crime more heinous.       Id. at 476; see also

State v. Marr, 316 N.W.2d 176, 180 (Iowa 1982). The idea is that the

kidnapping must make the defendant’s overall actions substantially more

dangerous.

      The State identifies three reasons to support its claim that

kidnapping occurred in this case when Sauser pointed the handgun at

the victim prior to shooting him. First, it asserts this act of confinement

by Sauser increased the risk of harm to the victim because it made him

an easier target when she discharged the weapon. Second, it asserts the

confinement lessened the risk of detection because it prevented the

victim from fleeing the house before the shooting occurred. Third, this

confinement would have made escape by Sauser easier if she had chosen

to escape instead of calling law enforcement.
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      The   evidence   of   confinement   from   the   testimony   at   the

postconviction relief hearing and the plea colloquy provides little support

for the notion that it rendered the crime more heinous. The analysis we

follow is not theoretical but factual. The facts culled from the hearing

and the plea colloquy do not reveal the amount of time the victim was

held at gunpoint, and the reasons offered by the State that transformed

the case into a kidnapping was merely speculative.       Additionally, the

minutes of testimony do little to transform the incident into a

kidnapping, although they could suggest that thirty minutes or so

elapsed between the time the gun was first pointed at the victim and the

time it was discharged.

      Furthermore, the evidence of confinement in this case does not

align with the evidence of confinement identified in our prior cases to

support an independent conviction of kidnapping since we first

addressed this issue in Rich. See Rich, 305 N.W.2d at 742; see also State

v. Griffin, 564 N.W.2d 370, 373 (Iowa 1997) (finding kidnapping when

defendant’s confinement of the victim was longer than necessary to

commit the underlying sexual assault); State v. Misner, 410 N.W.2d 216,

223–24 (Iowa 1987) (concluding substantial evidence supported the

jury’s finding that hostage-taking was kidnapping); State v. Newman, 326

N.W.2d 796, 801–02 (Iowa 1982) (finding an independent kidnapping

charge when defendant pulled the victim into a car, drove away, and

sexually assaulted her); State v. Knupp, 310 N.W.2d 179, 183 (Iowa

1981) (holding that luring a victim into a vehicle and forcing her to

commit sex acts constituted kidnapping). Each of those cases relied on a

series of acts of confinement that made the underlying crime more

abominable.   Instead, the circumstances in this case align more with

State v. Mead, 318 N.W.2d 440, 445 (Iowa 1982), in which we found
                                     8

insufficient evidence of kidnapping involving the underlying crimes of

burglary and assault. In Mead, the defendant entered a woman’s home

and confined her for a short period of time by holding a knife to her

throat. Id. at 441–42. We said, “[K]idnapping cannot be predicated on

merely ‘seizing’ another person.”   Id. at 445.   It is a heinous crime to

assault a person by holding a knife at their throat, but the confinement it

created does not render the assault more heinous.

      Overall, the facts in this case were more associated with a shooting

than a kidnapping prior to the shooting.          Moreover, there was no

evidence Sauser confined the victim to purposely make it easier to strike

him with a bullet or to lessen the risk of being detected or to aid in an

escape.     Instead, a fair review of all of the evidence revealed the

confinement was simply the unique facts associated with a particular

shooting and was related to the marital discord leading up to the

shooting.    The shooting was not made substantially more heinous to

support a conviction for kidnapping.

      IV. Conclusion.

      We conclude there was insufficient evidence to trigger a conviction

for kidnapping in this case. We reverse the decision of the district court

and remand the case for further proceedings. If the State is unable to

establish a factual basis, the plea bargain is vacated and the prior charge

is reinstated.

      DECISION OF COURT APPEALS VACATED; DISTRICT COURT

JUDGMENT         REVERSED      AND       REMANDED       FOR     FURTHER

PROCEEDINGS.

      All justices concur except McDonald, J., who takes no part.
