                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0253
                             Filed October 24, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CARMEN LEDESMA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Henry County, John M. Wright,

Judge.



      The defendant challenges her conviction and sentence for arson in the

second degree. CONVICTION AFFIRMED, SENTENCE VACATED IN PART,

AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
                                          2


McDONALD, Judge.

       In this direct appeal, Carmen Ledesma challenges her conviction and

sentence for arson in the second degree, in violation of Iowa Code sections

712.1(1) and 712.3 (2017). On appeal, Ledesma contends her guilty plea lacked

a factual basis and her conviction must be vacated. She also contends the district

court’s order of restitution is not supported by the evidence. We address each

claim in turn.

                                          I.

       We first address the defendant’s challenge to her guilty plea. As a general

rule, “[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

challenge on appeal.” Iowa R. Crim. P. 2.24(3)(a). It is not disputed Ledesma

failed to file a motion in arrest of judgment. Thus, her direct challenge to her guilty

plea is barred.

       Ledesma acknowledges her direct challenge to her guilty plea is barred, but

she indirectly asserts her challenge within the framework of a claim of ineffective

assistance of counsel. See State v. Straw, 709 N.W.2d 128, 132-33 (Iowa 2006)

(holding the failure to file a motion in arrest of judgment “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”). Although a claim of ineffective assistance of

counsel is frequently categorized as an exception to error preservation rules, that

categorization is not entirely accurate. “Ineffective assistance of counsel . . . is a

stand-alone constitutional claim attacking the performance of a criminal

defendant’s counsel.” State v. Johnson, 416 P.3d 443, 451 (Utah 2017). “While
                                         3


such a claim necessarily requires the court to look at the substantive issue the

defendant argues his counsel should have raised, and whether the substantive

issue had any merit, the substantive issue is only viewed through the lens of

counsel’s performance.” Id. Typically, this court, as a court of error correction,

would not address a claim not presented to the district court or an error not

preserved in the district court. See Iowa Code § 602.5103(1) (providing the court

of appeals “constitutes a court for correction of errors at law”); Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review

that issues must ordinarily be both raised and decided by the district court before

we will decide them on appeal.”). However, the Code specifically authorizes this

court to address a claim of ineffective assistance of counsel on direct appeal from

criminal proceedings. See Iowa Code § 814.7(2) (“A party may, but is not required

to, raise an ineffective assistance claim on direct appeal from the criminal

proceedings if the party has reasonable grounds to believe that the record is

adequate to address the claim on direct appeal.”). Because the Code authorizes

our review of a constitutional claim of ineffective assistance of counsel on direct

appeal from a criminal proceeding, we proceed to the merits.

       “The person claiming that her trial attorney was ineffective, depriving her of

her Sixth Amendment right to counsel, must show that (1) counsel failed to perform

an essential duty, and (2) prejudice resulted therefrom.” Taylor v. State, 352

N.W.2d 683, 684-85 (Iowa 1984) (altered for readability). A defendant must prove

these elements by a preponderance of the evidence. See id. at 685. “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.
                                           4

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Prejudice is inherent where the

guilty plea is not supported by a factual basis. See id.

       “The court . . . shall not accept a plea of guilty without first determining that

the plea is made voluntarily and intelligently and has a factual basis.” Iowa R.

Crim. P. 2.8(2)(b); accord State v. Ortiz, 789 N.W.2d 761, 767 (Iowa 2010). In

determining whether a guilty plea has a factual basis, “this jurisdiction has no

requirement that [the] trial court must in all cases wring from defendant a detailed

confession satisfying each element of the offense charged.” State v. Hansen, 221

N.W.2d 274, 276 (Iowa 1974). The court can find a factual basis by “(1) inquiring

of the defendant, (2) inquiring of the prosecutor, and (3) examining the

presentence report.” State v. Finney, 834 N.W.2d 46, 56 (Iowa 2013). In addition,

the district court may look to the minutes of evidence where the minutes are

acknowledged during the plea colloquy. See id. at 57. The relevant inquiry is

whether the record before the district court supports a factual basis for each

element of the offense. See Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014);

State v. Amadeo, No. 11-1426, 2012 WL 2122262, at *3-4 (Iowa Ct. App. June 13,

2012) (collecting cases).

       We 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. Provided, that where a person
       who owns said property which the defendant intends to destroy or
       damage, or which the defendant knowingly endangers, consented to
       the defendant’s acts, and where no insurer has been exposed
       fraudulently to any risk, and where the act was done in such a way
                                         5


       as not to unreasonably endanger the life or property of any other
       person the act shall not be arson.

Iowa Code § 712.1(1). “Arson which is not arson in the first degree is arson in the

second degree” if the property in question is worth more than $500. See Iowa

Code § 712.3. As relevant here, the uniform criminal jury instruction sets forth the

elements of arson in the second degree as follows: (1) That the defendant caused

a fire or explosion in or near property or placed a burning, combustible, incendiary,

or explosive material or device in or near property; (2) The material was a

combustible, incendiary or explosive material or device; (3) The defendant

intended to destroy or damage the property; (4) the property was personal

property, and (5) the identified property’s value exceeded $500. See Iowa State

Bar Ass’n, Iowa Crim. Jury Instruction 1200.3 (identifying elements for arson in the

second degree).

       We have little trouble concluding there is a factual basis to support each of

the preceding elements. The record reflects Ledesma’s son was a suspect in a

murder case and Ledesma set fire to his car, most likely to destroy evidence in the

murder investigation. She was charged with arson in the second degree and as

an accessory to murder. To resolve the charges, she pleaded guilty to arson in

the second degree. The relevant plea record shows there were towels and rags

in the vehicle and Ledesma used incendiary material—petroleum distillate,

including mineral spirts, special industrial solvents, and charcoal starters—to set

the car on fire with the intent to destroy it. This finding was supported by the

minutes of evidence, a forensic report, and the plea colloquy:

       THE COURT: Ms. Ledesma, did you hear the statement of facts that
       Mr. McDonald placed on the record?
                                          6


       THE DEFENDANT: Yes.
       THE COURT: Do you dispute anything that he said?
       THE DEFENDANT: No.
       THE COURT: Do you agree then that on February 12 of 2017 here
       in Henry County you started a fire as he described in this 2006
       Impala?
       THE DEFENDANT: Yes.
       THE COURT: And did you know at that time that it would probably
       be destroyed or damaged?
       THE DEFENDANT: Yes.
       THE COURT: Did you do it with the intent to destroy or damage the
       car?
       THE DEFENDANT: Yes.
       THE COURT: Do you agree that that car at the time had a value in
       excess of $500?
       THE DEFENDANT: Yes.

The defendant’s admissions in conjunction with the remaining plea record are

sufficient to support a factual basis for the plea. See Ortiz, 789 N.W.2d at 768.

       Ledesma does not contest the record establishes a factual basis for each

of the preceding elements. Instead, she contends the State was also required to

establish, as an element of the offense, the owner of the property did not consent

to the defendant’s acts. In support of her argument, Ledesma relies on the second

sentence of the statutory definition of arson:

       Provided, that where a person who owns said property which the
       defendant intends to destroy or damage, or which the defendant
       knowingly endangers, consented to the defendant’s acts, and where
       no insurer has been exposed fraudulently to any risk, and where the
       act was done in such a way as not to unreasonably endanger the life
       or property of any other person the act shall not be arson.

Iowa Code § 712.1 (emphasis added). The State contends the property owner’s

lack of consent to the defendant’s acts is not an element of the offense. Instead,

the State contends, the property owner’s consent to the defendant’s acts is an

affirmative defense, which need not be addressed as part of the factual basis in

the plea proceeding.
                                          7


       In reviewing the party’s arguments and the relevant authorities, we conclude

the State has the better of the argument. The State’s interpretation of the statute

is supported by case law. In State v. TeBockhorst, 305 N.W.2d 705 (Iowa 1981),

the supreme court categorized the owner’s consent as an affirmative defense.

Specifically, the supreme court stated, “In defending the charge, defendant . . .

contended he owned the van and it was not insured . . . .” Id. at 706 (emphasis

added). The opinion went on to describe consent as the “ownership defense.” Id.

at 707. The supreme court’s conclusion that owner’s consent is a defense is

supported by persuasive authorities. See People v. White, 317 N.E.2d 273, 274

(Ill. App. Ct. 1974) (“Thus it appears that the legislature did not intend to introduce

a new element into the statutory definition of arson by inserting the phrase ‘without

his consent’, and that the statutory plan contemplates that ‘consent’ is an

affirmative defense.”); State v. Janvrin, 441 A.2d 1144, 1145 (N.H. 1982) (holding

owner’s consent “is an affirmative defense and must be asserted by the defendant”

in arson case).

       This understanding of the statute is buttressed by the uniform criminal jury

instruction.   As noted above, the uniform jury instructions set forth only five

elements to establish arson in the second degree. The instructions also provide

that a court ought to instruct on the issue of consent only if the defendant raises

the affirmative defense. See Iowa State Bar Ass’n, Iowa Crim. Jury Instruction

1200.3 (6) (“Use this paragraph only if affirmative defense of consent is raised by

the defendant and supported by the evidence.”). The uniform jury instruction is not

binding, but they are entitled to respectful consideration. See State v. Ambrose,

861 N.W.2d 550, 559 (Iowa 2015) (“Normally, we are slow to disapprove the
                                         8

uniform jury instructions.”); Ness v. H.M. IItis Lumber Co., 128 N.W.2d 237, 240

(Iowa 1964) (“We disagree with one of these uniform instructions reluctantly.”).

        Because owner consent is an affirmative defense to and not an element of

the offense of arson, there was no need to establish a factual basis with respect to

this issue.   “We consistently have ruled, on common-law grounds, that an

affirmative defense places the burden of going forward with evidence, or

production, on the defendant, but leaves the burden of persuasion on the

prosecution.” State v. Wilt, 333 N.W.2d 457, 462 (Iowa 1983); accord State v.

Lawler, 571 N.W.2d 486, 489 (Iowa 1997). At that point, the burden returns to the

State to disprove the defense beyond a reasonable doubt.           See Lawler, 571

N.W.2d at 489. A guilty plea waives any defense to the charge. See State v.

LaRue, 619 N.W.2d 395, 398 (Iowa 2000). Thus, owner’s consent is not implicated

here.

        We hold that the property owner’s consent to the defendant’s acts is an

affirmative defense to the charge of arson on which the defendant has the burden

of production. Because owner’s consent is not an element of the offense, there

was no need to make a factual basis on this point. See, e.g., State v. Spencer,

No. 12-1329, 2013 WL 264214, at *2 (Iowa Ct. App. Jan. 24, 2013) (holding state

was not required to establish no factual basis for justification defense to assault

charge). Counsel thus had no duty to file a motion in arrest of judgment to

challenge the factual basis for the guilty plea. See State v. Arterburn, No. 16-2122,

2017 WL 4050173, at *4 (Iowa Ct. App. Sept. 13, 2017) (“Under the circumstances,

there was a factual basis for the plea, and counsel was not ineffective in failing to
                                          9


challenge the guilty plea proceeding on this ground.”). The defendant has not

established an entitlement to relief on this claim.

                                          II.

       Ledesma also challenges the restitution ordered.            Specifically, she

challenges the district court’s order that she pay restitution in the amount of $500

to the New London Fire Department. We review restitution orders for correction of

errors at law. See State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001).

       Offenders must pay pecuniary damages to the “victims of the offender’s

criminal activities.” Iowa Code § 910.2(1). Iowa Code Section 910.1(5) defines a

“victim” as “a person who has suffered pecuniary damages as a result of the

offender’s criminal activities.” Pecuniary damages are damages a victim could

recover in civil suit. See Iowa Code § 910.1(3). A governmental entity can be a

victim eligible for restitution. See State v. Hagen, 840 N.W.2d 140, 147 (Iowa

2013) (providing the statutory term “person” includes the government pursuant to

Iowa Code section 4.1); State v. Taylor, 506 N.W.2d. 767, 768 (Iowa 1993); State

v. Wagner, 484 N.W.2d 212, 214 (Iowa Ct. App. 1992).

       The State correctly concedes the restitution order is not supported and must

be vacated. In this case, the record does not establish the fire department suffered

“pecuniary damages” that would qualify it as a restitution-eligible victim within the

meaning of the Code. We thus vacate that part of the district court’s judgment.

                                         III.

       The defendant failed to establish her counsel breached an essential duty in

not filing a motion in arrest of judgment to challenge the factual basis of her guilty

plea. We thus affirm the defendant’s conviction. The district court’s order of
                                        10


restitution in the amount of $500 to the New London Fire Department is not

supported by the record. We vacate that portion of the order and remand this

matter for the entry of a corrected sentencing order. We do not retain jurisdiction.

      CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED.
