                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1201
                                  Filed May 17, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SUEZ ANN SMITH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Calhoun County, William C.

Ostlund (plea) and Joel E. Swanson (sentencing), Judges.



      A defendant challenges the factual basis for her guilty plea to going armed

with intent. SENTENCE VACATED AND REMANDED WITH DIRECTIONS.



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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

       During a fight with her boyfriend, Suez Ann Smith drew her Pink Lady .38

special revolver, and as he left her apartment, she fired through the closed door,

barely missing him. The State originally charged her with intimidation with a

dangerous weapon, a class “C” felony. In exchange for her guilty plea, the State

reduced the charge to going armed with intent, a class “D” felony. She now

claims her attorney was ineffective in allowing her to plead guilty when the record

revealed no factual basis to support the “going” element of the amended charge.

Because the existing record does not show the proof of movement necessary to

sustain a conviction for going armed, we vacate Smith’s sentence and remand to

give the State an opportunity to establish a factual basis.

       I.     Facts and Prior Proceedings

       According to the minutes of evidence, A.T. called the Lake City police just

before 3:00 a.m. to report his girlfriend, Smith, “pulled a handgun” on him and

fired a shot in his direction as he was leaving her apartment. Police responded

to the apartment and found “a single bullet hole in the door approx[imately thirty-

six] inches from the floor and right in the middle of the door.”

       Smith admitted firing the shot. She also gave police consent to search her

apartment.    Officers seized the Pink Lady revolver from a case in Smith’s

bedroom closet. They also seized ammunition from the bedroom nightstand.

       The State filed a trial information in October 2015, accusing Smith of

intimidation with a dangerous weapon, in violation of Iowa Code section 708.6

(2015). The minutes of evidence included the expected testimony of A.T. and

police officers who searched Smith’s apartment and heard Smith’s admission to
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shooting the gun. Smith reached a plea agreement with the State in May 2016,

and entered an Alford plea1 to the reduced charge of going armed with intent, in

violation of section 708.8. The sentencing court imposed an indeterminate five-

year prison term. Smith now appeals.

       II.    Standard of Review/Legal Principles for Attacking Plea

       Because ineffective-assistance claims are grounded in the Sixth

Amendment, our review is de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012). Smith bears the burden to prove by a preponderance of the evidence her

plea counsel breached an essential duty and the breach resulted in prejudice.

See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland v.

Washington, 466 U.S. 668, 687–88 (1984)). If counsel permitted Smith to plead

guilty and to waive her right to file a motion in arrest of judgment when the record

revealed no factual basis to support the plea, counsel breached an essential

duty. See State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005). In the absence of a

factual basis, we presume prejudice. See State v. Schminkey, 597 N.W.2d 785,

788 (Iowa 1999). This presumption of prejudice occurs both when the defendant

was charged with the wrong crime and when it is possible the State can establish

a factual basis on remand. See State v. Gines, 844 N.W.2d 437, 441 (Iowa

2014) (remanding to give the State an opportunity to establish a factual basis for

separate acts of intimidation with a dangerous weapon).




1
 When a defendant enters an Alford plea, she does not admit participation in the acts
constituting the crime. See North Carolina v. Alford, 400 U.S. 25, 37–38 (1970). Rather,
she consents to imposition of a sentence based on her belief the State’s evidence is
sufficient for a reasonable jury to convict. See id.
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       III.   Analysis of Factual-Basis Claim

       After bargaining with the prosecutor, Smith entered an Alford plea to going

armed with intent. The legislature defined that crime as follows: “A person who

goes armed with any dangerous weapon with the intent to use without

justification such weapon against the person of another commits a class ‘D’

felony.” Iowa Code § 708.8. On appeal, Smith does not dispute that the Pink

Lady revolver was a dangerous weapon or that she armed herself with the

revolver while harboring the intent to use it without justification against her

boyfriend.2 Her sole objection is to the factual basis for the verb “goes.”

       The “going” element of going armed with intent “necessarily implicates

proof of movement.” See State v. Harris, 891 N.W.2d 182, 186 (Iowa 2017)

(quoting Ray, 516 N.W.2d at 865); see also State v. Pearson, 804 N.W.2d 260,

265 n.1 (Iowa 2011). An armed defendant need not cover any great distance.

See, e.g., Harris, 891 N.W.2d at 187 (finding sufficient movement when

defendant left the inside of bar and waited for victim while leaning against the

outside wall of bar); Pearson, 804 N.W.2d at 265 n.1 (finding movement across

kitchen sufficient); Ray, 516 N.W.2d at 865 (finding movement from house to

front yard sufficient). But some movement is required. See State v. Taylor, 596

N.W.2d 55, 57 (Iowa 1999).

       Smith contends her attorney was remiss in letting her enter an Alford plea

to going armed when nothing in the record available to the plea-taking court

indicated that she made any appreciable movement while armed with the

2
  For this statute, “armed” means to deliberately keep a dangerous weapon “on or about
one’s person, available for immediate use.” See State v. Ray, 516 N.W.2d 863, 865
(Iowa 1994) (citation omitted).
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revolver with the intent to use it against her boyfriend. Without facts to support

such movement, no basis exists for her plea to that crime. See Rhoades v.

State, 848 N.W.2d 22, 29 (Iowa 2014) (reiterating that “[a]t the time of the guilty

plea, the record must disclose facts to satisfy all elements of the offense”).

       Under Iowa Rule of Criminal Procedure 2.8(2)(b), the district court is

required to find the factual basis supporting the plea on the record at the plea

hearing. State v. Finney, 834 N.W.2d 46, 61 (Iowa 2013). When the defendant

raises a challenge to the factual basis for the plea on appeal, “the entire record

before the [plea-taking] court may be examined.” Id. at 62. In looking for a

factual basis, we may consider the prosecutor’s statements, the defendant’s

statements, the minutes of evidence, and the presentence investigative (PSI)

report if it is ready at the time of the plea. Rhoades, 848 N.W.2d at 29. We also

may take judicial notice of any “well-known facts.” Id.

       In this case, where Smith entered an Alford plea and the PSI was not

completed, the only available source of facts is the minutes of evidence. The

minutes reveal Smith and A.T. argued, and according to A.T., Smith “pulled a

handgun” and “fired a shot” toward him. A.T. did not tell police Smith pursued

him through her apartment with the weapon. Smith told police she fired the gun

through the door, but her admission did not include facts to support movement.

The police eventually found the gun in her closet and bullets on her nightstand.

       The State believes two alternative scenarios emerge from the minutes:

“either the defendant had the gun on her person during the entire argument” or

“she went to her bedroom closet to retrieve the weapon during the argument and

then walked back into the main room, where the door was.” The State contends,
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if the second scenario occurred, the “going” element of the crime was satisfied.

The State also argues Smith “could have easily been moving toward the door

when she fired the shot.”

      The evidence before the plea-taking court did not have to prove beyond a

reasonable doubt that Smith committed the crime of going armed; the minutes

only needed to provide “a factual basis to support the charge.” See Finney, 834

N.W.2d at 62. But the State’s speculation regarding how Smith’s conduct may

have satisfied the movement element of going armed is not grounded upon

actual information included in the minutes.    Under these circumstances, we

conclude the record does not show a factual basis for Smith’s plea to the charge

of going armed. See Schminkey, 597 N.W.2d at 792.

      “Where a guilty plea has no factual basis in the record, two possible

remedies exist.” Id. If the State charged Smith with the wrong crime, we must

vacate the judgment of conviction and sentence and remand for dismissal. See

id. But if it is possible the State could show a factual basis, the appropriate

remedy is to vacate the sentence and remand for further proceedings to give the

State an opportunity to establish a factual basis.   See State v. Burtlow, 299

N.W.2d 665, 670 (Iowa 1980). This case falls in the second category.

      We set aside the sentence and remand to give the State a chance to

establish a factual basis for going armed. If the State cannot show a factual

basis, Smith’s plea must be set aside. See Schminkey, 597 N.W.2d at 792. If

that occurs, the State may reinstate the original charge that was dismissed in

contemplation of the plea agreement. See Gines, 844 N.W.2d at 442.

      SENTENCE VACATED AND REMANDED WITH DIRECTIONS.
