                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1136
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILHELM VONHOFSTEDER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Plymouth County, Edward A.

Jacobson, Judge.



      Wilhelm VonHofsteder appeals his guilty pleas to three counts of sexual

exploitation of a minor and the sentences imposed. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       Wilhelm VonHofsteder appeals his guilty pleas to three counts of sexual

exploitation of a minor and the sentences imposed. He contends, because his

guilty pleas lacked a factual basis, his attorney rendered ineffective assistance by

failing to file a motion in arrest of judgment to challenge the pleas.

I.     Background Facts and Proceedings

       This is VonHofsteder’s second appellate challenge to his guilty pleas. In

his first appeal, a panel of this court explained the procedural history of this

matter as follows:

               On November 2, 2015, Wilhelm VonHofsteder was charged
       in a twelve-count trial information with third-degree sexual abuse,
       indecent contact with a child, assault with intent to commit sexual
       abuse, exhibition of obscene material to a minor, and eight counts
       of sexual exploitation of a minor (possession of a visual medium
       depicting a minor child engaged in a prohibited sexual act).
       Pursuant to a plea agreement, VonHofsteder agreed to plead guilty
       to an amended charge of lascivious acts with a child (count 1) and
       three counts of sexual exploitation of a minor (counts 5, 6, 7). . . .
               At a plea hearing, the prosecutor went over the terms of the
       written plea agreement and those terms were confirmed by the
       defendant and defense counsel, including that written pleas
       concerning the three sexual exploitation counts would be filed.
       VonHofsteder pled guilty to the charge of lascivious acts with a
       child. The court specifically found VonHofsteder’s plea to the
       amended charge of lascivious acts with a child was made
       “voluntarily and intelligently and has a factual basis.” Following that
       guilty plea hearing, VonHofsteder submitted his written guilty pleas
       to three counts of sexual exploitation of a minor. A sentencing
       hearing was held, and the district court imposed consecutive
       sentences for a period not to exceed eleven years in prison.

State v. VonHofsteder, No. 16-0730, 2017 WL 1400895, at *1 (Iowa Ct. App. Apr.

19, 2017).    VonHofsteder appealed, contending his “plea counsel provided

ineffective assistance” concerning the sexual-exploitation-of-a-minor charges “in

failing to ensure the district court . . . discharged its duty to ensure
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VonHofsteder’s written pleas were made voluntarily and had factual bases” and

in failing to file a motion in arrest of judgment to challenge the pleas on the same

grounds. Id. at *1–2; see Iowa R. Crim. P. 2.8(2)(b).

       This court concluded the record failed “to show that the trial court made

the required determinations that a factual basis existed for the written pleas or

that the written pleas were voluntarily and intelligently entered” or accepted by

the court and, as such, “it would be premature for us to determine if a factual

basis existed for the pleas.”        VonHofsteder, 2017 WL 1400895, at *4.

VonHofsteder’s conviction was vacated and the case was remanded “for a

determination of whether a factual basis existed for the written pleas and if they

were freely and voluntarily entered.” Id. The district court was directed that if it

“determines there is a factual basis for the pleas and the pleas were voluntarily

and intelligently entered, the court shall determine if the pleas should be

accepted” and, if so, “the defendant shall be resentenced” but, if not, “the pleas

shall be set aside and shall proceed as if no guilty plea[s] [were] tendered.” Id.

       Procedendo issued on May 24, 2017. Without holding a hearing, on June

9, the district court entered judgment and sentence. In its written order, the court

noted its careful review of the matter, including, but not limited to, the contents of

VonHofsteder’s written waiver of rights and guilty pleas, the plea agreement, and

the contents of the minutes of evidence and its attachments.               The court

determined VonHofsteder’s pleas to be “voluntarily and intelligently made,”

accepted his written waiver of rights and guilty pleas, and concluded factual

bases existed to support all three charges.
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       VonHofsteder appeals, challenging the factual bases underlying all three

sexual-exploitation-of-a-minor charges.

II.    Standard of Review

       “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). “However, if the

guilty plea resulted from ineffective assistance of counsel, the defendant can

challenge the plea under the rubric of ineffective assistance of counsel.” State v.

Weitzel, 905 N.W.2d 397, 401 (Iowa 2017). “Claims of ineffective assistance of

counsel implicate the constitutional right to counsel; therefore, we review the

claim de novo.” State v. Lopez, ___ N.W.2d ___, ___, 2018 WL 672085, at *2

(Iowa 2018).

III.   Analysis

       To succeed on his ineffective-assistance-of-counsel claim, VonHofsteder

“must establish by a preponderance of the evidence that ‘(1) his trial counsel

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

(quoting State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v.

Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice

prong or breach of duty first, and failure to find either one will preclude relief.”

State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872

N.W.2d 159, 169 (Iowa 2015)). If counsel fails to challenge a plea that lacks a

factual basis, then counsel has failed to perform an essential duty and prejudice

is presumed.    See State v. Allen, 708 N.W.2d 361, 368 (Iowa 2006).             Our
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analysis turns on whether VonHofsteder’s pleas were supported by factual

bases.

         In determining whether a factual basis exists, we consider the entire

record before the district court, “including any statements made by the defendant,

facts related by the prosecutor, the minutes of testimony, and the presentence

report,” if any.     State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

VonHofsteder challenges his guilty pleas to three counts of sexual exploitation of

a minor in violation of Iowa Code section 728.12(3) (2015).           The crime is

statutorily defined as follows:

         It shall be unlawful to knowingly purchase or possess a visual
         depiction of a minor engaging in a prohibited sexual act or the
         simulation of a prohibited sexual act. A visual depiction containing
         pictorial representations of different minors shall be prosecuted and
         punished as separate offenses for each pictorial representation of a
         different minor in the visual depiction. However, violations of this
         subsection involving multiple visual depictions of the same minor
         shall be prosecuted and punished as one offense.

Iowa Code § 728.12(3). The definitions section of chapter 728 defines the term

“prohibited sexual act” as, among other things, “[n]udity of a minor for the

purpose of arousing or satisfying the sexual desires of a person who may view a

visual depiction of the nude minor.” Id. § 728.1(7)(g). A “visual depiction” is

defined to include, among other things, any “digital or electronic image.”       Id.

§ 728.1(11).

         The March 2016 plea agreement signed by both VonHofsteder and his

defense counsel provided the following:

         [T]he defendant specifically admits to the following factual basis to
         support his guilty pleas:
                ....
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              B. COUNTS 5, 6, 7 Sexual Exploitation of a Minor: On or
       about July 9, 2015, in Plymouth County, Iowa, the Defendant
       knowingly possessed visual medium (digital images stored on a
       compact disc), showing a person under the age of 18 engaged in
       prohibited sexual acts as defined by Code of Iowa §728.1(7)(g),
       (nudity of a minor for the purpose of arousing or satisfying the
       sexual desires of [] a person who may view the visual depiction)
       and there were three or more separate images of three or more
       different nude minors.

In his three written guilty pleas, VonHofsteder similarly admitted:

       This crime was committed by me on July 9, 2015 . . . in Plymouth
       County, Iowa by doing the following: the Defendant knowingly
       possessed visual medium showing a person under the age of 18
       engaged in prohibited sexual acts as defined by Code of Iowa
       §728.1(7)(g).

       VonHofsteder’s admissions in the plea agreement and written guilty pleas

establish he knowingly possessed visual depictions of “three or more separate

images of three or more different nude minors” and such visual depictions

showed such minors engaging in prohibited sexual acts as defined by the statute.

The statute requires that the “three or more separate images of three or more

different nude minors” be prosecuted and punished as separate offenses. Id.

§ 728.12(3).   “Our cases do not require that the district court have before it

evidence that the crime was committed beyond a reasonable doubt, but only that

there be a factual basis to support the charge.” State v. Finney, 834 N.W.2d 46,

62 (Iowa 2013). Based upon VonHofsteder’s admissions to the court and the

minutes of evidence, we conclude a factual basis existed for each of the three

charges. Because the pleas were supported by factual bases, counsel did not

render ineffective assistance by failing to challenge them by way of a motion in

arrest of judgment. See State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987)

(“[C]ounsel is under no obligation to engage in an obviously useless act.”).
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We affirm VonHofsteder’s convictions and the sentences imposed.

AFFIRMED.
