                    IN THE COURT OF APPEALS OF IOWA

                                 No. 15-0303
                            Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTONIO CORTEZ WILLIAMSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.




      Antonio Williamson appeals from his convictions following a written guilty

plea for harassment in the first degree and stalking in the first degree.

AFFIRMED.



      Jack E. Dusthimer, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
                                             2


DANILSON, Chief Judge.

       Antonio Williamson appeals from his convictions following his written guilty

plea to first-degree harassment and first-degree stalking, in violation of Iowa

Code sections 708.7(2) and 708.11(3)(c) (2013), asserting counsel rendered

ineffective assistance.     Williamson contends there was an insufficient factual

basis for the first-degree harassment offense and the court failed to ensure he

understood the nature of the charge. Williamson therefore claims counsel was

ineffective in failing to file a motion in arrest of judgment to challenge the guilty

plea on those deficiencies.1 Because there was a sufficient factual basis and the

record establishes Williamson understood the elements of the offense, counsel

did not render ineffective assistance. We affirm.

I. Background Facts and Proceedings.

       This matter arose from Williamson’s actions following the end of a

relationship in late June 2013. For a number of days, Williamson contacted his

former partner via excessive phone calls, text messages, emails, and social-

media posts.     For example, on June 28, 2013, Williamson left approximately

twenty-nine voicemail messages.             Many of Williamson’s messages were

threatening, stating that his former partner wouldn’t “make it to work tomorrow”;

threatening to “go grab this knife”; and threatening, “I’m gonna start with your car

1
  It appears Williamson is also raising issues regarding the failure of the district court to
advise Williamson of the possibility of consecutive sentences and lack of evidence of a
plea colloquy. However, Williamson admits the guilty plea form “appears to mirror Iowa
Rule of Criminal Procedure 2.8 in covering all the required issues.” Because Williamson
acknowledges substantial compliance with rule 2.8, we find counsel was not ineffective
in failing to file a motion in arrest of judgment to challenge these issues. See State v.
Putney, No. 14-0433, 2015 WL 1331837, at *4 (Iowa Ct. App. Mar. 25, 2015) (“[T]here is
evidence in the record that the court substantially complied with the requirements of rule
2.8(2). Therefore his counsel had no duty to move in arrest of judgment on the grounds
alleged.”).
                                           3


and then I’m gonna finish with you.” Williamson also stated, “I’ll be waitin’ on you

in the morning. Me and my knife, bitch.” Williamson sent additional threatening

voicemails and text messages in the following days.

        On July 1, 2013, Williamson’s former partner discovered a rag in the gas

tank of her car and other damage to the vehicle. Fearing attempted arson of her

vehicle, she contacted the police.

        In an interview with police, Williamson admitted he made threats to his

former partner. The officer explained that threatening to kill a person and placing

them in fear of being killed constitutes first-degree harassment.           Williamson

acknowledged he understood why a person might be frightened by the threats he

made.

        Williamson entered a written guilty plea and memorandum of plea

agreement on October 31, 2013. In the written guilty plea, Williamson stated:

        By pleading guilty, I am admitting that there is a factual basis for the
        charge(s), and admitting that at the time and place charged in the
        Trial Information I [o]n or about 6/22/13, in Scott Co[unty], Iowa, . . .
        did purposefully & w[ith]out legitimate purpose contact another by
        cell phone w[ith] threat to commit a forcible felony. On or about
        6/28/13, in Scott Co[unty], Iowa, I did stalk another by repeatedly
        text[ing] & call[ing] w[ith]out legitimate purpose & convey [an] oral
        threat.

        Also on October 31, 2013, Williamson entered his consent to waive his

presence at the sentencing hearing, stating in part, “I acknowledge that I have

read the Minutes of Testimony which are substantially correct and I admit that

there is a factual basis for the charge(s) against me.”

        The court entered the judgment and sentence on February 7, 2014. The

judgment and sentence were subsequently vacated. On February 6, 2015, the
                                            4


district court held a re-sentencing hearing and entered the sentencing order.

Williamson appeals from the 2015 sentencing order.2

II. Standard of Review.

       We review ineffective-assistance-of-counsel claims de novo.               State v.

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). “To establish a claim of ineffective

assistance, [the defendant] must demonstrate (1) his 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).              Generally, we prefer to reserve

ineffective-assistance claims for postconviction proceedings, but “depart from this

preference in cases where the record is adequate to evaluate the appellant’s

claim.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We find the record is

adequate to address Williamson’s claims.

III. Analysis.

       Williamson contends there was an insufficient factual basis to support the

forcible-felony element3 of the first-degree-harassment charge and the court did

not ensure his understanding of the forcible-felony element, rendering his plea




2
  We note Williamson did not raise the issues asserted in this appeal in the appeal from
the February 7, 2014 judgment and sentence. However, the prior sentence was vacated
for noncompliance with Iowa Code section 903.1(2) and other applicable sentencing
statutes. “A sentence not permitted by statute is void. Void sentences are not subject to
the usual concepts of waiver, whether from a failure to seek review or other omissions of
error preservation.” State v. Hallock, 765 N.W.2d 598, 602 (Iowa 2009) (internal
citations omitted). We will address the issues raised in this appeal from the February 6,
2015 sentencing order.
3
  “A ‘forcible felony’ is any felonious child endangerment, assault, murder, sexual abuse,
kidnapping, robbery, human trafficking, arson in the first degree, or burglary in the first
degree.” Iowa Code § 702.11.
                                          5


unintelligent and involuntary.4    Williamson claims counsel was ineffective for

failing to file a motion in arrest of judgment to raise these issues.

       The district 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). “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. Schminkey, 597 N.W.2d 785, 788 (Iowa

1999). However, “counsel has no duty to raise an issue that has no merit.” State

v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009).

       A. Factual Basis. In considering whether there was a sufficient factual

basis to support the charge, we look to the entire record. State v. Finney, 834

N.W.2d 46, 62 (2013) (“On a claim that a plea bargain is invalid because of a

lack of accuracy on the factual-basis issue, the entire record before the district

court may be examined.”). We find the record contains sufficient evidence to

support a factual basis for the forcible-felony element of the first-degree-

harassment charge.

       The record includes excerpts from a number of Williamson’s voicemails

and text messages to his former partner threatening violence that rises to the

level of assault or possibly murder. And in the guilty plea, Williamson stated he

threatened to commit a forcible felony through cell phone and text message

communications. There was a clear factual basis for the forcible-felony element

in the record.


4
  Williamson concedes there is a sufficient factual basis for the first-degree stalking
charge.
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       B.   Williamson’s Understanding of the Factual Basis.        The minutes of

testimony also support Williamson’s subjective understanding5 of the forcible-

felony element of the first-degree-harassment offense. During an interview with

an officer, the officer clearly explained to Williamson that threatening to kill a

person rises to the level of first-degree harassment.        Williamson expressed

understanding of this explanation, admitted he had threatened his former partner,

and stated he understood why the threats he made would place his former

partner in fear. Although we would ordinarily expect defense counsel to provide

the explanation, here the officer was correct in his explanation as it related to the

facts, and Williamson cannot now deny that he understood the forcible-felony

element. The facts in the record—along with Williamson’s written guilty plea—

establish he adequately understood the nature of the first-degree harassment

charge.

       We find the record establishes a sufficient factual basis and Williamson’s

understanding of the elements of the first-degree-harassment charge.           Thus,

counsel did not breach an essential duty by failing to file a motion in arrest of

judgment, and we affirm the district court’s judgment and sentence.

       AFFIRMED.




5
  See Finney, 834 N.W.2d at 53 (noting a defendant must subjectively understand the
elements of the charge in order to enter an intelligent and voluntary guilty plea).
