                    IN THE COURT OF APPEALS OF IOWA

                                 No. 15-1835
                              Filed April 6, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KRISTI SUE DEMPSEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Douglas C.

McDonald, Judge.




      Kristi Dempsey appeals the judgment and sentence entered following her

guilty plea for possession of cocaine. AFFIRMED.




      Lauren M. Phelps of Lauren M. Phelps, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Kristi Dempsey pled guilty to possession of cocaine, first offense. The

district court sentenced her to serve 120 days in jail but suspended the sentence

and placed her on probation.

       On appeal, Dempsey contends (1) her plea attorney was ineffective in

(a) failing to challenge the factual basis for the plea and (b) failing to argue the

plea was unknowing and involuntary, and (2) the district court abused its

discretion in failing to grant her a deferred judgment.

I.     Ineffective Assistance of Counsel

       Generally, we do not decide ineffective-assistance-of-counsel claims on

direct appeal but reserve them for postconviction proceedings. State v. Tate,

710 N.W.2d 237, 240 (Iowa 2006). “However, we depart from this preference in

cases where the record is adequate to evaluate the appellant’s claim.” Id.

       Dempsey and the State agree the record is inadequate to address her

claim that the plea was unknowing and involuntary. Accordingly, we preserve

that claim for postconviction relief.         The record is adequate to address

Dempsey’s factual-basis claim. See State v. Schminkey, 597 N.W.2d 785, 788

(Iowa 1999). We proceed to the merits of that claim.

       To prove ineffective assistance, Dempsey must establish the breach of an

essential duty and prejudice. See Strickland v. Washington, 466 U.S. 668, 687

(1984).   “If trial counsel permits a defendant to plead guilty and waives the

defendant’s right to file a motion in arrest of judgment when there is no factual

basis to support the defendant’s guilty plea, trial counsel breaches an essential

duty” and “we presume prejudice.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa
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2014). Conversely, if there is a factual basis to support a plea, the ineffective-

assistance claim must fail. See State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa

2011). “At the time of the guilty plea, the record must disclose facts to satisfy all

elements of the offense.” Rhoades, 848 N.W.2d at 29.

       The elements of this offense are knowing or intentional possession of a

controlled substance (cocaine) unless the substance was obtained directly from,

or pursuant to a valid prescription or as otherwise authorized by the chapter.

See Iowa Code § 124.401(5) (2013).           A first-offense violation is a serious

misdemeanor. Id.

       Dempsey made the following attestation in her written guilty plea: “I had in

my home a substance I knew to be powder cocaine in my home without

authorization or prescription in Scott County, Iowa.”        This attestation alone

arguably establishes a factual basis for the possession charge.           However,

Dempsey contends the cocaine could have been her husband’s because it was

found in a “jointly occupied” area of their apartment. Her argument is based on

the distinction our courts have made between actual and constructive possession

of drugs. See, e.g., State v. Reed, ___ N.W.2d ___, ___, 2016 WL 756680, at

*10-15 (Iowa 2016); State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013); State v.

Bash, 670 N.W.2d 135, 137-38 (Iowa 2003).            But those opinions resolved

challenges to the sufficiency of the evidence underlying findings of guilt. When

evaluating challenges to the factual basis for a plea, “we do not require the

record to show the totality of evidence necessary to support a guilty conviction.”

Rhoades, 848 N.W.2d at 29 (citation omitted).
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       This record includes much more than Dempsey’s acknowledgment in her

written plea. A Scott County deputy sheriff attested he saw Dempsey and her

husband meet with a suspected drug dealer, and Dempsey’s husband admitted

to being with her when the cocaine was purchased.           In detailed minutes of

testimony, the same deputy who signed the affidavit described seeing a man and

woman in the suspected drug dealer’s vehicle.           The deputy recounted a

confidential informant’s statement that both Dempsey and her husband were

crack-cocaine addicts.    A neighbor told the deputy that Dempsey and her

husband obtained crack almost every day.         Finally, with Dempsey and her

husband’s consent, the deputy entered their apartment and found cocaine

underneath the bathroom sink. In short, the record was replete with information

supporting the elements of the crime.

       Dempsey attempts to impugn the reliability of some of this information.

She argues the confidential informant’s information was dated and was hearsay,

and the neighbor to whom the deputy spoke had a grudge against her for using a

racial slur.   Dempsey cites no authority requiring a court to reject certain

information supporting a factual basis simply because a fact-finder might reject

the evidence at trial. In fact, we have an obligation to review the entire record to

determine whether there is an objective factual basis for the crime. See State v.

Finney, 834 N.W.2d 46, 62 (Iowa 2013). The statements cited by the deputy

sheriff together with the discovery of cocaine, the deputy’s observations, and

Dempsey’s plea statement provide a factual basis for the plea to possession of a

controlled substance.    Accordingly, counsel was not ineffective in failing to

challenge the plea on this ground.
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II.   Sentence

      Dempsey next contends the district court abused its sentencing discretion

in failing to grant her a deferred judgment. A deferred judgment is a sentencing

option that can be imposed in the discretion of the court. See State v. Soppe,

374 N.W.2d 649, 653 (Iowa 1985). The provision “authorizes the court, with the

defendant’s consent, to defer judgment and place the defendant on probation.”

State v. Keutla, 798 N.W.2d 731, 734 (Iowa 2011) (emphasis added).            The

record contains no evidence Dempsey consented to a deferred judgment; her

plea agreement simply listed “120 days suspended, $315.00 fine” as the

“sentencing concessions.” While the plea agreement was not binding on the

court, we can discern no abuse of discretion in the court’s decision to accept the

sentencing concessions agreed to by Dempsey rather than imposing a deferred

judgment she did not agree to.

      We affirm Dempsey’s judgment and sentence for possession of cocaine.

      AFFIRMED.
