                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0549
                            Filed December 10, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TAMMY JENE WRIGHT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      Tammy Wright appeals following the district court’s sentencing on her plea

of guilty to one count of second-degree robbery. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, John P. Sarcone, County Attorney, and Nan M. Horvat and Olu Salami,

Assistant County Attorneys, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                           2


POTTERFIELD, J.

       Tammy Wright appeals following the district court’s sentencing on her plea

of guilty to one count of second-degree robbery.

       I. Factual and Procedural Background

       On July 17, 2013, Wright drove her adult son to a local pharmacy for the

purpose of obtaining pain medication by placing the pharmacy employees in fear.

She dropped her son off in front of the pharmacy. He entered the store wearing

a hooded sweatshirt and latex gloves and gave the clerk a note which read,

“Oxycodone 15s 30s quickly & quietly no one gets hurt.” The clerk complied, and

the son left the store. Wright was waiting to pick him up after the robbery was

completed.

       On September 23, 2013, Wright again drove her son to the same

pharmacy for the same purpose.          The son entered the pharmacy wearing a

hooded sweatshirt, gloves, and a mask. He announced, “I told you I’d be back.”

He handed the clerk another note which read, “Oxycodone 30 and 15. Rush.”

The clerk again complied, and the son left the store. Again, Wright was waiting

to pick him up.

       On November 11, 2013, the State charged Wright by trial information with

two counts of aiding and abetting second-degree robbery,1 one count for each



1
   “A person commits a robbery when, having the intent to commit a theft, the
person . . . to assist or further the commission of the intended theft or the person’s
escape from the scene thereof . . . [t]hreatens another with or purposely puts another in
fear of immediate serious injury.” Iowa Code § 711.1 (2013). “All persons concerned in
the commission of a public offense, whether they directly commit the act constituting the
offense or aid and abet its commission, shall be charged, tried and punished as
principals.” Id. § 703.1. “Robbery in the second degree is a class ‘C’ felony.” Id.
§ 711.3.
                                               3


incident in July and September. Pursuant to a plea negotiation, Wright agreed to

plead guilty to the second count in exchange for the dismissal of the first.

        On February 11, 2014, the district court conducted a colloquy and

accepted Wright’s guilty plea.           The court explicitly informed Wright of the

elements of the offense and the mandatory sentence of incarceration. On March

26, 2014, the district court sentenced Wright to the mandatory indeterminate ten-

year sentence under Iowa Code sections 902.9(1)(d), 702.11, and 907.3.2

Pursuant to Iowa Code section 902.12(5), the court imposed the mandatory

minimum sentence of seven years, during which Wright is not eligible for parole

or work release.3

        Wright appeals. She claims she suffered ineffective assistance of counsel

during the negotiations and entry of her guilty plea.                 She also claims her

sentence is an unconstitutionally cruel and unusual punishment.

        II. Standard and Scope of Review

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

Finney, 834 N.W.2d 46, 49 (Iowa 2013). We review claims of cruel and unusual

punishment, in violation of the United States Constitution and the Iowa

Constitution, de novo. State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).




2
  “A class ‘C’ felon, not an habitual offender, shall be confined for no more than ten
years . . . .” Iowa Code § 902.9(d). “A ‘forcible felony’ is any felonious . . . robbery . . . .”
Id. § 702.11. A trial court’s discretion to defer judgment or defer or suspend a sentence
“does not apply to a forcible felony.” Id. § 907.3.
3
  “A person serving a sentence for conviction of [second-degree robbery] . . . shall be
denied parole or work release unless the person has served at least seven-tenths of the
maximum term of the person’s sentence . . . .” Iowa Code § 902.12.
                                          4


       III. Discussion

       A. Guilty Plea

       “Although   we    normally   preserve    ineffective-assistance   claims   for

postconviction-relief actions, we will address such claims on direct appeal when

the record is sufficient to permit a ruling.” Finney, 834 N.W.2d at 49. We find

this record is sufficient to address the issue on direct appeal.

       Wright must show that (1) counsel breached an essential duty and

(2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

We begin by presuming counsel rendered competent representation, and the

challenging defendant bears the burden of overcoming that presumption. See

Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008).

       Even if Wright overcomes our presumption that counsel did not breach an

essential duty, she must then satisfy the prejudice requirement by demonstrating

“there is a reasonable probability that, but for the counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at

694; see State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008). If either prong is

not satisfied, we will reject the ineffective-assistance claim. Anfinson v. State,

758 N.W.2d 496, 499 (Iowa 2008).

       Wright claims her counsel was required either to prevent her from

pleading guilty or to move in arrest of judgment prior to sentencing. She believes

these steps were required of her counsel for two reasons: first, there was not a
                                              5


factual basis to support her plea of guilty; second, the plea was not voluntarily

made.4

       “The law requires that the factual basis for [a guilty] plea be disclosed in

the record.”     State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011).                   Each

element of the offense must be supported. State v. Ortiz, 789 N.W.2d 761, 768

(Iowa 2010). However, “[o]ur cases do not require . . . evidence that the crime

was committed beyond a reasonable doubt, but only that there be a factual basis

to support the charge.” Finney, 834 N.W.2d at 62.

       Wright argues one essential element of the crime is not supported by the

record: her son’s appearance and threatening note placed the employees of the

pharmacy in fear of immediate serious injury.5 We disagree. The record shows

during the first robbery, Wright’s son gave the victims a note which read,

“Oxycodone 15s 30s quickly & quietly no one gets hurt.” When they returned

and perpetrated the second robbery, the son—wearing a hooded sweatshirt,

gloves, and a mask—told the victims, “I told you I’d be back.” The implication

clearly intended by Wright’s son in addressing the victims during both incidences

is that he would seriously injure the victims if they failed to comply.6


4
  “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(b).
5
  The relevant statute reads: “A person commits a robbery when, having the intent to
commit a theft, the person . . . to assist or further the commission of the intended
theft . . . [t]hreatens another with or purposely puts another in fear of immediate serious
injury.” Iowa Code § 711.1(b).
6
  An inference may stand as a sufficient factual basis. See State v. Heard, 636 N.W.2d
227, 232 (Iowa 2001) (holding a fact finder may infer the necessary elements of robbery
by placing another in fear of injury from both verbal and nonverbal actions). We are not
persuaded by Wright’s argument that Heard’s use of inference does not apply here. As
in Heard, a robber in disguise entered a place of business and demanded an employee
hand over money or drugs. The Heard court contemplates the evidentiary value of
inferences derived from a robber’s demand of compliance from the victim. Id. at 231–32.
                                           6


       There is a sufficient factual basis for Wright’s guilty plea. Her counsel

therefore was under no duty to prevent her from pleading guilty or to move in

arrest of judgment.

       Wright argues her plea was involuntary because the trial information was

deficient. The trial information cited to Iowa Code section 711.1, alleged the

victims were placed in fear, but failed to include the phrase “immediate serious

injury” from the statute. Based on her perceived deficiency in the State’s charge,

Wright asserts she did not realize “her conduct did not actually fall within the

crime charge[d]” and she did not have “an understanding of the law in relation to

the facts.”

       However, the trial information was sufficient to charge Wright with the

crime. “Iowa courts consider both the . . . information and the minutes filed when

determining the adequacy of the allegations to apprise the accused of the crime

charged.”7 State v. Grice, 515 N.W.2d 20, 23 (Iowa 1994). The minutes of

testimony contain statements by Eric and Libby VanHeukelom, the owners of the

pharmacy, and Kelly Gunderson, one of their employees. The VanHeukeloms

were present for both robberies and would testify “that they were in fear of their

physical safety and felt they had no choice but to turn over the narcotics.”




Heard does not limit the inferential value of the act of demanding compliance to assault.
See id.
7
  We recognize our supreme court has held, “Reference to the minutes of testimony is
irrelevant for the purposes of the voluntariness inquiry if the record does not show that
the minutes were reviewed and accepted as true on the record by the defendant.”
Finney, 834 N.W.2d at 55. However, in our analysis, we do not use the minutes to
establish the voluntary nature of Wright’s plea. We refer to the minutes to establish the
crime was properly charged, the charge matched Wright’s conduct, and the State
provided adequate notice to Wright of both the law and the facts.
                                          7


Gunderson, who was present during the July robbery, would testify “that she was

in fear of immediate serious injury to herself or her colleagues.”

       Taken together, the two charges included in the trial information and the

minutes of testimony properly “apprise the accused of the crime charged.” Id.

Wright’s conduct did fall within the crime charged, so she may not rely on an

alleged deficiency in the charging documents to claim she was unaware the

crime included the element that the victims were placed in fear of serious injury.

       Her claim that she did not voluntarily plead guilty is further belied by the

record: there is a factual basis for the victims’ fear of “immediate serious injury,”

and such injury was expressly discussed prior to the district court’s acceptance of

the plea. Wright’s counsel included the statutory language at the outset of his

statements to the court,8 and Wright herself admitted that her son’s actions would

have put the victims “in fear of serious injury.” 9 Based on the sufficient factual

basis for the charge in this case, the district court properly found Wright

“possesse[d] an understanding of the law in relation to facts.” See Finney, 834

N.W.2d at 61. Based on the record of the plea colloquy, Wright’s subjective state

of mind renders her guilty plea knowing and voluntary. See id. at 55.


8
  Wright’s counsel stated to the court:
       [Wright] would acknowledge that on or about September 23, 2013, while
       in Polk County, Iowa, she did aid and abet her son, her co-defendant, in
       the commission of second degree robbery, that she did drive her son to a
       Medicap pharmacy . . . knowing that her son would go into the pharmacy
       while having the specific intent to commit a theft and that during the
       commission of this theft, he did don guise and place the employees at the
       Medicap pharmacy in fear of immediate serious injury.
9
  The plea colloquy included the following exchange between the court and Wright:
               Q: Would you agree that by going in, trying to disguise himself
       and demanding prescription medication, not paying for it from the
       Medicap employees would have placed them in fear of serious injury?
               A: Yes.
                                           8


       Because Wright’s guilty plea is supported by a factual basis and because

she pleaded voluntarily, her counsel was under no duty to prevent her from doing

so or to move in arrest of judgment. “[C]ounsel has no duty to raise an issue that

has no merit.” State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). Wright has

not met her burden to show a breach of an essential duty by her counsel and is

therefore not entitled to the corresponding relief.

       B. Sentence

       Both the United States Constitution and the Iowa Constitution prohibit the

infliction of cruel and unusual punishment. See U.S. Const. amend. VIII; Iowa

Const. art. 1, § 17.     Wright contends her ten-year sentence coupled with a

seventy-percent mandatory minimum is cruel and unusual as applied to her

unique circumstances.10

       For a sentence of years to be considered cruel and unusual, it must be

grossly disproportionate to the crime for which it is imposed.11 Bruegger, 773

N.W.2d at 873 (citing Rummel v. Estelle, 445 U.S. 263, 271 (1980)).                 “[A]

sentence for a term of years within the bounds authorized by statute is not likely

to be ‘grossly disproportionate’ . . . .” Id. (citing Ewing v. California, 538 U.S. 11

(2003); Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 227



10
   “Under an as-applied attack, a criminal statute imposing a certain sentence is not
facially invalid in all circumstances, but only as applied under the facts and
circumstances in a particular case.” Bruegger, 773 N.W.2d at 880.
11
   If the reviewing court makes a preliminary determination that a sentence casts an
impression of gross disproportionality, it will then go on to evaluate whether that
impression is borne out by comparison to other sentences within the same state—an
intrajurisdictional analysis—and to sentences for the same crime in other jurisdictions—
an interjurisdictional analysis. Bruegger, 773 N.W.2d at 873. If the sentence does not
pass the threshold of potentially grossly disproportionate, we need not undertake these
additional analyses. See id.
                                         9


(1983)).    “[L]egislative determinations of punishment are entitled to great

deference.” Id. at 872–73.

       Wright claims her seven-year mandatory minimum sentence is grossly

disproportionate to her crime. In support of her claim, she notes the statutory

provisions applicable to her case are extremely broad, which has caused her

offense to be statutorily equated to more egregious offenses.         The robbery

provision of Iowa Code section 711.1, she claims, could apply to a shoplifter

hurriedly pushing past a clerk or a team of bank robbers causing major physical

injuries to tellers.   The mandatory minimum provision of section 902.12, she

notes, applies to severe offenses like second-degree murder, attempted murder,

and vehicular homicide. The forcible felony provisions of sections 702.11 and

907.3, which make a term of imprisonment for Wright mandatory, put second-

degree robbery in the same category as child endangerment, murder, and sexual

abuse.

       However, the breadth of these provisions does not render their application

to Wright’s case grossly disproportionate to her crime.       To the contrary, the

interplay of these provisions demonstrates our legislature’s policy determination

that perpetrators of second-degree robbery—and their aiders and abettors—are

subject to harsh penalties to deter those who would consider engaging in such

societally harmful behaviors. Further, our supreme court has acknowledged that

mandatory minimums do not create grossly disproportionate sentences even for

second-degree robbery. State v. Phillips, 610 N.W.2d 840, 843–44 (Iowa 2000).

       Wright’s lack of criminal history and her motivation for assisting her son in

the crime—i.e. drug addiction—are not sufficient mitigating circumstances to
                                          10


overcome the deference we give our legislature in crafting proper sentencing

provisions. Wright has not persuaded us that her sentence should satisfy the

threshold determination of gross disproportionality to warrant further analysis.

See Bruegger, 773 N.W.2d at 873. We therefore affirm her sentence.

       IV. Conclusion

       Our record is sufficient to determine whether Wright’s counsel rendered

ineffective assistance. It shows Wright’s guilty plea was supported by a factual

basis and was voluntarily made after Wright was given explicit notice of the

elements of the crime. Her counsel did not breach an essential duty, and she is

not entitled to relief under her ineffective-counsel claim.

       Wright’s ten-year sentence coupled with a seventy percent mandatory

minimum is not grossly disproportionate to the crime of aiding and abetting

second-degree robbery.       The sentence is therefore not cruel and unusual

punishment. We affirm the sentence.

       AFFIRMED.
