                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0978
                              Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONALD LEROY STEELE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.



      A defendant challenges his judgment and sentence for possession of

marijuana with intent to deliver. AFFIRMED.



      Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.



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

       Donald Steele pleaded guilty to possession of marijuana with intent to

deliver in return for the State’s dismissal of a similar offense involving crack

cocaine. Several days later, Steele wrote the judge a letter asking to withdraw

his guilty plea. Treating his request as a motion in arrest of judgment, the district

court took testimony from Steele.        The district court did not find Steele’s

testimony credible when compared with his statements at the plea hearing and

denied his motion in arrest of judgment. On appeal, Steele contends the district

court abused its discretion in denying his motion because (1) his guilty plea was

not knowing, voluntary, and intelligent and (2) the plea lacked a factual basis as

to his intent to deliver. Because the district court properly exercised its discretion

in rejecting Steele’s request to withdraw his guilty plea, we affirm.

       I.     Facts and Prior Proceedings

       According to the minutes of evidence, on New Year’s Eve of 2015, Des

Moines police officer Emily Shoff-Salsbery saw the Toyota Camry driven by

Steele turn without signaling. As the officer closed in on the Camry, Steele made

several abrupt turns.    Steele then sped through a residential neighborhood.

Before Shoff-Salsbery could activate her lights, Steele drove down a dead-end

street, stopped the car, and fled on foot. Steele’s female passenger also left the

Camry but obeyed the officer’s command to stop. The passenger told Shoff-

Salsbery she just met Steele when he offered her a ride home after she had an

argument with her boyfriend. The passenger did not know why Steele fled and

only had her purse and “some potato chips” inside the car. In her investigation,

Shoff-Salsbery learned the Camry driven by Steele was a rental car and the
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passenger had not rented it. When the officer approached the car, she smelled

an odor of marijuana coming from the driver’s side, and behind the driver’s seat,

she found a brown jacket containing a plastic bag of marijuana.

       Meanwhile, another officer chased Steele by following his tracks in the

fresh snow for about four blocks. The footprints led to a parking lot, where the

officer heard Steele talking on his phone, asking for a ride. The officer called to

Steele, who again took off. Two officers pursued Steele until they found him

walking on a busy street. The officers ordered Steele “to drop what was in his

hand,” and Steele “threw the items to the side and stopped and slowly went to

the ground.” After arresting Steele, the officers saw the tossed items included

“several baggies including a quantity of marijuana and a quantity . . . of cocaine

base ‘crack,’ as well as a car key” to the Camry abandoned by Steele.

       In her affidavit accompanying the complaint, Officer Shoff-Salsbery stated

Steele ran from the car but was caught a short distance later. The affidavit

continued: “Inside the vehicle officers found a larger plastic bag that also

contained marijuana . . . . [Steele] was also found with $767 in various bills on

his person, both the packaging of the narcotics and the amount of cash are

consistent with the sale of narcotics.”

       A February 2016 lab report showed Steele possessed 7.23 grams of

cocaine. Important to this appeal, the lab report divided the marijuana into two

listed items: the first item weighed 10.43 grams and the second item weighed

4.01 grams (divided into two subparts weighing 1.42 and 2.59 grams). Steele

contends, logically, the first item was the “larger plastic bag” of marijuana found

inside the car and the smaller item was the marijuana he tossed on the ground.
                                           4


The State does not dispute this contention but asserts the record supports

Steele’s possession of both the marijuana tossed on the ground and the

marijuana left inside the jacket in the rental car.

       According to the minutes, the State expected Shoff-Salsbery, along with

the officers who chased Steele, to testify:

       [T]he items found in connection with [Steele] in this case are
       consistent with those items found in the possession of drug dealers.
              [They] will further testify that the amount of cocaine base
       “crack” and marijuana recovered in this case, the manner in which it
       was packaged, the other facts and circumstances, . . . are
       consistent with possession of [both such drugs] for sale and
       inconsistent with the possession of [both such drugs] merely for
       personal use.

       The State charged Steele in two counts: (I) possession of a controlled

substance (cocaine) with intent to deliver, in violation of Iowa Code section

124.401(1)(c)(3) (2015), a class “C” felony; and (II) possession of a controlled

substance (marijuana) with intent to deliver, in violation of Iowa Code section

124.401(1)(d), a class “D” felony. After conferring with private counsel, Steele

entered into a plea bargain with the State in which he agreed to provide a factual

basis for count II.     In exchange, the State agreed to dismiss count I at

sentencing. The parties were free to argue for an appropriate sentence.

       We set out the portions of the April 2016 plea hearing relevant to Steele’s

appellate challenges. The court told Steele he had a right to have a lawyer

appointed at public expense if he decided to go to trial. Steele indicated he

understood. The court also stated, “this is a class ‘D’ felony,” and set out the

penalties, including the fact Steele could spend up to five years in prison and pay

up to a $7500 fine, explaining: “I am telling you that because I want you to know
                                         5


the maximum penalties you are subjecting yourself to by pleading guilty today.

Do you understand?” Steele responded he did. Next the court asked: “Knowing

all that, do you still want to plead guilty today?” Steele responded: “I have a

question.” The court stopped the plea hearing and went off the record. Steele

discussed his question with his attorney. When Steele was ready to proceed, the

following exchange occurred:

              THE COURT: Okay. So let me ask that last question again.
       Knowing what you are subjecting yourself to, do you still want to
       plead guilty, sir?
              THE DEFENDANT: Yes, ma’am.
              ....
              THE COURT: Are you pleading guilty today voluntarily and
       of your own free will?
              THE DEFENDANT: Yes, ma’am.

       Thereafter, the court told Steele the elements the State would have to

prove at trial, including: “[Y]ou possessed a controlled substance with intent to

deliver it, that being marijuana. And . . . intent to deliver, that means that you

either intended to sell it, share it, or give it away.” Steel responded he had no

questions about what the State would have to prove. Steele said he threw the

marijuana on the ground, he knew it was illegal to have marijuana, the marijuana

was packaged in a baggy, and he was going to smoke some of it and share

some of it. Steele agreed the court could also consider the minutes of testimony

to establish a factual basis and told the court he was satisfied with the advice and

services of his plea attorney.

       The court gave Steele one more chance to reinstate his plea of not guilty

and “have your case go to trial,” but Steele wanted to enter a guilty plea and did
                                         6


so. After discussing Steele’s right to file a motion in arrest of judgment, the court

ordered a presentence investigation report and set a sentencing hearing.

       On April 21, 2016, Steele sent a letter to the court, claiming he had been

misled because he wanted to plead to possession and not to possession with

intent to deliver. The court treated the letter as a motion in arrest of judgment.

Steele’s plea counsel withdrew, and new counsel was appointed to represent

Steele at sentencing.

       In June 2016, the district court held a joint motion-in-arrest-of-judgment

and sentencing hearing. Steele offered three reasons to set aside his guilty plea.

First, he alleged when he told his plea counsel he wanted to go to trial, she

responded she would withdraw if he did not accept the plea offer. Steele said he

had been bullied into pleading and he accepted the deal out of frustration—“I felt

like I had no other choice.” Second, Steele “didn’t understand that I could have

another lawyer represent me. So I felt like there was no other option but to take

what I had.” Third, Steele insisted: “I’m not a drug dealer; I’m a user.” Steele

testified he did not intend to deliver the drugs and thought he was pleading to a

possession offense. He argued: “I was by myself giving someone a ride home.

How do I intend to deliver?”

       Steele admitted on cross-examination that the plea court had told him

what the State would have to prove for him to be guilty of possession with intent

to deliver. But Steele nevertheless claimed to have no recollection of the court

discussing the intent-to-deliver element.      After the plea court’s statements

discussing intent to deliver and Steele’s response were read to Steele from the
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plea transcript, he again blamed his plea lawyer: “I answered every question that

my lawyer told me to do, and I did what my lawyer advised me to do.”

       Quoting the plea transcript to Steele, the court denied his motion, ruling:

       And I went through this guilty plea colloquy with you, and I told you
       to stop me if you didn’t understand anything. When you are telling
       me today you were bullied into that and you didn’t know it was a
       class “D” felony, and were concerned you wouldn’t have a trial
       [attorney], I don’t find that to be credible, Mr. Steele.

The district court proceeded to sentencing, ordering Steele to serve an

indeterminate five-year term. Steele now appeals.

       II.     Motion in Arrest of Judgment

       We review the district court’s denial of Steele’s motion in arrest of

judgment for an abuse of discretion. See State v. Myers, 653 N.W.2d 574, 581

(Iowa 2002).      We reverse only where the court’s ruling is based on clearly

unreasonable or untenable grounds. See id. We give deference to the district

court’s factual findings based on the court’s opportunity to observe the witnesses

but are not bound by such findings. See State v. Pals, 805 N.W.2d 767, 771

(Iowa 2011). We address each of Steele’s challenges to the court’s denial of his

motion in turn.

       A. Knowing, Voluntary, and Intelligent Plea. Steele asserts his plea

“was not knowing, voluntary, or intelligent.”     In support, Steele points to his

testimony at the motion hearing. Giving appropriate deference to the district

court’s determination Steele’s testimony at the motion hearing was not credible,

we cannot find the court abused its discretion. See id.

       During the guilty-plea colloquy, the court informed Steele that he was

admitting possession with intent to deliver, the crime was a class “D” felony, and
                                            8


he could have an attorney appointed if he proceeded to trial. Steele told the

court his plea was voluntary, he turned down several chances to withdraw his

plea, and he asked a question immediately after the court set out the maximum

penalties for possession with intent to deliver. After further discussion with his

counsel, Steele proceeded with his plea. Under the plea agreement, the State

agreed to dismiss the more serious class “C” felony for possession with intent to

deliver crack cocaine.       The full colloquy belies Steele’s claim he did not

understand the consequences of waiving his right to a trial.

       B. Factual Basis. As its title suggests, the crime of possession with

intent requires the State to prove three elements: (1) possession (2) of a

controlled substance (3) with intent to deliver. See Iowa Code § 124.401(1).

Steele does not dispute his possession of the marijuana that, during the plea

hearing, he admitted tossing to the ground. Rather, he disputes the factual basis

that he possessed the larger stash of marijuana discovered in the rental car he

was driving. Steele continues, without proof he possessed the marijuana found

in the car, the amount of marijuana is not enough to satisfy the intent-to-deliver

element because the weight of the baggies he tossed was “below the one-half

ounce threshold for an accommodation offense under Iowa Code section

124.410.”1 Steele contends the court should have adjudged him guilty of only

“the appropriate possession charge.” See State v. Cole, 421 N.W.2d 888, 889–
1
  Iowa Code section 124.410 states: “In a prosecution for . . . possession with intent to
deliver marijuana, if the prosecution proves that the defendant . . . possessed with intent
to deliver one-half ounce or less of marijuana, which was not offered for sale, the
defendant is guilty of an accommodation offense . . . .” Under Iowa’s previous drug
statutes, accommodation deliverers were viewed as less culpable because they were
furnishing controlled substances only “as a favor to the recipient” and not for profit.
State v. McNabb, 241 N.W.2d 32, 35 (Iowa 1976) (interpreting Iowa Code section
204.210 (1975)).
                                            9


90 (Iowa 1998) (explaining accommodation statute’s reference to marijuana

possession encompasses “both sentencing and classification of the offense”).

       The State responds a factual basis existed for Steele’s plea because the

record establishes he constructively possessed the marijuana left in the rental

car, in addition to the marijuana he tossed when stopped after fleeing on foot.

The combined weights of the marijuana left in the car (10.43 grams) and the

marijuana tossed onto the ground (4.01 grams) equaled 14.44 grams—just

slightly more than the one-half ounce referenced in the accommodation statute.2

Accordingly, the State asserts Steele’s intent to deliver could be gleaned from the

minutes of testimony and attached lab report.

       The plea record supports the State’s assertion.             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). In looking for a factual basis, we may consider the

prosecutor’s statements, the defendant’s statements, and the minutes of

evidence. 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”). The evidence before the plea court did not have to

prove beyond a reasonable doubt Steele committed the crime of possession with


2
  Neither party converted the gram measurement in the February 2016 lab report to the
ounce measurement in the statute. According to measurement conversion tables from
the United States Department of Agriculture (USDA) Agriculture Research Service, to
convert grams into ounces, multiply by 0.0353. See Measurement Conversion Tables,
USDA Agric. Research Serv., http://www.ars.usda.gov/northeast-area/beltsville-md/beltsville
-human-nutrition-research-center/nutrient-data-laboratory/docs/measurement-conversion-
tables (last modified Aug. 13, 2016). In this case, the equation is 14.44 grams X 0.0353
= 0.509732 ounces. Steele does not argue possession of the total amount of marijuana,
in the car and on the ground, would qualify as an accommodation offense.
                                       10


intent to deliver; the evidence only needed to provide “facts to support the

elements of the offense.” See id.

      Under the doctrine of constructive possession, a court may infer Steele’s

possession of the marijuana from its location and other circumstances.       See

State v. Thomas, 847 N.W.2d 438, 443 (Iowa 2014). A court may consider these

non-exclusive factors: (1) “incriminating actions of the person upon the police’s

discovery of a controlled substance among or near the person’s personal

belongings” and (2) “any other circumstances linking the person to the controlled

substance.” Id. (citation omitted). “In a motor-vehicle case, a court may also

consider these factors”: (1) were the drugs in plain view, (2) were the drugs with

the defendant’s personal effects, (3) were the drugs on the same side of the car

or next to the defendant, (4) did the defendant own the vehicle, and (5) did

defendant engage in suspicious activity. State v. Kemp, 688 N.W.2d 785, 789

(Iowa 2004).

      Here, the minutes show suspicious activity by Steele and other

circumstances linking him to the marijuana. Specifically, Steele took evasive

action in response to being followed by police. Steele was driving the Camry and

a jacket left behind the driver’s seat contained the greater amount of marijuana.

The sole passenger had only recently met Steele and denied leaving the jacket in

the car. When Steele’s abrupt turns did not shake the police, Steele abandoned

the Camry and fled on foot through the snow, taking the rental car’s key with him.

The passenger did not flee, talked to the police, and did know why Steele was

running away. See State v. Carter, 696 N.W.2d 31, 41 (Iowa 2005) (finding

driver constructively possessed drugs left in the car based on his “furtive
                                            11


movements in contrast to the passenger’s lack of such movements”). Because

an officer following Steele’s tracks overheard Steele calling for ride, the court

may infer Steele did not intend to return to the car containing the marijuana while

the police were nearby. For the second time, Steele ran instead of talking with

an officer. As officers closed in, Steele threw away additional marijuana, crack

cocaine, and the key to the car he had abandoned. Experienced officers would

have testified the amount of marijuana and its packaging, along with the cash

Steele possessed, was consistent with an intent to sell the marijuana and

inconsistent with possession for personal use.               That testimony would be

buttressed by Steele’s admission at the plea hearing that he planned to “share”

the marijuana.

       In conclusion, Steele’s constructive possession of the marijuana in the car

he was driving, along with his admitted possession of the tossed marijuana,

provides a factual basis for the intent-to-deliver element of the offense.

Accordingly, the record contained a factual basis for Steele’s guilty plea, and the

district court did not abuse its discretion in denying Steele’s motion in arrest of

judgment.3

       AFFIRMED.




3
   On appeal, Steele also claims his sentence was illegal and should be vacated,
asserting he “should have been adjudged guilty and sentenced under the
accommodation statute.” Because the record showed a factual basis for Steele’s
possession of an amount of marijuana exceeding the limit in the accommodation statute,
that statute does not apply, and the claim cannot prevail. For the same reasons, we
reject Steele’s final claim: “[P]lea counsel failed in an essential duty as no factual basis
exists to supports Steele’s guilty plea, and neither plea counsel nor sentencing counsel
informed the court of the requirements” of the accommodation statute.
