                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1239 / 12-2292
                              Filed March 12, 2014


MICHAEL MEEKER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Hamilton County, James C.

Ellefson, Judge.



       Michael Meeker appeals from the dismissal of his application for

postconviction relief alleging ineffective assistance of trial counsel at his guilty

plea; he also argues ineffective assistance of postconviction counsel prevented

him from preserving all of his claims. AFFIRMED.



       Mark C. Smith, State Appellate Defender, Robert P. Ranschau, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant

Attorney General, and Patrick Chambers, County Attorney, for appellee State.



       Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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POTTERFIELD, P.J.

       Michael Meeker appeals from the dismissal of his application for

postconviction relief.   He argues trial counsel was ineffective when counsel

allowed him to submit a guilty plea to second-degree murder without a sufficient

factual basis and while his mental state rendered his plea involuntary. He further

argues on appeal that postconviction counsel was ineffective in failing to raise

the claim that trial counsel was ineffective in not correcting the guilty-plea record

after the court failed to inform him of the second-degree murder element of

malice aforethought. We affirm.

  I.   Facts and Proceedings.

       Michael Meeker was charged by trial information in 2009 with first-degree

murder of a child and child endangerment resulting in the death of a fifteen-

month-old child. During pretrial depositions, Meeker agreed to plead guilty to

second-degree murder, pursuant to a plea agreement. On October 28, 2009, a

guilty-plea hearing was held.     The court engaged Meeker in a colloquy to

determine whether his plea was knowing, voluntary, and intelligent, but referred

to the elements of the original charge of murder of a child, including extreme

indifference to human life, rather than to the elements of second-degree murder,

including malice aforethought. In response to questioning, Meeker admitted to

losing his temper and hitting the child on the head multiple times resulting in the

child’s death. The court accepted Meeker’s guilty plea to the amended charge of

second-degree murder.

       Meeker did not file a motion in arrest of judgment, and did not directly

appeal from these proceedings. He filed an application for postconviction relief
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on October 7, 2011. He argued the factual basis for his plea was improperly

established by his attorney, rather than the court and his plea was not voluntary

due to his consumption of medication and isolation in jail. A hearing on the

application was held October 3, 2012.        Meeker and his guilty-plea counsel

testified as to the events surrounding the guilty plea. The court took judicial

notice of the criminal file, including a transcript of the guilty plea proceedings.

The court denied the application, finding a factual basis for the crime of second-

degree murder in Meeker’s admissions and crediting the testimony of guilty-plea

counsel regarding Meeker’s mental state.

 II.     Analysis.

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

Straw, 709 N.W.2d 128, 133 (Iowa 2006).

   A. Elements of Second-Degree Murder.

         Meeker argues the trial court erred in its recitation of the elements of

second-degree murder at his guilty-plea hearing. He did not file a motion in

arrest of judgment nor a direct appeal and did not raise this claim in his

application for postconviction relief. Meeker now proceeds under the rubric of

ineffective assistance of postconviction counsel, a statutory claim, which can be

raised for the first time on appeal and which will be decided where the record is

adequate to address the claim. Dunbar v. State, 515 N.W.2d 12, 14–15 (Iowa

1994).

         At the guilty plea hearing, the court told Meeker that second-degree

murder was any murder not constituting first-degree murder, and proceeded to

read him the original charges against him for first-degree murder of a child. The
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parties agree the court failed to advise Meeker of the element of malice

aforethought required for the amended charge of second degree murder.

        If a plea is not intelligently and voluntarily made, the failure by
        counsel to file a motion in arrest of judgment to challenge the plea
        constitutes a breach of an essential duty. To enter a guilty plea
        voluntarily and intelligently means the defendant has a full
        understanding of the consequences of a plea. The overriding
        question is whether defendant, on the whole record, understood the
        elements of the crime and the nature of the charge against him.

State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005) (internal citations and quotation

marks omitted). Meeker argues his counsel provided ineffective assistance when

he allowed Meeker to plead guilty without informing him of the element of malice

aforethought, but acknowledges that this claim was not raised in the

postconviction proceeding.     Meeker then necessarily frames his argument in

terms of ineffective assistance of his postconviction counsel, who failed to raise

this issue    during the    postconviction   proceedings.      “Ineffectiveness of

postconviction relief counsel constitutes ‘sufficient cause’ . . . to excuse an

applicant’s failure to adequately raise [the] issue in prior proceedings.” Dunbar v.

State, 515 N.W.2d 12, 14–15 (Iowa 1994).

        We review claims of constitutionally ineffective assistance of counsel de

novo.    See State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).          “The right to

counsel under [our postconviction relief statute] necessarily implies that counsel

be effective.” Dunbar, 515 N.W.2d at 14. The same ineffective-assistance-of-

counsel analysis applies to postconviction counsel as to trial counsel. Id.; see

also

Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985) (“The same standards that

we apply to trial counsel competency also apply to subsequent counsel, and the
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client bears the same burden of proof to establish the ineffectiveness of

counsel.”).

       To prevail, Meeker has the burden to prove both (1) counsel breached an

essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S.

668, 687 (1984). The claim fails if either element is lacking. Anfinson v. State,

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

       Because Meeker’s claim involves two levels of ineffective counsel—at

guilty plea and then at postconviction hearing—Meeker must demonstrate two

levels of prejudice.     First, Meeker must show he was prejudiced by

postconviction counsel’s deficiency such that the outcome of the postconviction

hearing would have been favorable to Meeker if counsel had raised the claim.

See Dunbar, 515 N.W.2d at 16. Because information on a necessary element of

second-degree murder is critical to a voluntary and intelligent plea, guilty-plea

counsel should have corrected the record. Iowa R. Crim. P. 2.8(2)(b)(1); see

also State v. Hallock, 765 N.W.2d 598, 604 (Iowa 2009) (trial court’s failure to

inform defendant of mandatory parole period for crime rendered plea

involuntary).

       However, Meeker must also show that but-for his guilty-plea counsel’s

error in allowing him to plead without the court’s explanation of the elements of

second-degree murder, he would not have pleaded guilty but instead proceeded

to trial. Straw, 709 N.W.2d at 135; see also Hill v. Lockhart, 474 U.S. 52, 59

(1985) (holding that to show counsel was ineffective in the context of a guilty

plea, “the defendant must show that there is a reasonable probability that, but for
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counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial”).

         This separate prejudice requirement is, as a practical matter, problematic

since there is no opportunity in this procedural posture for the taking of evidence

when the issue is raised for the first time on appeal. Here, Meeker does not

make even the conclusory allegation he would have insisted on a trial on the

original count of first-degree murder of a child rather than accept the favorable

plea agreement. It is his burden to prove this prejudice. Lockhart, 474 U.S. at

60.

         Meeker makes no claim he would have insisted on a trial if he had been

advised of the element of malice aforethought. Meeker has failed to prove his

claim of ineffective assistance of guilty-plea counsel regarding the element of

malice aforethought.

      B. Factual Basis.

         We agree with the postconviction court that a factual basis existed for the

plea and therefore guilty-plea counsel had no duty to object to the court’s

acceptance of the plea. “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.” Finney, 834 N.W.2dat, 62. “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.” Id. This includes the minutes of testimony. Id. The postconviction

court considered the record, including Meeker’s statements in court, and noted:
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       Striking an adult with a fist may establish the necessary intent or
       malice aforethought. State v. Baratta, 49 N.W.2d 866, 869–70
       (Iowa 1951); State v. Sayles, 155 N.W. 837, 839 (Iowa 1916).
       Striking a 15-month-old child in the head more than once with a fist,
       as Mr. Meeker admitted in his plea colloquy, even more clearly
       establishes an adequate factual basis for the intent, or malice
       aforethought, element.

Our law is clear; Meeker has failed to prove his plea lacked a factual basis in the

record—his counsel therefore had no duty to advise him not to plead guilty. See

Finney, 834 N.W.2d at 54–55 (“It is a responsibility of defense counsel to ensure

that a client does not plead guilty to a charge for which there is no objective

factual basis . . . no advice to plead guilty would be considered competent absent

a showing of a factual basis to support the crimes to which the accused has

elected to plead guilty.”).

   C. Medication and Voluntary Plea.

       Before receiving Meeker’s plea, the court asked Meeker whether he was

under the influence of any substance that would prevent him from knowingly and

voluntarily entering his guilty plea. Meeker responded he was not. “[W]hen an

applicant’s assertions concerning the knowing and intelligent nature of a guilty

plea are directly contradicted by the record, the applicant bears a special burden

to establish that the record is inaccurate.” Arnold v. State, 540 N.W.2d 243, 246

(Iowa 1995).

       At the hearing on his application for postconviction relief, Meeker testified

he had attempted suicide, was not in his right mind due to his “lengthy pre-plea

solitary incarceration,” and that he was taking mental health medication that

rendered his decision-making “fuzzy.” Meeker entered records into evidence and

presented a printout of the potential side effects of the medication. The mental
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health records did not indicate Meeker made a suicide attempt prior to the

sentencing.     Nor did Meeker present expert testimony that he actually

experienced the side effects of the medication. The postconviction court stated:

               Page six of the presentence investigation notes that, “The
       Defendant was using marijuana daily by 14. By 16, he was using
       methamphetamine. He has also used cocaine and psychedelics.”
       Later on the same page, this note appears: “The Defendant reports
       he     was     having     auditory    hallucinations     while   using
       methamphetamine. He apparently has been diagnosed with a
       psychosis and is on medication. Although he has taken this for
       only a short time, he feels this is helpful.” This is evidence that Mr.
       Meeker may have had drug-induced mental issues at some time
       prior to the plea, but it offers no support for a claim that he was
       suffering from such problems at the time of the plea. In fact,
       contrary to his claim, the note that he “is on medication” and that
       “although he has taken this for only a short time, he feels this is
       helpful,” both suggest that in the general time period of the plea
       proceeding, his thinking was being assisted by medications.

Upon our de novo review of the record, we agree with the district court. Meeker’s

guilty plea counsel did not fail to perform an essential duty by failing to raise this

meritless issue.

       Meeker has failed to prove any of his claims of ineffective assistance of

counsel.

       AFFIRMED.
