                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-0871
                                 Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NORRIS WINDELL MCFARLAND JR.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Norris McFarland appeals his convictions, following guilty pleas, to two drug

charges. AFFIRMED.



       Taryn R. McCarthy of Clemens, Walters, Conlon, Runder & Hiatt, L.L.P.,

Dubuque, for appellant.

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

General, for appellee.



       Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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MULLINS, Judge.

       Norris McFarland appeals his convictions, following guilty pleas, to one

count of possession of a controlled substance and one count of possession of a

controlled substance with intent to deliver.       He first contends his pleas were

involuntary because the district court failed to state on the record the source of its

factual-basis determinations.1 He additionally argues his pleas were involuntary

because the district court accepted them without first ensuring he understood the

terms of the plea agreement. Because McFarland waived his right to file a motion

in arrest of judgment, he brings both claims under an ineffective-assistance-of-

counsel framework. See Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s failure to

challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment

shall preclude the defendant’s right to assert such challenge on appeal.”); State v.

Weitzel, 905 N.W.2d 397, 401 (Iowa 2017) (“[I]f the guilty plea resulted from

ineffective assistance of counsel, the defendant can challenge the plea under the

rubric of ineffective assistance of counsel.”).

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

Lopez, 907 N.W.2d 112, 116 (Iowa 2017). To succeed on his claims, McFarland



1
  We expressly note McFarland does not argue on appeal that his pleas were unsupported
by factual bases; he only argues his pleas were rendered involuntary because the court
failed to state on the record the source of its factual-basis determinations. See State v.
Finney, 834 N.W.2d 46, 61–62 (Iowa 2013) (discussing the difference between a factual-
basis challenge and a claim of due-process involuntariness); see also Rhoades v. State,
848 N.W.2d 22, 29 (Iowa 2014) (“We have recognized at least two ways a defendant may
attack his or her guilty plea. First, a defendant may attack his or her guilty plea on the
ground the defendant did not receive effective assistance of counsel as required under
the Sixth Amendment to the United States Constitution because there was no factual basis
to support the defendant’s guilty plea. Second, a defendant may show he or she did not
make a knowing and intelligent waiver of a constitutional right when pleading, even if
overwhelming evidence shows a factual basis exists.”).
                                            3


“must establish by a preponderance of the evidence that ‘(1) his trial counsel failed

to perform an essential duty, and (2) this failure resulted in prejudice.’” Id. (quoting

State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v.

Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice

prong or breach of duty first, and failure to find either one will preclude relief.” State

v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d

159, 169 (Iowa 2015)).       When challenging a guilty plea through a claim “of

ineffective assistance of counsel, the defendant satisfies the prejudice prong if he

or she can show ‘there is a reasonable probability that, but for counsel’s error he

or she would not have pleaded guilty and would have insisted on going to trial.’”

Weitzel, 905 N.W.2d at 402 (quoting State v. Straw, 709 N.W.2d 128, 138 (Iowa

2006)).

       We first consider McFarland’s claim that his counsel was ineffective in not

recognizing the district court’s failure to state on the record the source of its factual-

basis determinations and therefore allowing McFarland to enter his pleas

involuntarily and then waive his right to file a motion in arrest of judgment to

challenge the plea. Due process requires that a guilty plea be entered voluntarily.

State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003). In Finney, the supreme court

considered whether the district court is required to identify the parts of the record

that provide a factual basis for a guilty plea.       834 N.W.2d at 55. The court

“reaffirm[ed] that under rule 2.8(2)(b), the district court is required to provide the

factual basis supporting the plea on the record at the plea hearing” because a guilty

plea is not voluntary “unless the defendant possesses an understanding of the law

in relation to the facts.” Id. (citations omitted). In this case, McFarland’s guilty plea
                                             4


was entered orally at a plea hearing. At the hearing, the court explained the nature

of the charges and potential penalties. When questioned by the court “how do you

plead” as to each of the charges, McFarland responded, “Guilty.” The court

accepted the pleas, concluding they were “freely, voluntarily, and intelligently made

and there is a factual basis for each.” However, McFarland made no admissions

at the hearing concerning the charges, a presentence investigation report had yet

to be prepared, and the court did not specify the source of its factual-basis

determinations or otherwise elaborate what facts developed the necessary factual

bases.

         It is generally undisputed that the district court failed to properly identify the

parts of the record that provided factual bases for McFarland’s guilty pleas and

defense counsel failed to point out this deficiency and thereafter allowed

McFarland to waive his right to file a motion in arrest of judgment to challenge the

plea. However, we find the record inadequate to decide whether McFarland was

prejudiced by counsel’s failures and repeat our position that the “circumstances

underlying the defendant’s willingness to go to trial are facts that should be

permitted to be more fully developed” in a postconviction-relief proceeding. State

v. Delacy, ___ N.W.2d ___, ___, 2017 WL 1735684, at *4 (Iowa Ct. App. 2017),

further review denied (Jan. 16, 2018); see also State v. Gaston, No. 16-1957, 2017

WL 4317310, at *2 (Iowa Ct. App. Sept. 27, 2017), further review denied (Nov. 22,

2017); State v. Iddings, No. 15-1597, 2017 WL 246049, at *5 (Iowa Ct. App. June

7, 2017); State v. Bascom, No. 15-2173, 2017 WL 1733115, at *1 (Iowa Ct. App.

May 3, 2017), further review denied (Jan. 16, 2018); State v. Taylor, No. 16-0762,

2017 WL 1735682, at *1–2 (Iowa Ct. App. May 3, 2017). The record is inadequate
                                          5


for us to determine whether McFarland would have insisted on proceeding to trial

had the district court identified the source of its factual-basis determinations or

otherwise elaborated on the factual underpinnings supporting its acceptance of

McFarland’s pleas.      We therefore preserve this claim for postconviction-relief

proceedings. See State v. Johnson, 784 N.W.2d 192, 196–98 (Iowa 2010).

         We next consider McFarland’s claim that his counsel rendered ineffective

assistance in allowing him to plead guilty without ensuring he was fully aware of

the terms of the plea agreement and allowing him to waive his right to file a motion

in arrest of judgment to challenge his pleas on the same ground. “If a plea

agreement has been reached by the parties, the court shall require the disclosure

of the agreement in open court at the time the plea is offered.” Iowa R. Crim. P.

2.10(2). In this case, the plea agreement was not recited until after McFarland’s

guilty pleas were tendered and accepted.         The agreement, which the court

honored, provided McFarland would, among other things, serve consecutive terms

of incarceration of one and five years on the two charges. On appeal, McFarland

contends he “believed that pursuant to the terms of the plea agreement, . . . he

and his counsel were going to request for a more lenient sentence, specifically a

halfway house,” and he “did not understand that he was bound by the terms of the

plea agreement which consisted of prison time.”

         Our review is limited to the record, and any other extraneous matters are to

be disregarded. See In re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App.

1994).     Lacking in the record is any evidence that McFarland had any

understanding of the terms of the plea agreement different from the terms recited

to the court. We decline to simply accept McFarland’s understanding of the plea
                                            6


agreement as stated in his appellate brief, as it is not a sufficient substitute for a

trial record. Cf. Smith v. Iowa Bd. of Med. Exam’rs, 729 N.W.2d 822, 827 (Iowa

2007) (“The district court’s recitation of these matters in its ruling is not a substitute

for the required appellate record.”). Absent a record to support McFarland’s stated

understanding of the plea agreement underlying his claim of ineffective assistance

of counsel, we affirm his convictions. Because the record is inadequate to resolve

this ineffective-assistance-of-counsel claim, we preserve it for postconviction-relief

proceedings. See Johnson, 784 N.W.2d at 196–98.

       AFFIRMED.
