                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0451
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HECTOR JOSE TEJEDA, JR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David May, Judge.



      A defendant appeals his conviction asserting his attorney provided

ineffective assistance and the court erred in assessing him restitution and court

costs related to a dismissed count. AFFIRMED AND REMANDED.



      Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Clive, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., McDonald, J., and Scott, S.J.*

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

       Hector Tejeda Jr. appeals following his conviction for possession of a

controlled substance—methamphetamine—with the intent to deliver, in violation of

Iowa Code section 124.401(1)(b)(7) (2016), a class “B” felony. He asserts his

counsel provided ineffective assistance by permitting him to plead guilty to the

offense when the record lacks a factual basis to support the guilty plea. He also

claims counsel was ineffective in pressuring or coercing him to plead guilty and in

failing to subpoena a witness for trial.       Finally, he asserts the court erred in

assessing him restitution and court costs connected to the dismissed drug-tax-

stamp count.

I. Ineffective Assistance.

       To prove counsel provided ineffective assistance, Tejeda must prove

counsel failed to perform an essential duty and he suffered prejudice as a result.

See State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). Both elements must be

proved by a preponderance of the evidence. See id. Ineffective-assistance claims

are usually preserved for postconviction-relief proceedings because the record on

direct appeal is rarely adequate to address such claims. State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006).         However, an ineffective-assistance challenge

based on counsel’s failure to ensure the record has a factual basis to support a

guilty plea is typically resolved on direct appeal because “[i]f a factual basis

existed, counsel was not ineffective for failing to file a motion in arrest of judgment;

if a factual basis does not exist, then counsel was ineffective.” State v. Brooks,

555 N.W.2d 446, 448 (Iowa 1996). Prejudice is presumed if a factual basis does

not exist in the record. Ortiz, 789 N.W.2d at 764–65.
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         A. Factual Basis. Tejeda asserts there is an insufficient factual basis to

support the conclusion he intended to deliver the methamphetamine in his

possession. He notes the transcript of the guilty plea hearing shows the following:

              THE COURT: And you intended to                     deliver   [the
         methamphetamine] to another person?”
              THE DEFENDANT: So they say. Yes. Yes.

He asserts this “hesitation” results in a lack of a factual basis. He also claims the

court failed to indicate it was relying on the minutes of evidence to provide a factual

basis.

         We note the transcript of the guilty plea hearing goes on after the excerpt

cited by Tejeda:

                THE COURT: Well, there are—one or two things is true: either
         you intended to share or sell it to another, or you didn’t. So did you
         intend to share or sell it with another person?
                THE DEFENDANT: Yes.

Whatever hesitation Tejeda reads into the transcript from his answer to the court’s

first question regarding his intent is cleared up in the subsequent exchange. In

addition, the factual basis inquiry is an objective inquiry of the entire record before

the plea court, and the court’s failure to state its consideration of the minutes of

evidence is of no consequence. See State v. Finney, 834 N.W.2d 46, 62 (Iowa

2013) (“The failure of the district court in this case to explain on the record the

evidence supporting his finding of a factual basis is thus an omission unrelated to

the substantive claim being made.”). Upon our review of the guilty plea transcript

and the minutes of evidence, we conclude there is a factual basis to support the

guilty plea, and thus, counsel’s failure to challenge the factual basis through a

motion in arrest of judgment does not amount to ineffective assistance.
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       B. Coercion. Next, Tejeda claims counsel was ineffective by coercing or

pressuring him to plead guilty. He cites three factors that he says “lean” towards

finding he was pressured to plead guilty: (1) his hesitation to say he intended to

deliver the methamphetamine, (2) his inability to post bond and his request for

immediate sentencing upon his plea of guilty, and (3) the fact his guilty plea was

entered on the Friday before his jury trial was set to begin. However, he concedes

the trial record alone may not be sufficient to resolve this claim on direct appeal,

and he asks that we preserve for postconviction-relief proceedings. We agree the

record is insufficient to address this claim, and it is preserved for possible

postconviction relief proceedings. See State v. Johnson, 784 N.W.2d 192, 198

(Iowa 2010).

       C.   Witness.     Tejeda also claims counsel was ineffective in failing to

subpoena for trial a witness Tejeda thought would provide favorable testimony.

Tejeda fails to indicate in his brief what witness counsel failed to subpoena or what

testimony that witness might provide. He only notes “the trial record alone may be

insufficient to resolve this claim on direct appeal,” and he asks that the claim be

preserved. Where the record is insufficient to resolve an ineffective assistance

claim on direct appeal, we “must preserve it for a postconviction-relief proceeding,

regardless of the court’s view of the potential viability of the claim.” Id. This claim

is likewise preserved.
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II. Sentencing.

       Finally, Tejeda asserts this case must be remanded because in the written

sentencing order he was assessed court costs and restitution related to the drug

tax stamp charge that was dismissed.

       At sentencing, the district court addressed Tejeda’s responsibility for

restitution and court costs, saying, “Court concludes Defendant has no reasonable

ability to pay restitution or his fees and costs and will enter ‘zero’ in that portion of

the order.” However, the written sentencing order provided: “Pursuant to the plea

agreement, Defendant is ordered to: (1) pay restitution if restitution is due on any

of the dismissed counts/cases; and (2) pay court costs on any dismissed

counts/cases.”1

       “[W]here there is a discrepancy between the oral pronouncement of

sentence and the written judgment and commitment, the oral pronouncement of

sentence controls.” State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995) (citation

omitted).

       [W]hen a judgment entry incorrectly differs from the oral rendition of
       the judgment merely as a result of clerical error, the trial court holds
       the inherent power to correct the judgment entry so that it will reflect
       the actual pronouncement of the court. The district court may correct
       a clerical error in a judgment entry through issuance of a nunc pro
       tunc order.

Id. at 527 (citations omitted).

       Because we conclude the provision regarding restitution and court costs in

the written sentencing order was the result of a clerical error, we remand this case



1
 The plea agreement articulated on the record did not contain a statement that Tejeda
would be responsible for court costs or restitution related to the dismissed count.
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for the entry of a nunc pro tunc order so that the written sentencing order conforms

with the court’s oral pronouncement at sentencing.

III. Conclusion.

      We affirm Tejeda’s conviction as we find a factual basis to support his guilty

plea, but we remand this case for the entry of a nunc pro tunc order correcting the

sentencing order. Tejeda’s remaining ineffective-assistance claims are preserved

for postconviction-relief proceedings.

      AFFIRMED AND REMANDED.
