                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1724
                            Filed November 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRENTON D. SHELTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.



      Trenton D. Shelton appeals his convictions for willful injury resulting in

serious injury and assault while participating in a felony.    VACATED AND

REMANDED FOR FURTHER PROCEEDINGS.




      Eric D. Tindal of Keegan & Farnsworth, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.




      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       Trenton D. Shelton appeals his convictions for willful injury resulting in

serious injury and assault while participating in a felony. On appeal, Shelton claims

his counsel provided constitutionally ineffective representation by permitting him

to plead guilty to assault while participating in a felony without a sufficient factual

basis. Shelton also claims his pleas were not knowing and voluntary because the

court failed to advise him of mandatory surcharges. Finally, Shelton claims the

court abused its discretion by imposing consecutive sentences. We find the record

does not provide a sufficient factual basis of an underlying assault for the the

assault while participating in a felony charge.       On remand, the court should

establish the factual basis for assault while participating in a felony and address

potential colloquy deficiencies. We vacate and remand for further proceedings.

       I.     Background Facts & Proceedings

       On October 14, 2015, Shelton and a group of others were at a club in

Davenport. At approximately 12:17 a.m. on October 15, a fight broke out between

Shelton’s group and another group. Video evidence showed Shelton striking a

victim who was left unconscious in the hallway by the time Shelton returned to the

original room. Approximately one minute later, Shelton walked back out and

kicked the motionless victim several times before leaving.           The victim was

hospitalized with severe head trauma. A warrant issued for Shelton’s arrest.

       In February 2017, Shelton was arrested for willful injury causing serious

injury, in violation of Iowa Code sections 703.1 and 708.4(1) (2015). The State

filed a two-count trial information charging Shelton with willful injury resulting in
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serious injury and attempt to commit murder, in violation of Iowa Code sections

703.1, 703.2, and 707.11(2).

         On July 14, 2017, pursuant to a plea agreement, Shelton pleaded guilty to

willful injury resulting in serious injury as a habitual offender. Shelton also pleaded

guilty to assault while participating in a felony, in violation of sections 708.3(1) and

703.1.         In exchange for his guilty pleas, the State dismissed the charge of

attempted murder and did not pursue the habitual offender enhancement on the

assault charge.

         On October 20, Shelton was sentenced to a fifteen-year sentence for the

willful injury offense as a habitual offender and a five-year sentence for assault to

run consecutive to each other. Shelton appeals.

         II.       Standard of Review

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

Finney, 834 N.W.2d 46, 49 (Iowa 2013). To establish an ineffective-assistance-

of-counsel claim, the defendant must show counsel failed to perform an essential

duty which resulted in prejudice. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

         III.      Merits

         Shelton claims his counsel was ineffective for allowing him to plead guilty

to assault while participating in a felony and for failing to file a motion in arrest of

judgment alleging the same. In particular, Shelton states the willful injury assault

ended before the second assault and the record does not support Shelton’s

participation in a separate felony at the time of the second assault.
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       “[N]o 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.” Finney, 834 N.W.2d at 62. If no factual basis supports a guilty

plea, then “counsel fail[s] to perform an essential duty both in allowing the plea to

be made and in failing to pursue a motion in arrest of judgment to challenge it.”

State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011); State v. Ortiz, 789 N.W.2d

761, 764 (Iowa 2010). “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.2d at 62. The district court need not have

evidence beyond a reasonable doubt that the defendant committed the crime, just

demonstrate facts to support the charge. Id. We presume prejudice when counsel

permits a defendant to plead guilty and waive the right to a motion in arrest of

judgment without sufficient factual basis for the plea. Rhoades v. State, 848

N.W.2d 22, 29 (Iowa 2014).

       The sources a court can look to when establishing a factual basis include

asking the defendant, asking the prosecutor, examining a presentence report, the

plea colloquy, and the minutes of evidence. See Finney, 834 N.W.2d at 56–60.

“[T]he district court’s reading of the technical terms in the information and having

the defendant agree to those terms is not enough to establish a factual basis for

those terms.” Rhoades, 848 N.W.2d at 30. Any evidence considered other than

the defendant’s statements must be specifically articulated in the record. State v.

Philo, 697 N.W.2d 481, 486 (Iowa 2005). Here, Shelton only contends his plea to

assault while participating in a felony had an insufficient factual basis.
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       To prove an assault while participating in a felony, the State must (1) prove

the defendant participated in a felony, and (2) prove he committed an assault while

participating in that felony. See State v. Johnson, 291 N.W.2d 6, 8 (Iowa 1980).

The amended trial information lists the code sections violated as 708.3(1), assault

while participating in a felony, and 703.1, aiding and abetting. The plea agreement

signed by the parties does not specify the felony but does state the assaults were

separate. The order accepting the plea and the sentencing order lists only section

708.3 with no specification of the felony participated in. The State claims Shelton’s

willful injury felony was ongoing and provides the underlying felony for Shelton’s

assault while participating in a felony plea.

       The colloquy for the factual basis established a basis for assault, including

specifics about how Shelton assaulted the victim. No reference was made to the

felony Shelton was allegedly participating in at the time of the second assault. The

court noted on the record, “The defendant agrees there is no merger issue since

both assaults were separate and completed acts which resulted in separate

injuries, and were separated by time and there was a break in the actions of the

defendant.” This statement separates the willful injury in time from the assault

charge, precluding its use as the underlying felony. The court’s colloquy did not

ask Shelton about any offenses other than the willful injury and the assault.

Because the court found the willful injury was complete before the assault, it cannot

serve as the predicate felony occurring at the time of the second assault.
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       Nothing in the record establishes what felony Shelton was participating in

at the time of the second assault. We find an insufficient factual basis to support

Shelton’s plea to assault while participating in a felony.

       The appropriate remedy is either to vacate and remand for dismissal if the

defendant was charged with the wrong crime or to vacate and remand for further

proceedings to establish a factual basis if it is possible for a factual basis to be

shown. State v. Schminkey, 597 N.W.2d 785, 792 (Iowa 1999). We vacate the

sentence and remand for the State to establish a factual basis. See id.

       If the State cannot establish a separate felony occurring at the time of the

assault, it did not get the benefit of its plea bargain and the district court should

vacate both convictions and return the State to the position it had before the plea

agreement, allowing the State to proceed against Shelton on all charges and

sentencing enhancements contained in the trial information or otherwise supported

by the evidence. See State v. Gines, 844 N.W.2d 437, 442 (Iowa 2014). Should

a sufficient factual basis be established, on remand the district court should

address Shelton’s colloquy and sentencing concerns. In particular, the court

should be mindful of the plea colloquy requirements established by State v.

Weitzel, 905 N.W.2d 397, 407–08 (Iowa 2017) (establishing plea colloquy

requirements to identify and explain surcharges as part of punishment).

       VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
