                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1222
                              Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICHARD DEAN PUTNAM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Gary K.

Anderson, District Associate Judge.



      A criminal defendant appeals his conviction and sentence following his

guilty plea to domestic abuse assault. CONVICTION AFFIRMED, JUDGMENT

AND SENTENCE VACATED, AND REMANDED.



      Marti D. Nerenstone, Council Bluffs, for appellant.

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

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

       Richard Putnam appeals his conviction and sentence following his guilty

plea to domestic abuse assault. He argues his criminal charge should have been

dismissed for a violation of his speedy-trial right and his guilty plea was neither

knowing and voluntary nor supported by sufficient evidence; in the alternative, he

argues his counsel was ineffective in failing to assert those claims. We find

Putnam may only raise his claims in the context of ineffective-assistance-of-

counsel and find the record inadequate to address all aspects of those claims

except for his argument counsel failed to perform an essential duty by allowing

him to plead guilty without a factual basis to support his guilty plea. On that

issue, we find Putnam’s guilty plea was supported by a factual basis in the

record. We preserve all other aspects of Putnam’s ineffective-assistance claims

for further development of the record in postconviction proceedings. However,

because the district court’s sentencing order, which purported to accept

Putnam’s guilty plea, mistakenly identified an incorrect criminal charge and

accompanying code section, we vacate Putnam’s judgment and sentence and

remand so the district court can correct its error.

I. Background Facts and Proceedings

       Putnam was charged by trial information with one count of domestic abuse

assault, second offense, in violation of Iowa Code sections 708.2A(1),

708.2A(3)(b), and 236.2(2) (2013).      The listed basis for the charge was that

Putnam “[d]id assault [a family or household member], causing bodily injury, this

being a domestic abuse assault and [Putnam] having been previously convicted

of domestic abuse assault.” The trial information noted the charge was classified
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as an aggravated misdemeanor, although the trial information was captioned with

an SRCR number.

       The same morning, the State of Iowa filed a document entitled

“supplemental” trial information charging Putnam with one count of domestic

abuse assault. The listed basis for the supplemental charge was that Putnam

“[d]id assault [a family or household member], causing bodily injury, this being a

domestic abuse assault,” and the trial information classified the charge as a

serious misdemeanor.        However, despite the fact the supplemental trial

information reclassified the offense as a serious misdemeanor and omitted

reference to the fact Putnam had been previously convicted of domestic abuse

assault, the supplemental trial information still listed the same Iowa Code

sections—708.2A(1), 708.2A(3)(b), and 236.2(2)—as the basis for the charge.

Section 708.2A(3)(b) applies to domestic abuse assault second offenses, which

are classified as aggravated misdemeanors. Section 708.2A(2)(b), a statutory

provision not listed by the State in the supplemental trial information, applies to

domestic abuse assault first offenses, which are classified as serious

misdemeanors.

       Both the trial information and the supplemental trial information were filed

on December 18, 2014.          On January 21, 2015, Putnam filed a written

arraignment and plea of not guilty to the serious misdemeanor charge, in which

he demanded a speedy trial within ninety days of the filing of the trial information,

pursuant to Iowa Rule of Criminal Procedure 2.33(2)(b).          In conformity with

Putnam’s speedy-trial demand, trial was initially set for March 3, 2015, but was

continued to March 17, 2015, for reasons not specified in the record.           The
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continued trial date still fell within the ninety-day time period by one day. On the

day of trial, Putnam failed to appear, and a bench warrant was issued for his

arrest.

          Putnam was arrested ten days later, on March 27, 2015.        The public

defender was re-appointed to represent him and his trial was rescheduled for

April 21, 2015. The date of Putnam’s trial was then continued twice more, first to

April 28, 2015, and then to May 5, 2015. The district court noted the latter

continuance was a result of Putnam’s counsel being unavailable. On May 4,

2015, while still represented by the public defender’s office, Putnam filed a

written waiver of his right to a speedy trial. On May 8, 2015, the district court

allowed Putnam’s counsel from the public defender’s office to withdraw due to a

breakdown in the attorney-client relationship. The district court appointed new

counsel and continued trial to June 23, 2015. Trial was continued another two

times, first to June 30, 2015, and then to July 7, 2015, upon Putnam’s own oral

motions. The district court noted Putnam’s stated reason for both oral motions

was to allow his new counsel additional time for plea negotiation and trial

preparation.

          On July 7, 2015, Putnam entered into a written plea agreement with the

State. The title of the plea agreement itself notes Putnam’s guilty plea was for

the charge of “Domestic Abuse Causing Bodily Injury,” in violation of Iowa Code

section 708.2A(2)(b)—the statutory provision applicable to domestic abuse

assault first offenses which are classified as serious misdemeanors.              In

paragraph eight of the plea agreement, Putnam specified that he was pleading

guilty to the “amended charge of domestic abuse assault causing bodily injury, a
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serious misdemeanor.” Paragraph four of the plea agreement notes the

maximum punishment for the charge, a serious misdemeanor. Paragraph six

lists the elements of the charge without mention of a prior conviction. The written

plea agreement also contained the following paragraphs:

                9.    I have been advised that I may not appeal to a higher
       court because of any defect in this plea or plea proceedings unless
       I file a motion in arrest of judgment alleging the defect not later than
       45 days after this plea is entered, or not later than 5 days before
       the date set for pronouncing sentence, whichever comes first.

             10.     I understand that I have the right to a delay of at least
       15 days between the date this plea is entered and the date of
       sentence. I further understand that if I am sentenced immediately, I
       lose my right to challenge any defect in this plea or plea proceeding
       by motion in arrest of judgment and appeal to a higher court.
       Knowing the above, I request the court to sentence me
       immediately.

       The district court accepted Putnam’s guilty plea on July 7, 2015, and

entered judgment against him. The guilty plea was contingent upon the district

court’s acceptance of the terms of the plea agreement.            The district court

imposed the agreed-upon sentence—a term of imprisonment not to exceed one

hundred eighty days, with all but ten of those days suspended, to run

concurrently with Putnam’s sentence in another case.           However, the district

court’s sentencing order does not reflect judgment for the serious misdemeanor

Putnam actually pled guilty to; the district court instead adjudged Putnam guilty of

the aggravated misdemeanor listed in the State’s initial trial information—

domestic abuse assault, second offense, in violation of Iowa Code section

708.2A(3)(b). The sentencing order also states:

       On the 7th day of July, 2015, Defendant appeared with . . . counsel.
       Defendant waived verbatim record and submits a plea of guilty.
       Court finds said plea is given freely and voluntarily and that a
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      factual basis exists for said plea.  Defendant is requesting
      immediate sentencing and acknowledges the right to file a motion
      in arrest of judgment.

Finally, the sentencing order notes, “Defendant [wa]s advised by the Court of the

reasons for the sentence imposed.” The July 7, 2015 hearing was not reported.

      Putnam did not file a motion in arrest of judgment. He now appeals.

II. Standard of Review

      Normally, “[w]e review a trial court’s ruling on a motion to dismiss based

on speedy-trial grounds for an abuse of discretion,” State v. Winters, 690 N.W.2d

903, 907 (Iowa 2005), and challenges to guilty pleas for correction of errors at

law, State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006).          However, when the

challenges arise instead in the context of ineffective-assistance claims, our

standard of review is de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

III. Discussion

      We begin by noting that neither of Putnam’s claims may be addressed on

direct appeal except in the context of ineffective-assistance-of-counsel claims.

      Putnam’s speedy-trial claim is waived because he pled guilty. See State

v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009) (“It is well established that a

defendant’s guilty plea waives all defenses and objections which are not intrinsic

to the plea.”); State v. Taylor, No. 14-2075, 2015 WL 5969058, at *3 (Iowa Ct.

App. Oct. 14, 2015) (“When a person enters a guilty plea the person waives all

challenges to the charge based on speedy trial claims.”). However, Putnam’s

guilty plea does not preclude him from alleging his trial counsel was ineffective

for failing to move to dismiss his charge on speedy-trial grounds and allowing him

to plead guilty instead. See, e.g., Enninga v. State, 812 N.W.2d 696, 708 (Iowa
                                         7

2012); State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011); Adams v. State, No. 13-

0011, 2014 WL 1999294, at *1 (Iowa Ct. App. May 14, 2014). But cf. State v.

Pirtle, No. 14-1671, 2016 WL 1705601, at *1 (Iowa Ct. App. Apr. 27, 2016) (“By

pleading guilty, [the defendant] waived his right to raise any speedy-trial issues,

including his ineffective-assistance-of-counsel claim.”).

       Putnam’s written plea agreement expressly waived his “right to challenge

any defect in th[e] plea or plea proceeding by motion in arrest of judgment and

appeal to a higher court.”    Also, Iowa Rule of Criminal Procedure 2.24(3)(a)

provides that “[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.”            However, we may consider whether

ineffective assistance of trial counsel rendered Putnam’s plea unintelligent or

involuntary. See Utter, 803 N.W.2d at 651–52. Another exception applies when,

as here, “a defendant alleges trial counsel was ineffective for permitting him to

plead guilty to a charge for which there is no factual basis and for failing to

thereafter file a motion in arrest of judgment.” State v. Finney, 834 N.W.2d 46,

49 (Iowa 2013). Thus, we will consider Putnam’s claims in the context of his

counsel’s performance.

       We may decide ineffective-assistance-of-counsel claims on direct appeal if

we determine that the record is adequate. Straw, 709 N.W.2d at 133. When a

claim of ineffective assistance of counsel is raised on direct appeal, an appellate

court may either “decide the record is adequate to decide the claim or may

choose to preserve the claim for [postconviction proceedings].”        Iowa Code

§ 814.7(3). In order to prevail on his claim of ineffective assistance of counsel,
                                          8


Putnam must establish both that “(1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.” Straw, 709 N.W. 2d at

133 (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).              Both

elements must be proved by a preponderance of the evidence. Id. With respect

to the first prong, “we begin with the presumption that the attorney performed

competently,” and “avoid second-guessing and hindsight.” Ledezma v. State,

626 N.W.2d 134, 142 (Iowa 2001).          Attorney action (or inaction) caused by

improvident trial strategy, miscalculated tactics, or mistakes in judgment does not

necessarily amount to ineffective assistance of counsel. See State v. Ondayog,

722 N.W.2d 778, 786 (Iowa 2006). With respect to the second prong, a showing

of prejudice resulting from counsel’s failure to perform an essential duty requires

that a defendant establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       We consider each of Putnam’s ineffective-assistance claims in turn.

   A. Putnam’s Right to Speedy Trial

       “In criminal matters, a competent practitioner must be aware of and

vigilantly protect his or her client’s speedy trial rights.” Utter, 803 N.W.2d at 653.

“Thus, to provide reasonably competent representation when a criminal

defendant asserts his or her speedy trial rights, counsel must ensure that the

State abides by the restrictions established in Iowa Rule of Criminal Procedure

2.33.” Id. “Counsel’s failure to do so amounts to a failure to perform an essential

duty.” Id. A showing of prejudice in such circumstances is all but guaranteed,

since the remedy for a violation of the speedy indictment rule is an absolute
                                           9


dismissal of the charge with prejudice and an accompanying bar against

reindictment. See Id. at 654. “[I]f [a defendant] knew the court would have had

to dismiss the information and that the State could not recharge, it is axiomatic

that [the defendant] would not have pled guilty.” Id. A criminal defendant who

pleads guilty to a count which should rightly be dismissed for a speedy-trial

violation does not enter into the plea voluntarily or intelligently. Id.

       The relevant inquiry, then, is whether the State violated Putnam’s speedy

trial rights, thereby triggering the essential duty of his counsel to move to dismiss

the trial information.    It is not disputed Putnam asserted those rights and

demanded speedy trial under Iowa Rule of Criminal Procedure 2.33(2)(b) until his

waiver on May 4, 2015. That rule provides:

       If a defendant indicted for a public offense has not waived the
       defendant’s right to a speedy trial the defendant must be brought to
       trial within 90 days after indictment is found or the court must order
       the indictment to be dismissed unless good cause to the contrary
       be shown.

Iowa R. Crim. P. 2.33(2)(b). Under rule 2.33(2)(b), “a criminal charge must be

dismissed if the trial does not commence within ninety days from the filing of the

charging instrument ‘unless the State proves (1) defendant’s waiver of speedy

trial, (2) delay attributable to the defendant, or (3) ‘good cause’ for the delay.’”

Winters, 690 N.W.2d at 908 (internal citations omitted).          The only factor we

consider when determining if good cause existed is the reason for the delay. Id.

       Putnam’s trial was originally scheduled to take place within the ninety-day

statutory deadline. Putnam concedes he failed to appear for his trial date and so

part of the delay in bringing him to trial was attributable to his own actions, but he

argues any remaining delay is attributable to the State and is not supported by
                                          10


good cause.      According to Putnam, only eleven days of delay should be

attributed to him, making the new ninety-day deadline April 8, 2015. The Iowa

Supreme Court has indicated its disapproval of such mechanical assignment of

responsibility for delay in bringing a criminal defendant to trial:

       In considering whether a delay of trial beyond the ninety-day period
       provided in Iowa Rule of Criminal Procedure 2.33(2)(b) warrants
       dismissal of the prosecution, we do not deem it appropriate to
       identify a certain number of days related to events that are believed
       to have impeded the progress of the case, attribute those events to
       the defendant or to other good cause, and then extend the speedy-
       trial deadline by a like number of days. Evaluation of the delay may
       not be made in such a mechanical fashion because it is not
       accurate to assume that pretrial events consuming a measurable
       amount of time will force a delay in the trial of a like amount of time.
       The decisive inquiry in these matters should be whether events that
       impeded the progress of the case and were attributable to the
       defendant or to some other good cause for delay served as a
       matter of practical necessity to move the trial date beyond the
       ninety-day period required by the rule.

State v. Campbell, 714 N.W.2d 622, 628 (Iowa 2006).

       We find the record is not adequate for us to address Putnam’s claim of

ineffective assistance related to his speedy-trial right. For example, we cannot

discern the reason for delay behind the district court’s April 21, 2015 order

continuing trial to April 28, 2015. The record contains no transcript of the hearing

held on that date, and no reason for the continuance is identified in the order.

The record is also devoid of testimony or evidence regarding the circumstances

behind defense counsel’s unavailability on April 28, 2015, and the circumstances

that led Putnam to waive his speedy trial right on May 4, 2015. Given these gaps

in the record, combined with the law that even a single day of delay not

supported by good cause is a basis for dismissal based upon speedy-trial

grounds, see State v. Miller, 637 N.W.2d 201, 205–06 (Iowa 2001), we are
                                         11


unable to determine on direct appeal whether the State violated the speedy trial

rule.   We preserve this claim for further development of the record in

postconviction proceedings so Putnam’s attorneys may explain themselves and

so additional evidence can be introduced regarding the specific reasons for the

delays in bringing Putnam to trial.

   B. The Voluntariness of, and Factual Basis for, Putnam’s Guilty Plea

        Putnam makes a number of arguments attacking the validity of his guilty

plea. He argues his counsel’s ineffectiveness rendered his plea unintelligent and

involuntary. He also argues the plea was not supported by an adequate factual

basis. In arguing he did not enter into his guilty plea intelligently and voluntarily,

Putnam again raises the issue of his counsel’s failure to file a motion to dismiss

on speedy-trial grounds.      He also identifies specific strategy decisions and

alleges they amounted to ineffective assistance. Finally, Putnam points to a

letter sent to defense counsel prior to July 7, 2015. According to Putnam, the

existence of the letter calls into question whether his acceptance of the plea

agreement was “truly knowing and voluntary” because it stated he would not be

accepting the plea deal ultimately proffered to the court. For the reasons stated

above related to the speedy-trial claim, and because the record does not contain

any evidence or testimony from Putnam’s attorneys as to the reasons they made

various strategic choices or what conversations or circumstances led to Putnam’s

acceptance of the plea agreement, we find the record is not adequate for us to

address Putnam’s claim that his counsel’s ineffective assistance caused his plea

to be unintelligent and involuntary.
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         We do find the record is adequate to address Putnam’s claim that his

counsel was ineffective for allowing him to plead guilty to a charge not supported

by a factual basis. “Defense counsel violates an essential duty when counsel

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

judgment when there is no factual basis to support defendant’s guilty plea.”

State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2014). “Prejudice is presumed under

these circumstances.” Id. at 764–65. The factual basis must be contained in the

record and “can be discerned from four sources: (1) inquiry of the defendant, (2)

inquiry of the prosecutor, (3) examination of the presentence report, and (4)

minutes of evidence.” Id. at 767–68.

         The thrust of Putnam’s argument appears to be that his counsel was

constitutionally deficient for allowing him to plead guilty to the wrong charge (the

aggravated misdemeanor), which was not supported by a factual basis in the

record.    We disagree.     The charge Putnam pled guilty to—domestic abuse

causing bodily injury, first offense, a serious misdemeanor of in violation of Iowa

Code section 708.2A(2)(b)—is supported by an adequate factual basis in the

record.     The minutes of testimony provide that Putnam showed up at the

apartment of a woman he had a relationship with, in violation of a no-contact

order.    Once there, he threatened to kill the woman and grabbed her arm,

causing pain and bruising.

         The real issue is the fact the district court appears to have inadvertently

adjudged Putnam guilty of the charge listed in the original trial information rather

than the charge to which Putnam actually pled guilty. The district court accepted

Putnam’s guilty plea and sentenced him in accordance with the plea agreement,
                                        13


but then listed the wrong charge and code section in its sentencing order. The

record contains no indication whatsoever that the court intended to reject the

most central aspect of Putnam’s plea deal—the charge he was pleading guilty to.

        In State v. Pearson, No. 13-1311, 2013 WL 5291941, *1 (Iowa Ct. App.

Sept. 18, 2013), a different panel of our court considered a similar situation; a

criminal defendant pled guilty but the district court erroneously entered judgment

and sentenced him under the wrong Iowa Code section. The court vacated the

judgment and sentence and remanded “to allow the district court to amend the

judgment.” Id. at *3. The defendant appealed a second time after the district

court not only fixed its error at resentencing but also increased the defendant’s

term of imprisonment. State v. Pearson, 876 N.W.2d 200, 203 (Iowa 2016). Our

supreme court explained that correction of the error in that case did not require

resentencing the defendant. Id. at 208 (“What is painfully obvious in this case is

that the mistake that occurred at the original sentencing hearing was

inconsequential to the sentence imposed. As a result, there was absolutely no

reason for any court to order resentencing as a means to fix the mistake.”).

       We vacate Putnam’s judgment and sentence and remand so the district

court can correct its error.

       CONVICTION AFFIRMED, JUDGMENT AND SENTENCE VACATED,

AND REMANDED.
