                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0880
                              Filed June 17, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BREE DEONTEZ WRIGHT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.



      Bree Wright appeals after pleading guilty to third-degree sexual abuse.

AFFIRMED.



      Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.

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

General, for appellee.



      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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DOYLE, Judge.

       Bree Wright pled guilty to third-degree sexual abuse. On direct appeal,

Wright contends that his trial counsel was ineffective in allowing him to plead guilty.

He claims his plea was not voluntary because he was not informed by the plea

court of an element of the offense. He also claims the record lacks a factual basis

for the plea. We review the claim de novo.1 See Lamasters v. State, 821 N.W.2d

856, 862 (Iowa 2012).

I. Facts and Background Proceedings

       In February 2019, Wright was charged with third-degree sexual abuse. The

trial information accused Wright of committing, from January 2017 through April

2017, sexual abuse upon P.A., a child who was the age of fourteen or fifteen years

old, when he was more than four years older than her. It was determined that

Wright was the father of a child P.A. gave birth to in October 2017. In May 2019,

Wright pled guilty to sexual abuse in the third degree in violation of Iowa Code

sections 709.1(1) and 709.4(1)(b)(3)(d) (2017). In exchange for his plea, the State

dismissed a separate charge for enticing away a minor under the age of sixteen.

       At the plea hearing, the district court asked Wright if he had discussed with

his counsel the existence of any possible defenses to that crime, for which he

replied “Yes, sir.” During the plea colloquy, the district court went through the

elements of the crime. The court told Wright that the State would have to prove

that he committed the crime of sexual abuse between January 2017 through April



1 Recent amendments to Iowa Code chapter 814 (2020) that limit a defendant’s
right to appeal do not apply to cases pending on July 1, 2019, including this case.
See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019).
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2017, that he performed sex acts on P.A., that P.A. was a child fourteen or fifteen

years old, and that he was four or more years older than her. Wright acknowledged

he understood the State would have to prove those elements. When asked to tell

the court what he did to commit the crime, Wright responded, “I met [P.A.] February

16th of 2017. We had sex. A couple of months later we figured out she was

pregnant.” He told the court P.A. was fifteen and he was twenty-three at the time.

After Wright pled guilty, the district court asked both parties’ counsel whether they

knew of any legal reason why the plea should not be accepted by the court. Both

counsel responded “No.” The court then asked both counsel whether the court

had “omitted anything in this guilty plea colloquy that would later affect the legal

validity of this plea?” The prosecutor responded “Not that I’m aware of, Judge,

no.” Defense counsel responded “No, Your Honor.” The plea court then accepted

Wright’s guilty plea and imposed sentence. Wright appeals.

II. Analysis

       To succeed on a claim of ineffective assistance of counsel, appellant must

show counsel breached a duty and prejudice resulted. See State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003). In the context of a guilty plea, appellant shows

prejudice by proving that, but for counsel’s breach, there is a reasonable probability

appellant “would not have pled guilty and would have insisted on going to trial.”

State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

   a. Voluntariness

       If counsel allows a defendant to plead involuntarily and fails to move in

arrest of judgment challenging that plea, counsel breaches a duty. See State v.

Straw, 709 N.W.2d 128, 134 (Iowa 2006). For a plea to be voluntary, the court
                                         4


must inform the defendant of and ensure the defendant understands, among other

things, “the nature of the charge to which the plea is offered.” See Iowa R. Crim.

P. 2.8(2)(b); State v. Everett, 372 N.W.2d 235, 236 (Iowa 1985). In determining

whether the requirements of rule 2.8(2)(b) have been met, “we apply the

substantial compliance standard” which requires the essence of each requirement

of the rule be expressed. State v. Weitzel, 905 N.W.2d 397, 406 (Iowa 2017).

      Wright alleges that his plea was not voluntary because the trial court did not

ensure he was informed of and understood the nature of third-degree sexual

abuse, in violation of Iowa Code section 709.4(1)(b)(3)(d), because the court failed

to explain that a necessary element of the crime is that the “sex act is between

persons who are not at the time cohabitating as husband and wife[.]” The extent

of the court’s explanation varies with the circumstances of each case. See State

v. Dryer, 342 N.W.2d 881, 884 (Iowa 1983). When informing a defendant of the

nature of the charges, the court need not review and explain each element of the

crime if, under the circumstances, it is apparent that the accused understood the

nature of the charge. See State v. Null, 836 N.W.2d 41, 49 (Iowa 2013). In

determining how much explanation is necessary, we consider the complexity of

the charge as well as the defendant’s education and experience. See State v.

Victor, 310 N.W.2d 201, 204 (Iowa 1981).

      A person commits third-degree sexual abuse under Iowa Code section

709.4(1)(b)(3)(d) when that person (1) performs a sex act, (2) the act is between

persons who are not at the time cohabiting as husband and wife, (3) the other

person is fourteen or fifteen years, and (4) the person is four or more years older

than the other person. Here, the court instructed Wright that the State had to prove
                                          5


he performed sex acts on P.A., P.A. was a child fourteen or fifteen years, and he

was four or more years older than her. There was no mention of the State having

to prove that Wright and P.A. were not at the time of the act cohabitating as

husband and wife. Wright’s answers to the plea court also mention nothing about

his marital or cohabitating status with P.A. at the time of the act. No one alerted

the court to the colloquy’s omission of the not-cohabiting-as-husband-and-wife

element.

       Although it is possible Wright was informed of all the elements of the crime

by his counsel, there is no record here showing what counsel told Wright. As is

often the case, the record is insufficient to allow us to resolve appellant’s claim on

direct appeal. See State v. Petty, 925 N.W.2d 190, 196 (Iowa 2019). So we

preserve the issue for a potential postconviction-relief action to allow a full

development of the record. See id.

   b. Factual Basis

       If counsel allows a defendant to plead guilty without a factual basis, counsel

breaches a duty and we presume prejudice. See Rhoades v. State, 848 N.W.2d

22, 29 (Iowa 2014). The question “is whether the record before the district court

as a whole supports a factual basis for each element of the offense.” State v.

Brown, 911 N.W.2d 180, 183 (Iowa Ct. App. 2018). We look at the entire record

before the district court at the time of the plea to determine whether a factual basis

for the plea exists. See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). That

includes inquiry of the defendant, inquiry of the prosecutor, examination of the

presentence investigation report (if available at the time of the plea), and minutes
                                         6

of the evidence.2 See State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010). When

analyzing a record to determine whether the record supports a factual basis for a

plea, courts “do not require the record ‘to show the totality of evidence necessary

to support a guilty conviction,’ but only that the record demonstrates the facts to

support the elements of the offense.” Rhoades, 848 N.W.2d at 29 (quoting Ortiz,

789 N.W.2d at 768). The evidence need not show the defendant is guilty beyond

a reasonable doubt, only that there is sufficient evidence by which a jury could find

the defendant guilty. See Finney, 834 N.W.2d at 50.

       Wright alleges there was no factual basis for the charge of third-degree

sexual abuse because there was no mention during the plea colloquy that he was

not cohabitating with P.A. as husband and wife and therefore the record cannot

establish   the   not-cohabitating-as-husband-and-wife     element.      But   when

determining whether there is a factual basis to support each element of the offense

we look to the record “as a whole” and not just the colloquy. Brown, 911 N.W.2d

at 183.

       Here, the record as a whole supports a factual basis for the not-

cohabitating-as-husband-and-wife element of third-degree sexual abuse.          The

May 2017 sexual abuse report attached to the minutes of testimony states:

“SUSPECTS RELATIONSHIP TO VICTIM:                  BOYFRIEND.”        A May 2017


2 Iowa Rule of Criminal Procedure 2.5(3) employs the term “minutes of evidence”
and “statement of the witness’ expected testimony.” Here (as is the standard
practice throughout the state), the document filed by the prosecuting attorney as
intended compliance with this rule was captioned “Minutes of Testimony,” and the
parties and court used the term throughout the proceedings. Since the 1800’s, the
term “minutes of testimony” has been commonly used interchangeably with
“minutes of evidence.” See, e.g., State v. Wise, 50 N.W. 59, 60 (Iowa 1891) (using
“minutes of testimony” and “minutes of the evidence” interchangeably).
                                          7


supplemental police witness statement report attached to the minutes of testimony

states that P.A. said Wright was her boyfriend. The report states P.A. first met

Wright in the summer of 2016. Records show she was fourteen years old at the

time. The report then says, “The two met again on 16 Feb 17 . . . and had sex for

the first time.” The report states that since then the two had consensual sex.

Records show she was fifteen years old and he was twenty-three in February

2017. Their child was born in October 2017, about eight and a half months after

their first encounter in February 2017.

        We note that in Iowa a marriage between individuals is valid only if each is

eighteen or older. See Iowa Code § 595.2(2). A marriage license may be issued

to a person sixteen or seventeen if the parents of the underage party consent. See

Id. at § 595.2(4). P.A. would not have qualified for an Iowa marriage license in

2017.

        We conclude the record shows enough facts to support the not-

cohabitating-as-husband-and-wife      element   of   third-degree   sexual   abuse.

Because there is a factual basis for his plea, Wright has failed to establish his

counsel was ineffective in this regard.

        We affirm Wright’s conviction and sentence. We preserve the voluntariness

issue for a potential postconviction-relief action to allow a full development of the

record.

        AFFIRMED.
