                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1078
                             Filed January 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NOELLE COURTNEY YOUNGBEAR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Tama County, Nancy A.

Baumgartner (guilty plea) and Fae E. Hoover-Grinde (sentencing), Judges.



      Defendant appeals her convictions for second-degree burglary and two

counts of willful injury causing bodily injury. AFFIRMED.




      Melissa A. Nine of Nine Law Office, Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee.




      Considered by Doyle, P.J., Tabor, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                          2


MAHAN, Senior Judge.

       Defendant Noelle Youngbear appeals her convictions for second-degree

burglary and two counts of willful injury causing bodily injury. There is a sufficient

factual basis in the record for Youngbear’s guilty pleas to all three charges. The

evidence shows Youngbear’s guilty pleas were made voluntarily and intelligently.

The sentence imposed in this case did not constitute cruel and unusual

punishment. We affirm defendant’s convictions and sentence.

       I. Background Facts & Proceedings.

       According to the minutes of evidence, on November 3, 2013, at about

4:00 a.m., Merona Jefferson (Merona) and Yolanda Hernandez got into a

physical altercation at a birthday party at the home of Barbara Lincoln in Tama

County. Merona contacted her friends, Youngbear, Maggi Walker-Morgan, and

Brandy Johnson. Gage Tyon stated the women asked him for the location of

Hernandez. Tyon stated they “seemed really mad like they wanted revenge or

something.” Youngbear’s boyfriend, Andrew Jefferson, stated he believed the

intention of Youngbear, Walker-Morgan, and Johnson “was to confront them,”

referring to Hernandez and her friends.

       The women went to Lincoln’s home, where Hernandez was staying.

Lincoln’s daughter, DeShane Buffalo, stated she heard a knock on the door at

about 6:00 a.m. When she and Hernandez went to answer the door, they saw

Youngbear, Walker-Morgan, and Johnson already inside the home.                A fight

ensued involving Youngbear, Walker-Morgan, Johnson, Hernandez, Lincoln, and

Buffalo. Buffalo stated Youngbear struck her in the head with a wrench. Buffalo

also stated she saw Youngbear hitting Lincoln in the head with a wrench.
                                             3


Another witness, Hailee Almanza, stated she saw Youngbear strike Lincoln with

an object. Buffalo stated she then struck Youngbear in the head with a glass

lampshade.1      Buffalo received a laceration about four inches long on her

forehead. Lincoln received a deep laceration about three inches long in the

middle of her forehead. Youngbear had a fractured vertebrae in her neck and

needed to be life-flighted to Iowa City.

       Youngbear, Walker-Morgan, and Johnson were charged with first-degree

burglary, two counts of willful injury resulting in serious injury, carrying a

concealed weapon, and assault while participating in a felony.                  Youngbear

entered into a plea agreement in which she agreed to plead guilty to burglary in

the second degree, in violation of Iowa Code section 713.5(1) (2013), and enter

Alford pleas2 to two counts of willful injury causing bodily injury, in violation of

section 708.4(2). The State agreed to dismiss the other charges. Under the plea

agreement both parties could make sentencing recommendations.

       After the plea hearing on May 9, 2014, the district court accepted

Youngbear’s guilty plea to second-degree burglary and Alford pleas to two

counts of willful injury causing bodily injury. At the sentencing hearing the State

recommended Youngbear serve time in prison but requested concurrent

sentences.     Defense counsel requested a deferred judgment and probation.

Youngbear was sentenced to ten years in prison on the second-degree-burglary


1
  According to a police report, Buffalo’s statement that she hit Youngbear with a
lampshade “did not correspond to the evidence that the lamp reveals,” because there
was blood on the middle section of the lamp.
2
  In an Alford plea, a defendant may “voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence even if he is unwilling or unable to admit
his participation in the acts constituting the crime.” North Carolina v. Alford, 400 U.S. 25,
37 (1970).
                                           4


charge and five years on each of the willful injury charges, all to be served

concurrently. She now appeals her convictions and sentence.

       II. Ineffective Assistance.

       A.    Youngbear contends she received ineffective assistance because

defense counsel permitted her to plead guilty when there was not a factual basis

for her pleas to second-degree burglary or the two counts of willful injury causing

bodily injury.3

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       “It is a responsibility of defense counsel to ensure that a client does not

plead guilty to a charge for which there is no objective factual basis.” State v.

Finney, 834 N.W.2d 46, 54 (Iowa 2013). The court should not accept a guilty

plea unless there is a factual basis for the plea, including Alford pleas. State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). “Our cases do not require that

the district court have before it evidence that the crime was committed beyond a



3
  Youngbear raises the claim that the court could not rely on the minutes of evidence in
this case because the proposed testimony in the minutes was not in accordance with the
deposition testimony of the witnesses. The depositions were never made a part of the
record. We do not consider her claims based on evidence outside the record. See
Hughes v. Waters, 204 N.W.2d 599, 600 (Iowa 1973) (“We must decide the case on the
evidence in the trial court.”).
                                       5


reasonable doubt, but only that there be a factual basis to support the charge.”

Finney, 834 N.W.2d at 62.

      “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.” Id. We consider whether there is an objective factual basis in the

entire record available to the court when it accepted the plea. State v. Sutton,

853 N.W.2d 284, 286 (Iowa Ct. App. 2014).           We may consider (1) the

prosecutor’s statements, (2) the defendant’s statements, (3) the minutes of

evidence, and (4) the presentence report, if it was available at the time of the

plea. Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014).

      1. We find there is a sufficient factual basis in the record to support

Youngbear’s guilty plea for second-degree burglary. During the plea colloquy

this exchange occurred:

              THE COURT: And did you enter onto—into an occupied
      structure—was it a house or was it an apartment? YOUNGBEAR:
      House.
              THE COURT: House. And when you did so, did you do so
      without any right, license or privilege to be in the house? In other
      words, you didn’t have any authority to go in? YOUNGBEAR: No.
              THE COURT: And when you entered the property, did you
      do so with the intent to commit an assault or did the other people
      with you have the intent to commit an assault? YOUNGBEAR: Is
      this a yes or no question?
              DEFENSE COUNSEL: Yes.
              THE COURT: Yes. YOUNGBEAR: Yes.
              ....
              THE      COURT:       There       were      people   home?
      YOUNGBEAR: Yes.

      Youngbear’s answers established the elements necessary for burglary.

See Iowa Code § 713.1 (defining burglary as “[a]ny person, having the intent to

commit a felony, assault or theft therein, who, having no right, license, or
                                        6


privilege to do so, enters an occupied structure”). There is additional factual

support for the plea in the minutes of evidence. There were several people

inside Lincoln’s home on the morning of November 3, 2013, making it an

occupied structure.   Hernandez and Buffalo stated that Youngbear, Walker-

Morgan, and Johnson were already inside the home when they went to answer

the door, and thus, they entered without the authority to do so. Tyon stated the

three women “wanted revenge,” and Jefferson stated they had the intention to

“confront” the other women, which could support a finding they had the intent to

commit an assault.     The evidence additionally established the elements of

second-degree burglary. See Iowa Code § 713.5(1).

      2.   Youngbear entered an Alford plea to the charges of willful injury

causing bodily injury. “In an Alford plea, because the accused is denying his

guilt, a factual basis must be established independent of his statements.” Farley

v. Glanton, 280 N.W.2d 411, 416 (Iowa 1979); see State v. Hansen, 344 N.W.2d

725, 728 (Iowa Ct. App. 1983). The factual basis may be determined from the

minutes of evidence. State v. Ramirez, 400 N.W.2d 586, 588 (Iowa 1987) (citing

State v. Townsend, 238 N.W.2d 351, 355 (Iowa 1976)).

      Willful injury is defined as “[a]ny person who does an act which is not

justified and which is intended to cause serious injury to another.” Iowa Code

§ 708.4. In a police report attached to the minutes of evidence, Buffalo stated: “I

saw my mom and Noelle on the floor and my mom was on top. Noelle had a

wrench and was hitting my mom in the head.” Also, Almanza stated, “she saw

Youngbear strike Barbara with an object.” When officers first approached Lincoln

she appeared to be intoxicated, but told the officers “she was assaulted by Noelle
                                           7


who had struck her in the head with a wrench.” We conclude there is a factual

basis in the record to support Youngbear’s guilty plea to willful injury causing

bodily injury of Lincoln.

       The minutes also show Buffalo stated that as she went downstairs she

observed Walker-Morgan punching Hernandez, when out of nowhere “she was

struck in the head with a wrench by Noelle.” Lincoln told an officer, “Youngbear

had struck her daughter [Buffalo] first in the head and then she got between

them.” An officer reported that based on how deep Buffalo’s wound was, it was

clear that an object had been used to strike her.        We conclude there is a

sufficient factual basis in the record to support Youngbear’s guilty plea to willful

injury causing bodily injury to Buffalo.

       B. Youngbear claims she received ineffective assistance because her

defense counsel “pushed her into pleading guilty with assurances she would

receive a deferred sentence and ultimately the charges would be expunged from

her record.” She states her pleas were not made voluntarily and intelligently.

       The record does not support Youngbear’s contentions. At the beginning

of the plea colloquy, the prosecutor stated he would be recommending

concurrent sentences and stated, “Defendant is free to ask for deferred

judgments on any and all of the offenses as part of the agreement.” The court

carefully explained the maximum and minimum penalties for the charges.

Youngbear was informed the maximum penalty on the burglary charge was a

term of imprisonment not to exceed ten years, while the maximum penalty on the

charges of willful injury causing bodily injury was a term of imprisonment not to

exceed five years. The court told Youngbear that while she could request a
                                         8


deferred judgment, “There’s no guarantee that that’s going to happen.” The court

told her that if she received consecutive sentences she could be sentenced to

twenty years in prison.

       After the maximum and minimum penalties were explained, Youngbear

continued to enter her pleas. The court then stated, “I find that the Defendant’s

pleas are voluntarily and intelligently made, with a knowledge of the

consequences, and that there is a factual basis for each.” Based on the record

made during the plea colloquy, we determine Youngbear could not have

reasonably believed she was assured of receiving a deferred sentence.

       We conclude Youngbear has not shown she received ineffective

assistance of counsel.

       III. Sentencing.

       Youngbear     asserts   her   sentence    constitutes   cruel   and   unusual

punishment, in violation of the Eighth Amendment. She states that balancing the

gravity of the crime to the severity of the sentence, the sentence is

disproportional. Youngbear claims the sentence in patently unfair because out of

an altercation where numerous people were involved, she received the most

severe sentence, although she was also the one who was most seriously injured.

       Our review of this constitutional issue is de novo. State v. Oliver, 812

N.W.2d 636, 639 (Iowa 2012). “If the sentence does not create an inference of

gross disproportionality, then ‘no further analysis is necessary.’”      Id. at 650

(citation omitted). “Our principal task at this stage is to ‘balanc[e] the gravity of

the crime against the severity of the sentence.’” Id. (citing State v. Bruegger, 773

N.W.2d 862, 873 (Iowa 2009)). “[I]t is rare that a sentence will be so grossly
                                         9


disproportionate to the crime as to satisfy the threshold inquiry and warrant

further review.” Id. Also, we give substantial deference to the legislature in

establishing penalties for various crimes. Id.

       Youngbear has not shown her sentence is grossly disproportionate to the

severity of her crimes.       Youngbear entered an occupied home without

permission, then caused injuries to two of the residents of the home by striking

them with a wrench.     The fact that she was also injured is not a mitigating

circumstance. We conclude she has not shown her sentence constitutes cruel

and unusual punishment.

       We affirm Youngbear’s convictions and sentence.

       AFFIRMED.
