                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1473
                                  Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEJUAN TYREE LYKE JR.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse

(motion to substitute counsel), Terry Rickers (plea) and Randy V. Hefner

(sentencing), Judges.



       Jejuan Tyree Lyke Jr. appeals from judgment and sentences entered

following his pleas of guilty to intimidation with a dangerous weapon, willful injury,

and third-degree kidnapping (with firearm enhancement). AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



       Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.

      JeJuan Tyree Lyke Jr. appeals from judgment and sentences entered

following his pleas of guilty to intimidation with a dangerous weapon, in violation

of Iowa Code sections 708.6 and 702.7 (2015), a class “C” felony; willful injury

causing bodily injury, in violation of Iowa Code section 708.4, a class “D” felony;

and kidnapping in the third degree, in violation of Iowa Code sections 710.1 and

710.4, a class “C” felony. We affirm.

I. Background Facts and Proceedings.

      Due to events occurring on February 3, 2015, Lyke was charged with six

offenses: count I–attempted murder, count II–robbery in the first degree, count

III–intimidation with a dangerous weapon, count IV–going armed with intent,

count V–willful injury, and count VI–kidnapping in the second degree; counts I, II,

and VI being class “B” felonies.

      On June 24, 2016, the State explained the parties had reached a plea

agreement as follows:

      The defendant will plead guilty to count III, intimidation with a
      dangerous weapon, that is a class “C” felony; he will plead guilty to
      count V, willful injury, a class “D” felony; and count VI, amended
      from kidnapping in the second degree to kidnapping in the third
      degree, a class “C” Felony.
             The parties will jointly recommend the following sentencing
      obligations at the time of sentencing. On count III, that the
      defendant be ordered to serve a term not to exceed ten years with
      the department of corrections, that he be ordered to pay the
      minimum fine of $1000, that he be ordered to pay restitution in an
      amount to be determined on all charges as filed, that he be ordered
      to submit a sample of his DNA to be kept on the registry of the
      State of Iowa.
             As to count V, willful injury, that he be sentenced to a term of
      incarceration not to exceed five years, that he be ordered to pay the
      minimum fine of $750.00, plus statutory surcharge and the court
      costs, that he be ordered to pay restitution in an amount to be
                                         3


      determined on all charges as filed. That he submit a sample of his
      DNA, and be kept on the registry of the State of Iowa.
             As to count VI, the State would move to amend that charge
      conditionally based upon the acceptance of the court by your Honor
      on these pleas in this matter, kidnapping in the second degree and
      kidnapping in the third degree. Parties would jointly recommend
      that he be ordered to be incarcerated for a term not to exceed ten
      years, ordered to pay a fine of $1000, plus surcharge and court
      costs, and restitution to be determined on all charges as filed, and
      submit a sample of his DNA.
             With regard to amended count VI, the State filed an
      amended trial information including the gun enhancement language
      contained in Iowa Code section 902.7, that is a mandatory
      minimum sentence of five years. The State understands that in
      addition to the kidnapping he will also plead guilty to the gun
      enhancement language and be subject to that five-year minimum
      term of incarceration.
             With regard to serving these sentences the parties will jointly
      recommend that he serve each of these sentences, and that each
      sentence be run consecutive to the other two sentences for
      maximum term of incarceration not to exceed [twenty-five] years.

      The court entered judgement.           On the intimidation-with-a-dangerous-

weapon charge, the district court imposed a term of imprisonment not exceeding

ten years and a $1000 fine; on the willful-injury charge, the court imposed a term

of imprisonment not exceeding five years and a $750 fine; and on the third-

degree-kidnapping charge, the court imposed a term of imprisonment not to

exceed ten years and a $1000 fine. Pursuant to Iowa Code section 902.7, the

court imposed the mandatory-minimum sentence of five years on the charges of

the intimidation with a dangerous weapon and third-degree kidnapping.          The

prison terms are to run consecutively.

      On appeal, Lyke asserts (1) his plea counsel was ineffective for allowing

him to plead guilty to kidnapping in the third degree because there was no factual

basis for the plea; (2) the district court imposed an illegal sentence by imposing

the dangerous-weapon sentencing enhancement under Iowa Code section 902.7
                                           4


on the charge of intimidation with a dangerous weapon; and (3) his plea counsel

was ineffective for failing to object to the State’s sentencing recommendation as

a breach of the parties’ plea agreement.

II. Scope and Standard of Review.

       Claims of ineffective assistance of counsel are grounded in the Sixth

Amendment right to counsel, and we review constitutional claims de novo. State

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

       We review a claim of an illegal sentence for errors at law. See State v.

Ragland, 836 N.W.2d 107, 113 (Iowa 2013).

III. Analysis.

       A. Factual basis. “[A] defendant may attack his or her guilty plea on the

ground the defendant did not receive effective assistance of counsel as required

under the Sixth Amendment to the United States Constitution because there was

no factual basis to support the defendant’s guilty plea.” Rhoades v. State, 848

N.W.2d 22, 28 (Iowa 2014). If a factual basis exists, the ineffectiveness claim

necessarily fails. State v. Rodriguez, 804 N.W.2d 844, 853-54 (Iowa 2011).

       At the time of the guilty plea, the record must disclose facts to
       satisfy all elements of the offense. We review (1) the prosecutor’s
       statements, (2) the defendant’s statements, (3) the minutes of
       testimony, and (4) the presentence report, if available at the time of
       the plea, to determine if the record supports a factual basis for the
       plea. We have also allowed the court to take judicial notice of well-
       known facts to establish a factual basis. When analyzing the
       record, we 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 (citations omitted).
                                          5


       Here, the trial information alleged that the defendant and/or his

codefendants committed the kidnapping offense with either of two specific

intents: (1) the intent to inflict serious injury upon the victim; or (2) the intent to

secretly confine the victim.     During the plea hearing, the following colloquy

occurred:

                 THE DEFENDANT: On February 3, 2016, I moved [the
       victim] from place to place against his will.
               THE COURT: It’s my understanding that this situation with
       you and [the codefendant] started outside the apartment building?
               THE DEFENDANT: Yes, sir.
               THE COURT: And that eventually you forced [the victim]
       against his will[] to go inside the building?
               THE DEFENDANT: Yes, sir.
               THE COURT: And did you do that to try and hide him away
       and keep people from noticing that you were in fact threatening him
       and putting him in fear?
               THE DEFENDANT: Yes, sir.
               THE COURT: And this happened in Waukee, Dallas County,
       Iowa?
               THE DEFENDANT: Yes, sir.
               THE COURT: And again at a given point during this situation
       you and the other two people you were with had a firearm in their
       possession?
               THE DEFENDANT: Yes, sir.
               THE COURT: And you had no permission or authority to do
       this to [the victim]?
               THE DEFENDANT: No, sir.
               ....
               THE COURT: . . . I think you admitted earlier, Mr. Lyke, that
       while you were in the process of kidnapping or taking [the victim]
       from one place to another against his will, there was a period of
       time where you actually had the gun in your hand?
               THE DEFENDANT: Yes, sir.
               THE COURT: And that you displayed that firearm in a way to
       show [the victim] that he had no choice, that you were basically
       threatening him with the firearm to force him to go where he didn’t
       want to go?
               THE DEFENDANT: Yes, Your Honor, I did.

       There is a factual basis to support the kidnapping offense and therefore

the ineffective-assistance-of-counsel claim fails.
                                            6

         B. Minimum sentence for firearm. “An illegal sentence is one that is not

permitted by statute,” and, thus, can be corrected at any time. State v. Gordon,

732 N.W.2d 41, 43 (Iowa 2007) (citation omitted). Contrary to Lyke’s assertion

that the district court imposed an illegal sentence, the court was required to

impose the dangerous-weapon minimum sentence pursuant to Iowa Code

section 902.7.1

         The trial information alleged the sentencing enhancement for use of a

dangerous weapon applied to the charge of intimidation with a dangerous

weapon.       In pleading guilty to the charge of intimidation with a dangerous

weapon, Lyke necessarily admitted to the facts necessary to impose the

sentencing enhancement for use of a dangerous weapon.2 And, as noted at the



1
  Section 902.7 provides:
                At the trial of a person charged with participating in a forcible
        felony, if the trier of fact finds beyond a reasonable doubt that the person
        is guilty of a forcible felony and that the person represented that the
        person was in the immediate possession and control of a dangerous
        weapon, displayed a dangerous weapon in a threatening manner, or was
        armed with a dangerous weapon while participating in the forcible felony
        the convicted person shall serve a minimum of five years of
        the sentence imposed by law. A person sentenced pursuant to this
        section shall not be eligible for parole until the person has served the
        minimum sentence of confinement imposed by this section.
        In State v. Iowa District Court, 308 N.W.2d 27, 29 (Iowa 1981), the supreme
court held that where the trial court, in accepting a defendant’s guilty plea to the charge
of commission of assault while participating in a felony, specifically found that defendant
was in possession of a firearm during commission of the crime, the sentencing court was
required to impose the minimum sentence of five years’ imprisonment.
2
    At the plea hearing, the following colloquy occurred:
                  THE DEFENDANT: On February 3rd, 2016, I aided and abetted
          and provoked fear in a person, and also caused injury with a dangerous
          weapon inside of an apartment building.
                  THE COURT: What kind of a weapon was used?
                  THE DEFENDANT: Gun, sir.
                  THE COURT: Handgun?
                  THE DEFENDANT: Yes.
                                         7


sentencing hearing by the prosecutor: “With Count 3, the class “C” felony of

intimidation with a dangerous weapon, that does require a minimum term of five

years to be served by the defendant under section 902.7 of the Code of Iowa.

This is because there was use of a handgun in the crime.” We find no error

      C. Ineffectiveness claim that plea counsel did not object to breach of plea

agreement. Finally, Lyke complains plea counsel was ineffective in failing to

object to the State’s recommendation to impose the dangerous-weapon

sentencing enhancement with respect to the intimidation-with-a-dangerous-

weapon charge as a breach of the plea agreement.

      In order to establish a claim of ineffective assistance of counsel, Lyke

must prove by a preponderance of the evidence both that counsel breached an

essential duty and prejudice resulted.       State v. Lopez, 872 N.W.2d 159, 169

(Iowa 2015). “Although claims of ineffective assistance of counsel are generally

preserved for postconviction relief hearings, we will consider such claims on

direct appeal where the record is adequate.” Id. (citation omitted).

      As stated above, the enhancement for the intimidation charge was

included in the trial information and the trial information was amended to include

the enhancement to the kidnapping charge as well. During the plea proceedings,

             THE COURT: At any point during this situation did you actually
      have a handgun in your hands.
             THE DEFENDANT: Yes, sir.
             THE COURT: And why did you and any people that were with you
      have guns with you, what were you using those guns for?
             THE DEFENDANT: To scare the victim, sir.
             ....
             THE COURT: You and [the codefendant] had a couple of guns
      with you and during this interaction you had with the victim you used
      those guns to intimidate the victim and force the victim to do things
      against his will?
             THE DEFENDANT: Yes, sir.
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Lyke’s plea counsel agreed with the State’s recitation of the plea agreement,

which included that “the parties will jointly recommend that [Lyke] serve each of

these sentences, and that each sentence be run consecutive to the other two

sentences for maximum term of incarceration not to exceed [twenty-five] years.”

When setting forth the parties’ plea agreement, the prosecutor did not say the

enhancement would apply to the intimidation charge, nor did she say it would not

apply, but we observe the State did not seek to amend the count during the plea

proceedings as a part of the plea agreement. Moreover, at the outset of the

sentencing hearing the State recited that the offense of intimidation with a

dangerous weapon required a minimum term of five years because of use of a

handgun and defense counsel concurred with the State’s remarks with respect to

the sentencing recommendation.

      Lyke pled guilty to intimidation with a dangerous weapon. The district

court imposed consecutive sentences for a maximum term of twenty-five years.

This record is inadequate to conclude plea counsel was ineffective or that the

State breached the plea agreement.      Lyke’s claims shall be preserved for a

possible postconviction-relief proceeding.    We affirm the convictions and

sentences.

      AFFIRMED.
