                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0855
                              Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY LEE CONWAY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David N. May, Judge.



      Timothy Conway appeals the conviction entered following his Alford plea to

the charge of possession of a controlled substance, third or subsequent offense.

AFFIRMED.




      John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kelli A. Huser, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

       Timothy Conway appeals the conviction entered following his Alford plea1

to the charge of possession of a controlled substance, third or subsequent offense.

       The following facts can be gleaned from the minutes of evidence. On or

about January 1, 2017, a vehicle in which Conway was a passenger was stopped

by law enforcement officers. In the course of the traffic stop, the driver of the

vehicle, Alan Goetz, was taken into custody and another passenger was placed in

an assisting police officer’s patrol car. Thereafter, Conway was removed from the

vehicle, upon which he asked an officer if Goetz had told the officers about any

narcotics in the vehicle. The officer responded in the negative and questioned

Conway’s reasoning for asking. Conway replied he believed there was marijuana

inside the vehicle. The officer asked where the marijuana was located, upon which

Conway advised the marijuana was located in his seat. The officers subsequently

directed their attention to the seat in which Conway was sitting and in plain view

observed a large amount of marijuana “loosely shoved into the seat . . . . where

the seat bottom met the seat backing.”2 The officers also found a small plastic

baggie containing methamphetamine in Conway’s seat.                   Officers questioned

Goetz about the substances; he admitted the marijuana was his but denied

possession and knowledge of the methamphetamine. Upon questioning, Conway

admitted he knew he was sitting on the marijuana, but asserted the marijuana was




1
  See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of a crime
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.”).
2
  The minutes do not indicate whether the marijuana was loose or in a baggie.
                                           3


already in his seat when Goetz picked him up.           Conway denied having any

knowledge of the presence of the methamphetamine, asserting it was not in his

seat when he was picked up by Goetz.

       Conway was charged by trial information with possession of a controlled

substance, methamphetamine, third or subsequent offense, as a habitual offender.

Goetz was charged under the same trial information with possession of a

controlled substance, marijuana, second offense. An amended trial information

was subsequently filed charging both Conway and Goetz with possession of both

marijuana and methamphetamine. A plea agreement was reached under which

Conway would plead guilty to possession of marijuana in return for the State’s

agreement to not seek the habitual-offender enhancement and to recommend an

indeterminate term of incarceration not to exceed five years, to run concurrently

with a matter for which Conway was on parole.

       At the subsequent plea hearing, Conway maintained his innocence but

advised the court he found it in his best interests to enter an Alford plea and stated

his belief that entering the plea was more beneficial than proceeding to trial, noting

“I think there’s a risk that they could find me guilty. I don’t want to take that risk.”

He also noted his recognition of the benefit he was receiving from the State’s

agreement to not seek the habitual-offender enhancement, which could carry a

term of incarceration of up to fifteen years. Thereafter, defense counsel advised

the court that Goetz had previously pled guilty to possession of both the marijuana

and the methamphetamine found in the vehicle. Counsel noted his previous

discussion with Conway concerning calling Goetz as a witness at trial and using

his guilty pleas as a defense. Counsel asked Conway, “And knowing that and the
                                            4


potential of that defense, do you wish to not pursue that and proceed forward with

the Alford plea?” The court posed a similar question to Conway: “[J]ust to be clear,

even though you’ve got a co-defendant that has pled guilty to that marijuana, you

still believe it’s in your best interest to go forward with this Alford plea; right?”

Conway responded to both questions in the affirmative. Conway stipulated to the

court’s reliance on the minutes of evidence, pursuant to which the court found an

adequate basis for the plea. Conway requested immediate sentencing. The court

appropriately advised Conway of his right to file a motion in arrest of judgment to

challenge any deficiencies in the guilty-plea proceeding, noting a waiver of such

right would bar any appellate challenge to the proceeding. Conway waived his

right to file a motion in arrest of judgment, and the court sentenced him in

accordance with the terms of the plea agreement.

       Conway appeals, contending his plea lacked a factual basis.3 By waiving

his right to file a motion in arrest of judgment to challenge the plea, Conway did



3
  Conway’s stated “argument is that the record does not contain what Alford refers to as
‘strong evidence,’ and which Iowa case law refers to as ‘overwhelming evidence’ of [his]
actual guilt of this offense.” Conway argues Alford “imposes an obligation on the part of
the district court to make an independent determination of the overwhelming evidence of
the actual guilt of the defendant.” We interpret this as an argument that Alford pleas—as
opposed to admission-of-guilt-pleas which require only a factual basis in the record, see
State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013)—require a heightened evidentiary
showing on the part of the State in order for a plea to be valid. We find no distinction
between the evidentiary standards to be applied to Alford pleas and admission-of-guilt
pleas. See Alford, 400 U.S. at 38 (noting Alford’s plea was valid because it was supported
by a “factual basis” and because of “Alford’s clearly expressed desire to enter it despite
his professed belief in his innocence”); State v. Klawonn, 609 N.W.2d 515, 521 (Iowa
2000) (“[T]here is no material difference between a plea which includes an express
admission of guilt and an Alford plea.”); see also State v. Rodriguez, 804 N.W.2d 844,
849–54 (Iowa 2011) (analyzing a challenge to an Alford plea under a factual-basis
framework); State v. Schminkey, 597 N.W.2d 785, 788–92 (Iowa 1999) (same); State v.
Martin, 778 N.W.2d 201, 203–04 (Iowa Ct. App. 2009) (same); State v. Hallock, 765
N.W.2d 598, 603–04 (Iowa Ct. App. 2009) (same); see generally State v. Siner, 17-0993,
2018 WL 1098948, at *2 n.3 (Iowa Ct. App. Feb. 21, 2018). We therefore analyze
                                              5


not preserve error and he is therefore unable to challenge the validity of his plea

on the merits. See Iowa R. Crim. P. 2.24(3) (“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,

Conway raises his factual-basis argument under an ineffective-assistance-of-

counsel rubric, contending his plea counsel rendered ineffective assistance of

counsel in allowing him to plead guilty and waive his right to file a motion in arrest

of judgment when his plea was unsupported by a factual basis. See State v.

Weitzel, 905 N.W.2d 397, 401 (Iowa 2017) (“[I]f the guilty plea resulted from

ineffective assistance of counsel, the defendant can challenge the plea under the

rubric of ineffective assistance of counsel.”); see also State v. Fountain, 786

N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are an

exception to the traditional error-preservation rules.”).

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

Henderson, 908 N.W.2d 868, 874 (Iowa 2018).                  To succeed on a claim of

ineffective assistance of counsel, Conway “must establish by a preponderance of

the evidence that ‘(1) his trial counsel failed to perform an essential duty, and (2)

this failure resulted in prejudice.’” State v. Lopez, 907 N.W.2d 112, 116 (Iowa

2018) (quoting State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord

Strickland v. Washington, 466 U.S. 668, 687 (1984). We “may consider either the

prejudice prong or breach of duty first, and failure to find either one will preclude




Conway’s evidentiary challenge to his guilty plea, if at all, under a factual-basis framework.
                                          6

relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez,

872 N.W.2d 159, 169 (Iowa 2015)).

       “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 plea.” State v. Ortiz, 789

N.W.2d 761, 764 (Iowa 2010); accord State v. Nall, 894 N.W.2d 514, 525 (Iowa

2017). Prejudice is presumed under these circumstances. See Nall, 894 N.W.2d

at 525.

       Conway’s contention is that, “in light of the fact that the codefendant later

[pled guilty] to possessing both drugs, the record does not contain overwhelming

evidence of Conway’s guilt.” In light of the facts that Goetz admitted at the scene

that the marijuana was his and subsequently pled guilty to possession of it, we

agree that Conway had a legitimate challenge to the alleged factual basis; but the

law also recognizes that illegal drugs may be constructively possessed. See, e.g.,

State v. Reeves, 209 N.W.2d 18, 22–23 (Iowa 1973). As noted, however, Conway

did not preserve error by filing a motion in arrest of judgment and he cannot now

challenge the validity of his plea on the merits for want of a factual basis; he can

only   challenge   it   under   an   ineffective-assistance-of-counsel   framework.

Specifically, had Conway preserved error, he could challenge his plea on the

merits as lacking a factual basis and, if successful, he could potentially have his

judgment and sentence vacated or possibly even have his conviction set aside.

See State v. Burtlow, 299 N.W.2d 665, 670 (Iowa 1980). However, because

Conway did not preserve error, the question before us is whether plea counsel
                                           7


provided ineffective assistance in allowing Conway to plead guilty and waive his

right to file a motion in arrest of judgment.

       At the plea hearing, defense counsel specifically pointed out to Conway that

there was a possible challenge to the factual basis for an Alford plea, noting Goetz

had already pled guilty to the charge. Having already stated his desire to avoid

the “risk that they could find [him] guilty,” Conway restated his desire to not pursue

a trial and instead enter an Alford plea. This case is distinguishable from a run-of-

the-mill ineffective-assistance claim on lack-of-factual-basis grounds. In those

cases, counsel breaches an essential duty by failing to recognize a factual-basis

deficiency, and then allowing the defendant to enter a guilty plea. Here, counsel

recognized the factual-basis deficiency and discussed it with Conway before and

during the plea hearing, but Conway nevertheless persisted in his desire to plead

guilty and waive his right to file a motion in arrest of judgment. We cannot say

counsel’s performance here fell below the “normal range of competence,” and we

therefore find counsel did not breach an essential duty. See State v. Fannon, 799

N.W.2d 515, 520 (Iowa 2011).

       Likewise, when challenging a guilty plea through a claim of ineffective

assistance of counsel, “in order to satisfy the prejudice requirement, the defendant

must show that there is a reasonable probability that, but for counsel’s errors, he

or she would not have pleaded guilty and would have insisted on going to trial.”

State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). Although we find counsel did

not breach an essential duty, this prejudice standard is instructive in this case.

Conway was made aware of the factual-basis deficiency, yet still declined to

proceed to trial. Any prejudice Conway was subjected to was not a result of
                                           8


ineffective assistance of counsel. It was a result of Conway’s decision to plead

guilty and waive his right to file a motion in arrest of judgment, despite the fact that

a factual-basis for his plea was subject to challenge.

       We conclude Conway was not provided ineffective assistance of counsel

and we therefore affirm his conviction, judgment, and sentence.             For clarity

purposes, we note Conway is not entitled to any of the remedies that could

potentially flow from challenging the district court’s acceptance of his plea on lack-

of-factual-basis grounds, as Conway did not preserve error on such a claim.

       AFFIRMED.

       Danilson, C.J., concurs; McDonald, J., concurs specially.
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MCDONALD, Judge (concurring specially)

       I respectfully concur in the judgment but for a different reason. Here,

Conway claims his counsel provided constitutionally deficient representation in

allowing Conway to plead guilty in the absence of a factual basis. To prevail on

his claim, Conway need not show he would have proceeded to trial to establish

constitutional prejudice. Instead, he need only show his guilty plea lacked a factual

basis because breach and prejudice are inherent upon such a showing. The

supreme court articulated the relevant standard in State v. Schminkey:

       The district court may not accept a guilty plea without first
       determining that the plea has a factual basis. This requirement exists
       even where the plea is an Alford plea. Where a factual basis for a
       charge does not exist, and trial counsel allows the defendant to plead
       guilty anyway, counsel has failed to perform an essential duty.
       Prejudice in such a case is inherent. Therefore, our first and only
       inquiry is whether the record shows a factual basis for Schminkey's
       guilty plea to the charge of theft of a motor vehicle. In deciding
       whether a factual basis exists, we consider the entire record before
       the district court at the guilty plea hearing, including any statements
       made by the defendant, facts related by the prosecutor, the minutes
       of testimony, and the presentence report.

597 N.W.2d 785, 788 (Iowa 1999).

       Although I disagree with the majority’s rationale, I nonetheless concur.

Here, Conway contends there was not a factual basis for his plea because there

must be strong or overwhelming evidence of guilt to establish a factual basis for

an Alford plea.   There is no such requirement.        Even if there were such a

requirement, it was satisfied in this case. The plea record establishes the officers

found Conway sitting on top of large amount of marijuana, and Conway admitted

to the officers he was in possession of the marijuana. Nothing more is required to
                                         10


establish a factual basis in support of the possession charge. Thus, counsel was

not constitutionally ineffective in allowing Conway to plead guilty.
