                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0507
                             Filed October 24, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID M. LEYH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, John J.

Bauercamper, Judge.



      David Leyh challenges his conviction for possession of marijuana.

AFFIRMED.




      John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.




      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

          David Leyh challenges his conviction for possession of marijuana. Leyh

claims he received ineffective assistance when counsel allowed him to plead guilty

without a sufficient factual basis to support the charge. We find there is a factual

basis to support the charge and counsel did not provide ineffective assistance. We

affirm.

          I.    Background Facts & Proceedings

          In February 2018, law enforcement pulled Leyh over for a broken taillight.

After discovering Leyh’s vehicle registration had expired in 2015 and he had no

automobile insurance, the officers impounded the vehicle. One officer spoke with

Leyh while the other performed an inventory search prior to the vehicle being

towed. The searching officer found a small bag containing a green leafy substance

in Leyh’s wallet in the vehicle’s console. Leyh told the officers he had picked it up

off the ground near his home, afraid children might find it, but had not contacted

police when he found it.       Leyh was arrested for possession of marijuana, in

violation of Iowa Code section 124.401(5) (2018).

          Leyh entered a written guilty plea on March 14. Among other provisions,

Leyh’s written plea includes the following statement:

                 3. I admit that on or about the 16th day of February, 2018,
          while in Fayette County, Iowa, I did the following things that
          constitute the criminal offense:
                 a. I knowingly and intentionally possessed a controlled
          substance, to wit: marijuana,
                 b. Knowing that such substance was in fact marijuana.
                                           3


       On March 16, the court accepted Leyh’s plea and imposed sentence of a

$100 fine plus surcharges.1

       Leyh appeals.

       II.    Scope & Standard of Review

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

Gines, 844 N.W.2d 437, 440 (Iowa 2014). “To establish his claim of ineffective

assistance of counsel, [a defendant] must demonstrate (1) his trial counsel failed

to perform an essential duty, and (2) this failure resulted in prejudice.” State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). “If trial counsel permits a defendant to

plead guilty and waives the defendant’s right to file a motion in arrest of judgment

when there is no factual basis to support the defendant’s guilty plea, trial counsel

breaches an essential duty.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014).

“Prejudice in such a case is inherent.” State v. Schminkey, 597 N.W.2d 785, 788

(Iowa 1999). The record “need only demonstrate facts that support the offense,”

it does not need to prove guilt beyond a reasonable doubt. State v. Ortiz, 789

N.W.2d 761, 768 (Iowa 2010).

       III.   Merits

       Leyh’s sole allegation regarding the factual basis for his conviction is the

lack of lab confirmation the green leafy substance found in a bag in his wallet was



1
   We note Leyh’s written plea, provided by his attorney, incorrectly stated the maximum
punishment as a fine of $1875 and one year in jail plus surcharges. The correct maximum
punishment is a $1000 fine plus surcharges, six months in jail, and license revocation.
Iowa Code § 124.401(5). The minimum punishment stated was correct. However, Leyh
has made no claim on appeal regarding the adequacy of his plea. The sentence of a fine
of $100, surcharges, and suspended license is only available under the correct
punishment range, Leyh benefited from the dismissal of traffic charges, and there is no
prejudice.
                                         4


marijuana. He claims this is of particular relevance due to his explanation he had

picked the bag up off the ground intending to dispose of it. We look to the entire

record available to the court when it accepted the guilty plea, including Leyh’s

written guilty plea and the minutes of testimony. See State v. Sutton, 853 N.W.2d

284, 286 (Iowa Ct. App. 2014) (relying on statements from the written plea, minutes

of testimony, and law enforcement investigative reports to find a factual basis).

       The State is not required to test the purported drug, but it must have

sufficient circumstantial evidence to find the substance is an illegal drug. State v.

Brubaker, 805 N.W.2d 164, 172 (Iowa 2011). The minutes of testimony, as well

as Leyh’s written admission, sufficiently demonstrate facts to support the offense

of possession of marijuana.

       In Leyh’s written plea he admitted to knowingly and intentionally possessing

the substance and knowing it was marijuana. The police reports submitted indicate

the officer searching Leyh’s vehicle detected “a light odor of marijuana.” The

officer then advised Leyh a small bag of marijuana had been found and asked if it

was his. Leyh then advised the officer he had picked up the bag so children could

not get it. Leyh’s reasoning indicates his belief the green leafy substance was

marijuana.

       The minutes and the written guilty plea establish an adequate factual basis

to support the crime of possession of marijuana. Accordingly, Leyh’s attorney did

not breach an essential duty in allowing him to plead guilty and then failing to file

a motion in arrest of judgment challenging the factual basis for the plea. We affirm

the judgment and sentence imposed by the district court.

       AFFIRMED.
