                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0375
                             Filed January 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEREMIAH CONTRELLE PRESTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Kurt L. Wilke,

Judge.



      Jeremiah Preston appeals his judgment and sentence after pleading guilty

to third-degree burglary. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Darrel Mullins,

Assistant Attorneys General, and Jennifer Benson, County Attorney, for appellee.



      Considered by Mullins, P.J., McDonald, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, S.J.

       Jeremiah Preston appeals his judgment and sentence after pleading guilty

to third-degree burglary. He contends his counsel was ineffective because his

guilty plea lacks a factual basis and was not voluntary and knowing.

       The undisputed evidence shows that on September 30, 2013, Jeremiah

Preston went to the residence of his child’s mother, Nicole Wingert, in violation of

a no-contact order. Preston broke down the door to gain entrance and assaulted

Wingert during the ensuing argument. He was arrested and charged with first-

degree burglary as an habitual offender and domestic abuse, second offense.

       Pursuant to a plea agreement, the charges were reduced, and Preston

pled guilty to third-degree burglary and domestic abuse assault. At the plea

hearing, Preston stated he “went into [Wingert’s] house and we had a No Contact

Order and [I] wasn’t supposed to be there.” When the court asked if he went into

the residence with the intention of assaulting Wingert, Preston replied, “Not with

the intent, but we got into an argument.” The following exchange then occurred:

              THE COURT: Okay. I see. Alright, but you’re saying you
       didn’t go in there with the intent? Alright. Is that a required
       element, the intent? I think it is, is it not?
              [PROSECUTOR]: Judge, I think his intent can be to break
       and enter the property, which, I believe, he says he did in violation
       of the No Contact Order.
              THE COURT: I thought he had to have intent to—Maybe I’m
       thinking of something else.
              [DEFENSE COUNSEL]: My understanding, Your Honor, is
       he had to have an intent to commit a crime on the premises. And
       crime in this case could be a violation of the No Contact Order.
              THE COURT: I got ya. Did you know it was against the law
       what you were doing at the time?
              THE DEFENDANT: Yes, sir.

The court then accepted Preston’s guilty plea.
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      Preston failed to file a motion in arrest of judgment, which typically

precludes a challenge to a guilty plea. See Iowa R. Crim. P. 2.8(2)(d); State v.

LaRue, 619 N.W.2d 395, 398 (Iowa 2000). An exception to the rule exists in

cases where failure to file a motion in arrest of judgment is attributable to

ineffective assistance of counsel. State v. Gant, 597 N.W.2d 501, 504 (Iowa

1999). Preston so alleges. Because his claim implicates his constitutional right

to representation, our review is de novo. See State v. Ortiz, 789 N.W.2d 761,

764 (Iowa 2010).

      Preston’s claims of ineffective assistance of counsel stem from counsel

and the court’s apparent misunderstanding of the intent element of burglary. A

burglary occurs when a person enters an occupied structure with “the intent to

commit a felony, assault or theft therein.” Iowa Code § 713.1 (2013). Because

he was found guilty of committing burglary for entering Wingert’s residence in

violation of a no-contact order, Preston argues there is no factual basis for his

guilty plea. He further argues his guilty plea was not knowing and intelligent

because the court failed to explain the nature of the charge, and both counsel

and the court misunderstood the intent element.

      In order to establish counsel was ineffective, Preston must prove by a

preponderance of the evidence “‘(1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.’” Ortiz, 789 N.W.2d at

764 (citation omitted). If counsel permitted Preston to plead guilty and waived his

right to file a motion in arrest of judgment when no basis existed to support the
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plea, counsel failed to perform an essential duty and prejudice is presumed. 1

See id. at 764-65. While we ordinarily preserve such claims for postconviction

relief proceedings, we will address an ineffective-assistance claim on direct

appeal where the record is sufficient to permit a ruling. State v. Finney, 834

N.W.2d 46, 49 (Iowa 2013).

       The State acknowledges the attorneys and court mistakenly believed an

unauthorized entry into a residence with the intent to violate a no-contact order

could support a burglary conviction.          The State argues counsel was not

ineffective, however, because a factual basis exists in the record before the

district court at the time of the plea hearing. See id. at 62 (stating the entire

record before the district court may be examined to determine a factual basis);

Ortiz, 789 N.W.2d at 768 (noting a factual basis for a guilty plea “can be

discerned from four sources: (1) inquiry of the defendant, (2) inquiry of the

prosecutor, (3) examination of the presentence report, and (4) minutes of

evidence”). It claims Preston’s intent to assault Wingert can be inferred from his

actions. See State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000) (noting intent

may be derived from a defendant’s acts before or after the unauthorized entry, as

well as the attendant circumstances).

       The record before the district court at the plea hearing is sufficient to show

Preston entered the residence with the intent to assault Wingert. It shows the

following: there was a no-contact order preventing Preston from contacting

1
 The State invites us to overrule the line of cases holding prejudice is inherent where
counsel allows a defendant to plead guilty where a factual basis does not exist for a
charge. Our supreme court transferred this appeal to our court, and we therefore
decline to accept its invitation. See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App.
2014) (noting we are not at liberty to overturn supreme court precedent).
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Wingert because Preston had assaulted her on a prior occasion. In violation of

that order, Preston went to Wingert’s residence at night and broke down her door

to gain entrance, even though the door had been secured with a deadbolt and a

chair propped under the handle. Preston then forced his way into the bedroom

Wingert had barricaded herself in and assaulted her. Although Preston denied

he intended to assault Wingert when he entered her residence, his actions

evidence his intent to assault her. See State v. Finnel, 515 N.W.2d 41, 42-43

(Iowa 1994) (inferring an intent to commit an assault where the defendant kicked

down the victim’s door at night, in violation of a no-contact order protecting the

victim due to the defendant’s prior threats of violence, and assaulted the victim).

Because a factual basis for Preston’s plea is evident in the record, we find

counsel was not ineffective in allowing Preston to plead guilty.

       Preston also claims counsel was ineffective in allowing him to enter a

guilty plea that was not knowing or intelligent due to the court’s failure to inform

him of the nature of the charge. Assuming counsel breached an essential duty

by allowing Preston to plead guilty to the reduced charge of third-degree

burglary, Preston must show he would have elected instead to stand trial on the

charge of first-degree burglary as an habitual offender had he been adequately

apprised of the intent-to-assault element of burglary. See State v. Carroll, 767

N.W.2d 638, 644 (Iowa 2009) (noting an applicant must prove “that but for

counsel’s breach of duty,” the applicant “would not have pled guilty and would

have elected instead to stand trial”). Because the present record is insufficient to
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allow a determination on the prejudice prong, we preserve this claim for possible

postconviction-relief proceedings and affirm.

      AFFIRMED.
