                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0196
                            Filed December 9, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HARRY JAY PERKINS JR.,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Henry W. Latham II

(plea) and Joel W. Barrows (sentencing), Judges.



      A defendant appeals his conviction and sentence, based upon a guilty

plea, alleging counsel was ineffective in allowing him to plead guilty without a

factual basis. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.



      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Mullins and Bower, JJ.
                                             2



MULLINS, Judge.

          Harry Perkins Jr. appeals his conviction and sentence following his guilty

plea to domestic abuse assault, third offense, in violation of Iowa Code section

708.2A(4) (2013), a class “D” felony.            Perkins asserts his trial counsel was

ineffective in allowing him to plead guilty to domestic abuse assault without a

factual basis for the crime.

I.        Background Facts and Proceedings

          On January 24, 2014, Perkins assaulted his on-again/off-again girlfriend,

Camilla.1 Camilla told police she and Perkins were drinking alcohol and got into

a verbal argument when Perkins pushed her, kicked her, and stomped on her

hand causing it to break. Camilla told police she and Perkins were living together

at the time of the assault. Police arrested Perkins on March 24, 2014.

          On April 11, 2014, the State filed a trial information charging Perkins with

domestic abuse assault, third offense, in violation of Iowa Code section

708.2A(4), a class “D” felony, and willful injury resulting in serious injury, in

violation of Iowa Code section 708.4(1), a class “C” felony. On September 5,

2014, Perkins entered into a written plea agreement, agreeing to plead guilty to

domestic abuse assault in exchange for a dismissal of the willful-injury charge

and the State’s agreement not to pursue an habitual offender enhancement.

That same day, Perkins entered a plea of guilty on the record and the court

accepted it. During the plea colloquy, Perkins denied living with Camilla within

the previous year. The State did not challenge Perkins’s denial.


1
     Camilla and Perkins do not have any children together and have never been married.
                                               3



          On September 25, 2014, Perkins filed a pro se motion in arrest of

judgment. On October 2, 2014, Perkins’s counsel filed another motion in arrest

of judgment and a motion to withdraw as counsel. On October 9, 2014, Perkins

withdrew his motions in arrest of judgment. On November 12, 2014, Perkins

reasserted his motion in arrest of judgment on the record, again claiming that he

had not lived with Camilla in over a year. Perkins’s counsel then refiled his

motion to withdraw. The following day, the court granted counsel’s motion to

withdraw, appointed new counsel to represent Perkins, and set a hearing on the

motion in arrest of judgment. On December 31, 2014, Perkins again withdrew

his motion in arrest of judgment, and the court proceeded to sentencing,

imposing a sentence of an indeterminate term not to exceed five years, with a

one-year mandatory minimum. Perkins appeals.

II.       Standard of Review

          In order to challenge a guilty plea on appeal, a defendant must file a

motion in arrest of judgment.2 State v. Bearse, 748 N.W.2d 211, 218 (Iowa

2008); see also Iowa R. Crim. P. 2.24(3)(a). However, when a defendant raises

a claim that counsel was ineffective in allowing him to plead guilty to a charge

that lacked a factual basis, he may challenge the guilty plea on appeal. State v.

Finney, 834 N.W.2d 46, 49 (Iowa 2013).                 We review claims of ineffective

assistance of counsel de novo because the claims implicate the defendant’s

Sixth Amendment right to counsel. State v. Thorndike, 860 N.W.2d 316, 319

(Iowa 2015).        An ineffective-assistance-of-counsel claim may be raised and



2
    Perkins filed two motions in arrest of judgment but later withdrew both of them.
                                           4



decided on direct appeal when the record is adequate to address the claim. Iowa

Code § 814.7(2), .7(3).      To succeed on a claim of ineffective assistance of

counsel, the defendant must show by a preponderance of the evidence: “(1) his

trial counsel failed to perform an essential duty, and (2) this failure resulted in

prejudice.” Thorndike, 860 N.W.2d at 320 (quoting State v. Adams, 810 N.W.2d

365, 372 (Iowa 2012)); accord. Strickland v. Washington, 466 U.S. 668, 687

(1984). “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.” State v. Schminkey, 597

N.W.2d 785, 788 (Iowa 1999) (citation omitted); see also State v. Ortiz, 789

N.W.2d 761, 764–65 (Iowa 2010).

III.     Analysis

         Perkins contends his attorney was ineffective in allowing him to plead

guilty to domestic abuse assault without a factual basis. We find the record

adequate to address this claim. See State v. Utter, 803 N.W.2d 647, 651 (Iowa

2011).

         Iowa Rule of Criminal Procedure 2.8(2)(b) requires a district court to find a

factual basis supporting the guilty plea before accepting it. A factual basis differs

from the evidence required at a trial to prove a defendant’s guilt beyond a

reasonable doubt. Finney, 834 N.W.2d at 62 (“Our cases do not require that the

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

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

Establishing a factual basis requires the defendant “to acknowledge facts that are

consistent with the elements of the crime.” Rhoades v. State, 848 N.W.2d 22, 30
                                           5



(Iowa 2014). When a defendant challenges the factual basis to support a guilty

plea, our court examines the entire record before the district court at the guilty-

plea hearing.       Finney, 834 N.W.2d at 62.         Generally, this includes “any

statements made by the defendant, facts related by the prosecutor, the minutes

of testimony, and the presentence report.” Schminkey, 597 N.W.2d at 788.

         Perkins entered a plea of guilty to domestic abuse assault, third offense, in

violation of Iowa Code section 708.2A(4). Section 708.2A(1) provides “domestic

abuse assault” means an assault as defined in section 708.1, which is domestic

abuse as defined in section 236.2, subsection 2, paragraph ‘a’, ‘b’, ‘c’, or ‘d’.” 3

Section 708.2A does not include paragraph (e) of section 236.2(2), which

provides an assault is “domestic abuse” if it is “between persons who are in an

intimate relationship or have been in an intimate relationship and have had

contact within the past year of the assault.” At the plea proceeding, Perkins

specifically denied living with Camilla both at the time of the assault and in the

year leading up to the assault. See Iowa Code § 236.2(2)(a), (d). He had never

been married to Camilla and did not have any children with her.               See id.



3
    Domestic abuse is defined in section 236.2(2) as
        [C]ommitting assault as defined in section 708.1 under any of the
        following circumstances:
                a. The assault is between family or household members who
        resided together at the time of the assault.
                b. The assault is between separated spouses or persons divorced
        from each other and not residing together at the time of the assault.
                c. The assault is between persons who are parents of the same
        minor child, regardless of whether they have been married or have lived
        together at any time.
                d. The assault is between persons who have been family or
        household members residing together within the past year and are not
        residing together at the time of the assault.
                                           6



§ 236.2(2)(b), (c). Perkins admitted that he had been in an intimate relationship

with Camilla.    See id. § 236.2(2)(e).        At the sentencing hearing, the State

conceded on the record that Perkins’s motion in arrest of judgment was a valid

challenge to the plea proceeding.          The State acknowledged that section

708.2A(1) did not extend to paragraph (e) of section 236.2(2). The record shows

“that all parties understand that there is a potential problem with the factual basis

that [Perkins] gave,” but all also assumed that withdrawal of the motion in arrest

of judgment would constitute a waiver of any future postconviction challenge to

the plea proceeding. The State also asserted that a jury could find the two were

cohabiting based upon Camilla’s statements to police contained within the

minutes of testimony that she and Perkins lived together at the time of the

assault.

       The State’s argument is a misapplication of the principles reviewed in

Finney. The lesson from Finney is that a guilty-plea colloquy that results in minor

omissions of facts may be supplemented by other portions of the record in the

district court, including the minutes of testimony. See 834 N.W.2d at 62. There

is no suggestion in Finney that a plea-taking court should look to other portions of

the record to determine whether the defendant’s denial of an element of an

offense would be rejected by a jury. Our law will not permit a court to accept a

guilty plea when a defendant affirmatively maintains a denial of facts necessary

to support an element of the crime.4 See Rhoades, 848 N.W.2d at 30. “Nothing



4
  The State asks us to find Perkins’s plea constituted an Alford plea. At the sentencing
hearing, Perkins admitted he could be convicted of domestic abuse assault and asked
the court to consider his plea an Alford plea; a request the court denied. We agree with
                                             7



in [the Finney] opinion . . . should be construed as an invitation to district courts

to short circuit rule 2.8(2)(b) when taking a guilty plea.” 848 N.W.2d at 62.

       When a defendant specifically denies an element of the offense charged,

as Perkins did here, “it is error for the court to find that a factual basis exists

when the defendant actively contests a fact constituting an element of the

offense in the absence of circumstances warranting the conclusion that the

defendant’s protestations are ‘unworthy of belief.’” State v. Elphic, No. 14-0600,

2015 WL 408092, at *4 (Iowa Ct. App. Jan. 28, 2015) (quoting United States v.

Culbertson, 670 F.3d 183, 190–91 (2d Cir. 2012)). We conclude that a factual

basis to support a guilty plea is so fundamental that it cannot be waived. See id.;

see also United States v. Adams, 448 F.3d 492, 502 (2d Cir. 2006) (“A lack of a

factual basis for a plea is a substantial defect calling into question the validity of

the plea. ‘Such defects are not technical, but are so fundamental as to cast

serious doubt on the voluntariness of the plea,’ and require reversal and remand

so that the defendant may plead anew or stand trial.” (quoting Godwin v. United

States, 687 F.2d 585, 591 (2d Cir. 1982) (citations omitted))). Therefore, we

reverse and remand Perkins’s conviction and sentence for domestic abuse

assault, third offense, for further proceedings.

       REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.




the district court that Perkins entered a plea of guilty, not an Alford plea, and decline to
consider his plea in the context of an Alford plea on appeal.
