                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1058
                            Filed September 13, 2017


JUSTIN MARSHAWN ROSS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Marsha A. Bergan,

Judge.



      An applicant appeals from the denial of his application for postconviction

relief. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee State.




      Considered by Vogel, P.J., Mullins, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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BLANE, Senior Judge.

      In August 2013, following four days of trial for first-degree murder, Justin

Ross entered into a plea deal and pleaded guilty to attempt to commit murder, a

class “B” felony, in violation of Iowa Code section 707.11 (2011). Ross was

sentenced to twenty-five years in prison with a 70% mandatory minimum, with

credit for time served. Ross did not appeal.

        In February 2014, Ross filed an application for postconviction relief

(PCR). The matter proceeded to hearing in January 2016. On May 31, the

district court issued a ruling denying Ross’s application. The court found there

was a factual basis for Ross’s plea and his plea was voluntarily and intelligently

made. Ross now appeals.

      On appeal, Ross contends his trial attorneys pressured him into entering a

plea and the court failed to explain the intent element of attempt to commit

murder. As a result, he argues, his plea was involuntary.

      Ross did not file a motion in arrest of judgment or a notice of appeal

following his guilty plea and sentencing. As a result, he did not preserve error on

claims related to his guilty plea. See State v. Keene, 630 N.W.2d 579, 581 (Iowa

2001). However, he frames his argument within the rubric of an ineffective-

assistance-of-counsel claim by arguing his counsel was ineffective for allowing

him to enter an involuntary plea. “This is an exception to our error preservation

requirement.” Id.

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

Straw, 709 N.W.2d 128, 133 (Iowa 2006). To show ineffective assistance, Ross

must demonstrate (1) his counsel’s representation fell below an objective
                                           3

standard of reasonableness and (2) prejudice resulted.           See Strickland v.

Washington, 466 U.S. 668, 687 (1984).           With respect to the representation

prong, we “indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.”         Id. at 689. To establish

prejudice, Ross must show “there is a reasonable probability that, but for the

counsel’s professional errors, the result of the proceeding would have been

different.” State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). In the context of a

guilty plea, this means “a reasonable probability that, but for counsel’s alleged

errors, the applicant would not have pled guilty and would have insisted on going

to trial.” Id.

        Ross first argues he was coerced by counsel into entering the guilty plea.

At his PCR trial, Ross testified his attorneys did not work with him and tried to

induce him into pleading guilty out of fear.

        The record belies Ross’s claim. During the plea colloquy, the following

exchange took place:

               THE COURT: Have you had enough time to talk to your
        lawyers about this plea offer to the charge of attempted murder?
               THE DEFENDANT: Yes, I had enough time.
               THE COURT: Are you satisfied with the advice and
        preparation they’ve given you?
               THE DEFENDANT: Yeah, I’m satisfied.
               THE COURT: Do you have any questions about—Are you
        doing this of your own free will to take this plea agreement rather
        than finish the trial and accept the jury’s verdict?
               THE DEFENDANT: I’m doing it on the free will of the basis
        of my family and my son.

Ross’s testimony to the contrary at the PCR trial is self-serving and

unpersuasive. He has failed to meet his burden to establish any coercion by his

trial attorneys. This claim of ineffective assistance fails.
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         Ross next argues the court failed to explain the intent element of the crime

to which Ross pled guilty, rendering Ross’s plea involuntary “because of

confusion regarding the factual basis for the intent element of attempt to commit

murder.” “It is a responsibility of defense counsel to ensure that a client does not

plead guilty to a charge for which there is no objective factual basis.” State v.

Finney, 834 N.W.2d 46, 54 (Iowa 2013). “It follows that no advice to plead guilty

would be considered competent absent a showing of a factual basis to support

the crimes to which the accused has elected to plead guilty.” Id. at 54–55. This

is not a claim Ross raised at the PCR trial, so here he advances it as a claim that

his PCR counsel was ineffective for failing to bring this claim.

         “To be truly voluntary, the plea must not only be free from compulsion, but

must also be knowing and intelligent.” State v. Loye, 670 N.W.2d 141, 151 (Iowa

2003). Due process requires the defendant have knowledge of “the nature of the

crime with which he is charged,” among other things. See id. When evaluating a

due process claim, the object of our inquiry is the defendant’s subjective

understanding of the plea proceeding. See Finney, 834 N.W.2d at 58. The court

must “delve into the accused’s state of mind.” Id.

         During the plea, the court discussed the elements of the crime with Ross.

As to the intent element, the court asked him:

                  THE COURT: And do you also understand that by using a
         dangerous weapon, the jury or the fact-finder can infer that you
         used that weapon with malice, premeditation, and a specific intent
         to kill?
                  THE DEFENDANT: Yes.
                  THE COURT: Okay. And the reason I’m asking you that, Mr.
         Herron [sic],[1] is because the third element of the charge of attempt

1
    Herron was the name of the victim.
                                         5


       to commit murder states that when you acted, you specifically
       intended to cause the death of Andre Herron.

The crime of attempt to commit murder does not require malice or premeditation.

See Iowa Code § 707.11 (requiring “the intent to cause the death of another

person”). Ross argues the court misstated the law because the “mere use of a

dangerous weapon, standing alone, is not sufficient to permit an inference

regarding malice or intent.” This is incorrect. See State v. Green, 896 N.W.2d

770, 780 (Iowa 2017) (“[A] rational juror could infer that one who uses a

dangerous weapon intends to cause physical harm, and even to kill.”). And the

court’s immediate clarification eliminated any possible confusion.

       Ross also gestures toward a claim that the court’s mistake in calling him

“Herron,” which happened twice during the plea colloquy, means he was

confused about the proceedings.         Each time the mistake was corrected.

Additionally, we fail to see how the court accidentally calling Ross by the victim’s

name would so befuddle Ross that he would misunderstand the guilty plea. To

the extent Ross makes this claim, we reject it.

       Finally, Ross hints at a claim that his trial attorneys were ineffective for

letting him plead to a crime that lacked a factual basis. This claim was raised at

the PCR trial but merits only a passing mention in Ross’s appellate brief.2 We

nonetheless choose to address it. “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,



2
  We encourage appellate attorneys to review and follow our rules pertaining to brief
preparation. See Iowa R. App. P. 6.903.
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the minutes of testimony, and the presentence report.” State v. Schminkey, 597

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

       Here the record establishes a factual basis.         Ross admitted to each

element of the crime.      These statements of the defendant are sufficient to

establish a factual basis for the plea in this case. The district court was correct in

finding Ross’s plea had a factual basis. This claim of ineffective assistance fails.

       For the foregoing reasons, we affirm the district court’s denial of Ross’s

PCR application.

       AFFIRMED.
