                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1209
                               Filed June 20, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

YOSLEY BAEZ CORDERO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble

(guilty plea) and Robert J. Blink (sentencing), Judges.



      Yosley Cordero appeals from his conviction on one count of conspiracy to

commit forgery. AFFIRMED.



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

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



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


DOYLE, Judge.

       Yosley Cordero appeals from his conviction on one count of conspiracy to

commit forgery, a class “D” felony, in violation of Iowa Code sections 706.1,

706.3(2) (2016). Cordero contends his counsel rendered ineffective assistance by

allowing him to plead guilty without a factual basis for the charge.            Because the

record establishes a sufficient factual basis for his plea, we affirm.

       An ineffective-assistance-of-counsel claim may be reviewed on direct

appeal only if the record is sufficient to resolve the claim; otherwise, it is preserved

for postconviction-relief purposes. See State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). The record here is sufficient to resolve Cordero’s claim. We review claims

of ineffective assistance of counsel de novo. See State v. Clay, 824 N.W.2d 488,

494 (Iowa 2012). To show his counsel was deficient, Cordero must prove by a

preponderance of the evidence that counsel failed to perform an essential duty

and prejudice resulted. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

       To determine if trial counsel failed in an essential duty by allowing a

defendant to plead guilty when the charges lack a factual basis, the entire record

before the district court may be examined. See State v. Finney, 834 N.W.2d 46,

62 (Iowa 2013). The examination of the defendant’s statements and the minutes

of evidence is appropriate to determine whether there existed an objective factual

basis for a guilty plea.1 See id.; Schminkey, 597 N.W.2d at 788. “At the time of


1
  Cordero states in his brief that, “It was never requested that the court take judicial notice
of the minutes, so the court only had Cordero’s statements during the guilty plea as a
basis on which to establish Cordero’s guilt.” In fact, in finding a factual basis for the plea,
the plea court relied upon Cordero’s statements, the prosecutor’s statements, and the
minutes of testimony. In any event, we, as a reviewing court, consider the entire record
before the plea court at the time of the guilty plea hearing. See State v. Schminkey, 597
N.W.2d 785, 788 (Iowa 1999).
                                           3


the guilty plea, the record must disclose facts to satisfy all elements of the offense.”

Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). If no factual basis is found in

the record for the charges the defendant has pled guilty to, then an essential duty

has been breached and “[p]rejudice is inherent.” State v. Gines, 844 N.W.2d 437,

441 (Iowa 2014).

       This case arises from an attempt to cash a forged check at a bank. The

following can be gleaned from the minutes of evidence. Police were contacted by

a bank employee who described a man attempting to cash a forged check. When

police arrived at the bank, a man matching the bank employee’s description was

observed running in the parking lot and getting into a silver four-door sedan with

Florida license plates.    Police officers stopped the vehicle and detained the

occupants, identified by their Florida driver’s licenses as: Alfredo Penalver, Lazaro

Taboada-Diaz, and Yosley Cordero.          A subsequent search resulted in police

discovering $1437.00 in cash on Taboada-Diaz. A hotel keycard was found on

Cordero.

       Police recovered the forged check and a fake Texas driver’s license from

the bank. The driver’s license was in the name of “Aldo Espinosa,” with a photo of

Penalver. The forged check was on the account of “Ocean Moving and Storage

Corp GA Account” and made payable to “Aldo Espinosa” in the amount of $6400.

Bank employees stated that they had attempted to delay Penalver from leaving the

bank once police had been contacted but that he had become suspicious and left

the Texas license in the lobby when he ran outside prior to the police officers

arriving.
                                          4


       While Penalver, Taboada-Diaz, and Cordero were being detained, a blue

mini-van with Florida plates drove up. The three occupants got out. Emilio De La

Paz Jr. and Pedro Lopez, said they were friends of the detainees, and Alejandra

Gonzalez-Lopez advised officers that she was Taboada-Diaz’s wife. The three

were identified by their Florida driver’s licenses. They were also detained and

subsequently searched, resulting in the discovery of $5186.50 in cash on De La

Paz Jr. and a hotel key found on Lopez from the same hotel as the key found on

Cordero.

       Police spoke to the owner of Ocean Moving and Storage Corp, who stated

that he had not authorized the check in question. He also stated he had been the

victim of several prior incidents of forged checks being cashed.

       Subsequent investigation showed the six had stayed at a nearby hotel in

three rooms under Lopez’s name. Search warrants were obtained for the three

hotel rooms, the two vehicles, as well as all of the detained individuals’ cell phones.

Inside one of the hotel rooms, a notepad was found containing practice signatures

for “Aldo E,” the same signature that was located on the fake Texas driver’s license

of “Aldo Espinosa.” A separate notepad was found in one of the other rooms

detailing what appeared to be a breakdown of the illicit proceeds from a forged

check Alejandra Gonzalez-Lopez cashed in Minnesota. In the sedan’s glove

compartment, an additional five checks were found on the accounts of Ocean

Moving and Storage Corp GA Account, Northstar Moving Transportation Co, and

SERE LLC, all with the payee name of “Aldo Espinosa.” The owners of Northstar

and SERE were then contacted, and they also confirmed that the checks were

fraudulent and had not been authorized. Police also searched the cell phones of
                                          5


the six individuals. That search yielded a photo of Cordero with Gonzalez-Lopez

and De La Paz Jr. taken August 4, 2016, at the same hotel where the search

warrants had been executed. All of the evidence seized revealed a multi-state

forged check operation conducted by the six.

       Cordero was charged with five counts of forgery and one count of

conspiracy to commit a felony (forgery)—all class “D” felonies. As a part of a plea

deal, the State agreed to dismiss the five counts of forgery and the habitual

offender enhancement in return for Cordero’s guilty plea to the one count of

conspiracy to commit forgery. At the plea hearing the district court engaged

Cordero in a comprehensive colloquy. The relevant parts regarding the factual

basis for Cordero’s guilty plea follow:

              THE COURT: Well, what did you do?
              CORDERO: I accompanied Lazaro and Alfredo to the bank,
       and I helped them to commit the felony.
              ....
              THE COURT: What was going to happen at the bank?
              CORDERO: Alfredo was going to cash a check.
              ....
              THE COURT: Well, was it the check purporting to be a check
       of Ocean Moving & Storage Corporation, GA?
              CORDERO: Yes.
              THE COURT: And did you know that at the time?
              CORDERO: Yes.
              THE COURT: Did you or Alfredo or—who was the other one?
       Who was the other guy?
              CORDERO: Alfredo Penalver and Lazaro Taboada.
              THE COURT: Did you or Alfredo or Lazaro have any authority
       to cash that check?
              CORDERO: No.
              ....
              THE COURT: Then what happened?
              CORDERO: He got the check. We went to the bank, and
       maybe he had some problems there. Then he came out, and we got
       into the car. And then we were driving away. The police came and
       stopped us.
              THE COURT: What were the problems at the bank?
                                         6


               CORDERO: I don’t know what the problem was, but maybe
       the girl who was working at the bank thought it was not legal.
               ....
               THE COURT: Okay. So before you went to the bank with
       Lazaro and Alfredo, did the three of you enter into an agreement that
       one or all of you were going to commit this crime of forgery?
               CORDERO: Yeah.
               ....
               THE COURT: Were you a lookout?
               CORDERO: Yes.
               ....
               THE COURT: Was it a blank check?
               CORDERO: He—yes. He filled it out. He filled it out.
               THE COURT: Alfredo did that?
               CORDERO: Yes.
               THE COURT: And you knew he was going to do that or
       agreed that he should do it?
               CORDERO: Yes.
               THE COURT: When you all committed this crime, did you –
       did you specifically intend to injure or defraud this company, Ocean
       Moving & Storage Corp., by taking money that you were not entitled
       to?
               CORDERO: Yes.

       On appeal, Cordero argues that “the record is devoid of evidence to support

a conviction of conspiracy, and is therefore insufficient.” Conspiracy is statutorily

defined as:

              1. A person commits conspiracy with another if, with the intent
       to promote or facilitate the commission of a crime which is an
       aggravated misdemeanor or felony, the person does either of the
       following:
              a. Agrees with another that they or one or more of them will
       engage in conduct constituting the crime or an attempt or solicitation
       to commit the crime.
              b. Agrees to aid another in the planning or commission of the
       crime or of an attempt or solicitation to commit the crime.
       ...
              3. A person shall not be convicted of conspiracy unless it is
       alleged and proven that at least one conspirator committed an overt
       act evidencing a design to accomplish the purpose of the conspiracy
       by criminal means.

Iowa Code § 706.1.
                                          7


       A lesser burden rests with the State to establish the factual basis to support

a guilty plea than proving guilt beyond a reasonable doubt at trial. See State v.

Sanders, 309 N.W.2d 144, 145 (Iowa Ct. App. 1981). The factual basis for a guilty

plea only requires that the record, taken in its entirety, “demonstrate[s] facts that

support the offense.” State v. Ortiz, 789 N.W.2d 761, 767-68 (Iowa 2010). At the

time of the guilty plea, the record only must disclose facts that satisfy all elements

of the offense. See Rhoades, 848 N.W.2d at 29.

       Cordero suggests the evidence is insufficient to show his intent to enter into

an agreement to conspire to commit forgery. See Iowa Code § 706.1(1); Iowa

Crim. Jury Instruction 600.1. “Without proof of any involvement from which to infer

agreement, this essential element of the offense rests on nothing but conjecture

and speculation.” State v. Speicher, 625 N.W.2d 738, 743 (Iowa 2001).

It is clear from the record that Cordero was with and knew Penalver was forging

checks. Cordero affirmatively responded to the district court’s question during the

colloquy that before the three men went to the bank, they did “enter into an

agreement that one of you . . . were going to commit this crime of forgery.”

Cordero’s extended statements that he accompanied the co-conspirators to the

bank “to help them commit the felony” further support a factual basis for intent.

Cordero stated he was in the sedan to serve as a lookout. Cordero’s statements

and the record facts sufficiently provide a factual basis for the intent element. See

State v. Philo, 697 N.W.2d 481, 486 (Iowa 2005); see also Rhoades, 848 N.W.2d

at 31 (requiring that a defendant acknowledge facts consistent with the crime

charged and pled guilty to).
                                         8


       Cordero also suggests the facts do not support the “overt act” requirement.

See Iowa Code § 706.1(3). We disagree. To sustain a conspiracy conviction

requires proof “that at least one conspirator committed an overt act.” Id. There is

no question that one of Cordero’s confederates committed an act of forgery. The

notepad found in the hotel room that Penalver was staying in contained the

practice signatures of “Aldo E.” It is undisputed that Penalver tried to pass the

forged check at the bank using a fake ID. The record evidence supports a finding

that at least one of the conspirators performed an overt act designed to accomplish

the purpose of the conspiracy by criminal means.

       Any remaining arguments raised by Cordero on appeal are deemed without

merit, and we therefore do not specifically address them in this opinion.

       Because the record establishes a factual basis for Cordero’s plea,

Cordero’s attorney was not ineffective in allowing him to plead guilty to conspiracy

to commit forgery. Cordero’s arguments not specifically addressed in this opinion

are found to be without merit. We therefore affirm Cordero’s conviction.

       AFFIRMED.
