                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1667
                              Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICKY T. EATMAN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Johnson County, Marsha Bergan,

Judge.



      Defendant appeals his conviction for possession of a controlled substance

(marijuana) with intent to deliver. AFFIRMED.




      Mark C. Meyer, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Ricky Eatman appeals his conviction for possession of a controlled

substance (marijuana) with intent to deliver. We find there is a sufficient factual

basis to support Eatman’s guilty plea. Because there is a sufficient factual basis,

defense counsel did not have an obligation to object to the guilty plea. We affirm

Eatman’s conviction.

       I.     Background Facts & Proceedings

       Eatman was charged with possession of a controlled substance (marijuana)

with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2014), a

class “D” felony. According to the minutes of testimony, officers found a digital

scale with marijuana residue on it in Eatman’s apartment, as well as a Mason jar

and sandwich bag filled with marijuana.       The minutes state, “The Defendant

admitted the substance was marijuana, it belongs to him, and that he sells it.”

       Eatman entered into a plea agreement in which he agreed to plead guilty to

the charge and the State agreed to join Eatman in recommending a deferred

judgment. At the plea hearing, held on December 8, 2014, Eatman agreed if

officers appeared at trial they would testify as summarized in the minutes. The

court stated, “The court finds that the Trial Information and the Minutes of

Testimony provide a factual basis for the charge and the defendant’s plea of guilty.”

The court then questioned Eatman, who initially stated he had a Mason jar full of

marijuana for personal use. After discussing the matter with his attorney, Eatman

stated he intended to distribute the marijuana to other people. The court accepted

Eatman’s guilty plea.
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       Apparently, Eatman’s whereabouts were unknown for a period of time, as

sentencing was held seven months later on July 10, 2017. At sentencing, Eatman

received a deferred judgment and was placed on probation for three years. As a

condition of his probation, he was required to reside in a residential correctional

facility. Eatman violated the rules of the facility and the court revoked his deferred

judgment. Eatman was subsequently found guilty of possession of a controlled

substance (marijuana) with intent to deliver and sentenced to a term of

imprisonment not to exceed five years. He now appeals, claiming he received

ineffective assistance of counsel.

       II.    Standard of Review

       We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, a defendant must prove (1) counsel failed to

perform an essential duty and (2) prejudice resulted to the extent it denied the

defendant a fair trial. Id. A defendant’s failure to prove either element by a

preponderance of the evidence is fatal to a claim of ineffective assistance. State

v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       III.   Ineffective Assistance

       Eatman claims he received ineffective assistance because defense counsel

permitted him to plead guilty to possession of a controlled substance (marijuana)

with intent to deliver when there was not a factual basis in the record for the plea.

He states the record shows he did not intend to sell the marijuana but only intended

to share it with his friends. Eatman states there was insufficient evidence to show
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the appropriate offense was possession with intent to deliver and not an

accommodation offense under section 124.410, which occurs if a defendant

possesses “one-half ounce or less of marijuana which was not offered for

sale . . . .”

        “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). “On a claim that a plea bargain is invalid

because of a lack of accuracy on the factual-basis issue, the entire record before

the district court may be examined.” Id. 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.” Id.

A sufficient factual basis can be determined by the minutes of testimony. Id.

        According to the minutes of testimony, officers would state, “The Defendant

admitted the substance was marijuana, it belongs to him, and that he sells it.” In

addition, there was evidence Eatman had a digital scale with marijuana residue on

it and marijuana in a baggy. When asked by the court at the plea-hearing if the

officers “would testify as summarized in the Minutes of Testimony,” Eatman

replied, “Yeah.” The court then stated, “The court finds that the Trial Information

and the Minutes of Testimony provide a factual basis for the charge and the

defendant’s plea of guilty.”1 Eatman’s statement as recorded in the minutes, in

addition to the evidence of the scale and marijuana in a baggy supports a finding


1
   After the court had already found there was a factual basis for the charge, Eatman told
the court about the offense in his own words. He initially stated all of the marijuana was
for his personal use, and he intended to use some and share some with his friends.
Eatman’s statements show an intent to distribute.
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of an intent to sell. In such a situation, an accommodation offense under section

124.410 would not apply.

         We find there is a sufficient factual basis to support Eatman’s guilty plea for

possession of a controlled substance (marijuana) with intent to deliver. Because

there is a sufficient factual basis, defense counsel did not have an obligation to

object to the guilty plea. “Counsel does not fail to perform an essential duty by

failing to raise a meritless objection.” State v. Lopez, 872 N.W.2d 159, 169 (Iowa

2015).

         We affirm Eatman’s conviction.

         AFFIRMED.
