                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0048
                            Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LARRY LEROY GROSS JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.



      Defendant challenges his guilty plea to arson in the second degree.

AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Katie M. Krickbaum, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

       Defendant Larry Gross Jr. pleaded guilty to arson in the second degree, in

violation of Iowa Code sections 712.1 and 712.3 (2017). In this direct appeal,

Gross contends his guilty plea lacked a factual basis and his conviction must be

vacated.

       The defendant failed to challenge his guilty plea in the district court by filing

a motion in arrest of judgment. “Generally, a defendant’s failure to file a motion in

arrest of judgment bars a direct appeal of [a guilty plea].” State v. Hopwood, No.

13-1480, 2014 WL 5476008, at *1 (Iowa Ct. App. Oct. 29, 2014); accord Iowa R.

Crim. P. 2.8(2)(d) (“The court shall inform the defendant that any challenges to a

plea of guilty based on alleged defects in the plea proceedings must be raised in

a motion in arrest of judgment and that failure to so raise such challenges shall

preclude the right to assert them on appeal.”).          However, a defendant can

challenge a guilty plea indirectly “if the failure to file a motion in arrest of judgment

resulted from ineffective assistance of counsel.” Hopwood, 2014 WL 5476008, at

*1; accord Rhoades v. State, 848 N.W.2d 22, 28 (Iowa 2014) (“[A] defendant may

attack his or her guilty plea on the ground the defendant did not receive effective

assistance of counsel as required under the Sixth Amendment to the United States

Constitution because there was no factual basis to support the defendant’s guilty

plea.”).

       Because Gross failed to file a motion in arrest of judgment to challenge his

guilty plea, his claim is necessarily asserted within the ineffective-assistance

framework. Although a claim of ineffective assistance of counsel is frequently

categorized as an exception to our error preservation rules, that categorization is
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not entirely accurate. “Ineffective assistance of counsel . . . is a stand-alone

constitutional claim attacking the performance of a criminal defendant’s counsel.”

State v. Johnson, 416 P.3d 443, 451 (Utah 2017). “While such a claim necessarily

requires the court to look at the substantive issue the defendant argues his counsel

should have raised, and whether the substantive issue had any merit, the

substantive issue is only viewed through the lens of counsel’s performance.” Id.

       Typically, this court, as a court of error correction, would not address a claim

not presented to the district court or an error not preserved in the district court.

See Iowa Code § 602.5103(1) (providing the court of appeals “constitutes a court

for the correction of errors at law”); Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa

2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.”). However, the Code specifically authorizes appellate courts to address

a claim of ineffective assistance of counsel on direct appeal from criminal

proceedings. See Iowa Code § 814.7(2) (“A party may, but is not required to, raise

an ineffective assistance claim on direct appeal from the criminal proceedings if

the party has reasonable grounds to believe that the record is adequate to address

the claim on direct appeal.”).    Because the Code authorizes our review of a

constitutional claim of ineffective assistance of counsel on direct appeal from a

criminal proceeding, we proceed to the merits.

       “In order to succeed on a claim of ineffective assistance of counsel, a

defendant must prove: (1) counsel failed to perform an essential duty; and (2)

prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)); accord Jones v. State, 545
                                          4


N.W.2d 313, 315 (Iowa 1996). “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.” State v. Schminkey, 597 N.W.2d 785, 788 (Iowa

1999). Furthermore, when counsel allows a defendant to plead guilty to a crime

that is not supported by a factual basis, prejudice is inherent. See State v. Ortiz,

789 N.W.2d 761, 764-65 (Iowa 2010); State v. Keene, 630 N.W.2d 579, 581 (Iowa

2001); Schminkey, 597 N.W.2d at 788.

       Before the district court accepts a guilty plea, the district court must satisfy

itself the guilty plea is supported by a factual basis. See Iowa R. Crim. P. 2.8(2)(b);

State v. Amadeo, No. 11-1426, 2012 WL 2122262, at *1 (Iowa Ct. App. June 13,

2012). “A factual basis can be discerned from . . . : (1) inquiry of the defendant,

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

minutes of evidence.”     Ortiz, 789 N.W.2d at 768; accord Amadeo, 2012 WL

2122262, at *1. The relevant inquiry is whether the record before the district court

supports a factual basis for each element of the offense. See Rhoades, 848

N.W.2d at 29; Amadeo, 2012 WL 2122262, at *3-4 (collecting cases). The court

need “only be satisfied that the facts support the crime, ‘not necessarily that the

defendant is guilty.’” Keene, 630 N.W.2d at 581 (quoting 1A Charles Alan Wright,

Federal Practice and Procedure § 174 (1999)).

       To determine whether Gross’s guilty plea is supported by a factual basis,

we first turn to the elements of the offense. The Code defines arson as follows:

             Causing a fire or explosion, or placing any burning or
       combustible material, or any incendiary or explosive device or
       material, in or near any property with the intent to destroy or damage
       such property, or with the knowledge that such property will probably
       be destroyed or damaged, is arson, whether or not any such property
                                        5


      is actually destroyed or damaged. Provided, that where a person
      who owns said property which the defendant intends to destroy or
      damage, or which the defendant knowingly endangers, consented to
      the defendant’s acts, and where no insurer has been exposed
      fraudulently to any risk, and where the act was done in such a way
      as not to unreasonably endanger the life or property of any other
      person the act shall not be arson.

Iowa Code § 712.1(1).

             Arson which is not arson in the first degree is arson in the
      second degree when the property which is the subject of the arson
      is a building or a structure, or real property of any kind, or standing
      crops, or is personal property the value of which exceeds five
      hundred dollars.

Iowa Code § 712.3.

      We have little trouble concluding Gross’s plea is supported by a factual

basis. The record reflects Gross set fire to his and his wife’s home after becoming

frustrated by financial problems.    The fire was put out fairly quickly without

substantial damage to the home. The State charged Gross with arson in the first

degree but reached an agreement in which Gross would plead guilty to arson in

the second degree. During the plea colloquy, the defendant stated he knew his

wife’s personal property would be destroyed in the house fire and the property was

worth more than $500:

             MR. ALLEN: What about your wife? Did she have things in
      [the house]?
             THE DEFENDANT: Yes, sir.
             MR. ALLEN: Okay. So your fire put her property at a risk of
      being destroyed as well as your own property; is that right?
             THE DEFENDANT: Yes, sir. Yes, sir.
             MR. ALLEN: Okay. Thank you, Your Honor. I have no further
      questions.
             THE COURT: Did she—what kind of property did she have in
      the house? Clothing?
             THE DEFENDANT: Clothing, TV, stereos.
             THE COURT: Furniture?
             THE DEFENDANT: Yes.
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               THE COURT: And if that fire had been allowed to destroy the
       whole house, it would have also destroyed the property of your wife;
       is that true?
               THE DEFENDANT: Yes, sir.
               THE COURT: And would you agree with me that the value of
       her property that was in that house was more than $500?
               THE DEFENDANT: Yes, sir.

The defendant’s statements, along with other evidence in the record, provided a

factual basis to support Gross’s plea under the “personal property” alternative of

arson in the second degree. See State v. Ledesma, No. 18-0253, 2018 WL

5291356, at *4 (Iowa Ct. App. Oct. 24, 2018) (finding that defendant’s admissions

that she started a fire in a vehicle and that the vehicle was worth more than $500,

“in conjunction with the remaining plea record was sufficient to support a factual

basis for the plea”).

       Gross contends the “personal property” alternative of the statute is

inapplicable here because the State’s theory of the case was the “building or

structure” alternative set forth in the statute. Gross’s contention has some support

in the record:

              THE COURT: Now, the State claims that on or about June
       29th of this year [Gross] committed arson in the second degree, that
       [Gross] caused a fire in a home with the intent to destroy or damage
       that property, and that [Gross] could reasonably anticipate that
       property would be destroyed, and the value of the property was more
       than $500.
              [. . . . ]
              THE STATE: You mentioned the charging alternative of
       personal property over $500, I—as arson second, I think the facts in
       this case fit better that it’s a building.
              [. . . . ]
              THE COURT: Okay. All right. Yeah. Second-degree arson
       would require that the damage be done to a building or a structure or
       real property of any kind or standing crops or personal property that
       exceeds $500. So if I referred to the $500, I misspoke. This is
       charged in a manner that the arson occurred to a building or a
       structure.
                                          7



Relying on this record, Gross further argues his guilty plea lacks a factual basis

because under the “building or structure” alternative one cannot be convicted of

arson for setting fire to one’s own property absent an intent to defraud an insurer

and there is nothing in the record to support an intent to defraud. See Iowa Code

§ 712.1(1).

       We disagree with Gross’s argument. The “personal property” alternative of

committing arson in the second degree is applicable here. Gross was charged by

trial information with arson in the first degree. When the State charges a defendant

with a criminal offense, that charge carries with it all lesser included offenses. See

State v. Lipsey, No. 13-1062, 2014 WL 3931434, at *2 (Iowa Ct. App. Aug. 13,

2014). Arson in the second degree is a lesser included offense of arson in the first

degree. See State v. Royer, 436 N.W.2d 637, 641 (Iowa 1989). The statute sets

forth different modes of committing the offense of arson in the second degree. The

State did not file an amended trial information setting forth a specific theory of the

case. While the prosecutor thought the “building or structure” alternative was

applicable here, that did not preclude the district court from inquiring about another

mode of committing the offense. The district court was not bound to limit its inquiry

to only the prosecutor’s theory. Instead, it was the district court’s obligation to

determine whether there was a factual basis supporting the defendant’s guilty plea

to the crime charged. Here, the district court made a record on the “personal

property” alternative of committing the offense and satisfied itself the guilty plea to

arson in the second degree was supported by a factual basis. There was no error
                                            8


in doing so, and counsel was not ineffective in failing to challenge the plea on this

basis.

         Gross also contends there is not a factual basis supporting the conviction

because the record does not show whether Gross’s wife consented to the fire.

This argument is contingent on the premise that lack of the property owner’s

consent is an element of the offense. This court recently rejected this premise. In

Ledesma, this court held that “owner consent is an affirmative defense to and not

an element of the offense of arson.” Ledesma, 2018 WL 5291356, at *4. Accord

State v. TeBockhorst, 305 N.W.2d 705, 706 (Iowa 1981) (“In defending the charge

[of arson], defendant . . . [argued he] consented to the act.” (emphasis added));

Iowa Crim. Jury Instructions 1200.3(6) (referring to consent to arson as an

“affirmative defense” and stating that the jury should only be instructed on consent

if the defendant raises the defense). Because consent is not an element of the

offense, lack of consent need not be shown to establish a factual basis for a guilty

plea to arson. See Ledesma, 2018 WL 5291356, at *4 (“Because owner’s consent

is not an element of [arson], there was no need to make a factual basis on this

point. Counsel thus had no duty to file a motion in arrest of judgment to challenge

the factual basis for the guilty plea.” (citation omitted)).

         Gross’s guilty plea to the crime of arson in the second degree is supported

by a factual basis. Counsel had no duty to file a motion in arrest of judgment to

challenge the guilty plea. We thus reject Gross’s claim of ineffective assistance of

counsel. We affirm Gross’s conviction.

         AFFIRMED.
