                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0516
                            Filed November 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LANDON MICHAEL RILEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Chickasaw County, Richard D.

Stochl, Judge.



      The defendant appeals from his convictions and sentences, following the

entry of an Alford plea, to two counts of willful injury causing bodily injury.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED.



      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.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

         Landon Riley appeals from his convictions and sentences, following the

entry of an Alford plea, for two counts of willful injury causing bodily injury. Riley

maintains his trial counsel provided ineffective assistance by allowing him to

plead guilty without a factual basis and then failing to file a motion in arrest of

judgment. He also maintains the district court abused its discretion in sentencing

him by relying on unproven offenses and a set sentencing policy.

I. Ineffective Assistance.

         To prevail on a claim of ineffective assistance of counsel, Riley must prove

by a preponderance of the evidence (1) his attorney failed to perform an

essential duty and (2) prejudice resulted from the failure.            See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).             That being said, “[i]t 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). “We will find counsel failed to perform an essential

duty if defense counsel allows the defendant to plead guilty to a charge for which

no factual basis exists and thereafter fails to file a motion in arrest of judgment

challenging the plea.” State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). In

such a case, prejudice is inherent. State v. Keene, 630 N.W.2d 579, 581 (Iowa

2001).

         Although we prefer to        preserve ineffective-assistance claims for

development of the record and to allow trial counsel to defend against the

charge, see State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006), here we find the
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record is adequate to review Riley’s claim.         We review the claim de novo.

Brooks, 555 N.W.2d at 448.

       In determining whether a factual basis supports Riley’s guilty pleas, we

consider the entire record, as a whole, to see if the elements of the offenses

have been satisfied. See State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010).

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

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

minutes of evidence.” Id. at 768. Moreover, “the record does not need to show

the totality of the evidence necessary to support a guilty conviction, . . . it need

only demonstrate facts that support the offense.” Id.

       Riley maintains that there is not a factual basis to support his pleas

because there was an insufficient basis to find the complaining witness suffered

any bodily injury. See Iowa Code § 708.4(2) (2015) (“Any person who does an

act which is not justified and which is intended to cause serious injury to another

commits willful injury . . . if the person causes bodily injury to another.”). Bodily

injury is defined as “physical pain, illness, or any impairment of physical

condition.” See State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997) (explaining that

Iowa has adopted the Model Penal Code’s definition of “injury” and finding it

applicable in cases of assault causing bodily injury). Additionally, “impairment”

includes any deviation from normal health and means “[t]o weaken, to make

worse, to lessen in power, diminish, or relax, or otherwise affect in any injurious

manner.” Id.     Although “welts, bruises, and similar markings are not physical

injuries per se,” they “may be and frequently are evidence from which the

existence of a physical injury can be found.” Id.
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       Here, the minutes of testimony included photographs taken of the

complaining witness after Riley’s arrest. Two of the photographs show a number

of bruises to the witness’s right, inner arm; another photograph shows a large

bruise under the witness’s shoulder blade—an injury she reported she received

when Riley hit her with the butt of his gun; and a final photograph shows some

redness to the witness’s left elbow. Additionally, the witness’s written statement

includes reports that Riley “threw [her] on the bed” then “pulled [her] off the bed

and threw [her] onto the floor.” Additionally, he “choked [her] with one hand still

holding the gun with his other hand.” At some point, she convinced him to let her

sit up, but then “he held [her] very tight, telling [her] he was left with no choice but

to kill [them] both.”

       The record establishes a factual basis that the complaining witness

suffered at least two bodily injuries. Additionally, the record supports the finding

that Riley engaged in more than one assault. See State v. Newman, 326 N.W.2d

788, 793 (Iowa 1982) (“A defendant should not be allowed to repeatedly assault

his victim and fall back on the argument his conduct constitutes but one crime.”);

see also State v. Velez, 829 N.W.2d 572, 582–84 (Iowa 2013) (using the

completed-acts test and the break-in-the-action test in determining the defendant

committed “at least two” acts of willful injury causing serious injury).         Thus,

counsel was not ineffective for allowing Riley to plead guilty.

II. Sentencing.

       Riley maintains the district court abused its discretion in sentencing him by

relying on unproven offenses and a set sentencing policy. Because we find the
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court considered an unproven offense and remand for resentencing, we do not

consider Riley’s second claim.

      Police officers were called to Riley’s home by the witness’s daughter.

After the officers made contact with Riley and the witness, Riley ran from the

officers and went to the garage, where he recovered the handgun he had during

the altercation with the witness. For over half an hour, Riley held the gun to his

forehead, refusing to submit to police commands. He eventually dropped the

weapon to the ground and was arrested.

      Although Riley was initially charged with kidnapping in the second degree,

he entered a plea deal with the State, in which he agreed to enter Alford pleas to

two counts of willful injury causing bodily injury in exchange for the dismissal of

the kidnapping charge. Riley was never charged with an offense involving the

handgun and the police officers.

      At sentencing, the district court sentenced Riley to two concurrent terms of

incarceration not to exceed five years. The court stated:

             The reason for my sentence is the—primarily the
      circumstances of this offense. There wasn’t just one victim to this
      crime; there were two. We had a Chickasaw County Sheriff in the
      house with you in a showdown involving firearms. We’re fortunate
      that no one was hurt or killed in this incident. And this is not in
      today’s environment a type of offense that I can grant a deferred
      judgment or overlook the possibility of incarceration when we’re
      getting involved with gun play. And I look at your statement to the
      [presentence investigation] investigator; there’s a lot of minimizing.
      You deny that you ever put the gun to the [witness’s] head. You
      claim that she tried to take it from you and, based on those
      circumstances, I believe the only appropriate sentence under these
      circumstances is a prison term.

      While the interaction between Riley and the officers was described in

detail in the minutes of testimony, Riley never admitted to any such acts and the
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State did not prove they occurred. See State v. Witham, 583 N.W.2d 677, 678

(Iowa 1998) (“A court may not consider an unproven or unprosecuted offense

when sentencing a defendant unless (1) the facts before the court show the

accused committed the offence, or (2) the defendant admits it.”).       “We have

approved using the minutes to establish a factual basis for the change to which

the defendant pleads guilty.” State v. Black, 324 N.W.2d 313, 316 (Iowa 1982).

“The sentencing court should only consider those facts contained in the minutes

that are admitted to or otherwise established as true.” State v. Gonzales, 582

N.W.2d 515, 516 (Iowa 1998). The State urges us to find the district court did not

abuse its discretion because the report from the presentence investigation

contains a narrative of the incident involving Riley and the officers.       If the

narrative was found in the “Defendant’s Version” part of the report, such

statements would be admissions and could be considered.           See id. at 517

(finding the district court properly relied on defendant’s statements in the

presentence investigation report which amounted to an admission of other

criminal activity because the statements were not challenged by the defendant

when he was given an opportunity to do so). But here, the narrative is found in

the “Official Version” and is simply a rehashing of the minutes of testimony. Cf.

United States v. Joshua, 40 F.3d 948, 952–53 (8th Cir. 1994) (holding that the

defendant’s failure to dispute the “rendition of his criminal history” allowed the

sentencing court to consider “prior sentences, prior similar civilly-adjudicated

misconduct, and prior similar adult criminal conduct not resulting in a conviction”

as admitted). The district court should not have considered Riley’s standoff with

the officers during sentencing.
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      Because “we cannot speculate about the weight the trial court mentally

assigned” the unproven facts, “or whether it tipped the scales to imprisonment,”

we vacate Riley’s sentences and remand for resentencing. See State v. Messer,

306 N.W.2d 731, 733 (Iowa 1981).

      CONVICTIONS         AFFIRMED;        SENTENCES        VACATED        AND

REMANDED.
