                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-2077
                               Filed February 24, 2016


BRANDON MICHAEL HARRIS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, James C.

Ellefson, Judge.



      An applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Jennifer J. Bonzer of Johnson and Bonzer, Fort Dodge, for appellant.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.




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


VOGEL, Presiding Judge.

       Brandon Harris appeals the district court’s denial of his application for

postconviction relief (PCR). Harris pled guilty to multiple offenses arising out of

four different trial informations, and in exchange, he received a sentence of time

served in one case and a suspended nineteen-year sentence1 with five years’

probation and placement at a residential facility for the other three cases. After

his probation was revoked and his suspended sentence imposed, he filed a PCR

application alleging his trial attorney was ineffective in a number of ways. With

the exception of granting Harris’s request to merge two offenses, the district court

denied the PCR application.

       Harris appeals, claiming trial counsel was ineffective in not investigating a

diminished capacity defense based on his assertion that he was diagnosed with

posttraumatic stress disorder and was not taking his medication at the time of the

commission of the offenses.       After hearing Harris’s recitation of various time

frames when he had been on various medications, the district court found Harris

was “not a reliable witness on the topic of his use of medications.” The district

court then rejected Harris’s claim, concluding:

       No evidence was offered that the defendant being off of his
       medications might give rise to a diminished capacity defense. See
       Lamasters v. State, 821 N.W.2d 856, 869 (Iowa 2012). Two
       experienced criminal defense lawyers saw nothing to alert either
       one of them to the possibility of diminished capacity. The
       applicant’s mother and sister were in regular contact with defense
       counsel, but neither of them raised the issue.          Under the
       circumstances, the failure of the attorneys to investigate a

1
 This sentence was reduced to seventeen years as a result of the PCR proceeding
because the district court determined two offenses should have merged. This part of the
PCR court’s decision is not appealed.
                                         3


       diminished capacity defense was not ineffective assistance of
       counsel.

       Upon our de novo review of the record, we agree with the district court’s

conclusion that Harris failed to prove either a breach of a duty or prejudice based

on his claim that his trial attorneys failed to investigate a diminished capacity

defense. See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012) (noting our

standard of review and the applicant’s burden of proof in ineffective-assistance

cases).

       Next, Harris claims his trial counsel was ineffective for allowing him to

plead guilty without doing a proper investigation into the facts of the case and the

applicable law. He claims there are “a plethora” of successful defenses in the

record, including a lack of proof that Harris had the intent to shoot a gun (for the

going-armed-with-intent conviction), proof that he was living at the address he

allegedly burglarized, a lack of probable cause to stop his vehicle in which stolen

property was found, and the fact the witnesses’ testimony was conflicting. The

State points out this claim was not presented to the PCR court, and as a result, it

is not preserved for our review. However, Harris asserts, in the event we find this

claim not preserved, his PCR counsel was ineffective in not presenting it to the

PCR court.      See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010)

(“Ineffective-assistance-of-counsel claims are an exception to the traditional

error-preservation rules.”); Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994)

(noting an applicant has a statutory right to the effective assistance of

postconviction-relief counsel). Thus, we will address it on its merits.
                                           4


       Harris was represented by two different public defenders, and he claims

the second attorney reported spending only six hours total on the four cases.

Harris asserts this was insufficient time2 for the attorney to properly investigate

and research the cases that involved four incidents with thirteen total charges.

Upon our review of the record, we note the first attorney conducted discovery,

including taking depositions, and received a plea offer from the State that (1) cut

the total number of charges from thirteen to eight, (2) significantly reduced the

gravity of some of the counts, (3) shrunk the potential incarceration time from a

potential of over seventy years to nineteen years, and (4) permitted Harris to be

immediately released on probation by giving him credit for time served on three

counts and a suspended sentence on the other five counts. By the time the first

attorney withdrew and the second attorney entered his appearance, the plea

offer was on the table giving Harris exactly what he wanted, which was to be

released on probation. Thus, Harris cannot establish that had counsel spent

more time reviewing the law and facts of the case Harris would not have pled

guilty and would have insisted on going to trial. See State v. Straw, 709 N.W.2d


2
  We also note the district court found, and we agree, public defenders often underreport
the amount of time they spend on their clients’ files:
       The public defenders in this case did not keep track of their time with the
       same diligence that private practitioners use, at least theoretically.
       Private practitioners are dependent upon keeping track of their time and
       billing it in order to have an income. Lawyers in the public defender’s
       office are salaried and do not have that motivation. They also have the
       concern that their client will be required to reimburse the State for the
       time that the lawyers bill, at least up to certain limits. In brief, the lawyers’
       statements of time are imprecise at best and prepared with a bias in favor
       of the client not being required to pay more than is necessary. The files
       in these cases, the transcripts of the depositions and the transcripts of the
       plea and sentencing hearings support a finding that the attorneys’
       statements of time understated the amount of time they spent.
                                            5


128, 138 (Iowa 2006) (“[I]n order to satisfy the prejudice requirement, the

defendant must show that there is a reasonable probability that, but for counsel’s

errors, he or she would not have pleaded guilty and would have insisted on going

to trial.”).

         Finally, Harris claims his trial counsel was ineffective in not filing a motion

in arrest of judgment challenging his plea to one of the counts—going armed with

intent—because Harris asserts there was no factual basis to support the

conclusion that he intended to fire the gun. Again, this claim was not presented

to the PCR court, but Harris raises it through the tunnel of ineffective assistance

of PCR counsel. Therefore, we will address the merits.

         In order for a court to accept a guilty plea, there must be a factual basis to

support the charge. State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013) (“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.”). We examine the entire record before the district court at

the plea hearing to determine whether there is a factual basis. Id. (“Recourse to

the entire record is appropriate because, unlike a claim of due process

involuntariness, the relevant inquiry for purposes of determining the Sixth

Amendment claim presented by [the defendant] does not involve an examination

of his subjective state of mind at the time the trial court accepted the plea, but

instead involves an examination of whether counsel performed poorly by allowing

[the defendant] to plead guilty to a crime for which there was no objective factual

basis in the record.”).
                                         6


       During the plea colloquy between Harris and the court for the going-

armed-with-intent charge, the court asked:

               THE COURT: Okay. So with respect to this one on October
       13th, the charge is that you went armed with a dangerous weapon
       with the intent to use it to assault Juan Carlos’s brother.
               THE DEFENDANT: Ricardo.
               THE COURT: Does that ring a bell?
               THE DEFENDANT: Yes.
               THE COURT: Well, was that the fellow you went armed with
       an AK-47?
               THE DEFENDANT: Yes.
               THE COURT: All right. So the dangerous weapon was an
       AK-47. The other person was Juan Carlos’s brother. It occurred in
       Marshall County on October 13th and you went armed with that
       weapon with the intent to assault Juan Carlos’s brother and you
       didn’t have justification to do that; is that correct?
               THE DEFENDANT: Yes.
               THE COURT: All right.

In addition, the minutes of testimony for this charge provided the gun in question

had both a loaded and an unloaded magazine.              Harris chose the loaded

magazine and ran out to the car Ricardo was driving.          He stuck the AK-47

through the window at Ricardo and racked the gun. He threatened Ricardo’s life

and the life of Ricardo’s family. Ricardo was able to leave the area without shots

being fired. Based on the minutes of testimony in addition to the plea colloquy,

we determine there was a factual basis to support the intent element of the

conviction for going armed with intent. See State v. Hill, 363 N.W.2d 599, 601

(Iowa Ct. App. 1984) (“The elements of going armed with intent are (1) going

armed, (2) with a dangerous weapon, and (3) intent to use the weapon against

another.”); see also Iowa Code § 708.8 (2009). Because a factual basis supports

Harris’s guilty plea to going armed with intent, trial counsel was not ineffective in

failing to file a motion in arrest of judgment, and PCR counsel was not ineffective
                                         7

in failing to present this claim to the PCR court. State v. Dudley, 766 N.W.2d

606, 620 (Iowa 2009) (“[W]e have held that counsel has no duty to raise an issue

that has no merit.”).

       We affirm the district court’s denial of Harris’s PCR application.

       AFFIRMED.
