                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0934
                                Filed July 5, 2018


TROY GRAM,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David N. May, Judge.



      The applicant appeals the dismissal of his application for postconviction

relief. AFFIRMED.



      Jacob L. Mason of JL Mason Law, P.L.L.C., Ankeny, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee State.




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

       Troy Gram appeals the denial of his application for postconviction relief

(PCR). As he did in his application to the PCR court, Gram maintains he received

ineffective assistance from trial counsel because trial counsel (1) allowed him to

plead guilty to failure to comply with sex-offender registry requirements, second

offense, without a factual basis to support the plea1 and (2) failed to challenge the

statute as unconstitutionally vague.

I. Background Facts and Proceedings.

       In August 2013, a complaint was filed alleging Gram had failed to comply

with the sex offender registry requirements—his second such offense. It stated he

had moved from his registered address on July 24 and had yet to update his

address with the registry. Based on this complaint, an arrest warrant was issued,

and Gram was taken into custody.

       The trial information, which was filed in October, stated Gram had failed to

comply with the sex offender registry, “in violation of Iowa Code Section

691A.104(6).” The actual code section at issue is 692A.104.

       Gram entered into an agreement with the State whereby he would plead

guilty to the charge and the State would recommend he receive a suspended

sentence with a term of probation.



1
  In his appellate brief, within the subsection addressing his factual-basis claim, Gram
makes a passing argument that he was deficiently charged because the trial information
cited Iowa Code section 691A.104(6) (2013) as opposed to section 692A.104. However,
this claim was not decided by the PCR court, and Gram has failed to claim that PCR
counsel was ineffective for not raising the claim sooner. Because this claim was neither
preserved for our review (by being both raised and decided by the PCR court) nor raised
under the ineffective-assistance-of-counsel framework that allows a party to bypass our
error-preservation rules, we do not consider this claim further.
                                        3


      In December, Gram entered a guilty plea in open court. During a colloquy

with the court, the following exchange took place:

              THE COURT: Understanding everything I’ve explained so
      far, how do you plead as to the charge of failure to comply with the
      sex offender registry, second offense, guilty or not guilty?
              GRAM: Guilty, Your Honor.
              THE COURT: Tell me what you did that makes you guilty of
      this.
              GRAM: I failed to register in a timely manner due to the fact
      that I was waiting on a job that I thought was going to pan out that
      didn’t pan out, and so the—so my landlord in question failed to rent
      me that apartment. I didn’t have a job and—
              THE COURT: So you moved—you lived at a certain address;
      is that true?
              GRAM: Yes.
              THE COURT: And then you moved from that address; true?
              GRAM: Yes. They asked me to leave.
              THE COURT: You were asked to leave?
              GRAM: From the Bethel Mission and I was being in the
      process of getting an apartment.
              THE COURT: I got you. So you were living at the Bethel
      Mission, and you were kicked out of the Bethel Mission; is that true?
              GRAM: Yes.
              THE COURT And was this between July 29 and September
      4, 2013?
              GRAM: I believe so, yes.
              THE COURT: And within five days after you were kicked out
      of the Bethel Mission you did not notify the sheriff that your address
      had changed; is that true?
              GRAM: That’s true—well—
              THE COURT: I’m sorry?
              GRAM: In light of everything, they kept me out for five days.
      I was planning on coming back. And after the five days they told me
      that I couldn’t come back, so I was already in trouble at that point
      there so—
              THE COURT: All right. So you knew that and then you didn’t
      go ahead and—
              GRAM: Right.
              THE COURT: —tell them where you were?
              ....
              GRAM: True.

The court accepted Gram’s guilty plea, and he was later sentenced to a suspended

term and a two-year period of probation.
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       In March 2015, the department of corrections filed a report of probation

violations. Following a hearing, in May, the court revoked Gram’s probation and

imposed a five-year term of incarceration.

       Gram filed his application for PCR in September. With the assistance of

counsel, he filed an amended petition in July 2016, in which he claimed he had

received ineffective assistance from trial counsel who allowed him to enter a guilty

plea to the offense without a factual basis. In another amended application, Gram

added the claim that trial counsel had been ineffective for failing to challenge the

statute as unconstitutionally vague.2

       A hearing on the amended application took place in December 2016. Gram

was the only witness at the hearing; his trial counsel’s previously-taken deposition

was admitted into evidence. He testified he continued to sleep on the property

behind a shed after he was kicked out of the shelter. He estimated that he slept

there all but three or four nights between July 24 and September 4. He claimed to

have told his attorney he had been sleeping on the property but that she

immediately informed him of the offered plea agreement and he decided to take it

because his mother had just recently passed away while he was being held in jail

and he wanted to be released immediately. Trial counsel testified in deposition

that she did not know that Gram claimed to have slept on the grounds of the

shelter.

       In a written ruling, the PCR court denied Gram’s application. The court

found that a factual basis to support the guilty plea could be found in the minutes


2
 Gram raised other issues in his applications for PCR, but as those have not been raised
on appeal, we do not include them in the procedural history.
                                          5


of evidence. Additionally, the court did not find credible Gram’s assertion that “he

was secretly trespassing on to Bethel Mission property and sleeping there.” In

reaching this conclusion, the court stated, “Gram never mentioned this story at his

plea hearing [in 2013] or his sentencing [in 2014]. Ultimately, Gram’s story is

supported only by Gram’s own self-serving statements in 2015 and 2016. Having

listened to Gram testify, the Court finds his testimony lacks credibility and is not

entitled to weight.” The court also found that Gram’s void-for-vagueness theory

failed.

          Gram appeals.

II. Discussion.

          Gram raises his claims under the ineffective-assistance-of-counsel

framework. In order to succeed, Gram “must demonstrate by a preponderance of

evidence that ‘(1) his trial counsel failed to perform an essential duty, and (2) this

failure resulted in prejudice.’” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010)

(citation omitted).

          A. Factual Basis.

          We understand Gram’s factual-basis argument to be two-fold. He maintains

both that the record made during his plea colloquy is inadequate to find a factual

basis supports the plea and that his action of sleeping on the grounds at the same

address after he had been asked to leave the shelter means he was not, in fact, in

violation of the statute and should not have entered a guilty plea. He raises both

claims under the ineffective-assistance framework.

          “Defense counsel violates an essential duty when counsel permits

defendant to plead guilty and waive his right to file a motion in arrest of judgment
                                          6

when there is no factual basis to support the defendant’s guilty plea.”            Id.

“Prejudice is presumed under these circumstances.” Id. at 764–65. To succeed,

Gram must establish that the record lacks a factual basis to support his guilty plea

to failure to comply with sex offender registry, second offense. See id. at 765.

       We consider Gram’s second claim first. He insists counsel was aware that

he was sleeping on the grounds after he was forced to leave the shelter and that

she should not have then allowed him to plead guilty to the crime, as his residence

had not changed. See Iowa Code §§ 692A.104(2) (requiring a sex offender, “within

five business days of changing a residence” “to notify the sheriff of each county

where a change has occurred”); 692A.101(24) (defining “residence” as a “dwelling

or other place where a sex offender resides, sleeps, or habitually lives” including

that “[i]f a sex offender does not reside, sleep, or habitually live in a fixed place,

‘residence’ means a description of the locations where the offender is stationed

regularly, including any mobile or transitory living quarters”). The only evidence to

support Gram’s claim that he continued to reside at the same address was his own

statement—made for the first time a number of years after he was initially charged,

pled guilty, and was sentenced. The district court found Gram’s statement to lack

credibility and further found that counsel had no reason to know of the claim at the

time of the proceedings. While we are not bound by the district court’s findings,

we usually defer to fact findings that rely on credibility determinations. See, e.g.,

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). And here, nothing in the

record suggests we should do otherwise than defer to the PCR court’s credibility

assessment and finding. Thus, because Gram failed to prove his claim he slept

outside the residence he had registered after he left the shelter, and because his
                                           7


counsel was not informed of the claim, Gram’s claim of ineffective plea counsel

fails.

         Next, we consider whether the record discloses a factual basis for failure to

comply with sex offender registry, second offense. See Iowa R. Crim. P. 2.8(2)(b)

(requiring a court to determine the plea is voluntarily and intelligently made and

has a factual basis before accepting a guilty plea). Gram only disputes whether

the record, as a whole, discloses facts to satisfy the element that he changed

residences. He maintains that while the plea colloquy established that he left the

Bethel Mission shelter, it did not affirmatively establish that he went to a new

address afterward.

         In considering whether a factual basis supports his plea, we consider “(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. The

record need not contain “evidence that the crime was committed beyond a

reasonable doubt, but only that there be a factual basis to support the charge.”

State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013).

         Here, a factual basis exists to support the conclusion that Gram changed

residences when he was asked to leave the shelter in July 2013. The minutes of

evidence list two witnesses who were prepared to testify that Gram “does not sleep

at the registered address” as of July 24. Notably, neither witness limited their

statement to whether Gram resided in the shelter. While the record does not

affirmatively establish what new address Gram resided at, it does establish that

Gram did not remain at the registered address.           Thus, because the record
                                           8


establishes a factual basis to support Gram’s guilty plea, counsel was not

ineffective for allowing him to plead guilty.

       B. Vagueness.

       Gram maintains counsel was ineffective for failing to challenge the statute

as unconstitutionally vague as applied to him.

       In assessing the merits of Gram’s claim, Gram “has ‘the burden to negate

every reasonable basis to sustain’ the statute.” State v. Dalton, 674 N.W.2d 111,

121 (Iowa 2004) (citation omitted). Additionally, in examining the statutes, “we

consider whether [the defendant’s] conduct clearly falls within the proscription of

the statute under any construction. The fact the statute may be vague as applied

to other factual scenarios is irrelevant to this analysis.” Id. (alteration in original)

(quoting State v. Hunter, 550 N.W.2d 460, 462 (Iowa 1996) overruled on other

grounds by State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000)).

       Here, Gram’s argument revolves around the idea that the statute is unclear

whether his claimed action of trespassing onto the grounds of the shelter to sleep

was enough to maintain his residence at the same address, which was properly

registered. But the PCR court already determined that Gram did not continue to

sleep on the grounds of the shelter, and we refuse to upset the court’s finding.

Thus, the statute is not vague as applied to Gram’s actual factual scenario, and

trial counsel cannot be found ineffective for her lack of pursuit of a meritless issue.3



3 In his appellate brief, Gram states that sections 692A.104(2) and 692A.101(24) are
unconstitutionally vague on their face. However, he does not develop his argument any
further, so we do not consider this claim. See State v. Short, 851 N.W.2d 474, 479 (Iowa
2014) (declining to consider arguments that were not raised by a party, stating, “We need
not consider the extent to which these arguments may have had merit, as under our rules
and precedents they have been waived in this appeal” (citing Iowa R. App. P.
                                              9

See State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (“We will not find counsel

incompetent for failing to pursue a meritless issue.”).

III. Conclusion.

       Because Gram has not established that the record lacked a factual basis to

support his guilty plea or that the statutes are unconstitutionally vague as applied

to him, we cannot find his trial counsel provided ineffective assistance. We affirm

the PCR court’s denial of his application for PCR.

       AFFIRMED.




6.903(2)(g)(3))).    Moreover, since we have found that the statutes are not
unconstitutionally vague as applied to him, it is “highly questionable” whether Gram has
standing to raise a facial vagueness claim. See Robinson, 618 N.W.2d at 311 n.1 (“Even
if error had been preserved on a facial vagueness claim, the defendant’s standing to assert
such a claim is highly questionable. If a statute is constitutional as applied to a defendant,
the defendant cannot make a facial challenge unless a recognized exception to the
standing requirement applies.”). And Gram does not claim that an exception applies.
