                     IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1754
                              Filed October 25, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RYAN LEE MARKLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Mary E.

Chicchelly, Judge.



      Ryan Markley appeals his convictions and sentences after pleading guilty

to assault with intent to commit sexual abuse without injury and burglary in the

second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, Stephan J. Japuntich (until

withdrawal), Assistant Appellate Defender, and Kent A. Simmons, Bettendorf, for

appellant.

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

Attorney General, for appellee.



      Considered     by    Vaitheswaran,   P.J.,   and   Doyle   and   Bower,   JJ.
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DOYLE, Judge.

       Ryan Markley appeals his convictions and sentences after pleading guilty

to second-degree burglary and entering an Alford plea1 to assault with intent to

commit sex abuse without injury.        Markley contends his trial counsel was

ineffective in allowing him to plead guilty without a factual basis.        He also

contends the sentencing court abused its discretion in imposing indeterminate

terms of incarceration not to exceed two years on the assault offense and ten

years on the burglary offense, and in ordering the sentences be served

consecutively.

       I. Ineffective Assistance of Counsel.

       Markley contends his trial counsel was ineffective in allowing him to plead

guilty without a factual basis for his pleas. We review these claims de novo. See

State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).           To prove ineffective

assistance, Markley must demonstrate “(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) (quoting State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006)). Counsel fails to perform an essential duty if counsel allows the

defendant to plead guilty when no factual basis for a charge exists. See State v.

Gines, 844 N.W.2d 437, 441 (Iowa 2014). In such cases, prejudice is inherent.

See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Therefore, we only

need address the existence of a factual basis for the guilty pleas. See Gines,

844 N.W.2d 437, 441 (Iowa 2014); Schminkey, 597 N.W.2d at 788.

1
 An Alford plea allows a defendant to maintain innocence while acknowledging that the
State has enough evidence to win a conviction. See North Carolina v. Alford, 400 U.S.
25, 37 (1970).
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       For a factual basis for the guilty plea to exist, the record as a whole must

reveal facts that satisfy all elements of the offense. See Ortiz, 789 N.W.2d at

767-68.    “[T]he record does not need to show the totality of the evidence

necessary to support a guilty conviction, but need only demonstrate facts that

support the offense.” Id. at 768. In determining whether a factual basis exists,

“we consider the entire record before the district court at the guilty plea hearing,”

which may include statements made by the defendant and the prosecutor, the

minutes of evidence, and a presentence investigation (PSI) report (if one exists).

Schminkey, 597 N.W.2d at 788; accord State v. Finney, 834 N.W.2d 46, 57 (Iowa

2013) (finding the minutes of evidence provided a factual basis for the

defendant’s guilty plea). The court must determine the existence of a factual

basis even when the plea is under Alford. See State v. Klawonn, 609 N.W.2d

515, 521 (Iowa 2000).

       A. Factual basis for the assault charge.

       Markley first claims a factual basis did not exist for the offense of assault

with intent to commit sex abuse without injury.          We are not persuaded.        In

reviewing the entire record before the district court, and without considering the

suppressed evidence, we are satisfied there is a sufficient factual basis to

support Markley’s guilty plea to the assault offense. The minutes of evidence2

state Markley’s epithelial DNA was on the underwear the assaulted woman wore

the night of the attack (collected in the victim’s sexual assault kit). The record


2
  In his Alford plea, Markley states, “I generally agree with the Minutes of Testimony.”
He also agreed that “if the witnesses were presented to the jury and testified in
conformity to their Minutes of Testimony, that there is a reasonable probability that the
jury would find [him] guilty.”
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further shows her blood was found on Markley’s jeans. Markley’s wallet was

found beneath the exterior window that was used to gain access to the woman

while she slept, and Markley’s fingerprints were on the window. A boot print also

connected Markley to the scene of the assault. Markley immediately showered

upon learning the police were coming to his apartment. The woman scratched

her attacker during the assault, and there were fresh scratch marks on Markley’s

torso when the police arrived at his apartment.

      The intent element of the offense is difficult to prove by direct evidence;

however, intent may be established “by circumstantial evidence and by

inferences reasonably to be drawn from the conduct of the defendant and from

all the attendant circumstances in the light of human behavior and experience.”

State v. Allnutt, 156 N.W.2d 266, 271 (Iowa 1968), overruled on other grounds by

State v. Gorham, 206 N.W.2d 908 (Iowa 1973). The specific intent to commit

sexual abuse is present, not by a mere preparation for the act, but when the

overt act so approaches accomplishment that it amounts to the beginning of the

consummation. See State v. Radeke, 444 N.W.2d 476, 478 (Iowa 1989); State

v. Roby, 188 N.W. 709, 714 (Iowa 1922).             In reviewing the attendant

circumstances and Markley’s conduct, the record sufficiently establishes

Markley’s intent to commit sexual abuse. Therefore, a sufficient factual basis

supports Markley’s guilty plea to the offense of assault with intent to commit sex

abuse without injury.

      B. Factual basis for the burglary charge.

      Marley next claims a factual basis did not exist for the second-degree-

burglary charge. He argues the court’s colloquy “addressed the way in which
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[he] entered the residence and fail[ed] to address the property [he] intended to

steal.” A person commits burglary upon entering an occupied structure without

having the right, license, or privilege to do so with “the intent to commit a felony,

assault or theft therein.” Iowa Code § 713.1 (2013).

         During the plea colloquy, Markley agreed the minutes of evidence were

factually correct with regard to the burglary charge. He admitted to breaking into

a house that was not open to the public, to possessing no right, license, or

privilege to enter the house, and to entering the house with the intent to commit a

theft.   “The defendant’s admission on the record of the fact supporting an

element of an offense is sufficient to provide a factual basis for that element.”

State v Philo, 697 N.W.2d 481, 486 (Iowa 2005). The statements Markley made

to the court satisfy the elements of the offense of second-degree burglary.

Therefore, a factual basis existed for the guilty plea.

         Markley has failed to show his counsel was ineffective in allowing him to

plead guilty without a factual basis. Accordingly, we affirm his convictions.

         II. Sentence.

         Markley also contends the sentencing court failed to state adequate

reasons for the sentences imposed. The lack of “particular fact or circumstance

specifically connected,” Markley alleges, demonstrates the inadequacy of the

court’s reasons for consecutive sentences. We review his sentencing challenge

for an abuse of discretion. See State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015)

(stating a challenge to a sentence that is within the statutory terms is reviewed

for an abuse of discretion). An abuse of discretion occurs when the evidence
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does not support the sentence. See State v. Valin, 724 N.W.2d 440, 445 (Iowa

2006).

         Iowa Rules of Criminal Procedure 2.23(d) establishes, “The court shall

state on the record its reasons for selecting the particular sentence.”        This

applies to a district court’s decision to impose consecutive sentences. See State

v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). Our supreme court has reiterated

the purpose of requiring the sentencing court to state its reasons for selecting a

particular sentence on the record is to ensure “defendants are well aware of the

consequences of their criminal actions” and, most importantly, to allow us “the

opportunity to review the discretion of the sentencing court.” State v. Hill, 878

N.W.2d 269, 273 (Iowa 2016) (quoting State v. Thompson, 856 N.W.2d 915, 919

(Iowa 2014)). A “terse and succinct” statement may suffice “when the reasons

for the exercise of discretion are obvious in light of the statement and the record

before the court.”     State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015).

Furthermore, “courts should also explicitly state the reasons for imposing a

consecutive sentence, although in doing so the court may rely on the same

reasons for imposing a sentence of incarceration.” Hill, 878 N.W.2d at 275.

         Markley claims the sentencing court failed to cite any reason for the

sentences it imposed and for imposing consecutive sentences. In discussing the

reasons for the sentence of imprisonment, the court stated it was considering the

recommendations of the PSI report, the minutes of evidence, “the contents of

[Markley]’s Alford plea to Count II, and his plea of guilty to Count III,” Markley’s

age and “the relevant criminal record that I can consider,” the nature of the

offenses, and the record made at sentencing. The sentencing court concluded
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that “the sentence imposed will offer [Markley] the maximum opportunity for

rehabilitation as well as for protection of the community.”        With regard to

imposing consecutive sentences, the court stated it was relying on “all of the

reasons that I set forth with regard to the sentence,” specifically mentioning the

minutes of evidence, his prior record, and the nature of the offenses.

       We find the sentencing court sufficiently stated its reasons for the

sentence of imprisonment. Although the court relied on similar reasons for the

imposition of consecutive sentences, it may do so. See Hill, 878 N.W.2d at 275.

The court specifically identified the reasons for the sentences imposed.

Accordingly, Markley has failed to show the sentencing court abused its

discretion.

       AFFIRMED.
