

                        IN THE SUPREME COURT OF IOWA

                              No. 137 / 04-1561

                           Filed January 20, 2006

STATE OF IOWA,

      Appellee,

vs.

ANGELA MARIE ALLEN,

      Appellant.



      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Webster  County,  Fredrick  E.
Breen, Judge.


      Defendant appeals her guilty plea based on ineffective  assistance  of
counsel.  DECISION OF COURT OF  APPEALS  VACATED;  DISTRICT  COURT  JUDGMENT
REVERSED AND CASE REMANDED.

      Linda Del Gallo, State Appellate  Defender,  and  Theresa  R.  Wilson,
Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General,  Bridget  A.  Chambers,  Assistant
Attorney  General,  Timothy  N.  Schott,  County  Attorney,  and  Sarah   J.
Livingston and Ricki Osborn, Assistant County Attorneys, for appellee.



WIGGINS, Justice.
      Angela Marie Allen contends  her  trial  counsel  was  ineffective  in
permitting her to enter a  guilty  plea  to  the  charge  of  introducing  a
controlled substance into a  detention  facility  under  Iowa  Code  section
719.8 (2003) for the reason that the Fort Dodge  Correctional  Facility  was
not a “detention facility” for purposes of section 719.8.  Because we  agree
with Allen that the Fort Dodge Correctional Facility was  not  a  “detention
facility” under section 719.8, there was no  factual  basis  supporting  her
plea.  Additionally, when no factual basis exists for  a  plea,  we  presume
prejudice.  Therefore, we vacate the  decision  of  the  court  of  appeals,
reverse the judgment of the district court, and remand the case for  further
proceedings consistent with this opinion.
      I.  Background Facts and Proceedings.
      In March 2004, Allen’s husband was  incarcerated  at  the  Fort  Dodge
Correctional Facility.  An electronics engineer at the facility monitored  a
telephone call made between Allen and her husband enabling him to  determine
Allen and her husband were planning to bring drugs  into  the  facility  the
following day.  The Fort Dodge  Correctional  Facility  officials  contacted
the Fort Dodge Police Department.  The police obtained a search warrant  for
Allen’s person and searched  her  after  she  entered  the  facility  for  a
visitation.  During the search,  the  authorities  found  marijuana  on  her
person.
      Allen was charged by trial information in three separate  counts  for:
(1)  possession  with  intent  to  deliver  a  controlled  substance  and/or
conspiracy to deliver a controlled  substance  in  violation  of  Iowa  Code
section  124.401(1)(d);  (2)  introducing  a  controlled  substance  into  a
detention facility and/or conspiracy to  introduce  a  controlled  substance
into a detention facility in violation of Iowa Code  sections  719.8  and/or
706.1 and  719.8;  and  (3)  possession  of  contraband  in  a  correctional
institution and/or  conspiracy  to  possess  contraband  in  a  correctional
institution in violation of  Iowa  Code  sections  719.7  and/or  706.1  and
719.7.
      Pursuant to  a  plea  agreement,  the  State  agreed  to  dismiss  the
possession with intent to deliver charge and remain silent at sentencing  if
Allen pled guilty to the two remaining charges.   Allen  accepted  the  plea
agreement, the  State  dismissed  the  possession  with  intent  to  deliver
charge, and Allen pled guilty to the two remaining charges.  At  sentencing,
Allen received an indeterminate five-year term of imprisonment  on  each  of
the two remaining charges and was ordered to pay fines, costs, and  attorney
fees.  The sentencing judge also ordered  the  prison  terms  to  be  served
consecutively to each other.
      Allen appealed.  We transferred her case to our court of appeals.   In
the court of appeals, she claimed  her  trial  counsel  was  ineffective  in
permitting her to plead guilty to the charge  of  introducing  a  controlled
substance into a detention facility under Iowa Code  section  719.8  and  in
failing to move in arrest of judgment to set aside the plea for  lack  of  a
factual basis, arguing the  Fort  Dodge  Correctional  Facility  was  not  a
“detention facility.”  Allen also claimed her trial counsel was  ineffective
in failing to object to  the  court’s  acceptance  of  the  guilty  plea  or
failing to move in arrest of judgment to set aside the plea for  lack  of  a
knowing and voluntary plea, asserting the sentencing court failed to  advise
her of the possibility of consecutive sentences.
      The court of appeals reversed Allen’s conviction as to the  charge  of
introducing a controlled substance into a detention  facility  in  violation
of Iowa Code section 719.8, finding her guilty plea lacked a  factual  basis
in view of the fact that the Fort Dodge  Correctional  Facility  was  not  a
“detention facility.”  The court of appeals affirmed Allen’s  conviction  as
to the remaining charge, concluding Allen did not show she  would  not  have
pled guilty had the court advised her  of  the  possibility  of  consecutive
sentences.  We granted the State’s application for further review.
      II.  Preservation of Error.
      The district court advised Allen at the guilty plea hearing  that  the
timely filing of a motion in arrest of judgment was  required  to  challenge
the plea.  She failed to do so.  Although Allen’s failure  to  file  such  a
motion prevents her from directly appealing her  conviction,  “this  failure
will not bar a challenge to a guilty plea if the failure to  file  a  motion
in arrest of judgment resulted from the ineffective assistance of  counsel.”
 State v. Brooks, 555 N.W.2d  446,  448  (Iowa  1996).   Accordingly,  “[a]n
ineffective-assistance-of-counsel claim falls within  an  exception  to  the
general rule that a party  must  preserve  error  in  the  district  court.”
State v. Doggett, 687 N.W.2d 97, 100 (Iowa  2004).   Consequently,  we  will
review Allen’s claims as claims of ineffective assistance of counsel.
      III.  Scope of Review.
      The issue presented for further review by the  State  is  whether  the
court  of  appeals  was  correct  in  holding  Allen’s  trial  counsel   was
ineffective in permitting her to enter  a  guilty  plea  to  the  charge  of
introducing a controlled substance into  a  detention  facility  under  Iowa
Code section 719.8 without a factual basis for the plea.   Claims  involving
the ineffective  assistance  of  counsel  have  their  basis  in  the  Sixth
Amendment of the United  States  Constitution  and  are  reviewed  de  novo.
State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).  Although  these  claims  are
typically preserved for postconviction  relief  actions,  “we  will  address
such claims on direct appeal when the  record  is  sufficient  to  permit  a
ruling.”  Id.  In addition, to the extent Allen’s argument raises issues  of
statutory interpretation, our review is for correction  of  errors  at  law.
Id.
      The State seeks further review of only  that  part  of  the  court  of
appeals decision reversing Allen’s conviction for introducing  a  controlled
substance into a detention facility due to a lack of  a  factual  basis  for
her plea.  Allen did not file a resistance to the  State’s  application  for
further review.  In situations such as this,  “we  have  the  discretion  to
review any issue raised on  appeal  regardless  of  whether  such  issue  is
expressly asserted in an application for further review.”   In  re  Marriage
of Olson, 705 N.W.2d 312, 315 (Iowa 2005).  Allen  also  claimed  on  appeal
that her trial counsel was ineffective for failing to object to the  court’s
acceptance of the guilty plea or failing to move in arrest  of  judgment  to
set the plea aside for lack of a knowing and voluntary  plea  on  the  basis
the sentencing court failed to advise her of the possibility of  consecutive
sentences.  Although we have the discretion to review this issue, we do  not
reach it because our holding on  the  issue  raised  by  the  State  in  its
application for further review is dispositive of this appeal.
      IV.  Analysis.
      “In order for a  defendant  to  succeed  on  a  claim  of  ineffective
assistance of counsel, the defendant  must  prove:  (1)  counsel  failed  to
perform an essential duty and (2) prejudice resulted.”   Wills,  696  N.W.2d
at 22; see also Strickland v. Washington, 466 U.S.  668,  687,  104  S.  Ct.
2052, 2064, 80 L. Ed. 2d 674, 693 (1984).  Defense counsel fails to  perform
an essential duty when counsel allows the defendant to  plead  guilty  to  a
charge for which there is no factual basis and thereafter does  not  file  a
motion in arrest of judgment challenging the plea.  Brooks,  555  N.W.2d  at
448; see also Iowa R. Crim. P. 2.8(2)(b) (stating a court “shall not  accept
a plea of guilty without first determining  that  the  plea  .  .  .  has  a
factual basis”).
      Allen asserts her guilty plea lacked a factual basis to the charge  of
introducing a controlled substance into  a  detention  facility  under  Iowa
Code section 719.8 because the Fort Dodge Correctional Facility  was  not  a
“detention facility.”  This  assertion  requires  us  to  interpret  section
719.8.  When confronted with the task of statutory interpretation,  we  have
stated:

      The goal of statutory construction is to determine legislative intent.
       We  determine  legislative  intent  from  the  words  chosen  by  the
      legislature, not  what  it  should  or  might  have  said.   Absent  a
      statutory definition or an established meaning in the  law,  words  in
      the statute are given their ordinary and common meaning by considering
      the  context  within  which  they  are  used.   Under  the  guise   of
      construction,  an  interpreting  body  may  not  extend,  enlarge   or
      otherwise change the meaning of a statute.

Auen  v.  Alcoholic  Beverages  Div.,  679  N.W.2d  586,  590  (Iowa   2004)
(citations omitted).  Legislative  intent  is  derived  not  only  from  the
language used but also from  “the  statute’s  ‘subject  matter,  the  object
sought to be accomplished, the purpose to be  served,  underlying  policies,
remedies provided, and the consequences of the  various  interpretations.’ ”
Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004) (citations omitted).
      In addition, the legislative history of a statute is  instructive  and
we may consider it when ascertaining legislative intent.  Richards  v.  Iowa
Dep’t of Revenue, 362 N.W.2d 486, 488 (Iowa 1985); see also Chelsea  Theater
Corp. v. City of Burlington, 258 N.W.2d 372,  374  (Iowa  1977)  (explaining
“[t]he striking  of  a  provision  before  enactment  of  a  statute  is  an
indication the statute should not be construed to include it”); Iowa Code  §
4.6(3) (stating the  court  may  consider  the  legislative  history  of  an
ambiguous  statute  in  determining  legislative  intent).    Also,   “[t]he
interpreter may look to prior  enactments  of  the  statute  for  guidance.”
Christenson v. Iowa Dist. Ct., 557 N.W.2d 259, 261  (Iowa  1996);  see  also
Iowa Code  §  4.6(4)  (stating  the  court  may  consider  former  statutory
provisions in regards to an ambiguous  statute  in  determining  legislative
intent).
      Furthermore, the interpretation of a statute  requires  an  assessment
of the statute in its entirety, not just isolated words or  phrases.   State
v.  Young,  686  N.W.2d  182,  184-85  (Iowa  2004).   Indeed,   “we   avoid
interpreting a statute in such a way that portions of  it  become  redundant
or irrelevant.” T & K Roofing Co. v. Iowa Dep’t of Educ.,  593  N.W.2d  159,
162 (Iowa 1999).  Finally, it is necessary to remember we construe  criminal
statutes strictly with doubts resolved in the  accused’s  favor.   State  v.
Schultz, 604 N.W.2d 60, 62 (Iowa 1999).
      The legislature enacted section 719.8 in its present form  during  the
1999 legislative session.  Prior to  this  most  recent  amendment,  section
719.8 provided:

            A person not authorized by law who furnishes or knowingly  makes
      available a controlled substance to an inmate at a detention  facility
      or correctional institution, or at an institution under the management
      of the Iowa department of corrections, or who introduces a  controlled
      substance into the premises of such an institution,  commits  a  class
      “D” felony.

Iowa Code § 719.8 (1999).  At the same time, section 719.7 provided:

            A person not authorized by law who furnishes or knowingly  makes
      available an  intoxicating  beverage  to  an  inmate  at  a  detention
      facility,  correctional  institution,  or  an  institution  under  the
      management of the Iowa department of corrections, or who introduces an
      intoxicating beverage  into  the  premises  of  such  an  institution,
      commits a class “D” felony.

Id. § 719.7 (1999).
      During the  1999  legislative  session,  the  committee  on  judiciary
introduced senate file 101.  S.F. 101, 78th Gen. Assem.,  Reg.  Sess.  (Iowa
1999).  Senate file 101 combined sections  719.7  and  719.8  by  making  it
unlawful to knowingly  introduce  a  controlled  substance  or  intoxicating
beverage “into, or onto the grounds of, a secure facility for the  detention
or  custody  of  juveniles  or  a  jail,  detention  facility,  correctional
institution, or institution  under  the  management  of  the  department  of
corrections” under section 719.7 of the Code.  Id.   Senate  file  101  also
repealed section 719.8 of the Code.  Id.  Because the  proposed  legislation
created or significantly  changed  an  existing  public  offense,  the  Code
required a correctional  impact  statement  on  the  fiscal  impact  of  the
amendment prior to any debate on senate file 101.  Iowa Code  §  2.56(1)-(2)
(1999).
       The  legislative  fiscal  bureau  issued  the   correctional   impact
statement estimating the fiscal impact of senate file 101 for  fiscal  years
2000, 2001, and 2004  to  be  $4,280,000  to  the  state  general  fund  and
$1,225,000 to the counties.[1]   S.F. 101 Fiscal  Note,  78th  Gen.  Assem.,
Reg. Sess. (Iowa 1999).  After  receiving  this  statement,  Senator  McKean
offered an amendment to senate file 101.  Amend. S-3071 to  S.F.  101,  78th
Gen. Assem., Reg. Sess. (Iowa 1999).   Senator  McKean’s  amendment  removed
the language from the bill making  it  unlawful  to  knowingly  introduce  a
controlled substance or intoxicating beverage into, or onto the grounds  of,
“a secure facility for the detention or custody of juveniles or a jail,  [or
a]  detention  facility”  under  section  719.7.   Id.   In  addition,   his
amendment did not repeal section 719.8, but amended it as follows:

            A person not authorized by law who furnishes or knowingly  makes
      available a controlled substance or intoxicating beverage to an inmate
      at a detention facility, or who introduces a controlled  substance  or
      intoxicating beverage into the premises of such a facility, commits  a
      class “D” felony.

Id.   A  revised  correctional  impact  statement  was  issued  for  Senator
McKean’s amendment.  Amend. S-3071  to  S.F.  101  Fiscal  Note,  78th  Gen.
Assem., Reg.  Sess.  (Iowa  1999).   The  revised  statement  noted  Senator
McKean’s amendment “establishes  the  offense  of  promoting  or  possessing
contraband in correctional [institutions]”  and  it  “changes  the  original
Bill so that the penalties are applicable only to [institutions]  under  the
[management] of the Department  of  Corrections  and  removes  reference  to
jails  and  other  detention  facilities.”   Id.   The   revised   statement
estimated the fiscal impact of Senator McKean’s  amendment  to  senate  file
101, limiting section 719.7’s application to correctional  institutions  and
institutions under the management of  the  department  of  corrections,  for
fiscal years 2000, 2001, and 2004 to be $210,000 to the state  general  fund
with restitution to the general fund of $11,100.[2]   Id.   The  legislature
passed senate file 101 as amended by Senator McKean.  We assume one  of  the
reasons the legislature passed the original amendment with Senator  McKean’s
amendment was to avoid the added expense of including detention  facilities,
as these facilities were removed from the original amendment by  the  McKean
amendment.
      The legislature’s  choice  to  limit  section  719.7  to  correctional
institutions and institutions under the  management  of  the  department  of
corrections and to apply similar prohibitions  to  detention  facilities  in
section 719.8 indicates a legislative intent that correctional  institutions
and institutions under the management of the department of  corrections  not
be included in section 719.8.  See Chelsea Theater Corp., 258 N.W.2d at  374
(stating the legislature’s striking of a  provision  indicates  the  statute
should not be interpreted to include it).   The  parties  concede  the  Fort
Dodge Correctional Facility is under the management  of  the  department  of
corrections; therefore, it would not be a  violation  of  section  719.8  to
introduce  a  controlled   substance   into   that   facility   under   this
interpretation.
      This interpretation is consistent with our prior decision interpreting
section 719.7.  State v. Mitchell, 650 N.W.2d 619  (Iowa  2002).   There  we
held a county jail was not a  “correctional  institution”  for  purposes  of
section 719.7.  Id. at 620.  In Mitchell, we  noted  the  court  of  appeals
determined “because a prior  reference  to  ‘detention  facility’  had  been
removed from section 719.7 and . . . section 719.8 now  provides  the  basis
for a criminal charge of conveying contraband  in  a  ‘detention  facility,’
[Mitchell] was charged under the wrong statute,”  section  719.7.   Id.   We
agreed with the court of appeals’ conclusion because a  county  jail  was  a
“detention  facility”  and  not  a  “correctional  institution”  under   the
statute.  Id.
      The State refutes the applicability of Mitchell by claiming that  case
involved the interpretation of section 719.7, which specifically  refers  to
correctional institutions, and thus the case did not  address  the  converse
issue of whether a “correctional institution”  is  a  “detention  facility.”
We find the State’s argument unpersuasive in view of the fact section  719.8
was amended alongside section  719.7.   See  Young,  686  N.W.2d  at  184-85
(requiring the interpretation of a statute in its entirety).
      The 1999 amendment effectively changed the statutory scheme  from  one
of separation of intoxicating beverages  in  section  719.7  and  controlled
substances  in  section  719.8  to  one  of   separation   of   correctional
institutions in section 719.7 and detention  facilities  in  section  719.8.
In Mitchell, we acknowledged the 1999 amendment to sections 719.7 and  719.8
resulted  in  separate  bases  for  such  charges  depending  on  whether  a
“correctional institution” or  a  “detention  facility”  is  involved.   650
N.W.2d  at  620.   Accordingly,  the  State’s   claim   that   “correctional
institution” is encompassed by  “detention  facility”  is  contrary  to  the
legislature’s pointed division of those  establishments  into  two  separate
statutory sections.
      Therefore, we hold the intent of the  legislature  was  to  exclude  a
facility such  as  the  Fort  Dodge  Correctional  Facility  from  the  term
“detention facility” for purposes of  section  719.8.   Consequently,  there
was no factual basis for Allen’s guilty plea to the charge of introducing  a
controlled substance into a  detention  facility  under  Iowa  Code  section
719.8, and Allen’s trial counsel failed to perform an essential duty in  not
challenging her plea.
      In situations where counsel failed to perform  an  essential  duty  in
not challenging a plea for lack  of  a  factual  basis,  we  have  held  the
failure to attack the plea “violates the letter and spirit of Iowa  Rule  of
Criminal Procedure 8(2)(b),” now rule 2.8(2)(b).  State v. Hack, 545  N.W.2d
262, 263 (Iowa 1996).  In other words, trial counsel’s  failure  to  contest
the plea in  this  circumstance  results  in  prejudice  per  se.   To  hold
otherwise  “would  erode  the  integrity  of  all  pleas  and  the  public’s
confidence in our criminal justice system.”  Id.
      Allen pled guilty to violating sections 719.7 and 719.8  as  a  result
of a plea bargain to dismiss the possession with intent to  deliver  charge.
The proper remedy when counsel fails to perform an  essential  duty  by  not
challenging a plea for lack of a factual basis when the plea is a result  of
a plea bargain is to invalidate  the  entire  plea  bargain,  including  the
dismissal of the possession with intent to deliver charge and  the  plea  to
section 719.7, and remand the case to the  district  court.   See  Mitchell,
650 N.W.2d at 621 (holding when a plea bargain is changed due to a  lack  of
a factual basis on a charge to which the defendant  pled,  the  entire  plea
bargain is invalidated and the State may proceed as though the plea  bargain
did not exist).  On remand, the State may reinstate  any  charges  dismissed
in contemplation of a valid plea bargain, if it so  desires,  and  file  any
additional  charges  supportable  by  the  available  evidence.    See   id.
(allowing the State to reinstate a  charge  dismissed  as  part  of  a  plea
bargain when the defendant pled to a crime for which there  was  no  factual
basis); Hack, 545 N.W.2d at 263 (allowing the State to  reinstate  a  charge
dismissed as part of a plea bargain or recharge the defendant under  a  Code
section supported by the evidence when the defendant pled  to  a  crime  for
which there was no factual basis).   The  State  may  also  proceed  against
Allen on the charge of possession of contraband under section 719.7.
      We need not reach Allen’s claim of ineffective assistance  of  counsel
for her trial counsel’s failure to object to the court’s acceptance  of  the
guilty plea or failure to move in arrest of judgment to set the  plea  aside
for lack of a knowing and voluntary plea on the basis  that  the  sentencing
court failed to advise her  of  the  possibility  of  consecutive  sentences
because our holding on the first issue is dispositive of the case.
      V.  Disposition.
      Because Allen’s counsel was ineffective for not challenging  her  plea
for lack of a factual  basis,  we  vacate  the  decision  of  the  court  of
appeals, reverse Allen’s convictions under sections  719.7  and  719.8,  and
remand the case to the district court where  the  State  may  reinstate  any
charges dismissed in  contemplation  of  a  valid  plea  bargain,  file  any
additional charges  supportable  by  the  available  evidence,  and  proceed
against Allen on the  charge  of  possession  of  contraband  under  section
719.7.
       DECISION  OF  COURT  OF  APPEALS  VACATED;  DISTRICT  COURT  JUDGMENT
REVERSED AND CASE REMANDED.
-----------------------
      [1] The correctional impact statement referenced  fiscal  years  2000,
2001, and 2004 but did not reference fiscal years 2002 and 2003.   S.F.  101
Fiscal Note, 78th Gen. Assem., Reg. Sess. (Iowa 1999).
      [2] The revised correctional impact statement referenced fiscal  years
2000, 2001, and 2004 but did not  reference  fiscal  years  2002  and  2003.
Amend. S-3071 to S.F. 101 Fiscal Note, 78th Gen. Assem.,  Reg.  Sess.  (Iowa
1999).

