                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2074
                            Filed November 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW SCHLACHTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Franklin County, Peter B. Newell,

District Associate Judge.



      A defendant appeals his conviction and sentence and asserts his counsel

was ineffective. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Matthew Schlachter appeals his conviction and sentence for serious injury

by vehicle, in violation of Iowa Code section 707.6A(4) (2013), claiming his

counsel was ineffective in allowing him to enter an Alford1 plea without a factual

basis and in failing to advocate for an appropriate sentencing recommendation.

Schlachter also asserts the district court abused its discretion my pronouncing

his sentence in accordance with a fixed policy.

       I.     Background Facts and Proceedings

       Around 2:30 p.m. on August 27, 2014, multiple 911 calls reported a black

Chevrolet Colorado pickup truck driving at a high rate of speed and swerving

through multiple lanes of traffic and onto the shoulder. Shortly thereafter, Iowa

State Patrol troopers and Franklin County Sheriff’s deputies responded to an

automobile crash involving multiple vehicles, including a black Chevrolet

Colorado. There were several serious injuries, including one driver who had to

be life-flighted to the hospital and temporarily placed on a ventilator.

       Two officers went to the hospital and made contact with Schlachter, who

was the driver of the black Chevrolet Colorado. Schlachter gave the officers

permission to locate his driver’s license in his jeans.           While looking for

Schlachter’s driver’s license, the officers discovered a pipe that smelled of burnt

marijuana and a baggie with a white powdery residue, later identified as

methamphetamine.       The officers secured a search warrant allowing medical




1
 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding defendants may enter a
guilty plea without an express admission of guilt).
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personnel to collect urine and blood from Schlachter. Schlachter’s specimens

were positive for amphetamines and opiates.

      On January 16, 2015, the State charged Schlachter with three counts of

serious injury by vehicle. On October 19, 2015, after negotiations with the State,

Schlachter entered an Alford plea to one count of serious injury by vehicle. The

district court sentenced Schlachter to five years in prison. Schlachter appeals.

      II.      Standard of Review

      We review claims of ineffective assistance of counsel de novo. Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001). We review sentences that fall within

statutory limits for abuse of discretion. State v. Seats, 865 N.W.2d 545, 552

(Iowa 2015).

      III.     Ineffective Assistance of Counsel

      Schlachter claims his counsel was ineffective in: (1) not filing a timely

motion in arrest of judgment asserting there was not a factual basis to support his

Alford plea and (2) failing to advocate for a deferred judgment or probation. The

State argues Schlachter’s counsel did not breach an essential duty in either

respect. “Ordinarily, we do not decide ineffective-assistance-of-counsel claims

on direct appeal. . . . However, we depart from this preference in cases where

the record is adequate to evaluate the appellant’s claim.” State v. Tate, 710

N.W.2d 237, 240 (Iowa 2006) (citations omitted).

       “In order to succeed on a claim of ineffective assistance of counsel, a

defendant must prove: (1) counsel failed to perform an essential duty; and (2)

prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Both
                                          4


prongs must be proved for Schlachter to succeed on his ineffective-assistance

claim. See id.

         Whether counsel failed to perform an essential duty is measured against

the objective standard of a reasonably competent practitioner. Id. at 195–96.

We begin with the presumption that counsel performed competently, and “this

court ‘avoid[s] second-guessing and hindsight.’” Id. at 196 (alteration in original)

(quoting Ledezma, 626 N.W.2d at 142). Further, we analyze the claim based on

the totality of the circumstances.      Id.    Strategic decisions made based on

thorough investigation and reasonable professional judgments are “virtually

unchallengeable.”      Ledezma, 626 N.W.2d at 143 (quoting Strickland v.

Washington, 466 U.S. 668, 690–91 (1984)).

         If counsel has been shown to have breached an essential duty, prejudice

must be established by showing “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

         A.    Factual Basis for Alford Plea

         Schlachter asserts there was no factual basis for his Alford plea and

therefore, his counsel was ineffective in not filing a motion in arrest of judgment.

Specifically, Schlachter claims the record failed to establish that a serious injury

occurred. In determining whether a factual basis exists for an Alford plea, the

district court may look to the entire record before it, including the trial information

and the minutes of testimony. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa

1999).
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         Upon our review of the record before the district court at the time of the

plea, we conclude a factual basis existed for Schlachter’s plea.                   The trial

information asserted Schlachter caused a serious injury. 2                Additionally, the

minutes of testimony included several officers who would testify to the contents

of their various reports, which were included as exhibits with the minutes of

testimony. Parts of these reports discussed the injuries sustained by one of the

drivers as requiring a ventilator and being “serious life-threatening injuries.”

Further, the driver who was injured was also listed in the minutes of testimony as

a witness to the injuries, and we believe it is common knowledge that injuries

requiring a “life-flight” and use of a ventilator are serious.3 Taking this record as

a whole, a factual basis existed for Schlachter’s Alford plea. Because we so

conclude, we necessarily find Schlachter’s counsel did not breach an essential

duty by failing to file a motion in arrest of judgment based on the lack of a factual

basis.




2
  For the purposes of section 707.6A(4), “serious injury” is defined under section 702.18,
which provides in part:
                1. “Serious injury” means any of the following:
                        a. Disabling mental illness.
                        b. Bodily injury which does any of the following:
                                (1) Creates a substantial risk of death.
                                (2) Causes serious permanent disfigurement.
                                (3) Causes protracted loss or impairment of the
                                function of any bodily member or organ.
                        c. Any injury to a child that requires surgical repair and
        necessitates the administration of general anesthesia.
3
  See Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014) (“We have also allowed the
court to take judicial notice of well-known facts to establish a factual basis.” (citing State
v. Keene, 629 N.W.2d 360, 366 (Iowa 2011) (accepting “the well-known fact of the risk of
transmission of the HIV through unprotected sexual intercourse”))).
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       B.     Sentence Recommendation

       Next, Schlachter claims his counsel was ineffective in advocating for

placement in an OWI continuum—which Schlachter was not eligible for—rather

than advocating for a deferred judgment, suspended sentence, or probation

under section 907.3.     The State counters that even assuming Schlachter’s

counsel was ineffective in so doing, Schlachter suffered no prejudice. We agree.

       Section 707.6A(7) provides:

                     Notwithstanding the provisions of sections
              901.5 and 907.3, the court shall not defer judgment or
              sentencing, or suspend execution of any part of the
              sentence applicable to the defendant for a violation of
              subsection 1, or for a violation of subsection 4
              involving the operation of a motor vehicle while
              intoxicated.

Based on Schlachter’s blood test results, his violation of section 707.6A(4)

involved the operation of a motor vehicle while intoxicated, and a deferred

judgment, a suspended sentence, or probation was not available to him. See

State v. Rouse, 858 N.W.2d 23, 25 (Iowa Ct. App. 2014) (holding section

707.6A(7) “disallows suspension of a sentence for a violation of subsection 4

‘involving’ operation of a motor vehicle while intoxicated”). The district court did

not have the option to sentence Schlachter to the recommendations Schlachter

now claims his counsel should have made. Therefore, any breach of duty in

failing to advocate for other sentencing options did not prejudice Schlachter. See

Strickland, 466 U.S. at 694.      Schlachter’s claim of ineffective assistance of

counsel fails. 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.”).
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      IV.         Sentencing

      Lastly, Schlachter claims the district court abused its discretion in

sentencing him based on a fixed policy, rather than an independent consideration

of the appropriate sentencing factors.

      In applying its discretion, the district court is required to “consider all

pertinent matters in determining proper sentence, including the nature of the

offense,    the     attending   circumstances,   defendant’s   age,   character   and

propensities and chances of his reform.” State v. Cupples, 152 N.W.2d 277, 280

(Iowa 1967). Before pronouncing its sentence, the district court reviewed the

presentence report, heard argument from Schlachter’s counsel and from

Schlachter, and stated: “However, again, because of the nature of this offense,

because of the injuries that were involved, I think that the recommendation of the

Presentence Investigation is appropriate. I think there are some offenses that

are so serious that they require incarceration.”       The court explicitly stated it

appreciated Schlachter’s employment and family situation but then considered

the nature of the offense and attending circumstances, such as the injuries

involved. While the court could have articulated the determinative sentencing

factors more broadly, it had little discretion but to impose a sentence of

incarceration for a conviction under Iowa Code section 707.6A(4). Based on the

considerations revealed in this record, we conclude the district court did not

abuse its discretion by employing a fixed sentencing policy when it sentenced

Schlachter.
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      V.     Conclusion

      Because we conclude Schlachter’s counsel was not ineffective and

because we conclude the district court did not abuse its discretion in determining

the sentence, we affirm Schlachter’s conviction and sentence.

      AFFIRMED.
