                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0355
                             Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES L. THORNE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Winneshiek County, John J.

Bauercamper, Judge.



      Defendant appeals his convictions for three counts of assault with intent to

commit sexual abuse. AFFIRMED.




      John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       James Thorne appeals his convictions for three counts of assault with

intent to commit sexual abuse. We conclude Thorne has not shown he received

ineffective assistance because defense counsel permitted him to enter an Alford

plea to three counts of assault with intent to commit sexual abuse. 1 Thorne’s

second claim, that his plea was not knowing and voluntary, must be preserved

for possible postconviction proceedings. We affirm Thorne’s convictions.

       I.     Background Facts & Proceedings

       On December 19, 2014, officers were executing a search warrant at the

home of Thorne on a different matter when they observed a fifteen-year-old girl

come out of the bedroom. Thorne was then twenty years old. An examination of

Thorne’s cell phone showed text messages of a sexual nature between Thorne

and the girl. When questioned, both Thorne and the girl stated they had been

engaged in a sexual relationship.

       Thorne was charged with four counts of sexual abuse in the third degree,

a class “C” felony. Thorne signed a written plea agreement in which he agreed

to enter Alford pleas to three reduced charges of assault with intent to commit

sexual abuse, in violation of Iowa Code section 709.11(3) (2013), an aggravated

misdemeanor. The plea agreement also provided Thorne would be sentenced to

two years in prison on each count, to be served consecutively, the sentences

would be suspended, and Thorne would be placed on probation. In addition,



1
  In an Alford plea, a defendant acknowledges the evidence strongly negates his claim of
innocence and enters a guilty plea, but does not admit guilt. See North Carolina v.
Alford, 400 U.S. 25, 37 (1970).
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Thorne would be given a special sentence for ten years, pursuant to section

903B.2, and would be required to register as a sex offender.

      The court accepted Thorne’s written plea and sentenced him in

accordance with the plea agreement. The fourth charge against Thorne was

dismissed without prejudice. Thorne now appeals his convictions, claiming he

received ineffective assistance of counsel.

      II.    Standard of Review

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

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

      III.   Factual Basis

      Thorne claims he received ineffective assistance because defense

counsel permitted him to enter an Alford plea to three counts of assault with

intent to commit sexual abuse when there was not a sufficient factual basis for

the plea. The offense of assault with intent to commit sexual abuse requires

evidence of an assault, as defined in section 708.1.       Iowa Code § 709.11.

Thorne claims there was no evidence of an assault because he was involved in a

consensual sexual relationship.

      “It is a responsibility of defense counsel to ensure that a client does not

plead guilty to a charge for which there is no objective factual basis.” State v.
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Finney, 832 N.W.2d 46, 54 (Iowa 2013). “It follows that no advice to plead guilty

would be considered competent absent a showing of a factual basis to support

the crimes to which the accused has elected to plead guilty.” Id. at 54-55. This

requirement exists where a defendant has entered a guilty plea.            State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). “On a claim that a plea bargain is

invalid because of a lack of accuracy on the factual-basis issue, the entire record

before the district court may be examined.” Finney, 832 N.W.2d at 62.

       In State v. Anderson, 222 N.W.2d 494, 495 (Iowa 1974), the Iowa

Supreme Court stated:

              Preliminarily, we note that under our decisions, as under the
       decisions generally, “a man who commits an overt act upon the
       person of a female under the age of consent, which would amount
       to an assault with intent to rape, is guilty of such offense even
       though the female consents to such act. Since the child cannot
       consent to the crime of rape, she equally cannot consent to an
       assault with the intent to commit rape.”

(Citation omitted.) See also State v. Coil, 264 N.W.2d 293, 294 (Iowa 1978)

(“We have held assault with intent to commit rape includes an assault with intent

to commit statutory rape, even though there may have been purported consent

by the minor female partner.”).

       In the present case, the victim could not consent because she was fifteen

years old and Thorne was more than four years older.              See Iowa Code

§ 709.4(1)(b)(3)(d) (defining third-degree sexual abuse as occurring when a

person performs a sex act, the participants are not cohabiting as husband and

wife, the victim is fourteen or fifteen years of age, and the perpetrator is four or

more years older than the victim). The victim’s purported consent to a sexual

relationship with Thorne does not preclude a finding he committed assault with
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intent to commit sexual abuse. We conclude Thorne has not shown he received

ineffective assistance because defense counsel permitted him to enter an Alford

plea to three counts of assault with intent to commit sexual abuse.

       IV.    Knowing and Voluntary

       Thorne claims he received ineffective assistance because defense

counsel misled him as to how long he would be required to register as a sex

offender. He states defense counsel incorrectly advised him he would only be

required to register as a sex offender for ten years. Thorne states under section

692A.106(5) he will actually be required to register for the rest of his life. As a

result, he claims his plea was not knowing, intelligent, or voluntary.

       Where the record is not adequate to address a claim of ineffective

assistance of counsel, we must preserve the claim for possible postconviction

proceedings. See State v. Fountain, 786 N.W.2d 260, 267 (Iowa 2010). The

current record does not show what advice defense counsel gave to Thorne on

this issue.    We determine this issue must be preserved for possible

postconviction proceedings.

       We affirm Thorne’s convictions on three counts of assault with intent to

commit sexual abuse.

       AFFIRMED.
