                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0285
                              Filed January 13, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARRELL LEE ABBOTT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Benton County, Paul D. Miller

(guilty pleas) and Ian K. Thornhill (sentencing), Judges.



      Darrell Abbott appeals his convictions for arson in the third degree and

false reports.   CONVICTIONS REVERSED, SENTENCES VACATED, AND

CASE REMANDED WITH DIRECTIONS.



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

Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                         2


DOYLE, Judge.

       Darrell Abbott appeals his convictions, based upon Alford pleas, for arson

in the third degree and false reports. Abbott contends his trial counsel was

ineffective in allowing him to plead guilty without a factual basis to support the

false reports charge and when he had not been advised of the potential penalties

of the arson charge.

I.     Background Facts and Proceedings

       In 2011, a fire caused extensive damage to portions of a Shellsburg home

and a shed.     A snowmobile parked between the home and shed was also

damaged. Following an investigation into the circumstances surrounding the fire,

the State filed a trial information charging Darrell Abbott with arson in the first

degree, a class “B” felony (count I); child endangerment, aggravated

misdemeanors (counts II and III); and criminal mischief in the fourth degree, a

serious misdemeanor (count IV). Abbott pled not guilty and waived his right to

speedy trial.

       The parties reached a plea agreement; Abbott pled guilty to third-degree

arson pursuant to an Alford plea,1 and the State agreed to dismiss the other

charges against him. The court accepted Abbott’s plea and set sentencing for a

later date. The parties subsequently realized there had been a misunderstanding

as to Abbott’s plea—namely, that the parties believed the offense of third-degree

arson was a class “D” felony when it was actually an aggravated misdemeanor.


1
  An Alford plea is a variation of a guilty plea where the defendant does not admit
participation in the acts constituting the crime but consents to the imposition of a
sentence. See North Carolina v. Alford, 400 U.S. 25, 37 (1970); State v. Burgess, 639
N.W.2d 564, 567 n.1 (Iowa 2001).
                                              3


The district court entered an order rescinding the plea “due to a mistake of fact

by the parties” and scheduled a jury trial.

       The parties reached a new plea agreement a few weeks later. Abbott pled

guilty pursuant to an Alford plea to two charges: third-degree arson, an

aggravated misdemeanor, and false reports, a class “D” felony.2 The parties

agreed to recommend that the two-year sentence on the arson charge would run

concurrent to the five-year sentence on the false reports charge.                 The State

agreed to dismiss the remaining charges. The district court accepted Abbott’s

plea and set sentencing for a later date.

       Abbott filed a motion in arrest of judgment, challenging his counsel’s

representation.3 The court heard the parties’ arguments on the motion at the

sentencing hearing.       Following the hearing, the court denied the motion as

untimely and on its merits.4 The court sentenced Abbott to serve indeterminate

terms of imprisonment not to exceed five years on the false reports charge and

not to exceed two years on the arson charge, to run concurrently, as well as fines

and costs.



2
   The State filed an amended and substituted trial information with the new offense of
false reports pursuant to the plea agreement, which the district court approved.
3
   Apparently Abbott’s counsel retired sometime between the guilty plea hearing and the
filing of the motion in arrest of judgment. The attorney filing the motion in arrest of
judgment was a co-worker of Abbott’s prior counsel. In his motion, Abbott claimed prior
counsel “did not adequately investigate the matter, ignored evidence presented by
[Abbott], was not prepared for trial due in part to an excessive caseload,” and further
alleged the “plea negotiations were not conducted in good faith” and “he was coerced by
his own counsel into accepting a plea bargain.”
4
   Abbott also filed a motion for new counsel asserting “he does not feel that he will
receive acceptable representation by his new counsel based on his prior working
relationship with [his prior counsel],” and “[s]pecifically, that his current counsel will not
fully and zealously pursue and expose any misconduct and/or mistakes made by [his
prior counsel].” The court denied the motion.
                                           4


       Abbott appeals. Additional facts will be set forth below as relevant to his

claims on appeal.

II.    Standard of Review

       We review ineffective-assistance-of-counsel claims de novo.                  See

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). To succeed on such a

claim, Abbott must prove both that (1) his counsel failed to perform an essential

duty, and (2) he suffered prejudice as a result of his counsel’s failure. See id.

III.   Ineffective Assistance of Counsel

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

guilty without a factual basis to support the false reports charge. 5            Before

accepting a guilty plea, the district court must first determine the plea has a

factual basis, and that factual basis must be disclosed in the record. State v.

Finney, 834 N.W.2d 46, 61-62 (Iowa 2013); see Iowa R. Crim. P. 2.8(2)(b). “This

requirement exists even where the plea is an Alford plea.” State v. Schminkey,

597 N.W.2d 785, 788 (Iowa 1999).

       “Where a factual basis for a charge does not exist, and trial counsel allows

the defendant to plead guilty anyway, counsel has failed to perform an essential

duty.” State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014). “Prejudice is inherent

in such a case.”6 Id. Accordingly, with regard to this claim, our first and only


5
  Abbott also challenges his counsel’s assistance with regard to his plea to third-degree
arson on the grounds that he was not advised of the potential penalties of that charge.
In light of the disposition of this case based on Abbott’s challenge to his plea to the
charge of false reports, however, we need not address Abbott’s claim with regard to his
arson plea.
6
  In other words, when trial counsel permits a defendant to plead guilty and waive the
right to file a motion in arrest of judgment absent a factual basis to support the guilty
plea, counsel violates an essential duty, and prejudice is presumed. See State v.
Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011).
                                           5


inquiry is whether the record shows a factual basis for Abbott’s guilty plea to the

charge of false reports.     In determining whether a factual basis exists, “we

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

including any statements made by the defendant, facts related by the prosecutor,

the minutes of testimony, and the presentence report.” Id.

       The offense of false reports is defined in Iowa Code section 712.7 (2011),

which provides:

              A person who, knowing the information to be false, conveys
       or causes to be conveyed to any person any false information
       concerning the placement of any incendiary or explosive device or
       material or other destructive substance or device in any place
       where persons or property would be endangered commits [false
       reports,] a class “D” felony.

Section 712.7 therefore requires the following elements be shown by the record

to establish a factual basis for Abbott’s guilty plea for false reports:

              (1) On or about October 12, 2011, Abbott conveyed or
       caused to be conveyed information concerning the placement of an
       incendiary or explosive device or material or other destructive
       substance or device;
              (2) Abbott conveyed or caused to be conveyed information
       that the device, material, or substance was in a place where
       persons or property would be endangered; and
              (3) When conveying the information, Abbott knew the
       information to be false.

See also In re J.A.L., 694 N.W.2d 748, 754 (Iowa 2005) (analyzing the

sufficiency of the evidence to support a charge of false reports under Iowa Code

section 712.7).

       The evidence before the court at the guilty plea hearing included the

following. In October 2011, Nikkole Abbott was married to Abbott, and she was

residing with her two children and Abbott at a home in Shellsburg. On or about
                                             6


October 8, Nikkole and Abbott engaged in a domestic dispute, and Abbott left the

home.       In the early morning hours of the next day, a fire broke out at the

residence.          Nikkole woke up, noticed the fire, and exited the home with her

children. The home sustained “heavy fire damage.” The fire also damaged a

wood shed on the property and a van parked nearby. “[O]n the ground between

the [home] and the shed was a Polaris 500 snowmobile which revealed extensive

fire damage and all or most of the combustible materials had burned off leaving a

metal shell.”

         An investigation ensued. On October 12, Special Agent Justin Wade of

the State Fire Marshall’s Office interviewed Abbott. Abbott told Special Agent

Wade that after he and Nikkole argued on October 8, he left the home and went

to a friend’s home nearby. Initially, Abbott denied any involvement with the fire.

Later in the conversation, Abbott denied using any gasoline to start the fire, but

he stated he threw a cigarette into the leaves by the shed before leaving

Nikkole’s home. Asked if there was anything in the area that could build the fire,

Abbott stated his snowmobile by the shed was the only thing and that there was

still fuel in it.

         On the night of the fire, a neighbor, Nathan King, observed an individual

dumping what appeared to be a liquid from a container resembling a gas can

onto a snowmobile between the home and shed on Nikkole and Abbott’s

property. According to King, the individual then used a match or lighter to ignite

the fire, and the snowmobile immediately caught fire. King awoke his father who

called 9-1-1. King could not identify the individual but observed the individual

appeared to be a male that resembled Abbott.
                                              7


         At the end of November, Abbott told his cousin Donnie Wheeler that he lit

his snowmobile on fire, but he did not intend to burn down the home or shed.

According to Wheeler, Abbott stated he and Nikkole had been fighting and she

had everything so he burned the only thing that was not hers—the snowmobile.

         With regard to the charge of false reports, the State alleged Abbott’s

statements to Special Agent Wade when he was interviewed on how the fire

started constituted a false report, because Abbott told Special Agent Wade he

flicked a cigarette into the leaves, but he actually used gasoline or a similar

substance to start the fire.7 Specifically, the State argues when Abbott “told

investigators that he had not used gasoline to start the fire, he was conveying

false information with knowledge of its falsity.”

         However, we find persuasive Abbott’s contention that his conduct in this

case is not the type of conduct criminalized by Iowa Code section 712.7. “[A]

violation of section 712.7 is complete when a person, knowing the information to

be false, conveys or causes to be conveyed to any person false information

concerning the placement of an explosive device regardless of the impact it may

have on the person who receives it.” J.A.L., 694 N.W.2d at 754. For example,

Iowa courts have recognized a bomb threat as a type of conduct criminalized

under section 712.7. See id. at 750-51 (affirming the defendant’s conviction of

making a false report for writing notes concerning the placement of an explosive



7
    Specifically, count V of the amended trial information, false reports, alleged:
          The said DARRELL LEE ABBOTT, on or about the 12th day of October,
          2011, in the County of Benton, and State of Iowa, did make a false report
          to the Fire Marshall concerning the placement of an incendiary material in
          a place where people or property would be endangered, in violation of
          712.7 of the Code of Iowa.
                                          8

device at school); see also State v. Colwell, No. 05-0280, 2006 WL 468732, at *1

(Iowa Ct. App. Mar. 1, 2006) (affirming the defendant’s conviction of making a

false report for making telephone calls warning a foundry of an alleged bomb on

the premises); State v. Stover, No. 02-0400, 2003 WL 1038944, at *1 (Iowa Ct.

App. Mar. 12, 2003) (affirming the defendant’s conviction of second-degree

robbery and false reports for robbing a bank while using a device that appeared

to be a bomb and a demand note referencing the alleged bomb); State v. Miles,

No. 00-1078, 2002 WL 984445, at *6 (Iowa Ct. App. May 15, 2002) (affirming the

defendant’s conviction of making a false report for making several bomb threats

via telephone calls to the local principal and radio station). But Iowa courts have

not recognized conduct similar to Abbott’s in this case as supporting a conviction

under section 712.7.

       In State v. Ahitow, 544 N.W.2d 270, 271-72 (Iowa 1996), the court

addressed the claim that the defendant’s response to an investigating officer’s

question with a false alibi did not fall within the statute criminalizing false reports

to law enforcement authorities, Iowa Code section 718.6, of which he was

convicted. Agreeing with the defendant, the court distinguished his action in

responding to the officer’s question from an affirmative action of “reporting,”

which the court interpreted to require “affirmative steps to communicate.” Ahitow,

544 N.W.2d at 273. The court reversed the defendant’s conviction under section

718.6, concluding: “Ahitow did not report false information to the officer; he

merely provided false information to the officer upon the officer’s questioning.

We certainly do not approve of Ahitow’s fabrication of an alibi. However, we
                                          9


conclude his conduct is not punishable under Iowa Code section 718.6 (1993).”

Id. at 274.

       We find the court’s ruling in Ahitow with regard to the conduct

encompassed under section 718.96 persuasive in our analysis of the conduct

criminalized under section 712.7 in this case. Indeed, Abbott’s conduct in this

case as alleged by the State (i.e., lying in response to the investigator’s

questioning following a fire) is inapposite to such affirmative conduct as making a

bomb threat or conveying false information regarding the placement of an

explosive device. Under these facts and circumstances, we conclude the record

does not show a factual basis for Abbott’s guilty plea to the charge of false

reports under section 712.7. Trial counsel failed to perform an essential duty in

allowing Abbott to plead guilty where a factual basis for the charge does not

exist, and prejudice is inherent. See Gines, 844 N.W.2d at 441.

IV.    Disposition

       “Where a guilty plea has no factual basis in the record” and “the record

establishes that the defendant was charged with the wrong crime,” we reverse

the conviction, vacate the sentence, and remand the for dismissal of the charge.

See Schminkey, 597 N.W.2d at 792; see also Gines, 844 N.W.2d at 442. Here,

because the State did not establish a factual basis for the false reports charge,

and with our reversal of that conviction, “the State [does] not get the benefit of its

plea bargain in exchange for dismissing [three other counts against Abbott].”

See Gines, 844 N.W.2d at 442.         Thus, “we must put the State back in the

position it was in before making the plea agreement.” Id. To do that, we must

reverse Abbott’s convictions for false reports and arson, vacate the sentences
                                      10


imposed for those convictions, and remand the case back to the district court to

allow the State to reinstate any charges dismissed from the amended trial

information in contemplation of the plea agreement and proceed against Abbott

on all charges, including any new charges it wishes to file, supported by the

available evidence. See id.

      CONVICTIONS REVERSED, SENTENCES VACATED, AND CASE

REMANDED WITH DIRECTIONS.
