                   IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0880
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN PATRICK ANTRIM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Fremont County, Kathleen A.

Kilnoski, Judge.



      Jonathan Antrim appeals his convictions for aiding a gathering where

controlled substances were distributed and failure to affix a drug tax stamp.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




      Marti D. Nerenstone, Council Bluffs, for appellant.

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

Attorney General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
                                           2


BOWER, Judge.

          Jonathan Antrim appeals his convictions for aiding a gathering where

controlled substances were distributed and failure to affix a drug tax stamp,

claiming his counsel was ineffective for failing to challenge the factual basis of his

guilty pleas and waiving preparation of a presentence investigative report (PSI).

We find Antrim’s conviction for aiding a gathering is supported by a factual basis.

However, we find Antrim’s conviction for failure to affix a drug tax stamp is not

supported by a factual basis and therefore vacate the sentence for that offense

and remand for further proceedings. Finally, we find the record inadequate to

address Antrim’s ineffective-assistance claim concerning the waiver of his PSI

report.

I.        BACKGROUND FACTS AND PROCEEDINGS

          On December 21, 2014, Daniel Peters contacted Katherine Lynn (a

confidential informant) about selling methamphetamine (meth) to Lynn. Peters

told Lynn he was traveling from Omaha with another individual and they would

meet Lynn at a hotel to conduct the sale. Lynn then contacted Deputy Zac

Buttercase. Buttercase and Lynn went to the hotel and set up a room. Lynn

received $500 in pre-recorded money for the sale. Deputies Mather and Aistrope

waited in the hotel parking lot, and Buttercase provided surveillance from the

room directly above Lynn’s room.

          Prior to arriving at the hotel, Peters went to Antrim’s house with

approximately an “eight-ball”1 of meth. The two cut the meth with an agent to

create more product to sell. Antrim and Peters drove to the hotel in Antrim’s

1
     Approximately 3.5 grams of methamphetamine.
                                         3


girlfriend’s car. At the hotel, Lynn purchased 5.5 grams of meth in exchange for

the $500 pre-recorded bills.   Lynn signaled the officers the transaction was

complete, and they arrested Peters and Antrim in the parking lot. The officers

found the $500 on Antrim.

      Buttercase interviewed Peters, who admitted to the above information.

Buttercase then interviewed Antrim, who denied any knowledge of what

happened. He claimed Peters had given him the $500 to repay a debt and he

did not know it was obtained from the sale of meth.

      On December 30, Antrim was charged with conspiracy to manufacture,

distribute, or possess with intent to distribute more than five grams of meth, in

violation of Iowa Code section 124.401(1)(b)(7) (2013).      He reached a plea

agreement with the State and pled guilty to the amended charges of aiding a

drug gathering, in violation of Iowa Code section 124.407, and failure to affix a

drug tax stamp, in violation of Iowa Code sections 453B.1 and 453B.12. The

court sentenced Antrim to consecutive terms of incarceration not to exceed five

years and ordered one sentence suspended, resulting in a two-year term of

probation following release from parole. Antrim now appeals.

II.   ERROR PRESERVATION

      Antrim did not challenge the adequacy of the guilty plea proceeding by

filing a motion in arrest of judgment.       See Iowa R. Crim. P. 2.24(3)(a) (“A

defendant’s failure to challenge the adequacy of a guilty plea proceeding by

motion in arrest of judgment shall preclude the defendant’s right to assert such

challenge on appeal.”). Therefore Antrim has failed to preserve error on his

claims stemming from the guilty plea proceeding. See State v. Ortiz, 789 N.W.2d
                                          4


761, 764 (Iowa 2010).       However, Antrim also argues his trial counsel was

ineffective for failing to challenge the factual basis of the guilty pleas. Therefore,

we limit our review to Antrim’s ineffective-assistance claims because such claims

are exempt from our error preservation rules. See id.

III.   STANDARD OF REVIEW

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

IV.    MERITS

       Antrim claims his trial counsel was ineffective for failing to challenge the

factual basis for his guilty plea and for waiving the PSI report.

               To prove ineffective assistance, [Antrim] must demonstrate
       by a preponderance of evidence that “(1) his trial counsel failed to
       perform an essential duty, and (2) this failure resulted in prejudice.”
       State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland
       v. Washington, 466 U.S. 668, 687 (1984)). Defense counsel
       violates an essential duty when counsel permits defendant to plead
       guilty and waive his right to file a motion in arrest of judgment when
       there is no factual basis to support defendant’s guilty plea. [State
       v.] Philo, 697 N.W.2d [481,] 485 [(Iowa 2005)]; Iowa R. Crim. P.
       2.8(2)(b). Prejudice is presumed under these circumstances. State
       v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

Id. To satisfy the essential duty prong, Antrim must demonstrate the record lacks

a factual basis to support his guilty plea for aiding a gathering where controlled

substances were distributed and failure to affix a drug tax stamp. A factual basis

for a guilty plea may be found from: (1) inquiry of the defendant, (2) inquiry of the

prosecutor, (3) examination of the presentence report, and (4) minutes of

evidence. Ortiz, 789 N.W.2d at 768 (Iowa 2010). “This record, as a whole, must

disclose facts to satisfy the elements of the crime.” State v. Keene, 630 N.W.2d

579, 581 (Iowa 2001).
                                        5




      A.     Aiding a Gathering

      Iowa Code section 124.407 provides: “It is unlawful for any person to

sponsor, promote, or aid, or assist in the sponsoring or promoting of a meeting,

gathering, or assemblage with the knowledge or intent that a controlled

substance be there distributed, used or possessed, in violation of this chapter.”

“The key elements of this crime as applied to [Antrim] are (1) [Antrim] sponsored,

promoted or aided (2) a meeting, gathering, or assemblage (3) with the

knowledge or intent that a controlled substance be there distributed, used or

possessed.” State v. Carter, 582 N.W.2d 164, 166 (Iowa 1998).

      “In ordinary usage, the statute’s operative terms connote active

participation. ‘Promote’ means to move forward or further an enterprise.

‘Sponsor’ commonly means to assume responsibility for.” State v. Cartee, 577

N.W.2d 649, 653 (Iowa 1998) (citations omitted). Antrim helped “cut” the meth,

then used his girlfriend’s car to drive to the hotel with Peters. The two met with

Lynn in the hotel room. Antrim’s actions support a factual basis for the first

element.

      “[S]ection 124.407 is not limited to gatherings which are advertised or

otherwise publicly promoted; the statute applies equally to small, private

gatherings that otherwise meet the terms of the statute.” Carter, 582 N.W.2d at

167. Antrim, Peters, and Lynn met in the hotel room. Because this meeting fits

the definition of a “small, private gathering,” we find this evidence sufficient to

support the second element. Id.
                                          6


       The third element, intent, is supported by Antrim’s actions that night—

cutting the meth, providing transportation to the hotel, and accompanying Peters.

Further, the circumstances surrounding his arrest—finding $500 on his person

that was received after the meth was sold and being arrested directly outside the

hotel where the transaction occurred—demonstrate a factual basis existed to

support Antrim’s intent. Intent is seldom susceptible to proof by direct evidence.

State v. Sinclair, 622 N.W.2d 722, 780 (Iowa Ct. App. 2000). Proving intent

usually depends on circumstantial evidence and the inferences a fact-finder may

draw from the evidence. Id. “[T]he facts and circumstances surrounding the act,

as well as any reasonable inferences to be drawn from those facts and

circumstances, may be relied upon to ascertain the defendant’s intent.”

Schminkey, 597 N.W.2d at 789.

       Upon our de novo review, we find Antrim has been unable to show the

record lacks a sufficient factual basis for his aiding-a-gathering charge.

Therefore, we find his counsel did not provide ineffective assistance for failing to

file a motion in arrest of judgment to challenge that portion of his guilty plea.

       B.      Drug Tax Stamp

       This charge requires the State to prove Antrim was “a dealer distributing,

offering to sell, or possessing taxable substances without affixing the appropriate

stamps, labels, or other official indicia . . . .” Iowa Code § 453B.12.

               “Dealer” means any person who ships, transports, or imports
       into this state or acquires, purchases, possesses, manufactures, or
       produces in this state any of the following: (1) Seven or more grams
       of a taxable substance other than marijuana, but including a taxable
       substance that is a mixture of marijuana and other taxable
       substances.
                                          7

Id. § 453B.1(3)(a) (emphasis added). The record shows the meth recovered by

Deputy Buttercase weighed approximately 5.5 grams—short of the seven gram

requirement—and thus insufficient to form a factual basis for that conviction.

       Upon our de novo review, it is apparent there is a lack of factual basis for

the conviction for failure to affix a tax stamp. We find Antrim’s trial counsel was

ineffective. We vacate this part of the plea agreement and remand to the district

court to allow the State to demonstrate whether a factual basis exists.          See

Schminkey, 597 N.W.2d at 792 (“Where . . . it is possible that a factual basis

could be shown, it is more appropriate merely to vacate the sentence and

remand for further proceedings to give the State an opportunity to establish a

factual basis.”). The State may supplement the record to establish a factual

basis for the crime of failure to affix a drug tax stamp.

       C.     PSI Report

       Antrim also claims his trial counsel was ineffective for waiving preparation

of the PSI report. We find the record inadequate to address this claim on direct

appeal and preserve it for any postconviction-relief proceedings. See Straw, 709

N.W.2d at 133 (“If an ineffective-assistance-of-counsel claim is raised on direct

appeal from the criminal proceedings, we may decide the record is adequate to

decide the claim or may choose to preserve the claim for postconviction

proceedings . . . . Only in rare cases will the trial record alone be sufficient to

resolve the claim on direct appeal.”).

V.     CONCLUSION

       We find a factual basis exists for Antrim’s guilty plea for aiding a gathering,

and we affirm the sentence entered for that offense. We find a factual basis does
                                         8


not exist for Antrim’s guilty plea for failure to affix a drug tax stamp, and we

vacate the sentence entered for that offense. We remand that charge to allow

the State an opportunity to show a factual basis exists for that offense. Due to an

inadequate record, we decline to address Antrim’s ineffective-assistance claim

concerning his trial counsel’s waiver of the PSI report.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
