                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1476
                                Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRYCE AUGUSTUS HAYNES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Jefferson County, Mary Ann Brown,

Judge.



      Bryce Haynes appeals his conviction after pleading guilty to one count of

sexual exploitation of a minor. CONVICTION AND SENTENCE VACATED AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.



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

       Bryce Haynes pled guilty to one count of sexual exploitation of a minor. On

appeal, he challenges the existence of a factual basis to support his plea. Because

Haynes did not attack his plea by motion in arrest of judgment, he raises his claim

under an ineffective-assistance-of-counsel rubric. See State v. Rodriguez, 804

N.W.2d 844, 848 (Iowa 2011) (considering the defendant’s challenge to the factual

basis for his guilty plea as a claim of ineffective assistance of counsel even though

the defendant failed to preserve error on the claim by filing a motion in arrest of

judgment). Our review is therefore de novo.          See id. (“We review claims of

ineffective assistance of counsel de novo.”).           Haynes must prove by a

preponderance of the evidence both that his counsel failed to perform an essential

duty and prejudice resulted. See id. If counsel allowed him to plead guilty without

a factual basis for his plea, we presume prejudice. See id. at 849. The question

is whether the record shows a factual basis to support his plea. See id.

       There is a sufficient factual basis to support a guilty plea if the record at the

time of the guilty plea, as a whole, discloses facts to satisfy each element of the

offense. See Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014); State v. Ortiz,

789 N.W.2d 761, 767-68 (Iowa 2010). The record does not need to support the

defendant’s guilt, but it needs to demonstrate facts that support the offense. See

Ortiz, 789 N.W.2d at 768. In determining whether the record provides a sufficient

factual basis to support the plea, we review the prosecutor’s statements, the

defendant’s statements, the minutes of evidence, and “the presentence report, if

available at the time of the plea.” Rhoades, 848 N.W.2d at 29.
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       Haynes pled guilty to sexual exploitation of a minor under Iowa Code

section 728.12(1) (2016).     That section makes it unlawful to “employ, use,

persuade, induce, entice, coerce, solicit, knowingly permit, or otherwise cause or

attempt to cause a minor to engage in a prohibited sexual act or in the simulation

of a prohibited sexual act.” Iowa Code § 728.12(1). A prohibited sexual act occurs

when there is sexual contact by any of the following:

              1. Penetration of the penis into the vagina or anus.
              2. Contact between the mouth and genitalia or by contact
       between the genitalia of one person and the genitalia or anus of
       another person.
              3. Contact between the finger or hand of one person and the
       genitalia or anus of another person, except in the course of
       examination or treatment by a person licensed pursuant to chapter
       148, 148C, 151, or 152.
              4. Ejaculation onto the person of another.
              5. By use of artificial sexual organs or substitutes therefor in
       contact with the genitalia or anus.

Id. § 702.17; see also id. § 728.1(7)(a) (defining a prohibited sexual act as any sex

act defined in section 702.17). A prohibited sexual act also means “[a]n act of

beastiality involving a minor,” “[f]ondling or touching the pubes or genitals of a

minor,” “[f]onding or touching the pubes or genitals of a person by a minor,”

“[s]adomasochistic abuse of a minor for the purpose of arousing or satisfying the

sexual desires of a person who may view a visual depiction of the abuse,” and

“[s]adomasochistic abuse of a person by a minor for the purpose of arousing or

satisfying the sexual desires of a person who may view a visual depiction of the

abuse.” Id. § 728.17(7)(b)-(g). Haynes alleges the record is insufficient to show

he attempted to cause the minor to engage in a prohibited sexual act.

       The minutes of evidence accompanying the trial information allege that

Haynes sent a Facebook message to a fourteen-year-old child, in which he stated
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that he wanted to have sex with her and requested a picture or video of her

performing a sexual act. At the plea hearing, Hayes admitted that in November

2016, he sent a Facebook message to a child he knew to be fourteen years old,

that he asked her to engage in a sex act with him, that he was twenty-six-years old

at the time, and that he knew it was against the law for him to have sex with

someone of that age. Haynes also admitted that he asked her to have it recorded

or videotaped, which he knew would preserve the act in a visual way. Haynes

argues this record is insufficient to establish a factual basis for his plea because it

does not establish that the act he asked the child to engage in was a prohibited

sexual act under section 728.12.      The State counters that “it is fair to infer that

[Haynes] asked her to engage in a sex act that fell into the broad category of

‘prohibited sex acts.’”

       The message Haynes sent the child is not in the record. It contains no

transcript of the message or any approximation thereof. Although the minutes

allege that Haynes described the act in detail in his message, nothing in the record

provides an account of those details beyond a “sex act.” At the plea hearing,

Haynes admitted he asked the child to engage in a sex act but provided no other

description. In discussing the elements of the offense during the hearing, the court

only makes reference to a “prohibited sex act” without defining any of the acts that

are included in that definition.

       Not all acts that one could describe as “sex acts” are “prohibited sexual acts”

under section 728.12(1); only those acts specified in section 728.1(7) constitute

“prohibited sexual acts.” Because the record does not establish any details of the

sex acts Haynes solicited, it is impossible to know whether he solicited a
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“prohibited sexual act.” There is in an insufficient factual basis for Haynes’s guilty

plea, and therefore, trial counsel was ineffective in allowing Haynes to plead guilty.

We vacate Haynes’s conviction and remand the case to the district court to allow

the State the opportunity to establish a factual basis. See State v. Gines, 844

N.W.2d 437, 441 (Iowa 2014). If the State establishes a factual basis for the

offense of sexual exploitation of a minor, the district court shall resentence

Haynes.1

       CONVICTION AND SENTENCE VACATED AND REMANDED.




1
 Because we vacate Haynes’s conviction, we need not consider his claim that the court
abused its discretion in sentencing him to prison.
