                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0607
                                Filed May 29, 2014


GREGORY SHARKEY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.


       Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



       Applicant appeals the district court’s grant of summary judgment to the

State on his request for postconviction relief from his conviction for assault while

participating in a felony. AFFIRMED.




       Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.

       Thomas J. Miller, Attorney General, Heather Quick, Assistant Attorney

General, Ralph Potter, County Attorney, and Brigit Barnes, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., Mullins, J., and Eisenhauer, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                            2


EISENHAUER, S.J.

       Gregory Sharkey appeals the district court’s grant of summary judgment to

the State on his request for postconviction relief (PCR) from his conviction for

assault while participating in a felony.         He claims summary judgment was

inappropriate because there is a genuine issue of material fact as to whether he

received ineffective assistance because defense counsel permitted him to plead

guilty when there was not a sufficient factual basis for his guilty plea. We affirm.

       I. Background Facts & Proceedings

       According to the minutes of evidence, on December 15, 2007, Sharkey

entered Travis Bottom’s home without the right or privilege to do so. Bottom

asked Sharkey to leave, but he refused, stating “the cops are looking for me.”

While in the home, Sharkey assaulted Bottom by kicking and punching him,

causing a laceration to Bottom’s lower lip. The assault was observed by two

eyewitnesses.     After the assault, Sharkey ran from the home but was soon

apprehended by police officers.

       Sharkey was charged with first-degree burglary. Pursuant to a March 14,

2008 plea agreement, he entered an Alford plea1 to the reduced charge of

assault while participating in a felony, in violation of Iowa Code section 708.3

(2007). The court accepted Sharkey’s plea. The case immediately proceeded to




1
 In an Alford plea, a defendant may consent to the imposition of a prison sentence
without admitting to participating in the crime. See North Carolina v. Alford, 400 U.S. 25,
37 (1970).
                                          3


sentencing, and Sharkey was sentenced to five years in prison. 2 He did not

appeal his conviction.

       On March 14, 2011, Sharkey filed a PCR application. He raised several

claims of ineffective assistance, including a claim defense counsel should not

have permitted him to plead guilty because there was not a sufficient factual

basis for his plea. The State filed a motion for summary judgment. After a

hearing, the court granted the motion, finding “there are no material facts that are

in dispute and that the State is entitled to judgment as a matter of law.” Sharkey

now appeals the decision of the district court.

       II. Standard of Review

       We review a district court’s grant of summary judgment in a PCR action

for the correction of errors of law. Castro v. State, 795 N.W.2d 789, 792 (Iowa

2011). To the extent, however, an application raises a constitutional claim, such

as ineffective assistance of counsel, our review is de novo. Id.

       III. Merits

       Sharkey contends the district court should not have granted the State’s

motion for summary judgment because there is a genuine issue of material fact

as to whether he received ineffective assistance because defense counsel

permitted him to plead guilty when there was not a sufficient factual basis for his

guilty plea to assault while participating in a felony.     To establish a claim of

ineffective assistance of counsel, an applicant must show (1) the attorney failed




2
  Sharkey had accumulated a number of other charges, and he entered into a
comprehensive plea agreement. His sentence for assault while participating in a felony
was made concurrent to his sentences on other charges.
                                          4


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

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

       We note Sharkey has not offered nor does he claim to have additional

facts not in the summary judgment record to support his arguments. Sharkey

first claims the record does not disclose the felony the State alleged he was

participating in at the time of the assault. The amended trial information alleged

Sharkey “assaulted Travis Bottom, while participating in a burglary, a felony.”

The State specified it was alleging Sharkey committed an assault while

participating in the felony of burglary. Thus, there is no genuine issue of material

fact on this issue. See Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002)

(stating summary judgment in PCR proceedings is appropriate “when there is no

genuine issue of material fact and the moving party is entitled to judgment as a

matter of law”). Sharkey has not shown he received ineffective assistance due to

counsel’s failure to raise this meritless issue. See State v. Brothern, 832 N.W.2d

187, 192 (Iowa 2013).

       We turn then to Sharkey’s alternative argument, whether the State was

entitled to summary judgment on his claim he received ineffective assistance

because defense counsel permitted him to plead guilty when there was not a

sufficient factual basis to show he was participating in the felony of burglary. The

offense of burglary is defined as follows:

               Any person, having the intent to commit a felony, assault or
       theft therein, who, having no right, license or privilege to do so,
       enters an occupied structure, such occupied structure not being
       open to the public, or who remains therein after it is closed to the
       public or after the person’s right, license or privilege to be there has
       expired, or any person having such intent who breaks an occupied
       structure, commits burglary.
                                         5


Iowa Code § 713.1.

       In Alford pleas, as in guilty pleas, there must be a sufficient factual basis

for the plea. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). “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. Finney, 834

N.W.2d 46, 54 (Iowa 2013). “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.” Id. at 62. The record needs only to demonstrate facts

to support the offense; there is no requirement to show guilt beyond a reasonable

doubt. State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010).

       The minutes of evidence show Sharkey and Bottom were not previously

acquainted when Sharkey abruptly entered Bottom’s residence without

permission.   Bottom asked Sharkey to leave more than once, but Sharkey

refused. Sharkey suddenly assaulted Bottom, kicking and punching him, and

causing a laceration to his lower lip.       The incident was observed by two

witnesses.    We determine the minutes demonstrate facts sufficient to show

Sharkey was participating in the felony of burglary at the time he committed the

assault. See id. Because there is a sufficient factual basis in the record to

support Sharkey’s guilty plea to assault while participating in a felony, there is no

genuine issue of material fact on the issue of whether he received ineffective

assistance of counsel.

       We affirm the decision of the district court granting summary judgment to

the State on Sharkey’s request for postconviction relief.

       AFFIRMED.
