                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0482
                                Filed January 23, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THOMAS ALVIN MONSON,
     Defendant-Appellant.
________________________________________________________________


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

Bauercamper, Judge.



      Thomas Monson appeals his conviction, following an Alford plea, of

possessing   contraband    in    a   jail.   POSSESSION OF        CONTRABAND

CONVICTION AND SENTENCE VACATED AND REMANDED FOR FURTHER

PROCEEDINGS.




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

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

       Thomas Monson appeals his conviction, following an Alford plea,1 of

possessing contraband in a jail.2 He argues his counsel rendered ineffective

assistance in allowing him to plead guilty absent a sufficient factual basis to

support the charge. He specifically argues there is an inadequate factual basis for

the “knowing” element of the crime. See Iowa Code § 719.7(3)(a) (2017).

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

v. Harris, 919 N.W.2d 753, 754 (Iowa 2018).                  Monson must show by a

preponderance of the evidence that (1) counsel failed to perform an essential duty

and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984);

State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).

       A factual basis is a prerequisite to the court’s acceptance of an Alford plea.

See Iowa R. Crim. P. 2.8(2)(b); State v. Schminkey, 597 N.W.2d 785, 788 (Iowa

1999). In the guilty plea context, if counsel allows a defendant to plead guilty and

waives the defendant’s right to file a motion in arrest of judgment when there is an

inadequate factual basis to support the charge, counsel breaches an essential duty

and prejudice is presumed. Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). A

factual basis exists when the record, as a whole, discloses facts to satisfy the

elements of the crime. See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). “The



1
  See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of [a] crime
may voluntarily, knowingly, and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in the acts constituting
the crime.”).
2
  The Alford plea was part of a plea agreement which also called for Monson to enter guilty
pleas to charges of carrying weapons, possession of marijuana, and possession of
methamphetamine in return for charging and sentencing concessions on the part of the
State.
                                         3


record does not need to show the totality of evidence necessary to support a guilty

conviction, but it need only demonstrate facts that support the offense.” State v.

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

       The minutes of evidence reveal the following facts. As a result of a traffic

stop, Monson was taken into custody on drug and weapon charges. After being

arrested and waiving his Miranda rights, Monson was forthcoming with the

arresting officer about his “history with methamphetamine use and multiple felony

convictions in his past.”    Monson was then transported to the local jail for

processing. Prior to entering the jail, the arresting officer questioned Monson if he

had any other contraband on his person. Monson responded he “could have

something in [his] smallest front pocket.” The officer searched the pocket and

located a hypodermic needle cap.              Monson advised he had placed

methamphetamine in the cap. No methamphetamine remained in the cap when

the officer located it.   Monson advised he “should not have anything else.”

Thereafter, while conducting an inventory of Monson’s wallet, the jailer located a

small bag of marijuana. When this bag was found, Monson advised he had

forgotten about it.

       At the plea hearing, Monson professed his innocence as to the possession-

of-contraband charge but agreed there was a risk of a jury finding him guilty and

he “could get a whole lot worse sentence” if he lost the benefits of the plea

agreement.     Monson tendered his Alford plea, and the court accepted it,

concluding “there is enough facts to prove you guilty of this offense.”

       The question on appeal is whether there is a factual basis that Monson

“Knowingly introduce[d] contraband into, or onto, the grounds of a . . . jail.” See
                                          4


Iowa Code § 719.7(3)(a) (emphasis added). “[I]n criminal law the term ‘knowingly’

has no fixed or precise meaning” and its interpretation “depends on the character

of the offense involved.” State v. Winders, 366 N.W.2d 193, 195 (Iowa Ct. App.

1985).

         When used in a prohibitory statute “knowingly” imports something
         more than carelessness or lack of inquiry. In such statutes, it has
         been held to mean merely a knowledge of the existence of the facts
         constituting the crime, or a knowledge of the essential facts and not
         to require the knowledge of the unlawfulness of the act or omission.

Id. (quoting 22 C.J.S. Criminal Law § 31(3) (1961)). Section 719.7(3)(a) requires

that Monson knowingly introduced marijuana to the jail, i.e., he had knowledge of

the existence of the fact he was in possession of marijuana when he entered into,

or onto, the grounds of the jail. Monson was forthcoming with the arresting officer

in his exchanges with him prior to arriving at the jail. Likewise, when questioned

whether he was in possession of any contraband prior to entering the jail, he

directed the officer to the hypodermic needle cap he had previously placed

methamphetamine in, although there was no methamphetamine remaining in it

when located by the officer. When the marijuana was found, Monson professed

he had forgotten about its presence. Although he does not deny the marijuana

was his, the offense to which he pled guilty requires that he knowingly introduced

the marijuana onto the grounds of the jail. The only facts revealed in the record

before us are that Monson was forthcoming with the officer and readily directed

the officer to an area he suspected harbored methamphetamine, but neglected to

direct the officer to the marijuana and later advised he forgot about its presence.

We recognize there are cases in which the circumstances surrounding the

incarceration of a defendant may support a “knowingly introduce” element even in
                                          5


the face of a defendant’s denial. The circumstances of this case, however, do not

support a finding of a factual basis that Monson did knowingly introduce the

marijuana into the jail. State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011)

(noting a factual basis requires “that the facts support the crime”). Upon our de

novo review, we find the existing record does not demonstrate facts that support

the offense. See Ortiz, 789 N.W.2d at 768.

       Consequently, counsel failed to perform an essential duty in allowing

Monson to plead guilty and proceed to immediate sentencing; prejudice is

presumed in such a case. See Rhoades, 848 N.W.2d at 29. There may be

additional facts and circumstances not appearing in the record that would support

an inference Monson knew he was in the possession of the marijuana.

       We are left with the question of disposition.       The appropriate remedy

following a finding of an inadequate factual basis has varied in situations where a

defendant pleads guilty to multiple charges pursuant to a plea agreement; at least

one, but not all, of the pleas is found to be deficient as lacking a factual basis; and

it is possible that a factual basis can be shown. It is clear that a remand is

appropriate to allow the State an opportunity to establish a factual basis; less clear

is the procedural disposition. Compare State v. Philo, 697 N.W.2d 481, 483, 488–

89 (Iowa 2005) (finding no factual basis for one of multiple charges defendant pled

guilty to pursuant to plea agreement and vacating sentence on that charge and

remanding for further proceedings in situation where it is possible that a factual

basis could be shown); Schminkey, 597 N.W.2d at 787, 792 (same), and State v.

Hallock, 765 N.W.2d 598, 601, 604, 606 (Iowa Ct. App. 2009) (same), with State

v. Gines, 844 N.W.2d 437, 438–39, 441–42 (Iowa 2014) (finding no factual bases
                                           6


for three of four charges defendant pled guilty to pursuant to plea agreement and

vacating the convictions on those three charges and remanding for further

proceedings in situation where it is possible that factual bases could be shown

(citing Schminkey, 597 N.W.2d at 792)). This has led to inconsistent outcomes in

the rulings of this court.3 Monson has already tendered his plea, and the purpose

of the remand is to allow the State to provide the additional and necessary

information to establish a factual basis to support that plea. As such, the tender of

the guilty plea must stand, and we conclude the district court’s acceptance of guilty

plea and all legal determinations after tender of the plea should be vacated, i.e.,

both the judgment of conviction and sentence for the charge. We therefore vacate

the judgment and sentence for the possession-of-contraband charge and remand

for further proceedings to give the State an opportunity to establish a factual basis

for the guilty plea sufficient to satisfy Iowa Rule of Criminal Procedure 2.8(1)(b).

See Gines, 844 N.W.2d at 441; Schminkey, 597 N.W.2d at 792.

       There is also somewhat of a question on what happens if the State is able

to establish a factual basis to support the plea. Compare Gines, 844 N.W.2d at

441–42 (“If the State can establish a factual basis for three separate and distinct



3
  Compare, e.g., State v. Shelton, No. 17-1724, 2018 WL 5839956, at *2 (Iowa Ct. App.
Nov. 7, 2018) (vacating sentence), State v. Fuller, No. 17-1231, 2018 WL 3471096, at *4
(Iowa Ct. App. July 18, 2018) (same), State v. Hankins, No. 17-1436, 2018 WL 2084825,
at *2 (Iowa Ct. App. May 2, 2018) (same), State v. Buenneke, No. 17-1056, 2018 WL
1433748, at *3 (Iowa Ct. App. Mar. 21, 2018) (same), State v. Young, No. 17-0749, 2018
WL 1182553, at *3 (Iowa Ct. App. Mar. 7, 2018) (same), with, e.g., State v. Haynes, No.
17-1476, 2018 WL 2085198, at *2 (Iowa Ct. App. May 2, 2018) (vacating conviction), State
v. Dearborn, No. 17-0612, 2018 WL 542636, at *6 (Iowa Ct. App. Jan. 24, 2018) (same),
State v. Trombone, No. 15-1696, 2016 WL 5484893, at *5 (Iowa Ct. App. Sept. 28, 2016)
(same), State v. Grim, No. 15-0807, 2016 WL 4384501, at *2 (Iowa Ct. App. Aug. 17,
2016) (same); see also Biggs v. State, No. 17-0017, 2018 WL 1099060, at *3 (Iowa Ct.
App. Feb. 21, 2018) (vacating guilty plea).
                                           7


charges of intimidation with a dangerous weapon with intent, the district court shall

resentence Gines on all counts, including Gines’s conviction for a felon in

possession of a firearm count.”), with State v. Royer, 632 N.W.2d 905, 910 (Iowa

2010) (“If the State is successful, defendant’s conviction and sentence shall be

reinstated.”). We fully acknowledge that the State’s attempt to establish a factual

basis may put new information before the court that could affect its sentencing

decision. See generally State v. Knight, 701 N.W.2d 83, 86–88 (Iowa 2005)

(discussing permissible sentencing considerations). But, in the event the State

establishes a factual basis, we see no reason to require the district court to

abandon an otherwise unchallenged sentence and enter a new one, unless the

district court, in its discretion, determines to do so. As such, if the State is able to

establish a factual basis on remand, the court shall enter judgment for possession

of contraband, sentence Monson on that conviction, and may leave the prior

sentences for the other offenses intact. But, if upon consideration of the additional

factual record supporting the possession-of-contraband conviction, the court

determines the entire sentencing scheme should be revisited, the court may

resentence on all the convictions.

       There is no question on what happens if the State is unable to establish a

factual basis. In that situation, we must put the State back in the position it was in

before making the plea agreement, and the district court should vacate all the

sentences, convictions, and pleas, after which the State may reinstate any charges

or sentencing enhancements dismissed or not pursued in contemplation of the

plea agreement, file any additional charges supported by the available evidence,
                                    8

and proceed against Monson on all such charges. See Rhoades, 848 N.W.2d at

33; Gines, 844 N.W.2d at 442.

      POSSESSION OF CONTRABAND CONVICTION AND SENTENCE

VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
