                   IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1748
                                  Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHANNON DEMARKUS YOUNG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



      A defendant appeals from his convictions for possession with intent to

deliver a controlled substance and forgery.             CONVICTIONS AFFIRMED;

SENTENCE VACATED IN PART, AND REMANDED.



      Kevin E. Hobbs, West Des Moines, for appellant.

      Shannon DeMarkus Young, Clarinda, pro se.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
                                            2


VOGEL, Judge.

         Shannon Young appeals his convictions following his guilty pleas to

possession with intent to deliver a controlled substance—cocaine salt

hydrochloride—in violation of Iowa Code section 124.401(1)(c)(2)(b) (2015), and

forgery, in violation of Iowa Code sections 715A.2(2)(a)(3).            He claims his

attorney improperly pressured him to plead guilty in order to avoid drug charges

being brought against his wife and his attorney had a conflict of interest due to

his wife being represented by the same public defender’s office. In a pro se brief,

Young asserts the district court lost subject matter jurisdiction when it proceeded

to take his guilty plea after the court became aware he was under the care of a

psychiatrist, establishing doubt as to his competency to enter a plea. He also

claims his attorney was ineffective in permitting him to plead guilty when the

record lacked a factual basis for the finding he had the intent to deliver the

controlled substance. Finally, he asserts the court erred in assessing court costs

against him for the dismissed counts.

I. Background Facts and Proceedings.

         In May 2015, Young pled guilty to possession of a controlled substance

with intent to deliver. In a separate matter, Young pled guilty of one count of

forgery.1 The court conducted a joint sentencing hearing for both guilty pleas

and sentenced Young to ten years in prison with a mandatory one-third minimum

for the possession charge and five years for the forgery charge. The sentences

were ordered to run concurrently. He filed a notice of appeal as to both matters.



1
    Both Young and his wife were charged with counts of forgery and second-degree theft.
                                         3


II. Conflict of Interest.

       On behalf of Young, appellate counsel asserts trial counsel improperly

pressured Young to plead guilty to avoid charges being filed against Young’s wife

in the drug case and also asserts trial counsel had a conflict of interest as

Young’s wife was being represented by the same public defender’s office. He

presents both claims within the ineffective-assistance framework as neither claim

was made before the district court. Counsel asserts the record on direct appeal

is not adequately developed, and as such, the claims should be preserved for

postconviction-relief proceedings.   The State agrees.     We therefore preserve

these claims for possible postconviction-relief proceedings.         See State v.

Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (noting ineffective-assistance claims

can be raised on direct appeal, but it is up to the court to determine if the record

is adequate to resolve the claim and if not, the claim must be preserved for

postconviction relief).

III. Pro Se Claims.

       In his pro se brief, Young raises three additional claims. He asserts the

court lost subject matter jurisdiction when it became aware during the guilty plea

that he was under the care of a psychiatrist. He further claims there is not a

sufficient factual basis to support his guilty plea to the drug offense because he

only agreed he planned to “share” the drugs found in his possession with a few

friends, rather than sell the drugs. Finally, he claims the court imposed an illegal

sentence when it assessed against him the court costs for the dismissed counts.

       A. Subject Matter Jurisdiction. The subject matter jurisdiction of the

district court “refers to the courts power ‘to hear cases and determine cases of
                                              4

the general class to which a particular proceeding belongs.’” State v. Bartley,

797 N.W.2d 608, 610 (Iowa Ct. App. 2011) (citation omitted). Jurisdiction is

granted by the state constitution and the state’s laws, and the district court “has

exclusive, general, and original jurisdiction of all actions, proceedings, and

remedies, civil, criminal, probate, and juvenile.” Iowa Code § 602.6101. Young’s

case was a criminal proceeding, and as such, the district court had exclusive,

general, and original jurisdiction over the matter. A defendant’s mental health

status has no effect on the court’s subject matter jurisdiction.

         To the extent Young’s claim asserts his guilty plea is invalid as a result of

the court’s failure to order a sua sponte mental exam pursuant to Iowa Code

section 812.3,2 such claim must be raised in a motion in arrest of judgment, and

ruled upon, in order to be asserted on appeal. See State v. Lucas, 323 N.W.2d

228, 231 (Iowa 1982) (concluding a claim that the court should have sua sponte

held a competency hearing under section 812.3 went to the “very heart of the

court’s determination of that the plea was entered voluntarily, intelligently, and

understandably” and as such, the challenge must be raised in a motion in arrest




2
    Iowa Code section 812.3(1) provides, in part:
                 If at any stage of a criminal proceeding the defendant or the
         defendant’s attorney, upon application to the court, alleges specific facts
         showing that the defendant is suffering from a mental disorder which
         prevents the defendant from appreciating the charge, understanding the
         proceedings, or assisting effectively in the defense, the court shall
         suspend further proceedings and determine if probable cause exists to
         sustain the allegations. The applicant has the burden of establishing
         probable cause. The court may on its own motion schedule a hearing to
         determine probable cause if the defendant or defendant’s attorney has
         failed or refused to make an application under this section and the court
         finds that there are specific facts showing that a hearing should be held
         on that question.
                                        5


of judgment). We thus reject Young’s claim impugning the court’s subject matter

jurisdiction when the court did not hold a sua sponte competency hearing.

      B.   Factual Basis.     Next, Young claims he was denied the effective

assistance of counsel when counsel permitted him to plead guilty to the

possession charge on a record that lacked a factual basis. See State v. Ortiz,

789 N.W.2d 761, 764–65 (Iowa 2010) (“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. Prejudice is presumed under these circumstances.”).

During the guilty plea, Young stated,

      I just bought somewhere around five or six grams of cocaine. And I
      bought that much because I had at least two friends that I was
      knowingly going to share some with. And as I was driving down the
      street, I got pulled over by a cop, and he found it in my pocket.
              ....
              THE COURT: And it was your intent at that time to share this
      cocaine with individuals other than yourself?
              DEFENDANT YOUNG: Yes, Your Honor.

On appeal, Young asserts that admitting he was going to “share” the drugs with

friends is not enough to satisfy “possession with intent to deliver” the cocaine

under the statute. Specifically, he claims there was no evidence he intended to

“sell” the drugs or had made prearrangements with others to “purchase” the

cocaine. Iowa Code section 124.401 does not require a “sale” or a “purchase”

for someone to be guilty of “delivery.” Delivery is defined in Iowa Code section

124.101(7) as “the actual, constructive, or attempted transfer from one person to

another of a controlled substance, whether or not there is an agency

relationship.” (Emphasis added.) It is the intent to transfer possession, not the
                                          6


intent to sell, that determines whether there a person has the intent to deliver

drugs.    State v. Moore, 529 N.W.2d 264, 266 (Iowa 1995) (“[A] person who

purchases drugs and later shares them with others has delivered a controlled

substance . . . .” (emphasis added)).

         We find sufficient factual basis to support Young’s guilty plea, and thus,

counsel was not ineffective in permitting Young to plead guilty. His conviction on

this count is affirmed.

         C. Costs. Finally, Young claims the court entered an illegal sentence

when it imposed on him the costs for the dismissed counts. See State v. Petrie,

478 N.W.2d 620, 622 (Iowa 1991) (“[T]he provisions of Iowa Code section 815.13

and section 910.2 clearly require, where the plea agreement is silent regarding

the payment of fees and costs, that only such fees and costs attributable to the

charge on which a criminal defendant is convicted should be recoverable under a

restitution plan.”).   The State concedes error on this point, agreeing that the

record does not indicate the plea agreement contained a provision whereby

Young agreed to pay the costs associated with the dismissed counts.            We

therefore vacate that portion of the sentencing orders requiring Young to pay

costs associated with the dismissed counts. We remand this case for further

proceedings to determine the appropriate amount of court costs for which Young

is responsible.

VI. Conclusion.

         Because the record is inadequate to address Young’s claims that his

attorney improperly pressured him to plead guilty in order to avoid charges being

filed against his wife and his attorney had a conflict of interest due to his wife
                                           7


being represented by the same public defender’s office, we preserve those

claims for possible postconviction-relief proceedings. We deny Young’s claim

that asserts the district court lost subject matter jurisdiction when it took his guilty

plea after becoming aware he was under the care of a psychiatrist.                    A

defendant’s mental health has no impact on a court’s subject matter jurisdiction.

A factual basis is established in the record to support the conclusion Young had

the intent to deliver the controlled substance when he admitted he intended to

share the cocaine with friends. Finally, we vacate that portion of the sentencing

orders requiring Young pay the court costs for the dismissed counts, and we

remand this matter to the district court to enter a sentencing order requiring

Young to pay for only the court costs associated with the counts to which he pled

guilty.

          CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART, AND

REMANDED.
