                     IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1352
                               Filed April 22, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FREDERICK JOSEPH OLSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Cerro Gordo County, Gregg R.

Rosenbladt, Judge.



      A defendant appeals following his guilty plea to interference with official

acts while displaying a dangerous weapon. CONVICTION ON INTERFERENCE

CHARGE VACATED, SENTENCES VACATED, AND CASE REMANDED WITH

DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Carlyle D. Dalen, County Attorney, and R. Blake Norman,

Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, J.

       Frederick Olson appeals following his guilty plea to burglary in the third

degree and interference with official acts while displaying a dangerous weapon.1

See Iowa Code §§ 713.6A, 719.1(1) (2011).              He claims his attorney was

ineffective in failing to object or file a motion in arrest of judgment because the

record failed to provide a factual basis to support the guilty plea to the

interference charge. Specifically, he claims there was no evidence he possessed

a dangerous weapon during his interactions with the police officers.

       Before accepting a guilty plea, the court must determine a factual basis

supports the plea. See Iowa R. Crim. P. 2.8(2)(b) (“The court may refuse to

accept a plea of guilty, and shall not accept a plea of guilty without first

determining that the plea is made voluntarily and intelligently and has a factual

basis.”). “Where a factual basis for a charge does not exist, and trial counsel

allows the defendant to plead guilty anyway, counsel has failed to perform an

essential duty. Prejudice is inherent in such a case.” State v. Gines, 844 N.W.2d

437, 441 (Iowa 2014).

       Here, the State concedes the record fails to provide a factual basis to

support the guilty plea to the interference charge. The State requests we vacate



1
  Olson was originally charged in two separate trial informations with third-degree
burglary as an habitual offender, possession of burglar tools, attempt to commit murder,
and first-degree burglary. The parties entered into a plea agreement to resolve these
two cases along with a third case. The agreement called for Olson to plead guilty to
third-degree burglary as an habitual offender. The State would amend the attempted
murder charge to interference with official acts while displaying a dangerous weapon as
an habitual offender, and Olson would plead guilty to this amended charge. The other
charges would be dismissed, and the State would recommend the fifteen-year
sentences on both guilty pleas to run concurrently.
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the conviction on that count and remand the case to the district court to permit

the State an opportunity to supplement the record to establish a factual basis to

support the plea. See id. 441-42 (noting that when it is possible that a factual

basis for a plea could be established, the remedy is to vacate the conviction and

remand the case to the district court to give the State an opportunity to establish

a factual basis).

       We conclude that the proper remedy in the case is to vacate Olson’s

conviction on the interference charge, vacate Olson’s sentences on both

charges, and remand the case to the district court to permit the State to

supplement the record to provide a factual basis to support the plea. See id. If a

factual basis is shown, Olson should be resentenced on all counts, including the

burglary conviction. See id. If a factual basis is not shown, the district court

should vacate the conviction on the burglary count and return the State to the

position it had before the plea agreement. See id. at 442. If this occurs, the

State may reinstate any charges or sentencing enhancements it dismissed in

contemplation of the plea agreement, file any additional charges supported by

the evidence, and proceed against Olson accordingly. See id.

       CONVICTION ON INTERFERENCE CHARGE VACATED, SENTENCES

VACATED, AND CASE REMANDED WITH DIRECTIONS.
