                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-1525
                                 Filed May 20, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEREMIAH JOSEPH WISMER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.



      Jeremiah J. Wismer appeals following his plea of guilty to possession of a

controlled substance without a prescription.      SENTENCE VACATED AND

REMANDED FOR FURTHER PROCEEDINGS.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Stephen Holmes, County Attorney, and Keisha F. Cretsinger, Assistant

County Attorney, for appellee.



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

      Jeremiah J. Wismer appeals following his plea of guilty to possession of a

controlled substance without a prescription. Because the record before us does

not contain a factual basis for the conviction, we vacate the sentence imposed

and remand for further proceedings.

      The minutes of testimony alleged: On June 22, 2014, law enforcement

officers observed Wismer trying to conceal four peach colored pills by placing

them under a large green trash can.           The pills were ultimately identified as

“Alprazolam .5 mg” (Xanax), which requires a prescription. The minutes do not

specify whether Wismer had a prescription for the pills.

      Wismer’s written guilty plea provided:

            3. I understand that in order for the State to convict me of the
      charge at trial, it would be necessary for the State to prove beyond
      a reasonable doubt: that on or about June 22, 2014, in Story
      County, Iowa, I knowingly possessed a controlled substance with
      having a valid prescription or order of a medical practitioner.
             ....
            13. I did, See No. 3.

(Emphasis added.)

      On appeal, Wismer argues the guilty plea record failed to establish a

factual basis for an Iowa Code section 124.401(5) (2013) offense, and thus the

judgment and sentence should be reversed and this case remanded to the

district court for further proceedings.       The State contends the written plea

contains an obvious typographical error, which we should ignore.

             The district court may not accept a guilty plea without first
      determining that the plea has a factual basis. See Iowa R. Crim. P.
      [2.8(2)(b)]; State v. Burtlow, 299 N.W.2d 665, 668 (Iowa 1980).
      This requirement exists even where the plea is an Alford plea. . . .
      Where a factual basis for a charge does not exist, and trial counsel
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       allows the defendant to plead guilty anyway, counsel has failed to
       perform an essential duty.

State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (citation omitted). Where

a guilty plea has no factual basis in the record, but it is possible a factual basis

could be shown, we vacate the sentence and remand for further proceedings to

give the State an opportunity to establish a factual basis. See id. at 792.

       Wismer is correct in his assertion that the record before us does not

provide a factual basis for the conviction—Wismer denied the allegations of the

trial information and there is no affirmative statement in this record that Wismer

did not have a prescription for the controlled substance. His trial counsel failed to

perform an essential duty in allowing the entry of this plea agreement. See id. at

788. However, in light of Wismer’s statement in the written plea that “I have

discussed all possible legal defenses with my attorney and I know of no legal

defense to this charge,” we vacate the sentence and remand to allow the State

an opportunity to establish a factual basis.

       SENTENCE        VACATED        AND      REMANDED         FOR      FURTHER

PROCEEDINGS.
