                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1783
                               Filed June 19, 2019


WILLIAM EARL ROBY,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,

Judge.



      William Roby appeals the denial of his application for postconviction relief.

AFFIRMED.




      Mark C. Smith, State Appellate Defender (until withdrawal), and Bradley M.

Bender, Assistant Appellate Defender, for appellant.

      William Earl Roby, Newton, pro se appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       William Roby appeals the denial of his application for postconviction relief

(PCR). On appeal, Roby claims his trial counsel provided ineffective assistance in

allowing him to plead guilty to kidnapping in the third degree when there was an

insufficient factual basis to support the plea.     Roby also claims his counsel

provided ineffective assistance by failing to file a motion in arrest of judgment to

challenge his guilty plea to the kidnapping charge. He contends his guilty plea was

not voluntarily and intelligently given due to counsel’s ineffective assistance during

plea negotiations and during the guilty-plea proceedings.

I.     Background Facts and Proceedings

       In June 2011, the State filed a trial information charging Roby with first-

degree kidnapping, following the reported sexual assault of J.M. According to the

minutes of evidence, Roby and J.M. were in a relationship that ended in

approximately December 2010.         In May 2011, they were living in the same

apartment building, with Roby’s apartment located on the floor below J.M.’s

apartment. On the evening of May 15, at approximately 8:00 p.m., J.M. returned

to the apartment building. As she walked to her door, she looked down the stairwell

to the first-floor apartments and noticed Roby’s apartment door ajar. Roby exited

his apartment and made eye contact with her. J.M. continued to her apartment

door, at which point Roby ran up the stairs, grabbed J.M. from behind, and placed

his hand over her face. Roby then dragged J.M. down the stairs and forced J.M.

into his apartment while she cried for help. Other residents in the apartment

building heard the commotion but did not take any steps to intervene. Roby threw

J.M. onto his couch. After entering his apartment, Roby turned on very loud music.
                                         3


Roby then picked up J.M. again, dragged her into a bedroom, and threw her onto

the bed. The act of throwing her onto the bed caused the bed frame to break, so

Roby moved her to another bedroom. Roby forcefully pulled down J.M.’s pants

while she resisted, and Roby pulled down his own pants. He then ordered J.M. to

perform oral sex. J.M. refused. Roby threatened to kill J.M.’s pet. On the bedside

table, a knife was clearly visible.    When J.M. continued to struggle, Roby

threatened that “if the police come here, I’m going to kill you and myself before

they even get in.” Roby forced J.M. to have sex with him three times over the

course of the next nine to ten hours. In the morning, Roby refused to let J.M. leave

for work and ordered her to call in sick. After she explained that she could not, he

allowed her to return to her apartment but only in his presence.          At some

subsequent point, Roby left J.M.’s apartment. J.M. then called the police and went

to the hospital.

       Trial was scheduled for January 2013. On the second day of trial, after jury

selection had concluded, Roby pled guilty pursuant to a plea agreement to third-

degree kidnapping and third-degree sexual abuse, both class “C” felonies. During

the plea proceeding, the court had the following exchange with Roby:

                THE COURT: Next we’ll take up the factual basis for the
       charges.
                ....
                THE COURT: Now let me ask you some specific questions.
       Is it true that on or about May 15th, 2011, in Linn County, Iowa, you
       confined or removed from one place to another a female identified
       as [J.M.]?
                [ROBY]: Yes.
                THE COURT: And did you do so with the specific intent to
       subject [J.M.] to sexual abuse?
                [ROBY]: Yes.
                THE COURT: And did you know at that time that you did not
       have the authority or the consent of [J.M.] to do so?
                                         4


              [ROBY]: Yes.

Roby did not file any post-plea motions and did not directly appeal his conviction

following the imposition of sentence.

       In February 2016, Roby filed a pro se application for PCR, asserting

numerous claims, including ineffective assistance of counsel, coercion,

prosecutorial misconduct, and the denial of constitutional rights. In February 2017,

the court granted Roby’s request to amend his application which clarified his

ineffective-assistance-of-counsel claims. When the matter proceeded to trial in

September 2017, Roby’s claims were concentrated on the ineffective assistance

of his trial counsel for failing to explain and define the charge of kidnapping,

advising him to plead guilty, allowing him to plead guilty when a factual basis for

the plea could not be established, and failing to object or move in arrest of

judgment to challenge the plea. The court denied his application.

       After Roby appealed the denial of his application, he filed a pro se motion

under Iowa Rule of Civil Procedure 1.904(2) requesting the court to enlarge its

findings.   The district court filed a memorandum opinion stating it had no

jurisdiction to consider and rule on his motion since the case was already on

appeal. Roby subsequently filed a pro se motion seeking a stay of the pending

appeal and request for a limited remand. The supreme court denied Roby’s motion

and request. Roby, pro se, and his appellate counsel both filed appellate briefs.

II.    Standard of Review

       Generally, we review PCR proceedings for corrections of error at law.

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when a PCR

applicant alleges ineffective assistance of counsel, our review is de novo. Allison
                                            5

v. State, 914 N.W.2d 866, 870 (Iowa 2018). “[W]e give weight to the lower court’s

findings concerning witness credibility.” Ledezma, 626 N.W.2d at 141.

III.     Analysis

         A.     Factual Basis

         On appeal, Roby claims his trial counsel provided ineffective assistance by

allowing him to plead guilty to the third-degree kidnapping offense when there was

not a sufficient factual basis for that charge. Roby argues the record does not

establish that he confined J.M. as defined in State v. Rich, 305 N.W.2d 739 (Iowa

1981).

         Roby must show “by a preponderance of the evidence both that counsel

failed an essential duty and that the failure resulted in prejudice.” State v. Harrison,

914 N.W.2d 178, 206 (Iowa 2018) (quoting State v. Schlitter, 881 N.W.2d 380, 388

(Iowa 2016)). “[C]ounsel fails his or her essential duty by ‘perform[ing] below the

standard demanded of a reasonably competent attorney.’” Id. (quoting Ledezma,

626 N.W.2d at 142). “[W]e begin with the presumption that the attorney performed

competently” and “avoid second-guessing and hindsight.” Ledezma, 626 N.W.2d

at 142. Roby “must demonstrate ‘that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Id. at 143 (quoting Strickland v. Washington, 466 U.S. 668, 964 (1984)).

         The court “shall not accept a plea of guilty without first determining that the

plea . . . has a factual basis.” Iowa R. Crim. P. 2.8(2)(b). “If trial counsel permits

a defendant to plead guilty and waives the defendant’s right to file a motion in

arrest of judgment when there is no factual basis to support the defendant’s guilty

plea, trial counsel breaches an essential duty.” Rhoades v. State, 848 N.W.2d 22,
                                          6

29 (Iowa 2014). In such a case, prejudice is presumed. Id. “At the time of the

guilty plea, the record must disclose facts to satisfy all elements of the offense.”

Id.   “A factual basis can be discerned from four sources: (1) inquiry of the

defendant, (2) inquiry of the prosecutor, (3) examination of the presentence report,

and (4) minutes of evidence.” State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010).

The record must demonstrate facts to support the offense, but it does not “need to

show the totality of evidence necessary to support a guilty conviction.” Id.

       Roby pled guilty to kidnapping in the third degree, a lesser-included offense.

Kidnapping requires (1) the confinement or removal of a person from one place to

another, (2) without the authority or consent to do so, with (3) the intent to subject

the person to sexual abuse. Iowa Code § 710.1(3) (2011). Roby challenges the

establishment of the first element, contending the record did not establish that he

confined J.M. beyond the duration of the underlying crime.

       In Rich, the supreme court determined:

       that our legislature, in enacting section 710.1, intended the terms
       “confines” and “removes” to require more than the confinement or
       removal that is an inherent incident of commission of the crime of
       sexual abuse. Although no minimum period of confinement or
       distance of removal is required for conviction of kidnapping, the
       confinement or removal must definitely exceed that normally
       incidental to the commission of sexual abuse. Such confinement or
       removal must be more than slight, inconsequential, or an incident
       inherent in the crime of sexual abuse so that it has a significance
       independent from sexual abuse. Such confinement or removal may
       exist because it substantially increases the risk of harm to the victim,
       significantly lessens the risk of detection, or significantly facilitates
       escape following the consummation of the offense.

305 N.W.2d at 745.       “[T]he kidnapping statute [is] applicable only to those

situations in which confinement or removal definitely exceeds that which is merely

incidental to the commission of sexual abuse.” Id.
                                         7


       During the plea proceedings, the court reviewed the consequences of

pleading guilty with Roby, including the rights he would be giving up by pleading

guilty. Roby confirmed he understood and wished to plead guilty. The court then

reviewed the factual basis for each essential element of the kidnapping charge.

Roby acknowledged and agreed the minutes of evidence would be considered to

form the factual basis for the plea. Roby confirmed he understood and admitted

to each of the essential elements of the kidnapping charge.

       A review of the minutes of evidence discloses that Roby grabbed J.M. when

she was at the door of her apartment, placed his hand over her mouth and then

dragged her down the stairs to his apartment, thus removing her from the entrance

to her apartment. While doing so, J.M. attempted to scream and holler in order to

attract aid. Roby’s actions suggest he chose to return to his apartment as a means

to significantly lessen the risk of detection, as once he was in his apartment, he

turned up music to a loud volume. Further, Roby placed a knife on a nightstand,

visible to J.M., and when she continued to struggle and be loud, he threatened that

“if the police come here, I’m going to kill you and myself before they even get in,”

both significantly increasing the risk of harm to J.M and lessening his risk of

detection. Roby continued to confine J.M. in his apartment for the rest of the

evening and into the next morning, forcing J.M. to have sexual intercourse multiple

times. After the sexual assaults stopped, Roby continued to confine J.M. in his

apartment and refused to allow her to leave to go to work, ordering her to call in

sick. These actions lessened his risk of detection.
                                           8


       Roby’s arguments about confinement or removal are similar to arguments

we have rejected on several occasions.1           Based upon these facts, we are

persuaded a factual basis supporting the element of confinement or removal was

established. Accordingly, counsel was not ineffective for failing to challenge the

properly entered guilty plea.

       B.     Guilty Plea

       Roby also claims his guilty plea to kidnapping in the third degree was not

voluntarily, knowingly, or intelligently given. He specifically contends the district

court failed to adequately inform him of the nature of the kidnapping charge and

his trial counsel was ineffective in permitting him to plead guilty and not challenging

the plea through the filing of a motion in arrest of judgment.

       “Due process requires the defendant enter his guilty plea voluntarily and

intelligently.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). “If a plea is not



1
  In Thompson v. State, No. 16-1348, 2017 WL 3283291, at *3 (Iowa Ct. App. Aug. 2,
2017), we cited a number of other cases in which we found a factual basis for confinement
was established. See also State v. Roche, No. 14-2052, 2016 WL 1130291, at *2 (Iowa
Ct. App. Mar. 23, 2016) (stating a reasonable juror could have found confinement was
more than incidental to sexual abuse where defendant used a knife, taped the victim’s
mouth, threatened to harm her child when she screamed, transferred her to the bedroom,
and removed her cell phone); State v. Ronnau, No. 14-0787, 2016 WL 351314, at *5 (Iowa
Ct. App. Jan. 27, 2016) (affirming conviction where defendant strangled woman until she
passed out, transported her to the other side of the street near a bush, attempted to rip
out her tongue when she tried screaming, and threatened to kill her); State v. Norem, No.
14-1524, 2016 WL 146237, at *5–6 (Iowa Ct. App. Jan. 13, 2016) (affirming conviction
where defendant beat his wife, forced her into a car, drove her home, beat her again, and
forced her to perform multiple sex acts); State v. Mesenbrink, No. 15-0054, 2015 WL
7075826, at *4 (Iowa Ct. App. Nov. 12, 2015) (affirming conviction where defendant
grabbed woman, held her at knifepoint, repeatedly told her he had to kill her, demanded
she shut-up, and pushed her between the bed and the wall); State v. Schildberg, No. 14-
1581, 2015 WL 4642503, at *1–2 (Iowa Ct. App. Aug. 5, 2015) (affirming conviction where
defendant pulled his girlfriend out of bed by her hair, broke one of her ribs, choked her
with his legs around her neck, forced her to have sex, made her go with him to a gas
station so she would not escape, kept her phone and purse away from her, and did not
allow her to leave the residence when they returned).
                                            9


intelligently and voluntarily made, the failure by counsel to file a motion in arrest of

judgment to challenge the plea constitutes a breach of an essential duty.” State v.

Philo, 697 N.W.2d 481, 488 (Iowa 2005). “Generally, a criminal defendant waives

all defenses and objections to the criminal proceedings by pleading guilty,

including claims of ineffective assistance of counsel.” Castro v. State, 795 N.W.2d

789, 792 (Iowa 2011). “One exception to this rule involves irregularities intrinsic to

the plea—irregularities that bear on the knowing and voluntary nature of the plea.”2

Id.

       Iowa Rule of Criminal Procedure 2.8(2)(b) provides that a 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.” Before accepting a

defendant’s guilty plea, the court “must address the defendant personally in open

court and inform the defendant of, and determine that the defendant understands

. . . the nature of the charge to which the plea is offered.”            Iowa R. Crim.

P. 2.8(2)(b)(1). “In determining whether a plea meets the requirements of rule

2.8(2)(b)([1]), we apply the substantial compliance standard.” State v. Weitzel, 905

N.W.2d 397, 406 (Iowa 2017). “‘Substantial compliance’ requires at a minimum

that the defendant be informed of these matters and understand them.” State v.

Loye, 670 N.W.2d 141, 151 (Iowa 2003) (quoting State v. Kress, 636 N.W.2d 12,

21 (Iowa 2001)). “[T]he court need not review and explain each element of the

crime if it is ‘apparent in the circumstances the defendant understood the nature




2
  Justice Waterman’s dissent in Schmidt v. State, 909 N.W.2d 778, 803 (Iowa 2018)
suggests the majority opinion’s recognition of freestanding claims of actual innocence has
the effect of expanding the limits of Castro.
                                          10

of the charge.’” Id. (quoting State v. Smith, 300 N.W.2d 90, 92 (Iowa 1981)). “The

extent of the trial judge’s explanation and inquiry into defendant’s understanding

varies with the circumstances of each case.” State v. Dryer, 342 N.W.2d 881, 884

(Iowa Ct. App. 1983). “If the whole record demonstrates the defendant understood

the nature of the charge when entering the plea, the absence of such inquiry will

not invalidate the conviction.” Id. “[I]f ‘the record shows the court gave misleading

or inaccurate advice concerning the nature of the offense, the requisite

understanding cannot be found.’” Loye, 670 N.W.2d at 151 (quoting Smith, 300

N.W.2d at 92). If the court fails to substantially comply with rule 2.8(2)(b) and trial

counsel does not bring that failure to the court’s attention or file a motion in arrest

of judgment, counsel fails to perform an essential duty. Straw, 709 N.W.2d at 134.

       During Roby’s plea colloquy, the court did not give misleading or inaccurate

information regarding the nature of the kidnapping offense or its elements. See

Loye, 670 N.W.2d at 151.          The court provided the essential elements of

kidnapping, as enumerated in Iowa Code section 710.1. The court then asked

Roby about each specific essential element. Roby answered in the affirmative to

each element. Further, the court asked Roby if he was familiar with the trial

information and minutes of evidence. Roby again answered affirmatively. In this

case, the minutes of evidence “explicitly described in simple and easy-to-

understand terms how the crime was committed.” Dryer, 342 N.W.2d at 884.

Based upon our review, we find the record supports the trial court’s conclusion that

Roby understood the kidnapping charge and its elements and find the court

substantially complied with rule 2.8(2)(b)(1).
                                          11


       Roby further contends his guilty plea was involuntary or unintelligent

because of his trial counsel’s ineffective assistance during plea negotiation. He

claims counsel failed to explain and define the elements of the kidnapping charge

the State was required to prove. Further, he claims his trial counsel failed to

properly assess his chances at trial which led to their faulty advisement about a

guilty plea.

        “[I]neffective-assistance-of-counsel claims survive [a] guilty plea when a

postconviction relief applicant can show trial counsel breached a duty in advance

of the guilty plea that rendered the plea involuntary or unintelligent.” Castro, 795

N.W.2d at 793. An accused has the right to effective assistance of counsel at all

critical stages of a criminal proceeding. State v. Boggs, 741 N.W.2d 492, 506

(Iowa 2007). This includes the plea-bargaining process. Dempsey v. State, 860

N.W.2d 860, 868 (Iowa 2015). A defendant may “challenge the validity of his guilty

plea by proving the advice he received from counsel in connection with the plea

was not within the range of competence demanded of attorneys in criminal cases.”

State v. Carroll, 767 N.W.2d 638, 642 (Iowa 2009). “[T]o demonstrate prejudice in

the plea-bargaining process [Roby] must show the outcome of the plea process

would have been different with competent advice.’” Dempsey, 860 N.W.2d at 869

(quoting Lafler v. Cooper, 566 U.S. 156, 163 (2012)). “[Roby] must proffer more

than his . . . own subjective, self-serving testimony.” Id.; see also State v. Tate,

710 N.W.2d 237, 241 (Iowa 2006) (“‘[C]onclusory claims of prejudice’ are not

sufficient to satisfy the prejudice element.”).

       Roby claims his plea was not knowingly, intelligently, or voluntarily made

because counsel failed to inform him of the Rich tripartite elements test. See Rich,
                                          12


305 N.W.2d at 745. We have determined above there was clearly a factual basis

for the plea. Under the facts of this case there is no question Roby’s conduct

satisfied the elements of the offense. Thus, counsel was not required to explain

to Roby the analysis of the Rich test concerning the element of confinement or

removal.3 We find no deficiency in the competency of counsel’s representation.

Further, while Roby claims that he was pressured into pleading guilty, the PCR

court found “Roby’s statements that he would not have entered his guilty pleas had

the elements of kidnapping been better explained to him are unsupported by

anything else in the record, and are self-serving at best.” We defer to the district

court’s findings and on our de novo review, we determine Roby failed to prove the

necessary prejudice to establish this claim of ineffective assistance of counsel. We

find Roby’s guilty plea to the kidnapping charge was voluntarily, knowingly, and

intelligently given. Accordingly, Roby’s trial counsel was not ineffective for failing

to file a motion in arrest of judgment to challenge his guilty plea.

       C.     Pro Se Claims

       Roby raises two claims, pro se. His claims based on right of confrontation

were waived by his guilty plea. His claims that the PCR court failed to rule on his

rule 1.904 motion after the appeal was filed are without merit. He filed a motion

for stay and for limited remand in his effort to obtain rulings on those motions. The

motion was denied by the supreme court. Without a stay, the district court had no

jurisdiction once the case was appealed, see State v. Grant, 614 N.W.2d 848, 852

(Iowa Ct. App. 2000), so it committed no error by failing to rule.


3
 Our determination is limited to this case. We offer no opinion as to the depths counsel
must go in explaining case law interpretations of elements of offenses in a guilty plea.
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We affirm the denial of Roby’s PCR application.

AFFIRMED.
