                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0776
                               Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DESHAUN LONTE TROMBONE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Glen E. Pille, Judge.



      DeShaun Trombone appeals the district court’s sentencing order on

remand. AFFIRMED.




      Karmen R. Anderson of Anderson & Taylor, P.L.L.C., Des Moines, for

appellant.

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

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

       DeShaun Trombone entered Alford pleas1 to possession of a simulated

controlled substance (MDMA) with the intent to deliver, as well as another crime.

On appeal, the court of appeals concluded the possession crime lacked a factual

basis. State v. Trombone, No. 15-1696, 2016 WL 5484893, at *2-3 (Iowa Ct. App.

Sept. 28, 2016). We stated:

       The minutes of testimony show officers found eighty-one “multi-
       colored tablets” they initially thought were MDMA, but after testing,
       the pills were determined to be caffeine. [It was] noted Trombone,
       on occasion, had taken “small yellow pills and multi-colored pills.”
       The record lacks any specific reference to Trombone selling the
       caffeine pills or representing the caffeine pills as MDMA.

Id. at *3. We vacated this portion of Trombone’s conviction and remanded “to allow

the State to demonstrate whether a factual basis exists.” Id.

       On remand, the State filed a notice of additional/substituted witnesses. The

notice elaborated on the nature of the pills and stated the officer’s belief that the

number and packaging was consistent with possession to deliver or distribute. The

district court found, “[T]he additional Minutes do substantiate the charge of

Possession of a Simulated Controlled Substance with Intent to Deliver.” The court

concluded “the original sentence shall stand.” In this appeal from the remand

order, Trombone contends his prior appellate attorney was ineffective in “fail[ing]

to request an appropriate remedy thereby prejudicing him when he was

resentenced.”




1
  North Carolina v. Alford, 400 U.S. 25, 37 (1970). An Alford plea allows a defendant to
plead guilty to a crime without admitting to the underlying facts that establish the crime.
See id.
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       In the first appeal, this court ordered a remedy authorized by the Iowa

Supreme Court. See Rhoades v. State, 848 N.W.2d 22, 33 (Iowa 2014) (“Because

it is possible the State can establish a factual basis, the district court should order

the court in the criminal case to give the State the opportunity to establish a factual

basis.” (citing State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014), and Ryan v. Iowa

State Penitentiary, 218 N.W.2d 616, 620 (Iowa 1974))). Accordingly, Trombone

cannot establish his appellate attorney was ineffective in failing to argue for a

different remedy. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (setting

forth elements of ineffective-assistance-of-counsel claim).

       We affirm the district court’s judgment and sentence on remand.

       AFFIRMED.
