                       IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0809
                               Filed March 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CORION J. PURSLEY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Corion Pursley appeals following his guilty pleas to possession of marijuana

and carrying a concealed weapon. AFFIRMED.



       Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C., Mason

City, for appellant.

       Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

        Corion Pursley entered a written guilty plea to possession of marijuana (first

offense) and an Alford plea1 to carrying a concealed weapon. The district court

imposed sentence. On appeal, Pursley argues: (I) the district court “erred in

accepting [his] guilty plea [to the concealed weapon charge] and trial counsel was

ineffective for failing to challenge the plea where no factual basis existed in the

record on the carrying weapons charge”; (II) the court “erred in accepting a plea

that was not knowing and voluntary”; and (III) his trial counsel “was ineffective for

failing to fully apprise [him] of the consequences of a conviction prior to [his] plea

of guilty.”

I.      Factual Basis – Carrying a Concealed Weapon

        Pursley argues his Alford plea to carrying a concealed weapon lacked a

factual basis. The State counters that Pursley failed to preserve error by filing a

motion in arrest of judgment.       See Iowa R. Crim. P. 2.8(2)(d).        The State

acknowledges “a claim of ineffective assistance of counsel may rescue Pursley

from his failure to file a motion in arrest of judgment” but asserts such a claim was

not raised. We disagree.

        Pursley framed the issue in terms of counsel’s failure to challenge the

factual basis for the plea. Because he raised his challenge under an ineffective-

assistance-of-counsel rubric, we may proceed to the merits. See State v. Weitzel,

905 N.W.2d 397, 401 (Iowa 2017).




1
  An Alford plea is a variation of a guilty plea where the defendant does not admit
participation in the acts constituting the crime but consents to the imposition of a
sentence. North Carolina v. Alford, 400 U.S. 25, 37 (1970).
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       Pursley must prove his plea attorney breached an essential duty and

prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

“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.”      State v. Ortiz, 789 N.W.2d 761, 764-65 (Iowa 2010)

(internal citations omitted).

       The crime of carrying a concealed weapon is set forth as follows:

       Except as otherwise provided in this section, a person who goes
       armed with a dangerous weapon concealed on or about the person,
       or who, within the limits of any city, goes armed with a pistol or
       revolver, or any loaded firearm of any kind, whether concealed or
       not, or who knowingly carries or transports in a vehicle a pistol or
       revolver, commits an aggravated misdemeanor.

Iowa Code § 724.4(1) (2017). A weapon is concealed when “it is not discernible

by ordinary observation.” State v. Newsom, 563 N.W.2d 618, 620 (Iowa 1997).

       According to the minutes of evidence, Pursley and another man came to a

Cedar Falls fraternity party. An attendee saw Pursley with his hand in his jacket.

She felt he had a gun. Another attendee saw Pursley take a gun out of his

underwear and hand it to the other man, who ran upstairs. Shots were fired.

Pursley and the other man left and were later apprehended. Pursley was wearing

a black hoodie. A person near the party location saw a person in a black hoodie

climb over her chain-link fence. The man smelled of gunshot residue.

       The minutes of evidence established a factual basis for the Alford plea, and

counsel did not breach an essential duty in failing to challenge the factual basis via

a motion in arrest of judgment.
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II.    Knowing and Voluntary Plea

       Pursley next argues his plea was not knowing and voluntary. Pursley did

not file a motion in arrest of judgment and does not now raise the issue under an

ineffective-assistance-of-counsel rubric. Error was not preserved.

III.   Consequences of Plea

       Pursley argues “he did not understand that the total number of years he

would face on this charge” and on charges in another case “would be as great as

he received.” He refers to a letter he filed with the district court after sentencing.

In his view, his attorney failed to “fully apprise” him of the “consequences of a

conviction” before he “pled guilty.”

       Pursley was sentenced in two separate cases and had different attorneys

in each case. It is unclear from his letter or argument which attorney he believes

was ineffective and in precisely what respect.         We preserve this claim for

posconviction relief to permit his counsel to weigh in on the issue. State v. Biddle,

652 N.W.2d 191, 203 (Iowa 2002).

       AFFIRMED.
