                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1850
                               Filed November 9, 2016


CHRISTOPHER ALLEN PUCCIO,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



      Appeal from the denial of postconviction relief. AFFIRMED.




      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee State.




      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

       Christopher Puccio appeals the order denying his application for

postconviction relief. Puccio raises several claims of ineffective assistance of

counsel. First, plea counsel allowed Puccio to enter a guilty plea that was not

knowing and voluntary and failed to file a motion in arrest of judgment raising the

issue. Second, plea counsel allowed Puccio to enter a guilty plea that lacked a

factual basis. Third, plea counsel failed to provide Puccio a copy of the trial

information.

       We review claims of ineffective assistance of counsel de novo. See State

v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). To prove ineffective assistance of

counsel, a defendant must show his trial counsel breached an essential duty and

prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

There is a strong presumption counsel’s performance fell within the range of

reasonable professional assistance. See Wemark v. State, 602 N.W.2d 810, 814

(Iowa 1999). The defendant must show “a reasonable probability that, but for

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

different.   A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. In the context of a

guilty plea, the defendant must establish that, but for counsel’s breach of duty,

the defendant would not have pleaded guilty and would have gone to trial. See

State v. Straw, 709 N.W.2d 128, 137 (Iowa 2006).

       Puccio pleaded guilty to forgery, in violation of Iowa Code section 715A.2

(2011), and delivery of a controlled substance, in violation of Iowa Code section

124.401. With respect to the forgery conviction, during the plea colloquy, Puccio
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admitted he attempted to use an identification card belonging to his brother to

claim gambling winnings of $7525 at a local casino.          With respect to the

controlled-substance conviction, during the plea colloquy, Puccio admitted he

met with an undercover law enforcement official and sold that individual ecstasy,

a controlled substance.     After pleading guilty to these offenses, Puccio was

placed at a residential treatment facility to await sentencing. The plea agreement

called for consecutive sentences, said sentences to be suspended. However,

Puccio absconded from the facility prior to sentencing. He was arrested shortly

thereafter, and the parties renegotiated the plea agreement.          Puccio was

sentenced to concurrent terms of incarceration.

      Puccio claims his guilty pleas were not knowing and voluntary.

Specifically, Puccio had various mental health conditions, and the jail failed to

provide him with his medications for the same, which, he alleges, rendered him

unable to understand the nature of the charges against him, the plea

proceedings, and the consequences of his pleas. Due process requires a guilty

plea be knowing and voluntary. State v. Speed, 573 N.W.2d 594, 597 (Iowa

1998). A defendant must be aware of the “constitutional protections that he gives

up by pleading guilty, [and] ‘the nature of the crime with which he is charged’ and

the potential penalties.”   State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003)

(citation omitted). Ideally, the court explains the elements of the charge. See

Brainard v. State, 222 N.W.2d 711, 714 (Iowa 1974). However, the court need

not review and explain each element of the crime if it is apparent the defendant

understands the nature of the charge. See Loye, 670 N.W.2d at 151. We look

for substantial compliance—that is, that the defendant be informed of the items
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listed in the rule and understand them. See State v. Victor, 310 N.W.2d 201, 204

(Iowa 1981); State v. Oberbreckling, 235 N.W.2d 121, 122 (Iowa 1975); State v.

Sanders, No. 03-1734, 2004 WL 2169748, at *2 (Iowa Ct. App. Sept. 29, 2004).

       The record reflects Puccio did have several mental health diagnoses at

the time of his guilty pleas.     However, none of his stated diagnoses was

presented as rendering him unable to understand the nature of the charges

against him, the plea proceedings, or the consequences of pleading guilty.

Similarly, the lack of medication was not presented as having any effect on

Puccio’s ability to understand the nature of the charges against him, the plea

proceedings, or the consequences of pleading guilty. To the contrary, Puccio

informed the court he was capable of understanding the proceedings and

confident in the information he had discussed with counsel. The plea colloquy

reflects Puccio’s ability to understand the nature of the charges, the nature of the

proceedings, and the consequences for pleading guilty. See Castro v. State, 795

N.W.2d 789, 795–96 (Iowa 2011) (affirming grant of summary judgment where

defendant stated he understood proceedings and guilty plea during colloquy);

Borrego v. State, No. 14-1590, 2015 WL 5577765, at *1, 3–4 (Iowa Ct. App.

Sept. 23, 2015) (affirming denial of postconviction relief where colloquy

demonstrated understanding of charges and consequences). Puccio’s counsel

testified he did not have any difficulty in communicating with Puccio during the

pendency of the criminal proceedings and had no reason to believe Puccio was

unable to understand the proceedings.

       Where, as here, “an applicant’s assertions concerning the knowing and

intelligent nature of a guilty plea are directly contradicted by the record, the
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applicant bears a special burden to establish that the record is inaccurate.”

Arnold v. State, 540 N.W.2d 243, 246 (Iowa 1995). Puccio did not carry that

burden. We agree with the district court’s assessment of Puccio’s claim, “This is

a case of buyer’s remorse, one in which Puccio unwisely absconded from

supervision pending sentencing, thereby putting himself in a position where his

sentence would more likely be imposed rather than suspended.” Accordingly, we

conclude counsel did not breach an essential duty in failing to file a meritless

motion in arrest of judgment. See State v. Brubaker, 805 N.W.2d 164, 171 (Iowa

2011) (“We will not find counsel incompetent for failing to pursue a meritless

issue.”).

       Puccio next argues there was no factual basis for the guilty pleas. A court

must ensure a guilty plea is supported by a factual basis before accepting that

plea. See Iowa R. Crim. P. 2.8(2)(b); State v. Schminkey, 597 N.W.2d 785, 788

(Iowa 1999). In determining whether a factual basis exists, a court considers “the

entire record before [it] at the guilty plea hearing, including any statements made

by the defendant, facts related by the prosecutor, and the minutes of testimony.”

State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).           The record “need only

demonstrate the facts that support the offense.” State v. Velez, 829 N.W.2d 572,

576 (Iowa 2013). Counsel breaches an essential duty by allowing a defendant to

plead guilty where a factual basis does not exist, and prejudice is inherent. See

Schminkey, 597 N.W.2d at 788.

       Here, the record establishes a factual basis for the pleas. Puccio admitted

the elements of each of the offenses. Puccio also admitted that if the witnesses

identified in the minutes testified as set forth in the minutes, then there would be
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sufficient evidence to convict him of the charges.        Puccio’s real complaint

appears to be the plea colloquy was brief and the plea court should have asked

more open-ended questions to develop the elements. The argument is without

merit. While that might be better practice, it is not required. Here, the plea court

asked Puccio questions regarding the elements of the offenses, and Puccio

admitted to each of the elements.        Nothing more was required.       We thus

conclude counsel was not ineffective in failing to challenge the factual basis for

the guilty pleas or the nature of the plea colloquy.

       Finally, Puccio argues his counsel failed to provide him with a copy of the

trial information and minutes of testimony. See Iowa R. Crim. P. 2.8(1) (“The

defendant shall be given a copy of the indictment or information before being

called upon to plead.”). We conclude the claim is without merit. Puccio’s trial

counsel testified he met with Puccio on multiple occasions to discuss this case.

It was counsel’s standard practice to provide a copy of the trial information to his

clients, although he could not specifically remember giving a copy to Puccio.

There was no reason why he would not have given Puccio a copy of the trial

information in accord with his standard practice. Evidence of standard office

practices may be sufficient to raise a presumption the act was done on the

occasion in question. See State v. Williams, 445 N.W.2d 408, 411 (Iowa Ct. App.

1989). The district court credited counsel’s testimony. The district court’s finding

is supported by substantial evidence, and we will not disturb it. See Carroll v.

State, 466 N.W.2d 269, 271 (Iowa Ct. App. 1990).
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       For the above-stated reasons, we conclude the district court did not err in

dismissing Puccio’s application for postconviction relief. We affirm the judgment

of the district court.

       AFFIRMED.
