                   IN THE COURT OF APPEALS OF IOWA

                                     No. 18-1191
                                  Filed May 1, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RODNEY LEWIS COCKHREN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      Rodney Cockhren appeals his conviction after pleading guilty to burglary in

the second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Robert P.

Ranschau, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.
                                              2


VOGEL, Chief Judge.

       Rodney Cockhren appeals his conviction and sentence after he entered into

an Alford1 plea for second-degree burglary. He claims he received ineffective

assistance of counsel because his counsel allowed him to enter into the Alford plea

despite a lack of factual basis for the plea. We find Cockhren may not rely on the

additional minutes of evidence that were filed after his notice of appeal and find

counsel was not ineffective because a factual basis exists for the plea.

    I. Background Facts and Proceedings

       On March 24, 2018, Cockhren attempted to see his ex-girlfriend at her

residence. The two had previously lived together, but their five-month relationship

and cohabitation ended one month prior to the March visit. The night of March 24,

the ex-girlfriend reported Cockhren broke down her door, entered the residence,

and strangled her. Cockhren was arrested and charged with burglary, two counts

of domestic assault, and criminal mischief.

       On July 6, Cockhren entered an Alford plea for burglary in the second

degree, in violation of Iowa Code section 713.5 (2018), and pled guilty to domestic

abuse assault by impeding the air or blood flow of another and causing bodily

injury, in violation of Iowa Code section 708.2A(5); criminal mischief in the third

degree, in violation of Iowa Code section 716.1; and domestic abuse assault

causing bodily injury or mental illness, in violation of Iowa Code section

708.2A(2)(b). He was sentenced to periods of incarceration not to exceed ten

years for the burglary offense, five years for one domestic-abuse-assault offense,


1
  North Carolina v. Alford, 400 U.S. 25, 37 (1970) (permitting a defendant to plead guilty
to a crime without admitting participation in the underlying facts that constitute the crime).
                                                 3


two years for the criminal-mischief offense, and one year for the second domestic-

abuse-assault offense, all to be served concurrently. Cockhren filed his notice of

appeal on July 11.

          The State filed additional minutes of evidence on July 25.2 On November

26, the State moved to strike Cockhren’s brief, arguing Cockhren could not rely on

the additional minutes since it was filed after he appealed. Cockhren resisted the

motion and claimed the additional minutes should be part of the record for many

reasons.       An order from our supreme court was filed on January 11, 2019,

instructing the parties to brief the issue regarding the additional minutes of

evidence.

      II. Standard of Review

          “A claim of ineffective assistance of counsel requires a de novo review

because the claim is derived from the Sixth Amendment of the United States

Constitution.” Bowman v. State, 710 N.W.2d 200, 204 (Iowa 2006). This includes

ineffective-assistance claims stemming from claims a guilty plea lacked a factual

basis. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). “Claims of ineffective

assistance of counsel are generally preserved for postconviction relief

proceedings. Where the record is adequate to address the issue, however, such

claims will be considered on direct appeal.” State v. Schminkey, 597 N.W.2d 785,

788 (Iowa 1999).




2
    The reason for the late filing is not in the record.
                                          4


   III. Additional Minutes of Evidence

       Cockhren argues the additional minutes of evidence are part of the record

because the depositions were taken and the transcripts were completed before he

appealed, his trial counsel would have known of the evidence when Cockhren pled

guilty, and the State intended the minutes to be part of the record by filing them.

The State asserts the additional minutes are not part of the record because the

minutes were filed after Cockhren filed his notice of appeal. Therefore, the State

claims his reliance on the minutes in his brief is inappropriate.

       “Notice of appeal from a judgment permits the appealing party to raise all

issues properly preserved.” State v. Formaro, 638 N.W.2d 720, 727 (Iowa 2002).

Generally, the filing of a notice of appeal deprives the district court of jurisdiction

for any case progression after the point of filing. See Iowa State Bank & Trust Co.

v. Michel, 683 N.W.2d 95, 110 (Iowa 2004). Cockhren filed his notice of appeal on

July 11, and the State filed the additional minutes on July 25. To be part of the

record, Cockhren needed to file an amended notice of appeal or a subsequent

appeal. See Formaro, 638 N.W.2d at 727 (finding the defendant had improperly

appealed a bail issue because he relied on his notice of appeal that was filed

before the district court ruled on the bail issue). Because he did neither, we find

the additional minutes are not part of the record. See In re Marriage of Keith, 513

N.W.2d 769, 771 (Iowa Ct. App. 1994) (“We are limited to the record before us and

any matters outside the record on appeal are disregarded.”).

   IV. Ineffective Assistance of Counsel

       Cockhren claims his counsel was ineffective by allowing him to enter an

Alford plea when there was no factual basis for the second-degree burglary
                                               5


offense. To prevail on an ineffective-assistance claim, the claimant must show

counsel failed to perform an essential duty and such failure resulted in prejudice.

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland v. Washington,

466 U.S. 668, 687–88 (1984)). “Where a factual basis for a charge does not exist,

and trial counsel allows the defendant to plead guilty anyway, counsel has failed

to perform an essential duty.”          Schminkey, 597 N.W.2d at 788 (Iowa 1999).

Moreover, “[p]rejudice in such a case is inherent.” Id. “In deciding whether a

factual basis exists, we consider the entire record before the district court at the

guilty plea hearing . . . .” Id.

          Cockhren specifically asserts there is a lack of a factual basis for one

element of burglary3—his right to occupy the residence had expired. Cockhren

claims his name on the lease along with the ex-girlfriend’s initials indicate he had

a right to occupy the residence. He also points to the additional minutes of

evidence to support his ineffective-assistance claim; however, as previously

discussed, the additional minutes are not part of the record.

          According to the record before us, Cockhren moved out of the residence

and his parole officer forbade him from visiting or residing there. Cockhren even

told his parole officer he had moved in with his sister. About one month after

moving out, on March 24, Cockhren attempted to contact his ex-girlfriend by phone

without success as she was ignoring him. He then knocked on his ex-girlfriend’s



3
    Iowa Code section 713.1 provides, burglary occurs when
                   [a]ny person, having the intent to commit a felony, assault or theft
         therein, who, having no right, license or privilege to do so, enters an
         occupied structure, such occupied structure not being opened to the public,
         or who remains therein after it is closed to the public or after the person’s
         right, license or privilege to be there has expired . . . .
                                         6


door for about one hour before kicking in the door and strangling her. Our supreme

court has held “that whether one has a right or privilege to enter property is not

determined solely by his or her ownership interest in the property,” and “the focus

under our burglary statute is on whether the defendant had any possessory or

occupancy interest in the premises at the time of entry.” State v. Hagedorn, 679

N.W.2d 666, 670 (Iowa 2004) (emphasis added). Cockhren was not a “tenant” on

the lease but was only listed as someone who could “use” the residence.

Regardless of whether Cockhren’s name on the lease made him a resident or an

authorized guest at one time, at the time of entry on March 24, he did not have a

possessory or occupancy interest. See id. He had moved out of the residence,

allegedly moved in with his sister, did not have a key to the residence, and the

current occupant, his ex-girlfriend, did not want him to enter the residence. See

id. at 671 (finding a husband did not have an absolute right to enter a marital home

after he moved out when he and his wife separated).            Therefore, we find

Cockhren’s counsel was not ineffective because the factual basis to support his

Alford plea included that Cockhren had “no right, license or privilege” to enter the

ex-girlfriend’s residence.

   V. Conclusion

       We find Cockhren may not rely on the additional minutes of evidence filed

after his notice of appeal and conclude counsel was not ineffective in allowing him

to enter into an Alford plea.

       AFFIRMED.
