                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0274
                             Filed January 23, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

REBECCA JONES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Harrison County, Mark J. Eveloff,

Judge.



      Rebecca Jones appeals her conviction, following an Alford plea, of first-

degree arson. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



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

        Rebecca Jones appeals her conviction, following an Alford plea,1 of first-

degree arson. She argues her counsel rendered ineffective assistance in allowing

her to plead guilty absent a sufficient factual basis to support the charge and failing

to file a motion in arrest of judgment to challenge the plea. Although Jones failed

to file a motion in arrest of judgment, she may challenge her plea through a claim

of ineffective assistance of counsel. See State v. Weitzel, 905 N.W.2d 397, 401

(Iowa 2017). Our review of such claims is de novo. See State v. Harris, 919

N.W.2d 753, 754 (Iowa 2018). Jones must show by a preponderance of the

evidence that (1) counsel failed to perform an essential duty and (2) prejudice

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

Harrison, 914 N.W.2d 178, 188 (Iowa 2018).

        A factual basis is a prerequisite to the court’s acceptance of an Alford plea.

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

1999). If counsel allows a defendant to plead guilty and waives the defendant’s

right to file a motion in arrest of judgment when there is an inadequate factual basis

to support the charge, counsel breaches an essential duty and prejudice is

presumed. Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). A factual basis

exists when the record, as a whole, discloses facts to satisfy the elements of the

crime. See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). “The record does not

need to show the totality of evidence necessary to support a guilty conviction, but




1See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of [a] crime may
voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if
he is unwilling or unable to admit his participation in the acts constituting the crime.”).
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it need only demonstrate facts that support the offense.” State v. Ortiz, 789 N.W.2d

761, 768 (Iowa 2010).

        The crime of arson in the first degree consists of the following elements: (1)

The defendant either (a) caused a fire or explosion or (b) placed any burning or

combustible material or any incendiary or explosive device or material in or near

any property; (2) the defendant either (a) intended to destroy or damage such

property or (b) knew such property would probably be destroyed or damaged; and

(3) the presence of one or more persons could be reasonably anticipated in or near

the subject property. See Iowa Code §§ 712.1(1), .2 (2017).2

        The minutes of evidence reveal the following facts. On or about November

4, 2017, a fire occurred at an occupied apartment and business building in Missouri

Valley, Iowa. Officer Dezeeuw was on routine patrol at 12:30 p.m. when he was

notified of the fire. Upon his arrival, he noticed smoke and flames emanating from

the structure’s second-floor apartments.                 Fire agencies responded and

extinguished the fire. The fire started in a second-floor entryway between two

nearby apartments, one being occupied by Jamie Mathis and the other being

unoccupied. Based upon his visual observations, Officer Haken believed the fire

was aided by an accelerant. The value of the damages to the building exceeded

$10,000.




2 Arson does not include situations in which
        a person who owns said property which the defendant intends to destroy or
        damage, or which the defendant knowingly endangers, consented to the
        defendant’s acts, and where no insurer has been exposed fraudulently to any risk,
        and where the act was done in such a way as not to unreasonably endanger the
        life or property of any other person . . . .
Iowa Code § 712.1(1).
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      While on the scene, Haken was approached by an employee of the first-

floor salon, who reported Jones came into the salon, “grabbed a handful of

newspapers and walked out.” The employee reported she smelled smoke within

ten to fifteen minutes after Jones left the salon. Another witness reported to law

enforcement he observed smoke and flames coming from the structure’s second

floor as he was driving by. This witness initially observed that the exterior door

leading to the stairs to the second floor was open but when he drove by again

moments later, he observed Jones walk down the stairs, exit and close the door,

and then leave the scene on foot. Another witness reported that Jones had

recently indicated to her that she was upset with her roommate, Mathis, for several

reasons.

      At 1:20 p.m., Dezeeuw reported to nearby railroad tracks in response to a

report from railroad employees regarding a female walking on the tracks.

Dezeeuw located Jones and arrested her for trespass. Dezeeuw knew Jones to

commonly reside in the building in which the fire started and questioned whether

she was aware of the fire. Jones simply advised she did not live there. While

transporting Jones to jail, Dezeeuw noticed Jones smelled of smoke, not like

“cigarette smoke,” but instead like “campfire smoke.” Later, before interviewing

Jones, Haken retrieved her clothes from the inmate property room, on which he

detected the odors of smoke and an ignitable liquid.

      The minutes of evidence make clear that someone engaged in conduct

amounting to arson in the first degree. The only question is whether the minutes

demonstrate facts that support a conclusion that Jones was that someone. See

Ortiz, 789 N.W.2d at 768. Upon our review, we answer that question in the
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affirmative. Jones had recently indicated her frustration and disdain for Mathis,

her roommate.     An accelerant-aided fire was started just outside of Mathis’s

apartment. Shortly before the fire, Jones retrieved “a handful of newspapers” from

the nearby salon. After the fire started, Jones was seen exiting the area where the

fire commenced, shutting the door behind her, and then leaving on foot. Jones

was located nearby. Dezeeuw knew Jones to commonly reside in the building, but

when confronted about her knowledge of the fire, she denied living there.

Dezeeuw smelled smoke on Jones’s person, and Haken detected the odors of

smoke and an ignitable liquid on Jones’s clothing.

       Jones’s plea to arson in the first degree enjoys a factual basis.

Consequently, we conclude counsel did not render ineffective assistance in

allowing her to plead guilty or in failing to challenge the plea by way of a motion in

arrest of judgment. We affirm Jones’s conviction.

       AFFIRMED.
