                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0600
                             Filed January 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN JAMES ELPHIC,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Franklin County, Peter B. Newell,

District Associate Judge.



      A defendant contends his guilty plea to harassment in the first degree

lacked a factual basis.      REVERSED AND REMANDED FOR FURTHER

PROCEEDINGS.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, and Daniel F. Wiechmann Jr., County Attorney, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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TABOR, J.

       After a citizen alerted law enforcement to several disturbing posts

Jonathan Elphic allegedly made on his Facebook page, the State charged him

with first-degree harassment, an aggravated misdemeanor, and threat of

terrorism, a class “D” felony. In return for his guilty plea to harassment, the State

dismissed the terrorism charge. On appeal, Elphic contends the district court did

not inform him of the nature of the offense and alleges his attorney was

ineffective in letting him enter a guilty plea without a factual basis for the

harassment charge. He also challenges aspects of his sentence.

       Because the images Elphic acknowledged posting did not support a

factual basis for harassment, we reverse his conviction and remand for further

proceedings.

I.     Background Facts and Proceedings

       According to the minutes of testimony, this case started with private

messaging on Facebook between Elphic and Jackie Brehme-Hunt on the

evening of November 20, 2013.          Brehme-Hunt initiated a conversation with

Elphic, asking if he had a chance to see his son that day. Elphic’s response was

disgruntled and disjointed, including the following statement: “Hypnotizing Adam

Blau[1] as we speak to Barge into the High School at lunch and Kill students.”

When Brehme-Hunt chastised Elphic for the content of his message, he offered

another rambling response:




1
 Blau is a Franklin County sheriff’s deputy, but had no involvement in Elphic’s Facebook
communications.
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              I home school I’m a Doctor, IDC And neither did anyone Else
       So IDC, I’m a Mass Murdering Millionaire I have half The Town
       Under Hypnosis, They’ll get the Message Taking Children away to
       teach people Lessons, Jesus Loves Me More, Adam Blau will kill at
       lunch time
              SORRY!!

Elphic continued to refer to hypnotizing, killing, and mass murder as the

conversation continued. At the end of the private messages, Elphic posted a

“YouTube” link that he described as a “self-edited video” that he performed with

an Iowa rap artist.

       Then at 7:18 p.m., Elphic posted the following public message:

               There Will be a Human Under Mind Control Lunch Time
       High school It’s our Job, no one can Stop us, If you Love your Child
       You’ll send them home for lunch. . . K?!

       Elphic followed that message by posting four photographs of infamous

shooters, including Christopher Dorner, Jared Loughner, Mark Becker, and

James Holmes.         He also posted a dozen gruesome photographs depicting

bloody bodies and decapitations.

       Brehme-Hunt called the Hampton Police Department to report Elphic’s

disturbing messages. Police arrested Elphic at 8:34 p.m.—charging him with

disorderly conduct and harassment.      The arrest report indicated Elphic was

“drunk” at the time of his arrest. The arresting officer asked Elphic why he would

send such messages, and Elphic said it was his First Amendment right, and “he

really feels like someone should go to the school and shoot up the place,” but

“advised he would not do it.” Elphic told the officer “he did not threaten to kill

students at the school, he said he was going to have someone else do it.”
                                          4



      Six days later, the State filed its trial information, alleging two counts:

harassment in the first degree, in violation of Iowa Code section 708.7(1)(a)(1)

(2013), and threat of terrorism in violation of Iowa Code section 708A.5.

      In return for the State’s dismissal of the terrorism charge, Elphic entered a

guilty plea to harassment in the first degree on February 3, 2014. In his written

guilty plea, he stated he was twenty-nine years old and had completed a GED.

The written plea also listed the rights he was giving up, stated that the State

would recommend a two-year suspended sentence, and stated that as a

condition of his probation, he would undergo a mental health evaluation and

comply with its recommendations. The plea listed the elements of harassment,

but omitted the element that enhances harassment to first degree.

      As far as a factual basis for the crime, the written plea stated: “I admit to

the court that on or about the 20th day of November 2013 I posted a number of

photographs on Facebook which were graphic and could have been interpreted

as annoying or threatening to another.”

      Elphic appeared for a plea hearing on February 24, 2014. He had been in

custody since his arrest. Instead of a full colloquy under Iowa Rule of Criminal

Procedure 2.8(2)(b), the district court referred Elphic to the written plea and his

previous discussions with defense counsel. In regard to the factual basis for the

plea, the court engaged in the following exchange with Elphic:

             Q. And Mr. Elphic, it is my understanding that you posted
      some message on Facebook that you were going to kill some
      children at the high school. A. No, Your Honor.
             Q. All right. What is it that you did that makes you feel that
      you committed this offense? A. Put threatening photographs that
      could be considered a threat.
                                         5



             Q. Okay. So you communicated with someone through
      electronic communication without a legitimate purpose and in a
      manner that was likely to cause them alarm or fear. Is that correct?
      A. Yes, Your Honor.

The court also asked defense counsel and the county attorney if it could “rely on

the minutes of testimony as a factual basis as well” and they responded

affirmatively. The court accepted Elphic’s plea to the aggravated misdemeanor.

At an April 7, 2014 sentencing hearing, the court imposed an indeterminate two-

year prison term. Elphic now appeals.

II.   Principles for Challenging Guilty Plea/Standards of Review

      Before accepting a guilty plea, the district court is required to find a factual

basis supporting the plea.    Iowa R. Crim. P. 2.8(2)(b); State v. Finney, 834

N.W.2d 46, 61 (Iowa 2013). A factual basis differs from the evidence required at

a trial to prove a defendant’s guilt beyond a reasonable doubt. Finney, 834

N.W.2d at 62 (“Our cases do not require that the district court have before it

evidence that the crime was committed beyond a reasonable doubt, but only that

there be a factual basis to support the charge.” citing State v. Ortiz, 789 N.W.2d

761, 768 (Iowa 2010)). Establishing a factual basis requires the defendant “to

acknowledge facts that are consistent with the elements of the crime.” Rhoades

v. State, 848 N.W.2d 22, 30 (Iowa 2014).

      We review ineffective assistance of counsel claims de novo because they

are grounded in the Sixth Amendment. State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012). Elphic bears the burden to prove by a preponderance of evidence

his plea counsel breached an essential duty and the breach resulted in prejudice.

See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland v.
                                            6



Washington, 466 U.S. 668, 687 (1984)). If counsel permitted Elphic to plead

guilty and to waive his right to file a motion in arrest of judgment when the record

revealed no factual basis to support the guilty plea to harassment, counsel

breached an essential duty.2 See State v. Philo, 697 N.W.2d 481, 485 (Iowa

2005). In the absence of a factual basis, we presume prejudice. See State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

III.   Analysis of Factual Basis Claim

       Elphic entered a plea of guilty to harassment in the first degree, which

included the following elements:

               1. a. A person commits harassment when, with intent to
       intimidate, annoy, or alarm another person, the person does any of
       the following:
                      (1) Communicates with another by telephone,
       telegraph, writing, or via electronic communication without
       legitimate purpose and in a manner likely to cause the other person
       annoyance or harm.
               ....
               2. a. A person commits harassment in the first degree when
       the person commits harassment involving a threat to commit a
       forcible felony . . . .

Iowa Code § 708.7(1)(a)(1), (2)(a) (2013).

       “At the time of the guilty plea, the record must disclose facts to satisfy all

elements of the offense.” Rhoades, 848 N.W.2d at 29. Both in his written plea

and at the plea hearing, Elphic expressly narrowed the evidence that could be

considered in support of a factual basis. In both forums his only admission was

to posting the graphic photographs. When the district court directly asked Elphic


2
  Two justices of our supreme court have observed that this tool to examine the factual
basis for guilty pleas is more akin to plain-error review than a determination counsel was
incompetent. See Rhoades v. State, 848 N.W.2d 22, 33–34 (Iowa 2014) (Mansfield, J.,
specially concurring).
                                            7



if he conveyed the Facebook messages saying he was going to “kill some

children at the high school,” Elphic responded: “No, Your Honor.” Elphic then

acknowledged posting photographs “that could be considered to be a threat.”

The court next affirmed Elphic’s admission to communicating without legitimate

purposes and in a manner likely to cause the recipient alarm or fear. The court

then asked defense counsel whether it could rely on the minutes to satisfy a

factual basis as well, and counsel replied: “yes.”

         On appeal, Elphic argues the court’s authorization to consider the minutes

of evidence in support of the factual basis would “necessarily be limited to the

photographs” and would not include “the text of the verbal messages.” Elphic

contends the photographs alone do not establish a threat to commit a forcible

felony. He asserts the photographs were “from a publicly available source such

as the internet” and there was “no indication that the photographs were taken by

Elphic or that he was responsible for the grisly scenes depicted in a number of

them.”

         The State argues Elphic’s plea was not rendered invalid by his “apparent

denial during the plea colloquy of posting messages other than the photographs.”

In support of its argument, the State cites North Carolina v. Alford, 400 U.S. 25,

37-38 (1970) for the proposition that a defendant may take the benefit of a plea

deal while maintaining his innocence to some or all of the facts supporting the

charge.3 We reject the State’s argument because Elphic did not enter an Alford



3
 The State also cites United States v. Gaskins, 485 F.2d 1046, 1047–49 (D.C. Cir.
1973), which held it was an abuse of discretion for a district court to refuse to accept a
guilty plea based on a defendant’s denial of guilt where the record otherwise shows a
                                         8



plea. Elphic did not acknowledge at the plea hearing that his interests required

entry of a guilty plea despite the State’s strong evidence of his actual guilt. See

State v. Klawonn, 609 N.W.2d 515, 521 (Iowa 2000) (noting that when a

defendant professes innocence, “an Alford plea is only entertained after the

‘defendant intelligently concludes that his interests require entry of a guilty plea

and the record before the judge contains strong evidence of actual guilt’”).

       Instead, Elphic flatly denied the conduct which arguably established a

threat to commit a forcible felony, the element which enhanced the offense to

harassment in the first degree. At least one other jurisdiction has determined it is

error for a court to find a factual basis exists “when the defendant actively

contests a fact constituting an element of the offense in the absence of

circumstances warranting the conclusion that the defendant’s protestations are

‘unworthy of belief.’” See United States v. Culbertson, 670 F.3d 183, 190–91 (2d

Cir. 2012).

       Generally when a defendant alleges a Sixth Amendment violation

stemming from the lack of a factual basis, the relevant inquiry involves “an

examination of whether counsel performed poorly by allowing [his client] to plead

guilty to a crime for which there was no objective factual basis in the record.”

Finney, 834 N.W.2d at 62. For that purpose, recourse to the entire record to

determine a factual basis is appropriate. Id.

       But the question in this case is whether counsel performed poorly by

allowing Elphic to plead guilty to harassment in the first degree when he


factual basis. We note Gaskins has been rejected by numerous other courts. See State
v. Paris, 578 S.E.2d 751, 752 n.6 (S.C. Ct. App. 2003) (collecting federal cases).
                                            9



expressly denied a critical element of the offense at the plea hearing. Elphic

denied sending Facebook messages that contained a threat4 to commit a forcible

felony.    Moreover, Elphic did not acknowledge the State’s evidence strongly

negated his claim of innocence on that element as would be required for a valid

Alford plea. See State v. Knight, 710 N.W.2d 83, 84–85 (Iowa 2005). Under

these circumstances, Elphic’s counsel was ineffective in permitting him to go

forward with the guilty plea to harassment in the first degree. Accordingly, we

reverse his conviction and remand to allow the State an opportunity to proceed

against Elphic under the original trial information.5        See State v. Gines, 844

N.W.2d 437, 442 (Iowa 2014).

          REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.




4
   Our courts have interpreted the statutory term “threat” to mean a “true threat,” i.e.,
“understandable as a threat by a reasonable person of ordinary intelligence.” See State
v. Soboroff, 798 N.W.2d 1, 8 (Iowa 2011) (citing State v. Milner, 571 N.W.2d 7, 10 (Iowa
1997) (interpreting “threat” in Iowa Code section 712.8)). If a reasonable person would
view the expression as a joke, idle talk, or statements of political hyperbole, it is not a
“true threat.” Id.
5
  Given our reversal on this ground, it is not necessary to address Elphic’s other claims.
