                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1011
                                Filed May 29, 2014


MASCHELLE DUFF,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Marshall County, James C.

Ellefson, Judge.



       Maschelle Duff appeals the district court’s denial of her application for

postconviction relief. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, Des Moines, for appellant.

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

General, Jennifer Miller, County Attorney, and Sarah Tupper, Assistant County

Attorney, for appellee State.




       Considered by Vogel, P.J., and Doyle and Mullins, JJ.
                                         2


DOYLE, J.

       Maschelle Duff appeals the district court’s denial of her application for

postconviction relief following her 2012 plea of guilty to assault with a dangerous

weapon and child endangerment, both aggravated misdemeanors.              Upon our

review, we affirm the order denying Duff’s application for postconviction relief.

I.     Background Facts and Proceedings

       The following can be deduced from the record. After an argument with her

fourteen-year-old daughter S.D., Maschelle Duff followed S.D. in her car when

S.D. left home on her bicycle. Duff swerved the car into S.D., striking S.D. in her

upper leg and hip. Duff then tackled S.D. and hit the child several times.

       The State charged Duff with willful injury, child endangerment, and assault

with a dangerous weapon.         Duff signed a written plea of guilty to child

endangerment, in violation of Iowa Code section 726.6(1)(a) and 726.6(7) (2009),

and assault, in violation of section 708.2(3), both aggravated misdemeanors.

The district court accepted the plea by paper. Duff waived personal appearance

at sentencing and the court sentenced Duff to the provisions previously agreed

upon by the parties; Duff received concurrent two-year sentences, with all but

fourteen days suspended, and various fines and surcharges.

       When Duff appeared at the probation office, she refused to sign the

probation agreement, claiming she had pled guilty to two simple misdemeanors

rather than two aggravated misdemeanors.           Duff subsequently signed the

agreement.

       Duff failed to attend scheduled appointments with her probation officer and

failed to provide a valid urine sample. The State filed an application for probation
                                          3


revocation and request for arrest warrant.       While awaiting the district court’s

ruling on her probation revocation, Duff continued to violate the terms of her

probation, including incurring new charges.1 The district court entered an order

revoking Duff’s probation and sentencing her to service an indeterminate period

of incarceration not to exceed two years.2

         Duff filed an application for postconviction relief, raising among other

claims, a challenge to the voluntary and knowing basis for her plea, claiming, “I

was on medication when I signed” and “I [pled] guilty to a higher offense than

what I believed I was pleading guilty to.” Duff filed an amended application for

postconviction relief through counsel, further challenging the factual basis for the

plea.

         Following a hearing, the district court entered a ruling denying Duff’s

claims. Duff now appeals. Additional facts relevant to Duff’s claims on appeal

will be set forth below.

II.      Standard of Review

         We review the district court’s denial of an application for postconviction

relief for correction of errors. See Perez v. State, 816 N.W.2d 354, 356 (Iowa

2012).     When an applicant asserts a constitutional claim as the basis for

postconviction relief, such as ineffective assistance of counsel, we review that

claim de novo. See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).



1
   In less than one week, Duff was charged with: assault, disorderly conduct, and
interference with official acts (May 7); driving while suspended and eluding (May 8);
assault, interference with official acts, and eluding (May 9); and assault on a police
officer (May 10).
2
  The two aggravated misdemeanor sentences were to run concurrently as previously
ordered.
                                           4


III.   Discussion

       Duff claims her trial counsel was ineffective in (1) failing to ensure a

factual basis existed for her plea and (2) allowing her to plead guilty while under

the influence of medication. Duff further contends her postconviction counsel

was ineffective in failing to provide an adequate record on the medication issue.

To prevail on her claims of ineffective assistance of counsel, Duff must show

counsel (1) failed to perform an essential duty and (2) prejudice resulted.

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

A.     Factual Basis

       Duff challenges the factual basis for her plea, claiming the written plea

does not include the elements of the offenses and “makes no mention of using a

dangerous weapon,” and the minutes “do not reveal the necessary intent” to

commit the offenses.3 When trial counsel permits a defendant to plead guilty and

waive the right to file a motion in arrest of judgment absent a factual basis to

support the guilty plea, counsel violates an essential duty, and prejudice is

presumed. State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011).

       Duff pled guilty to child endangerment in violation of Iowa Code section

726.6(1)(a) and 726.6(7), and assault with a dangerous weapon in violation of

section 708.2(3), both aggravated misdemeanors. In regard to the charge of

child endangerment against Duff, the State was required to prove:

       1. A person who is the parent . . . commits child endangerment
       when the person does any of the following:

3
 The State correctly points out that the postconviction court did not rule on the factual
basis for “intent” claim raised by Duff on appeal. We reach the merits of that claim as
part of her claim of ineffective assistance of counsel. See State v. Finney, 834 N.W.2d
46, 49 (Iowa 2013).
                                            5


       a. Knowingly acts in a manner that creates a substantial risk to a
       child or minor’s physical, mental or emotional health or safety.
              ....
       7. A person who commits child endangerment that is not subject to
       penalty under subsection 4, 5, or 6 is guilty of an aggravated
       misdemeanor.

See Iowa Code § 726.6(1)(a), .6(7).4 In regard to the charge of assault with a

dangerous weapon against Duff, the State was required to prove:

       A person commits an assault when, without justification, the person
       does any of the following:
              ....
       b. Any act which is intended to place another in fear of immediate
       physical contact which will be painful, injurious, insulting, or
       offensive, coupled with the apparent ability to execute the act.

Iowa Code § 708.1(2)(b).

       A person who commits an assault, as defined in section 708.1, and
       uses or displays a dangerous weapon in connection with the
       assault, is guilty of an aggravated misdemeanor . . . .

Id. § 708.2(3).5 A dangerous weapon is any device capable of inflicting death or

injury.6 See id. § 702.7.




4
   The trial information accurately set forth a description of the offense of child
endangerment as requiring the State to prove that “on or about the 7th day of August,
2010, in the County of Marshall and the State of Iowa, [Duff] did knowingly act in a
manner that created a substantial risk to [her daughter]’s physical, mental, or emotional
health or safety . . . .”
5
  The trial information accurately set forth a description of the offense of assault with a
dangerous weapon as requiring the State to prove:
        [O]n or about the 7th day of August, 2010, in the County of Marshall and
        the State of Iowa [Duff] did an act which was intended to place another
        person in fear of immediate physical contact which would be painful,
        injurious, insulting, or offensive, coupled with the apparent ability to
        exercise the act; and did display a dangerous weapon toward in
        connection with the assault on S.D., a minor child; specifically an
        automobile used to strike the child while the child was on a bicycle and
        did strike the child on the left upper leg and hip with the automobile.
6
  An automobile can be a dangerous weapon if it is used “in such a manner as to
indicate an intent to inflict death or serious injury.” State v. Oldfather, 306 N.W.2d 760,
763-64 (Iowa 1981).
                                              6


       Before accepting a guilty plea, the district court must first determine the

plea has a factual basis, and that factual basis must be disclosed in the record.

State v. Finney, 834 N.W.2d 46, 61-62 (Iowa 2013); see Iowa R. Crim. P.

2.8(2)(b). We determine whether a factual basis existed by considering “the

entire record before the district court” at the guilty plea hearing. Finney, 834

N.W.2d at 62. The record includes the minutes of evidence, the defendant’s

statements, the statements of the attorneys, and any other matter in the court

record.   See id.; State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996) (“In

determining whether a factual basis for Brooks’ guilty plea exists, we consider the

entire record before the district court.”).

       The minutes of evidence can provide some or all of the factual basis for a

plea of guilty.   See, e.g., State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010).

However, if there is reliance on the minutes, the record made in the trial court

must disclose that fact. See State v. Philo, 697 N.W.2d 481, 486 (Iowa 2005)

(holding that any facts relied on for a factual basis must be made part of the

record); State v. Johnson, 234 N.W.2d 878, 879 (Iowa 1975) (“[T]he record must

disclose the factual basis relied on.”). Here, the written guilty plea signed by Duff

and accepted by the court provided, in relevant part:

       I am knowingly and intelligently pleading guilty to this charge
       because I believe that a jury hearing the evidence contained in the
       Minutes of [Evidence] would find beyond a reasonable doubt all of
       the elements of this offense, and in light of the plea agreement, I
       believe that it is in my best interest to enter a plea of guilty to this
       charge.

       Indeed, the minutes of evidence show Duff had been “arguing all day” with

S.D. S.D. left their home on her bicycle, and Duff caught up to her in a car.
                                              7


According to S.D. and a disinterested witness, Duff swerved the car into the

child, hitting her.   Duff then then tackled S.D. and began hitting her.       Five

disinterested witnesses were prepared to testify they saw Duff beating the child.

S.D. and medical personnel were prepared to testify as to S.D.’s injuries,

including injuries to her left leg and hip.

       “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.” Finney, 834 N.W.2d at 62. Insofar as

intent “is seldom capable of direct proof,” a court may “infer intent from the

normal consequences of one’s actions.” State v. Evans, 671 N.W.2d 720, 725

(Iowa 2003). Looking to the record before the district court, we have no difficulty

in concluding there was an adequate factual basis to support Duff’s guilty plea to

the charges of child endangerment and assault with a dangerous weapon.

“Where a factual basis exists for the plea, counsel usually will not be found

ineffective for allowing the defendant to plead guilty.” Brooks, 555 N.W.2d at

448.    Under these circumstances, we conclude Duff’s claim of ineffective-

assistance on this issue fails.

B.     Mental Status

       Duff claims her trial counsel was ineffective in allowing her to plead guilty

while she was under the influence of medication.        Duff further contends her

postconviction counsel was ineffective in failing to provide an adequate record on

the medication issue. “There is a presumption the attorney acted competently,

and prejudice will not be found unless there is a reasonable probability that, but
                                           8


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

different.” Ennenga, 812 N.W.2d at 701.

         In regard to this claim, Duff alleges she was “under the influence of

several medications at the time she signed the guilty plea” and these medications

“clouded her judgment” and made her “misapprehend the contents of the guilty

plea.”    Duff seeks to establish that her medication caused her plea to be

involuntary and unintelligent, and claims trial counsel should have investigated

her mental status prior to her plea.

         Trial counsel stated he was well-acquainted with Duff and that she “very

well understood” the charges against her “from day one.” He stated on the day

he met with Duff to sign the plea agreement, Duff was “aware of what she was

doing, aware of what was going on and knew what she was doing and the

consequences of it.” Trial counsel further explained he met with Duff at her

home to execute the plea agreement because he had learned she had been

driving with a suspended license. According to Duff, however, trial counsel came

to her home because she was under the influence of medication and could not

drive. She stated she was taking Saphris, amitriptyline, Zoloft, and Benadryl.

Duff stated she did not understand the charges or even read the trial information

(“I didn’t want to think about it because I knew the charges weren’t true”), but that

she had known trial counsel for approximately twenty years and “trusted” him.

         In addressing this claim, the postconviction court stated:

         The applicant’s testimony on this point would not carry its own
         weight, even if it had been unopposed. [S]he did not drive to the
         lawyer’s office because her license was invalid. The caption and
         the contents of the document that she signed were sufficiently clear
                                        9


       that her claims make no sense and would be rejected if they stood
       alone.
              Apart from that, [trial counsel], who was well-acquainted with
       the applicant, testified that he did not see anything that made him
       concerned about her capacity. The attorney’s testimony was
       credible; the applicant’s was not.

       Under these circumstances, and in light of our deference to the court’s

credibility assessment, see State v. Shanahan, 712 N.W.2d 121, 131 (Iowa

2006), we are highly skeptical Duff could prove counsel breached an essential

duty in allowing her to plead guilty. In any event, Duff must also prove she was

prejudiced by counsel’s alleged failure. See State v. Polly, 657 N.W.2d 462, 465

(Iowa 2003) (“Failure to demonstrate either element is fatal to a claim of

ineffective assistance.”).

       In order to prove this element of her ineffective-assistance-of-counsel

claim, Duff must prove “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011) (quoting Strickland, 466 U.S. at

694). “A reasonable probability is one that is sufficient to undermine confidence

in the outcome.” Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008). Specifically,

to demonstrate prejudice in the context of this case, Duff “must show that there is

a reasonable probability that, but for the counsel’s errors, [s]he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 59 (1985) (interpreting the Strickland test as applied to challenges to

guilty pleas); see State v. Straw, 709 N.W.2d 128, 136 (Iowa 2006) (“After the Hill

decision, we [have] applied the “reasonable probability” standard to ineffective-

assistance-of-counsel claims.”).
                                        10


      The postconviction court determined Duff failed to prove a likelihood she

would have gone to trial absent counsel’s alleged failure:

                The applicant cannot claim any prejudice in any event. The
      sentence the court imposed followed completely the bargained-for
      recommendation. The applicant now finds herself incarcerated
      because she refused to abide by the agreement she made . . . .
                This case is driven by Ms. Duff’s change of heart, and not by
      any lack of factual basis or lack of understanding of the elements or
      failure of voluntariness. The Court has found that [trial counsel’s]
      testimony about the circumstances leading up to the written plea
      . . . is entirely credible. Ms. Duff’s testimony is not.

We agree. The record is replete with evidence to show Duff’s awareness of the

charges against her (including what S.D. would testify at trial), Duff’s efforts to

contact S.D. in hopes that S.D. would exonerate her, and Duff’s belief that if she

pled guilty she would have unsupervised contact with S.D. or the no contact

order protecting S.D. would be dropped.              Considering the facts and

circumstances of this case, we conclude Duff has failed to prove a reasonable

probability she would not have pled guilty and would have insisted on going to

trial if not for counsel’s alleged improper conduct. Accordingly, Duff has failed to

prove she was prejudiced by counsel’s alleged failure.

      We conclude the record is sufficient to address Duff’s claim of ineffective

assistance of postconviction counsel. See Dunbar v. State, 515 N.W.2d 12, 15

(Iowa 1994).    Trial counsel credibly testified Duff was aware of what was

happening and the consequences of her actions at the time she signed the guilty

plea. Duff’s testimony on this issue was inconsistent and convoluted. Although

Duff claims counsel should have called an expert witness, Duff does not “suggest

what such testimony would have been or how it would have supported [her]

application.” See id. Aside from the fact there is no reasonable probability the
                                       11


court would have reached a different conclusion if medical evidence was

presented, under these circumstances, Duff has not shown postconviction

counsel’s performance “fell outside a normal range of competency.” See id.

      We affirm the order denying Duff’s application for postconviction relief.

      AFFIRMED.
