                   IN THE SUPREME COURT OF IOWA
                                 No. 09–0332

                              Filed April 1, 2011


MARK ANGELO CASTRO,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      Appeal from the Iowa District Court for Polk County, Robert B.

Hanson, Judge.



      Applicant    appeals   from   district    court’s   ruling   dismissing   his

application for postconviction relief following entry of his guilty plea.

DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN

PART, AND CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Thomas J. Gaul,

Assistant State Appellate Defender, for appellant.



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

Attorney General, John P. Sarcone, County Attorney, and Frank Severino,

Jr., Assistant County Attorney, for appellee.
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CADY, Chief Justice.

      In this appeal, we consider whether an application for postconviction

relief from a judgment and sentence imposed in a criminal case based on a

plea of guilty was properly dismissed on summary adjudication.           On our

review, we affirm the decision of the district court in part, reverse in part,

and remand for further proceedings.

      I. Background Facts and Proceedings.

      Mark Castro was charged by the State with five counts of sexual abuse

in the second degree in violation of Iowa Code section 709.1 and 709.3(2)

(2005). He subsequently pled guilty to five counts of sexual abuse in the

third degree in violation of Iowa Code sections 709.4. The crimes involved

repeated sexual contact with a seven-year-old girl over a period of

approximately four months. Castro lived in an apartment with the child’s

grandmother,    and   the   abuse   occurred   when   the   child    visited   her

grandmother.    Castro made numerous incriminating statements to police

during their investigation.   The statements were made after Castro was

informed of his Miranda rights and signed a written waiver of those rights.

      The district court accepted Castro’s plea of guilty after considering his

answers to a series of questions propounded by the court.           Based on the

colloquy, the court found Castro entered his plea voluntarily, understood his

rights, and understood the consequences of his plea. In the course of the

colloquy, Castro told the court he was not under the influence of any

medication that impaired his ability to clearly think. He did inform the court

he was taking medication for high blood pressure, depression, and anxiety.

Yet, he assured the court the medication did not impair his ability to

understand his decision to plead guilty or the proceedings. Castro identified

the medication as Atenolol, Lexapro, and Ativan. Castro was sentenced to

incarceration for five consecutive ten-year terms.
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      Castro filed an application for postconviction relief after he began

serving his sentences. He alleged three grounds relevant to this appeal to

support his application. Castro first alleged the guilty plea was involuntary

and unintelligent because his trial attorney failed to devote adequate time to

the investigation of his case prior to the plea. Castro next alleged the guilty

plea was involuntary and unintelligent because his trial attorney failed to

investigate whether his mental health and medication regimen supported a

diminished-capacity defense to the crime or rendered his incriminating

statements involuntary and inadmissible. Finally, Castro alleged his guilty

plea was rendered involuntary and unintelligent because his drug regimen

was altered just prior to the time he entered his plea and his state of mind

rendered him incompetent to fully understand the proceedings.                 Castro

attached numerous documents to his application for postconviction relief.

These documents primarily detailed the pharmacology, purpose, warnings,

precautions, and other information about the drugs he was taking. Castro

cited no particular information from the documents to support his claim.

      The State moved for summary judgment. First, it asserted the initial

two grounds alleged by Castro could not support postconviction relief as a

matter of law because the claims did not pertain to matters intrinsic to the

plea of guilty.   As such, the State claimed Castro was prohibited from

challenging alleged constitutional infirmities of the pre-plea actions or

inactions of his trial counsel in a postconviction relief proceeding because

such challenges were waived by pleading guilty and failing to file a

subsequent motion in arrest of judgment.            Second, the State claimed the

plea colloquy adequately showed Castro’s medication regimen had no effect

on the voluntariness or understanding of his plea of guilty.

      Castro resisted the motion for summary judgment.                   While the

resistance   largely   focused   on   allegations    pertaining   to   the   conduct
                                       4

amounting to ineffective assistance of counsel, Castro did allege his “guilty

plea was not voluntary, knowing[], and intelligent[] due to ineffective

assistance of counsel.” The resistance also asserted factual issues existed

concerning the effect of his medication regimen on his ability to understand

the plea proceedings, and a hearing was necessary so the factual dispute

over the effects of his medication regimen could be resolved by medical

testimony.

      The district court granted summary judgment. It found the first two

claims brought by Castro involving the acts or inactions of trial counsel were

not intrinsic to the guilty plea and were waived as a matter of law. Second,

the court determined the prior plea colloquy established Castro’s medication

regimen did not render his guilty plea involuntary or unintelligent, and

Castro failed to come forward with sufficient evidence to generate a genuine

factual dispute over the issue to overcome the prior finding by the trial court

that the plea was voluntary and intelligent. Unlike the first two grounds, the

court recognized this third ground for relief was intrinsic to the plea. Yet, it

concluded Castro introduced no facts or opinions to support a connection

between the medication regimen or change in medication and an inability to

voluntarily and intelligently enter a plea of guilty to warrant a hearing.

      On appeal, Castro claims the district court erred by categorically

rejecting his first two claims of ineffective assistance of counsel. He claims

the allegation supporting the two grounds show they were intrinsic to the

plea of guilty, which entitled him to a hearing on the merits. Furthermore,

he claims the third ground for relief concerning his ability to enter a

voluntary and intelligent guilty plea due to the effect of his drug regimen on

his state of mind during the time of his plea presented an issue of material

fact giving rise to the need for an evidentiary hearing.
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      II. Standard of Review.

      We normally review postconviction proceedings for errors at law.

Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). This includes summary

dismissals of applications for postconviction relief.    Manning v. State, 654

N.W.2d 555, 560 (Iowa 2002).        Applications for postconviction relief that

allege ineffective assistance of counsel, however, raise a constitutional claim.

State v. Nitcher, 720 N.W.2d 547, 553 (Iowa 2006). We review postconviction

proceedings that raise constitutional infirmities de novo. Ledezma v. State,

626 N.W.2d 134, 141 (Iowa 2001).            In determining whether summary

judgment is warranted, the moving party has the burden of proving the

material facts are undisputed. Kolarik v. Cory Int’l Corp., 721 N.W.2d 159,

162 (Iowa 2006). We examine the facts in the light most favorable to the

nonmoving party. Id.

      III. Discussion.

      Generally, a criminal defendant waives all defenses and objections to

the criminal proceedings by pleading guilty, including claims of ineffective

assistance of counsel. Wise v. State, 708 N.W.2d 66, 70 (Iowa 2006). One

exception to this rule involves irregularities intrinsic to the plea—

irregularities that bear on the knowing and voluntary nature of the plea. Id.

      In State v. Carroll, 767 N.W.2d 638, 642 (Iowa 2009), we clarified how

the intrinsic-irregularity exception applies to postconviction relief claims of

ineffective assistance of counsel predicated on the failure of counsel to

perform certain pre-plea tasks that ultimately render the plea involuntary or

unknowing.     This clarification was a response to our opinion in State v.

Speed, 616 N.W.2d 158 (Iowa 2000), in which we said “claims arising from

. . . counsel’s failure to investigate or file a motion to suppress do not survive

the entry of a guilty plea.”     Speed, 616 N.W.2d at 159.        In Carroll, we

explained that ineffective-assistance-of-counsel claims survive the guilty plea
                                         6

when a postconviction relief applicant can show trial counsel breached a

duty in advance of the guilty plea that rendered the plea involuntary or

unintelligent.   Carroll, 767 N.W.2d at 644.     Thus, the distinction between

ineffective-assistance-of-counsel claims that do not survive a guilty plea as

illustrated in Speed and those that do survive is the existence of a showing

that the pre-plea ineffective assistance of counsel rendered the plea

involuntary or unintelligent.    The component of the claim involving the

voluntariness of the plea is largely tied to the prejudice element of all

ineffective-assistance-of-counsel claims. Id.    This element means criminal

defendants who seek postconviction relief after pleading guilty must

establish the guilty plea would not have been entered but for the breach of

duty by counsel. Id. Thus, when a postconviction relief claim following a

guilty plea is properly alleged, a case-by-case analysis is necessary “to

determine whether counsel in a particular case breached a duty in advance

of a guilty plea, and whether any such breach rendered the defendant’s plea

unintelligent or involuntary.” Id.

      A. Allegations Derived From Failure to Investigate and Failure to

File a Motion to Suppress. The district court found the first two claims for

postconviction relief brought by Castro did not relate to the voluntariness of

the plea, but only pertained to the constitutional deficiencies of the actions

or inactions of his trial counsel.     As such, it concluded the claims were

waived when Castro entered a plea of guilty and failed to subsequently file a

motion in arrest of judgment.        Thus, the district court accepted Castro’s

allegations of ineffective assistance of counsel as true for purposes of

summary judgment, but found no cause of action existed as a matter of law.

      The standards for summary judgment in postconviction relief actions

are analogous to summary judgment in civil proceedings. Ridinger v. State,

341 N.W.2d 734, 736 (Iowa 1983).             Under these standards, summary
                                        7

judgment is proper when the record reveals only a conflict over the legal

consequences of undisputed facts. Wallace v. Des Moines Indep. Cmty. Sch.

Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008). The moving party is

required to affirmatively establish that the undisputed facts support

judgment under the controlling law.         McVey v. Nat’l Org. Serv., Inc., 719

N.W.2d 801, 802 (Iowa 2006).

        The summary judgment record reveals Castro’s application for

postconviction relief and his resistance to the motion for summary judgment

alleged the plea was involuntary and unintelligent “due to ineffective

assistance of counsel” because counsel failed to properly investigate Castro’s

mental state and file a motion to suppress evidence. These allegations were

sufficient to state a cause of action based on claims that were intrinsic to the

plea. They related to irregularities that affected the voluntary nature of the

plea.    Importantly, the State did not further challenge the sufficiency of

Castro’s allegations or the absence of evidence to support the allegations.

Instead, the State only argued the claims did not survive Castro’s guilty plea.

Likewise, the district court found the claims were waived because they were

based on pre-plea conduct of counsel.            Yet, this conclusion failed to

distinguish pre-plea ineffective-assistance-of-counsel claims properly tied to

the voluntariness or intelligence of the plea. See Carroll, 767 N.W.2d at 644

(“Only through a case-by-case analysis will a court be able to determine

whether counsel in a particular case breached a duty in advance of a guilty

plea, and whether any such breach rendered the defendant’s plea

unintelligent or involuntary.”).

        On appeal, the State changes its challenge by arguing Castro failed to

sufficiently   tie   his   ineffective-assistance-of-counsel   claims   to   the

voluntariness of his plea.    Specifically, the State argues on appeal Castro

failed to include an allegation that he would not have pled guilty if he would
                                        8

have received effective assistance of counsel but instead would have

proceeded to trial.   The State asserts Castro was required to make this

allegation to overcome a motion for summary judgment.

      As we recognized in Carroll, all postconviction relief applicants who

seek relief as a consequence of ineffective assistance of counsel must

establish counsel breached a duty and prejudice resulted. Id. The burden

to prove the prejudice element ultimately requires a postconviction relief

applicant who has entered a plea of guilty to establish a reasonable

probability of a different outcome (stand for trial instead of pleading guilty) if

the breach had not occurred. Id. Yet, the State in this case had the burden

in moving for summary judgment to show it was entitled to summary

judgment as a matter of law. The State did not attack Castro’s claim for

postconviction relief by arguing the undisputed facts showed he would have

pled guilty even in the absence of a breach of duty or by arguing there was

no evidence to support a claim that Castro would not have pled guilty in the

absence of ineffective assistance of counsel. Instead, the State only sought

summary judgment on the basis that the underlying grounds for relief on the

first two claims were not intrinsic to the plea and had been waived.

      When a motion for summary judgment seeks judgment on the basis

that the plaintiff’s claim does not provide relief as a matter of law, the

plaintiff is only required to resist the motion by responding to those elements

of the claim for relief under attack. See Iowa Ct. R. 1.981(3), (5). Any other

approach could deprive the nonmovant of the opportunity provided under

the rules of summary judgment to address the actual grounds for summary

judgment. Id. Similarly, a party who has successfully moved for summary

judgment may not raise different grounds on appeal to support summary

judgment than those raised before the district court. See DeVoss v. State,

648 N.W.2d 56, 62–63 (Iowa 2002) (recognizing only grounds urged in the
                                          9

district court are considered on appeal). These principles are applicable to

this case and direct the outcome.

        The State attacked Castro’s claim for postconviction relief as one that

broadly fell within the categories of pre-plea ineffective-assistance-of-counsel

claims addressed in Speed that are waived by pleading guilty.           As such,

Castro was only required to resist the motion by showing his claim was

connected to the voluntariness of his plea. Because Castro properly made

this showing, the district court improperly granted summary judgment.

        B. Allegation That Medication Rendered the Plea of Guilty

Involuntary and Unintelligent. Castro’s third claim on postconviction relief

alleged the medication he was taking prior to the hearing rendered his guilty

plea involuntary and unintelligent. The district court premised its summary

judgment ruling on the contrary finding in the plea colloquy establishing

Castro was not affected by the specific medications he was taking at the

time.     The   colloquy   included   a   specific   inquiry   regarding Castro’s

medications and whether Castro believed he understood the proceedings and

the guilty plea. The State asserts this finding supported summary judgment,

and Castro failed to come forward with evidence to show a factual dispute

existed over the voluntariness of the plea.

        Our rules of summary judgment do not permit the nonmovant to rest

on conclusory allegations in the pleadings in the face of a properly supported

motion for summary judgment. Iowa Ct. R. 1.981(5) (“When a motion for

summary judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or denials in the

pleadings . . . .”). A responsive showing must be made that would allow a

reasonable fact finder to conclude in favor of the nonmovant on the claim.

See Parish v. Jumpking, Inc., 719 N.W.2d 540, 545 (Iowa 2006) (stating the

requirement for a response to a motion for summary judgment must assert
                                      10

genuine issues of facts, which are sufficient if “a reasonable fact finder could

return a verdict or decision for the nonmoving party based upon those

facts”). In making this showing, the nonmovant is entitled to all reasonable

inferences from the summary judgment record.          Schneider v. State, 789

N.W.2d 138, 144 (Iowa 2010).

      A plea colloquy that covers the specific ground subsequently raised in

a postconviction relief application would normally support summary

judgment on those grounds. See Wise, 708 N.W.2d at 71 (indicating that

statements made to court in plea colloquy establish a presumption of the

true facts on the record).      Notwithstanding, Castro claimed summary

judgment was improper in this case for two reasons.           First, he claims

summary judgment was improper because he alleged additional facts in the

summary judgment proceedings not disclosed in the prior plea colloquy—

that his medication regimen was altered just prior to the time he entered his

plea of guilty. Second, he claims summary judgment was improper because

the background information he submitted concerning the medication he was

taking, together with the evidence of the change in his medication regimen

just prior to his plea, entitled him to a hearing to permit him to produce a

medical expert to resolve the issue of the voluntariness of his plea.

      The inference Castro seeks to establish in resistance to the State’s

motion for summary judgment is that the alteration of his medication caused

his plea to be involuntary or unintelligent.    Yet, such an inference would

normally be speculative without the support of a medical expert. See Ranes

v. Adams Labs., Inc., 778 N.W.2d 677, 688 (Iowa 2010) (expert medical

testimony “unquestionably required” to assist in determining complicated

issues of causation). An inference to create a triable issue in response to a

motion   for   summary    judgment    cannot   be   based   on   conjecture   or

speculation.   See Blackston v. Shook & Fletcher Insulation Co., 764 F.2d
                                     11

1480, 1482 (11th Cir. 1985) (“In considering a motion for summary

judgment, . . . [a]ll reasonable inferences arising from the undisputed facts

should be made in favor of the nonmovant, but an inference based on

speculation and conjecture is not reasonable.” (Citations omitted.)). In this

case, evidence that Castro’s medication regimen was altered and general

background information about the medication he was taking would not,

alone, allow a reasonable fact finder to conclude the guilty plea he entered

was not voluntary or intelligent. While there might be some circumstances

when a causation inference could be drawn between the consumption of

drugs and the voluntariness of a plea without expert testimony, a layperson

does not possess the knowledge to reasonably draw such an inference under

the circumstances of this case.     Here, the drugs involved a regimen of

multiple prescription medications that were allegedly altered or not taken

prior to the plea proceedings. A layperson could not reasonably conclude

such a change in the regimen of the drugs rendered the plea involuntary or

unintelligent.   Thus, Castro’s allegations were insufficient to withstand

summary adjudication under the circumstances.

      Moreover, when the State produces evidence of the district court’s

finding during the colloquy that the medication did not affect the

voluntariness of Castro’s plea, our rules of summary judgment do not allow

Castro to wait until the postconviction relief hearing to produce a medical

expert to counter the State’s motion. Castro is required to produce sufficient

medical evidence in resistance to the motion to support a factual dispute

and failed to do so. The district court properly granted summary judgment

on the third ground for relief.
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      IV. Conclusion.

      We affirm the district court in part and reverse the decision of the

district court in part. The case is remanded to the district court for further

proceedings.

      DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN

PART, AND CASE REMANDED.

      All justices concur except Waterman, Mansfield, and Zager, JJ., who

take no part.
