                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0188
                            Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ELLIS CHARLES CARPENTER,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Fowler,

District Associate Judge.



      Ellis Carpenter appeals after pleading guilty to domestic abuse assault.

AFFIRMED.



      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
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DOYLE, Judge.

       Ellis Carpenter appeals the judgment and sentence entered after he pled

guilty to domestic abuse assault, in violation of Iowa Code section 708.2A(3)

(2017). Carpenter argues his counsel was ineffective by permitting him to plead

guilty without a factual basis. We reject Carpenter’s arguments and affirm the

district courts judgment and sentence.

       The original trial information charged Carpenter with domestic abuse

assault with the intent to inflict a serious injury, second offense, in violation of

section 708.2A(3)(b), and as a habitual offender pursuant to sections 902.8 and

902.9. Subsequently, an amended and substituted trial information was filed

omitting the reference to “with intent to inflict a serious injury,” and instead referred

to the offense as “Domestic Abuse Assault Second Offense (Aggravated

Misdemeanor).”       Also, the habitual offender sentencing enhancement was

dropped.    Carpenter entered a written guilty plea to the amended charge of

domestic abuse assault second offense, an aggravated misdemeanor, and the

court entered an order accepting the plea. In a subsequent sentencing order, the

court again accepted Carpenter’s plea, convicted him of the crime of second-

offense domestic abuse assault in violation of sections 708.1 and 708.2A(3)(a),1

and sentenced him pursuant to the terms of the plea agreement.


1
 We note that Carpenter was charged with and entered a written guilty plea to domestic
abuse assault second offense in violation of section 708.2A(3)(b), an aggravated
misdemeanor. The order accepting the plea referenced section “708.2A(3)(b) – Domestic
Abuse Assault – 2nd Offense.” According to the sentencing order, the court convicted
Carpenter of “2nd Offense Domestic Abuse Assault” in violation of sections 708.1 and
708.2A(3)(a). A violation of 708.2A(3)(a) is a serious misdemeanor. The prosecutor,
Carpenter, and his counsel were present at the sentencing hearing. Since Carpenter
“waived reporting and record of the Plea and Sentencing Hearing,” we are unable to
discern if the sentencing order’s reference to section 708.2A(3)(a) is a typographical error
                                          3


       The standard of review for guilty pleas resulting from counsel’s ineffective

assistance is de novo. See State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011),

overruled on other grounds by Schmidt v. State, 909 N.W.2d 778, 789 (Iowa 2018).

“As with all ineffective-assistance-of-counsel claims, [the defendant] must

establish . . . counsel failed to perform an essential duty and prejudice resulted

from such failure.” Id. at 652 (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). Generally, we preserve claims of ineffective assistance of counsel for

postconviction-relief proceedings to allow the record to be developed. See State

v. Gomez Garcia, 904 N.W.2d 172, 186 (Iowa 2017); State v. Virgil, 895 N.W.2d

873, 879 (Iowa 2017). However, we may resolve the claim on direct appeal if the

record before us is adequate. See Virgil, 895 N.W.2d at 879. Here, we conclude

the record is adequate for review.

       Courts are required to determine whether a factual basis exists before

accepting a plea. See Iowa R. Crim. P. 2.8(2)(b).

               On a claim that a plea bargain is invalid because of a lack of
       accuracy on the factual-basis issue, the entire record before the
       district court may be examined. . . . Recourse to the entire record is
       appropriate because . . . the relevant inquiry . . . involves an
       examination of whether counsel performed poorly by allowing [the
       defendant] to plead guilty to a crime for which there was no objective
       factual basis in the record.

State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). “If an attorney allows a defendant

to plead guilty to an offense for which there is no factual basis and to waive the

right to file a motion in arrest of judgment, the attorney breaches an essential duty.”




or whether the State and Carpenter agreed at that time to have the charge reduced from
an aggravated misdemeanor to a serious misdemeanor.
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State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005). When this occurs, prejudice is

inherent. See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

       Domestic abuse assault is an assault, as defined in section 708.1, which is

domestic abuse as defined in section 236.2(2)(a),(b),(c), or (d). See Iowa Code

§ 708.2A(1).    As relevant here, a person commits an assault when, without

justification, the person does “[a]ny act which is intended to cause pain or injury to,

or which is intended to result in physical contact which will be insulting or offensive

to another, coupled with the apparent ability to execute the act.” Id. § 708.1(2)(a).

“Domestic abuse,” as is applicable to the offense of domestic abuse assault in this

case, is an assault as defined in section 708.1 between household members who

resided together at the time of the assault. Id. § 236.2(2)(a). Relevant here,

“household members” is defined as “persons cohabitating.” Id. § 236.2(4)(a).

Sexual relations between the parties while sharing the same living quarters is one

factor used to determine whether parties were cohabitating within the meaning of

the domestic abuse statute. Virgil, 895 N.W.2d at 880 (citing State v. Kellogg, 542

N.W.2d 514, 518 (Iowa 1996)).

       Carpenter claims his counsel was ineffective by allowing him to plead guilty

to domestic abuse assault without a factual basis because there is no clear

evidence in the record showing that the assault occurred between household

members residing together at the time of the assault. We disagree. In an affidavit

attached to the original complaint, a police officer states “The defendant and the

victim are in an intimate relationship together.” The complaint form states the

relationship is between “family/household members who have lived together within

the last year.” In the field case report attached to the trial information, the officer’s
                                           5


narrative states that Ellis and the woman he assaulted were “in an intimate

relationship[2] with each other and she stays with him in his camps around the city

of Davenport.” The minutes of evidence state that at the time of the incident, “[t]he

pair were in an intimate relationship and living together.” In his written guilty plea,

Carpenter admitted there is a factual basis for the charge and that he “had

intentional offensive contact with another, who would qualify as a domestic partner

under the law, such contact being an ‘assault.’” He also accepted the minutes of

evidence as substantially true as to the elements of the charge but did not admit

to “any type of felony element.”

       Although Carpenter admitted the woman would qualify as a “domestic

partner,” he points out such term is not used or defined in the domestic-abuse

statute. In State v. Hodges, this court, relying on a dictionary definition of “domestic

partner,”3 concluded there was a sufficient factual basis in the record for Hodges’s

guilty plea to domestic abuse assault because the defendant characterized the

woman he assaulted4 as a “domestic partner” in his written guilty plea. Hodges,

2012 WL 470210, at *1-2. We see no reason to depart from Hodges and therefore

reject Carpenter’s argument on this point.




2
  An “intimate relationship” may provide a basis for domestic abuse, see Iowa Code
§ 236.2(2)(e), but not domestic abuse assault, see id. § 708.2A(1), which only references
section 236.2(2)(a), (b), (c), or (d) but does not include 236.2(2)(e).
3
  “The term ‘domestic partner,’ is defined as one member of an unmarried cohabiting
couple.” State v. Hodges, No. 11-0913, 2012 WL 470210, at *1 (Iowa Ct. App. Feb. 15,
2012), further review denied (April 10, 2012) (citing Merriam-Webster’s Collegiate
Dictionary 371 (11th ed. 2006)).
4
  The record indicated the woman was Hodge’s fiancée and that they lived together.
Coupled with Hodges’s characteriztion of the fiancée as his “domestic partner,” the court
inferred that they “were household members who resided together.” Hodges, 2012 WL
470210, at *1.
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      Carpenter also argues his counsel was ineffective by allowing him to plead

guilty to domestic abuse assault without a factual basis because “there is no fact

to support that the ‘offensive conduct’ was done without justification, as required

in the charging statute, Iowa Code § 708.1(2).” The officer’s affidavit included in

the complaint states, “The defendant did knowingly and willingly, seriously injure

the victim by hitting her in the face repeatedly with an open hand and grabbed her

by her arms and threw her to the ground. The victim sustained serious injuries to

her face, arms, legs, ribs, and buttocks from the incident.” The field case report

indicates Carpenter got into a verbal argument with a woman, he “started to hit her

with an open hand in the face several times,” and he “then began to grab her by

her arms and threw her to the ground, where he continued to hit her with an open

hand.” The minutes of evidence provides a nearly identical recitation of the facts.

We see nothing in the record indicating the assault was justified. We therefore

reject Carpenter’s argument on this point.

      Based on a review of the record before the plea court, we conclude there

was a sufficient factual basis for Carpenter’s plea. Therefore, his counsel was not

ineffective in allowing Carpenter to plead guilty. We affirm his judgment and

sentence.

      AFFIRMED.
