                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1323
                              Filed August 5, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD LEO SIMMER,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.



       A defendant appeals his conviction and sentence following a guilty plea.

AFFIRMED.



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

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Carlyle Dalen, County Attorney, and Rachel Gibney, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

        Chad Simmer pled guilty to “domestic assault by knowingly impeding the

normal breathing or circulation of the blood of another by applying pressure to

the throat or neck of the other person.” See Iowa Code § 708.2A(1), (5) (2013).

The district court denied his request for a suspended sentence and sentenced

him to a prison term not exceeding five years. On appeal, Simmer contends

(1) his plea attorney was ineffective in failing to object to his plea on the ground

that it lacked a factual basis and (2) the district court abused its discretion in

denying him a suspended sentence.

   I.      Factual Basis-Ineffective Assistance of Counsel

        A defendant raising an ineffective-assistance-of-counsel claim must

establish (1) the breach of an essential duty and (2) prejudice. Strickland v.

Washington, 466 U.S. 668, 687 (1984).         A defense attorney who allows a

defendant to plead guilty to a crime lacking in a factual basis breaches an

essential duty and prejudice is presumed. State v. Ortiz, 789 N.W.2d 761, 764-

65 (Iowa 2010). While we ordinarily preserve ineffective-assistance-of-counsel

claims for post-conviction relief proceedings, we find the record adequate to

resolve the issue on direct appeal. See State v. Hallock, 765 N.W.2d 598, 602

(Iowa Ct. App. 2009).

        Simmer contends the record lacks a factual basis to establish he

“knowingly” impeded the normal breathing or circulation of the blood of his wife.

To determine whether a factual basis exists, we review “the entire record before

the district court.” State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013).
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       The Iowa model criminal jury instructions define “knowledge” as follows:

“For the defendant to know something means [he][she] had a conscious

awareness” of the element requiring knowledge. Iowa Crim. Jury Instructions

200.3. “‘Knowingly’ merely means ‘a knowledge of the existence of the facts

constituting the crime, or a knowledge of the essential facts and [does] not . . .

require the knowledge of the unlawfulness of the act or omission.’” State v.

Buchanan, 549 N.W.2d 291, 294 (Iowa 1996) (quoting State v. Winders, 366

N.W.2d 193, 195 (Iowa Ct. App. 1985)).

       The record is replete with evidence supporting the knowledge requirement

of the crime. Cerro Gordo County Deputy Sheriffs responded to a domestic

abuse episode between Chad Simmer and his wife. When the deputies arrived,

Simmer told one of them he pushed his wife away several times and she fell to

the ground.    Simmer demonstrated his actions and, according to a deputy’s

report, Simmer’s “hand was in a clasping manner like you may grab someone by

the throat.”

       Simmer’s wife confirmed that Simmer threw her to the ground several

times. She told the deputies Simmer twice grabbed her by the throat. When

asked if she was unable to breathe when Simmer grabbed her, she responded

yes. And when asked if it felt as though her blood flow was restricted, she again

responded affirmatively.

       The deputies stated the throat and upper chest of Simmer’s wife were

“extremely red.” Three days after the episode, she sought emergency treatment

for trouble swallowing, throat tightness, and back pain.
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       Simmer executed a written plea agreement, in which he attested, “I

impeded the normal breathing or circulation of blood of [] my wife at the time.” In

the same document, he agreed the court could “rely on the Minutes of Testimony

as a further factual basis to support this plea.” See Ortiz, 789 N.W.2d at 768

(noting the minutes can provide some or all of the factual basis for a guilty plea).

       According to those minutes, Simmer’s wife was slated to testify that

Simmer “grabbed her around the neck with his hands,” and “applied pressure to

her neck and she could not breathe.” She “thought she was going to pass out.”

       At the plea hearing, Simmer did not dispute the minutes. To the contrary,

he confirmed he assaulted his wife and “impeded her breathing or circulation of

the blood and that she sustained an injury as a result.” We conclude a factual

basis to the “knowingly” component of the crime was established and counsel did

not breach an essential duty in failing to raise this issue.

       II.    Sentencing

       Simmer asserts mitigating circumstances warranted a suspended

sentence.    In his view, the district court abused its discretion in denying his

request. See State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006) (noting our review

is for an abuse of discretion where “the sentence imposed is within the statutory

limits or the defendant’s challenge to his or her sentence does not suggest it is

outside the statutory limits”).

       The State preliminarily responds that Simmer is ineligible for a suspended

sentence. We disagree. While suspended sentences are disallowed for forcible

felonies, domestic assault under Iowa Code section 708.2A(5) is not a forcible

felony. See Iowa Code §§ 907.3 (allowing exercise of any options contained in
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the section but stating “this section does not apply to a forcible felony”),

702.11(2)(g) (stating domestic abuse assault in violation of Iowa Code section

708.2A(5) is not a forcible felony).

       We turn to the district court’s statement of reasons. The court stated it

was “struck by the fact that there’s really no remorse” and by Simmer’s failure to

accept responsibility for his actions. The court noted his “really lengthy criminal

history that nearly all has to do with alcohol,” the possible effects of his drinking

and violent behavior on his daughter, who saw the crime in progress, Simmer’s

decades-long failure to address his history of alcohol-related crimes and

assaultive behavior, and the court’s prior unsuccessful efforts to spur

rehabilitation with less-restrictive sentences. The court’s detailed statement of

reasons tied to Simmer’s conduct and history reveals no abuse of discretion.

See State v. Zaruba, 306 N.W.2d 772, 774 (Iowa 1981).

       AFFIRMED.
