                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0686
                              Filed August 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JACOB ANTERO TRUJILLO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes (plea

hearing) and Joel W. Barrows (sentencing), Judges.



      Jacob Trujillo appeals from his convictions and sentence after pleading

guilty to multiple offenses. CONVICTIONS VACATED IN PART, SENTENCE

VACATED, AND REMANDED WITH INSTRUCTIONS.



      Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
                                           2


MAY, Judge.

       Jacob Trujillo pled guilty1 to intimidation with a dangerous weapon, criminal

gang participation, trafficking in stolen weapons, interference with official acts while

armed, possession of a firearm by a felon, and possession with intent to deliver

marijuana.    In this consolidated appeal, he argues he received ineffective

assistance of counsel. He asks us to vacate his convictions and sentence. We

conclude (1) one of his claims fails because there was a factual basis for his plea;

(2) because the record does not show a factual basis for two of his convictions, we

must vacate his sentence and remand; and (3) we must preserve his remaining

ineffective-assistance claims.

I. Background Facts

       Between April and December 2018, the State charged Trujillo with

numerous offenses in four separate cases. In case number FECR391290 (290),

the State charged Trujillo with trafficking in stolen weapons and possession of a

firearm or offensive weapon by a felon.2 In case number FECR394017 (017), the

State charged Trujillo with intimidation with a dangerous weapon, criminal gang

participation, and felon in possession of a firearm. In case number FECR395659

(659), the State charged Trujillo with interference with official acts while armed,

carrying weapons, and possession of a firearm or offensive weapon by a felon.


1 Iowa Code section 814.6 (2019) was recently amended to prohibit most appeals
from guilty pleas. See 2019 Iowa Acts ch. 140 § 28. In State v. Macke, however,
our supreme court held these amendments “apply only prospectively and do not
apply to cases pending on July 1, 2019.” 933 N.W.2d 226, 228 (Iowa 2019). We
conclude, therefore, the amendments “do not apply” to this case, which was
pending on July 1, 2019. See id.
2 The State later amended the trial information to include theft in the third degree.

But that charge was dismissed.
                                           3


Finally, in case number FECR397215 (215), the State charged Trujillo with

possession with intent to deliver marijuana and failure to affix a drug stamp.

       Trujillo and the State entered into a global agreement to resolve all of the

pending cases. Ultimately, Trujillo pled guilty to six charges: (1) trafficking in stolen

weapons (case number 290), (2) intimidation with a dangerous weapon (case

number 017), (3) criminal gang participation (case number 017), (4) interference

with official acts while armed (case number 659), (5) possession of a firearm by a

felon (case number 659), and (6) possession of marijuana with intent to deliver

(case number 215). Trujillo was sentenced to a term not to exceed fifteen years.

He now appeals.3

II. Analysis

       Trujillo argues two of his three trial attorneys were ineffective. 4 In his

appellant’s brief, Trujillo details various ways he believes counsel failed to perform

essential duties. For purposes of analysis, we divide his claims into two groups:

(1) his claims that there was no factual basis for charges to which he pled guilty;

and (2) his procedural claims, i.e., his claims that the plea hearing did not comply

with Iowa Rule of Criminal Procedure 2.8 or due process requirements.

       As to this latter category of claims, Trujillo must prove not only that counsel

failed to perform an essential duty but also that prejudice resulted. See State v.


3 Trujillo filed a motion to consolidate his three case numbers in this appeal. Our
supreme court granted the motion.
4 We recognize Iowa Code section 814.7 was also recently amended to provide in

pertinent part: “An ineffective assistance of counsel claim in a criminal case shall
be determined by filing an application for postconviction relief” and “shall not be
decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch.
140, § 31. But again because this appeal was pending on July 1, 2019, the
amendment “do[es] not apply” to this case. See Macke, 933 N.W.2d at 235.
                                          4

Albright, 925 N.W.2d 144, 151 (Iowa 2019) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)). Specifically, Trujillo must show he was prejudiced because

“there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” State v. Myers, 653

N.W.2d 574, 578 (Iowa 2002) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

But Trujillo’s brief does not contend that any of counsel’s alleged failures resulted

in prejudice. And while he did raise a prejudice argument in his reply brief, that

was too late. See State v. Hebron, No. 14-1344, 2015 WL 3876788, at *4 (Iowa

Ct. App. June 24, 2015); see also Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992)

(“[W]e have long held that an issue cannot be asserted for the first time in a reply

brief.”).

        Because Trujillo’s procedural arguments cannot succeed without a showing

of prejudice, we conclude they are not sufficiently developed for our review. We

preserve them for further proceedings.5 See State v. Harris, 919 N.W.2d 753, 754

(Iowa 2018) (“If the development of the ineffective-assistance claim in the appellate

brief was insufficient to allow its consideration, the court of appeals should not

consider the claim, but should not outright reject it.”); State v. Johnson, 784 N.W.2d

192, 198 (Iowa 2010) (“If . . . the court determines the claim cannot be addressed




5These claims include Trujillo’s arguments that each of his pleas failed to comply
with Iowa Rule of Criminal Procedure 2.8, were not voluntary, and violated his due
process rights.
                                            5


on appeal the court must preserve it for a postconviction-relief proceeding,

regardless of the court’s view of the potential viability of the claim.”).

       As to Trujillo’s factual-basis claims, our analysis is different. If “trial counsel

allows the defendant to plead guilty” to a charge for which there is no factual basis,

prejudice is “inherent.” State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

Put another way, claimants alleging “ineffective assistance of counsel on the basis

a guilty plea lacks a factual basis” are not required to make a “separate showing

of prejudice.” Myers, 653 N.W.2d at 579. Rather, “our first and only inquiry is

whether the record shows a factual basis for [the defendant’s] guilty plea to the

charge.” Schminkey, 597 N.W.2d at 788. So, even though Trujillo failed to argue

prejudice in his brief, we can still reach the merits of his factual-basis claims. See

id.

       We review ineffective-assistance-of-counsel claims de novo.              State v.

Harrison, 914 N.W.2d 178, 188 (Iowa 2018). “A factual basis for a guilty plea may

be found from: (1) inquiry of the defendant, (2) inquiry of the prosecutor, (3)

examination of the presentence report, and (4) minutes of evidence.” State v.

Amadeo, No. 11-1426, 2012 WL 2122262, at *1 (Iowa Ct. App. June 13, 2012)

(footnote omitted). “This record, as a whole, must disclose facts to satisfy the

elements of the crime.” Id. (quoting State v. Keene, 630 N.W.2d 579, 581 (Iowa

2001)).

       A. Criminal Gang Participation

       Trujillo argues his plea to the charge of criminal gang participation (case

number 017) lacks a factual basis. This is true, he contends, because “criminal
                                           6


street gang” was never defined and Trujillo’s statements were “legal conclusions

lacking a factual basis” for the charge. The State disagrees.

       Our analysis begins with Iowa Code section 723A.2 (2018). It states, “A

person who actively participates in or is a member of a criminal street gang and

who willfully aids and abets any criminal act committed for the benefit of, at the

direction of, or in association with any criminal street gang, commits a class ‘D’

felony.”   Iowa Code § 723A.2 (emphasis added).           A “criminal street gang” is

defined as

       an ongoing organization, association, or group of three or more
       persons, whether formal or informal, having as one of its primary
       activities the commission of one or more criminal acts, which has an
       identifiable name or identifying sign or symbol, and whose members
       individually or collectively engage in or have engaged in a pattern of
       criminal gang activity.

Id. § 723A.1(2) (emphasis added). And a “pattern of criminal gang activity” is

defined as “the commission, attempt to commit, conspiring to commit, or

solicitation of two or more criminal acts, provided the criminal acts were committed

on separate dates or by two or more persons who are members of, or belong to,

the same criminal street gang.” Id. § 723A.1(3).

       At the plea hearing, the district court described the State’s burden to Trujillo:

              THE COURT: [Y]ou also are pleading guilty to according to
       the plea agreement to criminal gang participation, also a class “D,”
       and that the State would have to prove beyond a reasonable doubt
       on the 7th day of July, 2018, you were in Scott County, Iowa, and
       you participated in or were a member of a criminal street gang at the
       time you committed the offense of intimidation with a dangerous
       weapon; and that you did it for the benefit of or at the direction of or
       in association with a gang in violation of 723A.2. So that means they
       would have to prove that you’re a member of a gang and what that
       gang was, and at the time that you were running around with this gun
       intimidating people, that you did it either in connection with a gang—
                                           7


       like, you were all running around together, or somebody in the gang
       direct you to do it, okay? Do you have any questions on that?
               THE DEFENDANT: No.

Later in the hearing, the following colloquy occurred:

               [TRIAL COUNSEL:] [O]n or about July 7, 2018, in Scott
       County, Iowa, did you shoot a gun into a crowd of people and place
       them reasonably in fear of their safety?
               THE DEFENDANT: Yes, . . . I shot at them.
               ....
               [TRIAL COUNSEL:] And at the time you did this, you were
       participating—or a member of a gang; is that correct?
               THE DEFENDANT: Yes.
               [TRIAL COUNSEL]: And doing this as part of or associated
       with that gang activity; correct?
               THE DEFENDANT: Yes.
               THE COURT: What is the gang?
               THE DEFENDANT: Low Riders.
               ....
               THE COURT: Low Riders. Is that a criminal—what we would
       call a criminal street gang?
               THE DEFENDANT: Yes.
               THE COURT: Okay. And did you belong to that or did? At
       the time on July 7, 2018, you were a Low Rider?
               THE DEFENDANT: Yes. At the time, yes.
               ....
               THE COURT: What is your plea under Count 2 of that Trial
       Information, Criminal Gang Participation, in violation of Iowa Code
       Section 723A.2, a class “D” felony, guilty or not guilty?
               THE DEFENDANT: Guilty.

       As Trujillo notes, the district court did not define “criminal street gang” before

Trujillo made these statements.        But our review is not limited to Trujillo’s

statements. We may also consider the minutes of evidence. See Schminkey, 597

N.W.2d at 788 (“In deciding whether a factual basis exists, we consider the entire

record before the district court at the guilty plea hearing, including . . . the minutes

of testimony . . . .”). They provide a list of witnesses, some who would testify that

Trujillo was “a known member of the Low Rider gang,” some who would testify

about an incident where Trujillo confronted a rival gang member and fired multiple
                                            8


shots at a group of people, and others that could testify that Trujillo’s bedroom

contained “a metal sign with gang affiliated graffiti” and “a sweatshirt containing

gang affiliation.” The minutes also reveal a detective in the Gang and Street

Crimes unit intended to testify that “the Low Riders are a known Quad City criminal

street gang” that “have committed two or more criminal acts” and “are engaged in

an ongoing pattern of criminal activity.”

       Viewed as a whole, we find the record “disclose[d] facts to satisfy the

elements of the crime” of criminal gang participation. See Amadeo, 2012 WL

2122262, at *1. So we decline to find counsel was ineffective in allowing Trujillo

to plead guilty to the offense.

       B. Trafficking in Stolen Weapons

       Trujillo next claims the “record lacks a factual basis to support [his] guilty

plea to [t]rafficking in [s]tolen [w]eapons because there is no indication that [he]

knew the firearm was stolen at the time of acquisition.” The State contends Trujillo

is interpreting section 724.16A(1) too narrowly and, moreover, he fails to provide

any supporting authority. In the State’s view, it doesn’t matter whether Trujillo

knew the weapon was stolen at the time of acquisition. Rather, the question is

whether he acquired a stolen weapon and then “possessed it knowing it was

stolen.” But the State provides no authority for its interpretation, either.

       So it appears the parties have presented a question of first impression. To

answer it, we must find the meaning of section 724.16A(1) “in the ‘text of the

statute,’ the ‘words chosen by the legislature.’” Fishel v. Redenbaugh, 939 N.W.2d

660, 663 (Iowa Ct. App. 2019) (quoting State v. Childs, 898 N.W.2d 177, 184 (Iowa

2017)). Section 724.16A states:
                                          9



               724.16A Trafficking in stolen weapons.
               1. A person who knowingly transfers or acquires possession,
       or who facilitates the transfer, of a stolen firearm commits:
               a. A class “D” felony for the first offense.
               b. A class “C” felony for second and subsequent offenses or
       if the weapon is used in the commission of a public offense.
               2. However, this section does not apply to a person
       purchasing stolen firearms through a buy-back program sponsored
       by a law enforcement agency if the firearms are returned to their
       rightful owners or destroyed.

(Emphasis added.)

       We think this case turns on the legislature’s choice of verbs.          If the

legislature had chosen to prohibit the knowing “possession” of a stolen firearm,

then the State’s argument might well prevail. Cf. Iowa Code § 714.1(4) (providing

“[a] person commits theft when the person . . . [e]xercises control over stolen

property, knowing such property to have been stolen”).          But instead, section

724.16A is aimed at those who “knowingly . . . acquire[] possession . . . of a stolen

firearm.”   And we think the adverb “knowingly” modifies the action of

“acquir[ing] . . . a stolen firearm.” See State v. James, 693 N.W.2d 353, 354 (Iowa

2005) (interpreting the phrase “knowingly acts in a manner that creates a

substantial risk to a child or minor’s physical, mental or emotional health or safety”

in Iowa Code section 726.6(6) and holding trial court erred by instructing “that

‘knowingly’ refers only to the defendant’s act”; further holding that “instructions

should have informed the jury that it must find the defendant acted with knowledge

that she was creating a substantial risk to the child’s safety”). And, in ordinary

English, a person does not “knowingly” “acquire” “a stolen firearm” unless she or

he knows the firearm is stolen when he or she acquires it. See In re Estate of

Franken, 944 N.W.2d 853, 859–60 (Iowa 2020) (noting “we seek to determine the
                                          10


ordinary and fair meaning of the statutory language at issue”). This reading fits

well with the statute’s heading, which shows the legislature’s interest in punishing

people who “traffic[] in stolen weapons.” Iowa Code § 726.16A. It shows no

legislative interest in punishing people who buy or sell firearms without reason to

believe they are stolen. See Des Moines Flying Serv., Inc. v. Aerial Servs. Inc.,

880 N.W.2d 212, 221 (Iowa 2016) (recognizing the “title-and-headings canon”

(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 221 (2012))).

       So we agree with Trujillo that the record must show he knew the firearm

was stolen at the point of acquisition. See Iowa Code § 724.16A. With that issue

resolved, we turn to the record. The following plea colloquy occurred to establish

a factual basis for this charge:

               [TRIAL COUNSEL]: On the plea agreement, it says that you
       would be pleading to trafficking stolen weapons, in violation of
       section 724.16A(1)(a), and we have gone over that also. That’s
       being in possession of a weapon in this case. The weapon was a
       Springfield XDS pistol, and that was in your room?
               THE DEFENDANT: Yes.
               [TRIAL COUNSEL]: And that was a stolen weapon in your—
       it was in your possession?
               THE DEFENDANT: Yes.
               ....
               THE COURT: Okay. Thank you, [trial counsel], and Mr.
       Trujillo, at the time that you had this firearm, you knew that it was
       stolen; right?
               THE DEFENDANT: Yes.
               THE COURT: Okay. And that would be your first offense, so
       that’s a class “D” under the Code, first offense for that. All right. Mr.
       Trujillo, after going through all of that, what is your plea under Count
       1, Trafficking in Stolen Weapons, . . . guilty or not guilty?
               THE DEFENDANT: Guilty.

The minutes of evidence add little of use. They only mention that “a stolen

Springfield XDS pistol” was found in Trujillo’s room.
                                          11


       What we do not find in the record is an indication of when, where, or how

Trujillo acquired the handgun. Nor is it clear what knowledge Trujillo had when he

“acquired possession” of the gun.       So we find no factual basis for his plea.

Accordingly, we must vacate Trujillo’s sentence and remand for further

proceedings in which the State will have the opportunity to establish a factual

basis. See Schminkey, 597 N.W.2d at 792 (“Where, however, it is possible that a

factual basis could be shown, it is more appropriate merely to vacate the sentence

and remand for further proceedings to give the State an opportunity to establish a

factual basis.”).

       C. Possession of a Firearm by a Felon

       Finally, Trujillo argues counsel was ineffective for failing to address the lack

of factual basis for the charge of possession of a firearm by a felon. He claims the

record does not support a finding that he was “adjudicated delinquent on the basis

of conduct that would constitute a felony if committed by an adult.” See Iowa Code

§ 724.26(1). The State contends Trujillo’s admissions during the plea colloquy

satisfy this requirement.     Alternatively, the State contends Trujillo’s known

adjudications satisfy an exception for aggravated misdemeanors that involved a

firearm.

       We begin our analysis with the relevant statutes.         Iowa Code section

724.26(1) states:

       A person who is convicted of a felony in a state or federal court,
       or who is adjudicated delinquent on the basis of conduct that would
       constitute a felony if committed by an adult, and who knowingly has
       under the person’s dominion and control or possession, receives, or
       transports or causes to be transported a firearm or offensive weapon
       is guilty of a class “D” felony.
                                           12


(Emphasis added.)

       Reading backward in the Code, we find that section 724.25(1) provides this

definition of “felony”:

       As used in section 724.26, the word “felony” means any offense
       punishable in the jurisdiction where it occurred by imprisonment for
       a term exceeding one year, but does not include any offense, other
       than an offense involving a firearm or explosive, classified as a
       misdemeanor under the laws of the state and punishable by a term
       of imprisonment of two years or less.

       So, in general, misdemeanor adjudications do not constitute “felonies” for

purposes of the possession-of-a-firearm-by-a-felon statute. State v. Goodjoint,

No. 17-1739, 2019 WL 1752696, at *1 (Iowa Ct. App. Apr. 17, 2019). But there is

an exception. An aggravated misdemeanor may be treated as a prior “felony” if

the offense involved a firearm or explosive. State v. Buchanan, 604 N.W.2d 667,

669 (Iowa 2000) (stating there is a “legislative directive that those committing

aggravated misdemeanors by use of firearms—as well as felons—were prohibited

from possessing firearms” and determining an aggravated misdemeanor by use of

a firearm “brought [the offender] within the prohibition under section 724.26”).

       From our review of the current record, we are not convinced there is a

sufficient factual basis for Trujillo’s conviction. The State points out that Trujillo

answered “yeah” to this question: “And you have a prior adjudication as a juvenile

as a felon; is that correct?” But it is not clear to us that an adjudication “as a felon”

is the same as an adjudication “for a felony.” It is also not clear that Trujillo’s “yeah”

was enough to establish that—in the words of the statute—he had been

“adjudicated delinquent on the basis of conduct that would constitute a felony if

committed by an adult.” Iowa Code § 724.26(1) (emphasis added). Trujillo did not
                                         13


explain what “conduct” formed the “basis” for any adjudication. Nor did Trujillo

name a particular offense, such as robbery, that would have “constitute[d] a felony

if committed by an adult.” See id. So we do not believe Trujillo’s statements show

he was adjudicated delinquent “on the basis of conduct that would constitute a

felony if committed by an adult.” Moreover, from this record, it appears Trujillo’s

presentence investigation report (PSI) is the best indicator of his actual history of

juvenile adjudications. But the PSI lists no prior felony adjudications.

       The PSI does show Trujillo has two prior adjudications for carrying

weapons,6 both of which would be aggravated misdemeanors if committed by an

adult. See Iowa Code § 724.4(1). So the next question is: Does the record show

that at least one of these offenses involved “a firearm or explosive”? See Iowa

Code § 724.25(1). If so, the felon element is fulfilled.

       But we find no evidence to support that conclusion. See Amadeo, 2012 WL

2122262, at *1; cf. State v. Mason, No. 02-0591, 2003 WL 22087414, at *1 (Iowa

Ct. App. Sept. 10, 2003) (finding support for factual basis on a habitual-offender

enhancement in a PSI that listed six prior felony convictions). As far as the record


6Iowa Code section 724.4(1) provides:
      Except as otherwise provided in this section, a person who goes
      armed with a dangerous weapon concealed on or about the person,
      or who, within the limits of any city, goes armed with a pistol or
      revolver, or any loaded firearm of any kind, whether concealed or
      not, or who knowingly carries or transports in a vehicle a pistol or
      revolver, commits an aggravated misdemeanor.
And, according to Iowa Code section 702.7,
      Dangerous weapons include but are not limited to any offensive
      weapon, pistol, revolver, or other firearm, dagger, razor, stiletto,
      switchblade knife, knife having a blade exceeding five inches in
      length, or any portable device or weapon directing an electric current,
      impulse, wave, or beam that produces a high-voltage pulse designed
      to immobilize a person.
                                         14


shows, both offenses could have been committed without a firearm or explosive.

As far as the record shows, both offenses could have involved any other

“dangerous weapon,” like a “razor” or a “knife having a blade exceeding five inches

in length.”   See Iowa Code § 724.4(1) (prohibiting the “go[ing] armed with a

dangerous weapon concealed on or about the person”); id. at § 702.7 (defining

“dangerous weapons”).

       So we find no factual basis to support the “felon” element for the charge of

possession of a firearm by a felon.7 Cf. Goodjoint, 2019 WL 1752696, at *2–3.

Again, we find Trujillo’s sentence must be vacated. On remand, the State will have

further opportunity to establish a factual basis for the “felon” element.       See

Schminkey, 597 N.W.2d at 792.

III. Conclusion

       The record does not establish a factual basis for two of Trujillo’s

convictions—trafficking in stolen weapons and possession of a firearm by a felon.

Therefore, we vacate his sentence and remand so that State may establish a

factual basis for those charges. If a factual basis for those charges cannot be

shown, the district court should vacate all of the convictions and return the parties

“to the position [they] had before the plea agreement.” State v. Gines, 844 N.W.2d

437, at 442 (Iowa 2014); see also State v. Olson, No. 15-2114, 2017 WL 362597,



7 We note the minutes of evidence state that Clerk of Court Julie Carlin “or
designee” would testify “that the regularly kept records of the Scott County Juvenile
Court reflect that the defendant, JACOB A. TRUJILLO was previously adjudicated
delinquent of conduct that would constitute a felony for purposes of the felon in
possession statute under Iowa Code Section 724.26(1) if committed by an adult.”
Because the State does not mention this statement in its brief, we decline to
speculate about its possible importance.
                                       15


at *2 (Iowa Ct. App. Jan. 25, 2017). “If this occurs, the State may reinstate any

charges or sentencing enhancements it dismissed in contemplation of the plea

agreement, file any additional charges supported by the evidence, and proceed

against [Trujillo] accordingly.” State v. Olson, No. 14-1352, 2015 WL 1848694, at

*1 (Iowa Ct. App. Apr. 22, 2015).

      CONVICTIONS VACATED IN PART, SENTENCE VACATED, AND

REMANDED WITH INSTRUCTIONS.
