                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-1581
                                 Filed August 5, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES HARLEY SCHILDBERG,
     Defendant-Appellant.
________________________________________________________________


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

(plea) and Mark D. Cleve (sentencing), Judges.



      Following an Alford plea, a defendant appeals alleging ineffective

assistance of counsel. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, Michael Walton, County Attorney, and Patrick A. McElyea, Assistant

County Attorney, for appellee.



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

       James Schildberg entered an Alford plea to third-degree kidnapping.1 On

appeal, he contends the plea lacked a factual basis and his attorney was

ineffective in failing to challenge the plea on that ground. See Iowa R. Crim. P.

2.8(2)(b); State v. Ortiz, 789 N.W.2d 761, 764-65 (Iowa 2010) (“Defense counsel

violates an essential duty when counsel permits defendant to plead guilty and

waive his right to file a motion in arrest of judgment when there is no factual basis

to support defendant’s guilty plea.”           “Prejudice is presumed under these

circumstances.” (internal citations omitted)).

       Schildberg specifically challenges the confinement element of the

kidnapping charge. See Iowa Code § 710.1 (2013) (providing a person commits

kidnapping “when the person either confines a person or removes a person from

one place to another, knowing that the person who confines or removes the other

person has neither the authority nor the consent of the other to do so” and the

person has “[t]he intent to inflict serious injury upon such person, or to subject the

person to a sexual abuse”). The Iowa Supreme Court recently addressed this

element in State v. Robinson, 859 N.W.2d 464, 479-82 (Iowa 2015). The court

reaffirmed the following “oft quoted language” from its prior opinion, State v. Rich,

305 N.W.2d 739, 745 (Iowa 1981):

       [O]ur legislature, in enacting section 710.1, intended the terms
       “confines” and “removes” to require more than the confinement or
       removal that is an inherent incident of commission of the crime of
       sexual abuse. Although no minimum period of confinement or

1
 An Alford plea is a variation of a guilty plea in which the defendant does not admit to
participation in the acts constituting the crime but consents to the imposition of a
sentence. North Carolina v. Alford, 400 U.S. 25, 37 (1970). Schildberg also entered
Alford pleas to two other crimes, which are not at issue on appeal.
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      distance of removal is required for conviction of kidnapping, the
      confinement or removal must definitely exceed that normally
      incidental to the commission of sexual abuse. Such confinement or
      removal must be more than slight, inconsequential, or an incident
      inherent in the crime of sexual abuse so that it has a significance
      independent from sexual abuse. Such confinement or removal may
      exist because it substantially increases the risk of harm to the
      victim, significantly lessens the risk of detection, or significantly
      facilitates escape following the consummation of the offense.

Applying this “tripartite test,” the court concluded the evidence against Robinson

was insufficient to find that the confinement “substantially” increased the risk of

harm, “significantly” lessened the risk of detection, or “significantly” facilitated

escape following the consummation of the offense. Robinson, 859 N.W.2d at

478, 481-82.

      In our application of the Rich test, we examine the “entire record before

the district court” to determine whether Schildberg’s plea is supported by a

factual basis. State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). The record

includes the minutes of evidence. Ortiz, 789 N.W.2d at 768.

      According to the minutes, Schildberg’s girlfriend would testify that, around

1:30 a.m. one morning, Schildberg pulled her out of bed by her hair, ripping

chunks of hair as he did so. He hit and kicked her and broke one of her ribs. He

also put his legs around her head and neck and choked her until she was

gasping for air. The girlfriend thought she was going to die.

      Schildberg forced her to have sex with him several times “throughout the

morning.” Around noon, Schildberg made her drive him to a gas station to get

more beer. He “would not allow her to remain in the vehicle telling her she had to

come in because he thought she might escape or call the police.” He shoved

and directed her into the store. When they returned to the home, Schildberg
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“would only sleep with his arm around her telling her she was not allowed to

leave.” He “kept her phone and purse away from her so she could not call

anyone.” He did not allow her to leave the residence. He told her he wanted to

keep her in the house to have sex with her because he knew she would be

breaking up with him. She called the police after Schildberg passed out.

      Based on these minutes, we have no trouble concluding the confinement

was more than incidental to the commission of sexual abuse. Rich, 305 N.W.2d

at 745.   Schildberg forcibly kept his girlfriend in the house for ten-and-a-half

hours, insisted she accompany him to the gas station and into the store so she

would not escape or call police, restricted her movement on their return to the

house, and prevented her from using her phone or from leaving the house.

Because Schildberg’s acts substantially increased the risk of harm to his

girlfriend and significantly lessened the risk of detection, his attorney did not

breach an essential duty in failing to challenge the factual basis for the

confinement element of the crime.

      We      affirm   Schildberg’s   judgment   and   sentence   for   third-degree

kidnapping.

      AFFIRMED.
