Opinion
No. 2-780 / 02-0632
Filed October 16, 2002
Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.
William R. Clay appeals his conviction, following a guilty plea, for possession of a Schedule I controlled substance, marijuana, as a class "D" felony in violation of Iowa Code sections 124.401(5) and 124.204(4)(m) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Paul Martin, County Attorney, and Steven Tynan, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
William R. Clay appeals his conviction, following a guilty plea, for possession of a Schedule I controlled substance, marijuana (third or subsequent offense), as a class "D" felony in violation of Iowa Code sections 124.401(5) and 124.204(4)(m) (2001). He contends the record did not establish a factual basis for the trial court to accept his plea of guilty to that charge. Clay raises this issue as an ineffective assistance of counsel claim. We affirm.
An Iowa State Trooper stopped the motorcycle driven by Clay after the trooper checked the motorcycle's license plates and discovered the owner did not have a valid license. Clay admitted that his driving privileges had been suspended. The trooper arrested Clay for driving while barred. While Clay was sitting in the patrol car the trooper noticed a strong smell of marijuana coming from him. Clay admitted to smoking "half a bowl" of marijuana prior to getting on the motorcycle. The trooper conducted standardized field sobriety tests on Clay and concluded that Clay was operating the motorcycle while under the influence of marijuana. The trooper searched Clay and found in Clay's pocket a marijuana pipe or "one-hitter" with trace amounts of marijuana in it, a syringe, a spoon with residue, and a "snort tube" that contained a white powdery substance which was later determined to be trace amounts of methamphetamine.
The State charged Clay by trial information with operating while intoxicated (OWI) third or subsequent offense; possession of a Schedule II controlled substance (third or subsequent offense); possession of a Schedule I controlled substance, marijuana (third or subsequent offense), a class "D" felony; and driving while barred. Pursuant to a plea agreement Clay entered pleas of guilty to the OWI and possession of marijuana charges and the State dismissed the other two counts. The possession of marijuana count was charged and sentenced as a class "D" felony under the first paragraph of section 124.401(5). The trial court sentenced Clay to an indeterminate term of imprisonment not to exceed five years on each conviction, with the two sentences to be served concurrently.
Clay appeals his conviction for possession of marijuana, alleging that the record does not establish a factual basis for his plea of guilty to that charge as a class "D" felony. Specifically, he contends the record does not establish that one of his prior controlled substance convictions was for a substance other than marijuana, which is required in order for his current offense to be a class "D" felony under the first paragraph of section 124.401(5) rather than an aggravated misdemeanor under the second paragraph of that section. Clay asserts his counsel was therefore ineffective for allowing him to plead guilty to the charge as a class "D" felony and thereafter failing to file a motion in arrest of judgment.
Clay's failure to timely file a motion in arrest of judgment after entry of his guilty plea bars a direct appeal of his conviction. Iowa R.Crim.P. 2.24(3)( a). Nevertheless, this failure does not bar a challenge to the guilty plea if the failure was the result of ineffective assistance counsel. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Generally we review challenges to guilty pleas for correction of errors at law. Iowa R.App.P. 6.4. However, when a defendant claims trial counsel was ineffective for permitting a guilty plea to a charge not supported by a factual basis, our review is de novo. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142-45 (Iowa 2001). While we often preserve ineffective assistance claims for a possible postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Neither party suggests that we preserve Clay's ineffective assistance claim for a postconviction proceeding and we find the record adequate to address his claim on direct appeal.
It is axiomatic that a trial court may not accept a guilty plea without first determining that the plea has a factual basis, and that factual basis must be disclosed by the record. Keene, 630 N.W.2d at 581. We determine whether a factual basis exists by considering the entire record before the district court at the guilty plea hearing, including any statements made by the defendant, facts related by the prosecutor, and the minutes of testimony. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In determining whether the record adequately established a factual basis we may consider written statements by the defendant if such statements are not conclusory and are not expressed in terms lifted directly from the criminal statute. State v. Mensah, 424 N.W.2d 453, 455 (Iowa 1988). We may consider contents of the presentence investigation report, if available to the trial court at the time of the plea hearing. State v. Fluhr, 287 N.W.2d 857, 868 (Iowa 1980).
"We will find counsel failed to perform an essential duty if defense counsel allows the defendant to plead guilty to a charge for which no factual basis exists and thereafter fails to file a motion in arrest of judgment challenging the plea." Brooks, 555 N.W.2d at 448; see also Keene, 630 N.W.2d at 581 ("If a defendant enters a plea of guilty to a crime and the record fails to disclose a factual basis, defense counsel fails to provide effective assistance."). Prejudice under such circumstances is inherent. Keene, 630 N.W.2d at 581; Schminkey, 597 N.W.2d at 788.
The first paragraph of section 124.401(5) states that it is unlawful for a person to knowingly possess a controlled substance. It provides in relevant part: "A person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter or chapter 124A, 124B, or 453B is guilty of a class `D' felony." Iowa Code § 124.401(5). The second paragraph of section 124.401(5) provides in relevant part: "If the controlled substance is marijuana and the person has been previously convicted two or more times of a violation of this subsection in which the controlled substance was marijuana, then the person is guilty of an aggravated misdemeanor." Id. Thus, this second paragraph grants leniency only to those charged exclusively with marijuana offenses. State v. Cortez, 617 N.W.2d 1, 3 (Iowa 2000). Once a defendant is convicted of a single offense involving a controlled substance other than marijuana, all possession of a controlled substance crimes committed prior or subsequent thereto can be used to enhance the defendant's sentence under the stricter, felony track of the statute. Id.
Clay argues the district court accepted his guilty plea without first establishing that at least one of his prior controlled substance convictions involved a controlled substance other than marijuana, which is required before he can be convicted of a felony rather than an aggravated misdemeanor. He claims his counsel was therefore ineffective for allowing him to plead guilty to a charge for which there was not a sufficient factual basis and not filing a motion in arrest of judgment. We disagree.
Initially, we note that a trial information which charges a prior violation of a statute for enhancement of punishment for a current offense does not make the prior violation an element of the crime charged in the trial information. State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999). Instead, the prior conviction only impacts the penalty in the event guilt is found. Id. Therefore, whether the record shows that one or more of Clay's prior convictions was for a substance other than marijuana does not affect the factual basis of his guilty plea to possession of marijuana, but instead can only affect the factual basis for determining whether he can be sentenced for a felony rather than an aggravated misdemeanor.
The trial court conducted a reported guilty plea proceeding. Clay also prepared written pleas of guilty which he signed and filed on the day of the in-court plea proceeding. As part of the plea colloquy the trial court specifically asked Clay whether by initialing the paragraphs of the written pleas and signing them Clay meant to indicate he had gone over them carefully with his attorney and understood them. Clay answered in the affirmative. Clay's statements in his written pleas of guilty were thus clearly before the court and were properly considered by the court in accepting Clay's plea of guilty.
In his written guilty plea to the possession of marijuana charge Clay stated that more than two of his prior controlled substance convictions were for "other than marijuana." The record thus discloses that a factual basis exists not only for the trial court's acceptance of his guilty plea to possession of marijuana but also for sentencing for that offense as a felony. Clay has therefore shown neither a breach of duty by counsel nor prejudice to Clay from counsel permitting him to plead guilty to possession of marijuana as a felony and not challenging imposition of sentence for that class "D" felony. Clay's ineffective assistance of counsel claim is without merit.