Opinion
No. 3-042 / 02-0497
Filed February 12, 2003
Appeal from the Iowa District Court for Linn County, Thomas M. Horan and Thomas L. Koehler, Judges.
Timothy Crane appeals his conviction based on his Alford plea to sexual abuse in the third degree. CONVICTION REVERSED; REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS DECISION.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Denver Dillard, County Attorney, and Jerry Vandersanden, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Timothy Crane appeals his conviction based on his Alford plea to sexual abuse in the third degree under Iowa Code sections 709.1 and 709.4(2)(b) (2001). He claims his attorney provided ineffective assistance because he failed to file a motion in arrest of judgment alleging an inadequate factual basis for the plea. We reverse Crane's conviction and remand for further proceedings consistent with this decision.
On March 7, 2001, Timothy Crane was charged by trial information with sexual abuse in the second degree in violation of Iowa Code sections 709.1 and 709.3(2). Pursuant to a plea agreement, Crane entered an Alford plea to the reduced charge of sexual abuse in the third degree in violation of Iowa Code section 709.1 and 709.4(2)(b). He was sentenced to a term of imprisonment not to exceed ten years and he was ordered to pay a $1000 fine and a civil penalty of $200. Crane appeals.
We review Crane's ineffective assistance of counsel claim de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Before accepting a guilty plea, the district court must establish on the record a factual basis for the plea. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In deciding whether a factual basis exists, the court may consider the entire record, including any of the defendant's statements, facts related by the prosecutor, the presentence report, and the minutes of testimony. Id. Trial counsel fails to perform an essential duty when he permits a defendant to plead guilty to an offense lacking a factual basis in the record. Id. In addition, the defendant is inherently prejudiced under such circumstances. Id.
Crane asserts his attorney should have filed a motion in arrest of judgment because there was an insufficient factual basis for the Alford plea under Iowa Code section 709.4(2)(b). Section 709.4(2)(b) provides sexual abuse in the third degree is committed when a person performs a sex act and the sex act is between persons who are not at the time cohabiting as husband and wife and the other person is twelve or thirteen years old. Iowa Code § 709.4(2)(b) (2001). The age of the child is an essential element of a prosecution under this section. Both parties agree that a factual basis for Crane's plea does not exist because the victim was eleven years of age at the time of the incident in question. Thus, the critical issue becomes what is the appropriate remedy.
In State v. Schminkey, 597 N.W.2d 785 (Iowa 1999) our supreme court stated:
Where a guilty plea has no factual basis in the record, two possible remedies exist. Where the record establishes that the defendant was charged with the wrong crime, we have vacated the judgment of conviction and sentence and remanded for dismissal of the charge. See, e.g., Hack, 545 N.W.2d at 263; State v. Schoelerman, 315 N.W.2d 67, 75 (Iowa 1982). 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. See [ State v.] Burtlow, 299 N.W.2d 665, 670 [(Iowa 1980)]; Ryan v. Iowa State Penitentiary, 218 N.W.2d 616, 620 (Iowa 1974).
Schminkey, 597 N.W.2d at 792. After a careful review of the record, we find neither of the remedies articulated by the court in Schminkey to be appropriate. The first remedy is not available to Crane because he was not charged with the wrong crime. He was charged with sexual abuse in the second degree and then entered an Alford plea to the reduced charge of sexual abuse in the third degree. The State contends the second remedy is appropriate because a factual basis can be established under the "force or against the will" alternative of third-degree sexual abuse. We disagree. This alternative is not provided for under section 709.4(2)(b). Instead, this component is included under section 709.4(1). See Iowa Code § 709.4(1) (providing a person commits sexual abuse when a sex act is done by force or against the will of the other person). Thus, this case cannot be remanded to establish a factual basis under section 709.4(2)(b) when no additional facts will save this plea. We find the appropriate remedy under the facts and circumstances of this case is to reverse Crane's conviction, vacate his sentence, and remand to the district court for further proceedings to allow the State to proceed under section 709.3(2).