State of Iowa v. Craig Anthony Finney

IN THE SUPREME COURT OF IOWA
No. 12–0010
Filed July 5, 2013
STATE OF IOWA,
Appellee,
vs.
CRAIG ANTHONY FINNEY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Pottawattamie County,
Mark J. Eveloff, Judge.
The State seeks further review of a court of appeals decision
vacating a criminal defendant’s conviction and sentence. DECISION OF
COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT
AFFIRMED.
Sean M. Conway of Dornan, Lustgarten & Troia, PC LLO, Omaha,
Nebraska, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, Matthew D. Wilber, County Attorney, and Christine M.
Shockey, Assistant County Attorney, for appellee.
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APPEL, Justice.
In this case, we consider a challenge to a guilty plea on grounds of
ineffective assistance of counsel when the guilty plea colloquy failed to
establish a factual basis for the underlying charge, but when the minutes
of testimony provide substantial support for the crime. The court of
appeals held that the guilty plea must be vacated because of the
inadequacy of the colloquy. It remanded the case to the district court for
further proceedings. We granted further review. We now vacate the
decision of the court of appeals and affirm the conviction and sentence of
the district court.
I. Factual and Procedural Background.
The State charged Craig Finney with the attempted murder of Patty
Harker, the attempted murder of Benjamin Shimmin, two counts of
assault while participating in a felony, and one count each of first-degree
burglary, willful injury causing serious injury, going armed with intent,
and flight to avoid prosecution. The minutes of testimony outline the
factual basis of the charges.
According to the minutes, Finney and Harker had previously
dated. The minutes allege that in the early morning hours of June 17,
2011, Finney, after seeing Harker and Shimmin together at a bar, went
to Harker’s house with a shotgun, kicked open the door, fired one shot
through a door into the bathroom where Shimmin was hiding, and shot
Harker in the back as she attempted to flee. The minutes also allege that
Finney shot himself and fled the scene. After the incident, Finney put
his gun in his truck, parked it at a local pond, solicited the help of his
son, changed clothes, and got into another vehicle. Police recovered
Finney’s truck and shotgun and apprehended him the next day in
Missouri.
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Finney initially pled not guilty to the charges. He later agreed to
plead guilty to the attempted murder of Harker in exchange for the
dismissal of the other charges. At the plea hearing, the court informed
Finney of his rights. The following colloquy then occurred regarding the
factual basis for Finney’s guilty plea to the crime of attempted murder:
THE COURT: Would you explain to the Court exactly what
you did, why you are pleading guilty to the charge of
attempted murder?
[FINNEY]: Oh, yes. I shot Patty.
THE COURT: By Patty—
[FINNEY]: I could go—I don’t know—
THE COURT: —is that Patty Harker?
[FINNEY]: Yes, it is.
At this point, the district court accepted Finney’s guilty plea to the crime
of attempted murder.
Finney then waived his right to file a motion in arrest of judgment
and elected to be sentenced immediately. Finney addressed the district
court, expressing remorse for his “terrible” actions and for his inability to
pay restitution to his victims. He further stated: “I took a plea because
never once I pled innocent. I never said I was innocent. I—I took the
plea because I’m guilty.”
The State addressed the court, stating that Finney had repeatedly
abused Harker during their ten-year relationship. The State then
provided the court with an overview of the allegations contained in the
minutes of testimony. The district court sentenced Finney to twenty-five
years in prison and ordered him to pay restitution.
Finney appealed, claiming he received ineffective assistance of
counsel because his trial counsel permitted him to plead guilty to
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attempted murder without an established factual basis for each element
of the crime. He also argued that the court illegally imposed a
mandatory sentence of eighty-five percent of the twenty-five-year
sentence for attempted murder instead of the statutorily established
minimum sentence of seventy percent.
We transferred the case to the court of appeals. The court of
appeals vacated Finney’s conviction and sentence. The court of appeals
reasoned that under State v. Philo, 697 N.W.2d 481, 485–86 (Iowa 2005),
a trial court accepting a guilty plea must specify on the record the facts
and evidence relied upon to establish the factual basis for the plea if the
facts or evidence are gleaned from a source other than the defendant’s
own statements. The court of appeals found that Finney’s in-court
statement, “I shot Patty,” standing alone, was insufficient to provide a
factual basis for Finney’s intent to cause Harker’s death as required for
the crime of attempted murder. As a result, the court of appeals vacated
Finney’s conviction and sentence and remanded the case for further
proceedings to allow the State to supplement the record to establish a
factual basis for the plea.
We granted further review. For the reasons expressed below, we
now vacate the decision of the court of appeals and affirm Finney’s
conviction and sentence.
II. Preservation of Error.
Iowa Rule of Criminal Procedure 2.24(3)(a) provides that a
defendant is precluded from challenging a guilty plea on appeal unless
the defendant files a motion in arrest of judgment. We have recognized
an exception to the rule, however, when a defendant alleges trial counsel
was ineffective for permitting him to plead guilty to a charge for which
there is no factual basis and for failing to thereafter file a motion in
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arrest of judgment. See, e.g., State v. Allen, 708 N.W.2d 361, 368 (Iowa
2006); Philo, 697 N.W.2d at 488; State v. Royer, 632 N.W.2d 905, 909
(Iowa 2001); State v. Schoelerman, 315 N.W.2d 67, 72–73 (Iowa 1982).
Accordingly, because Finney argues his counsel was ineffective for
permitting the guilty plea without establishing a factual basis of each
element, we may consider the claim.
III. Scope of Review.
We review claims of ineffective assistance of counsel de novo.
Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). Although we
normally preserve ineffective-assistance claims for postconviction relief
actions, “we will address such claims on direct appeal when the record is
sufficient to permit a ruling.” State v. Wills, 696 N.W.2d 20, 22 (Iowa
2005). The record in this case is sufficient to allow us to address
Finney’s ineffective-assistance claim on direct appeal.
IV. Discussion of Challenge to Plea Bargain.
A. Introduction. Plea bargaining plays an essential role in the
modern criminal justice system in the United States. It has been
estimated that approximately ninety-five percent of the criminal matters
in this country are resolved through plea bargaining. Kristen M. Hall,
Ignorance Is Not Necessarily Bliss: The Third Circuit Expands the
Requirements for a Knowing and Voluntary Plea in Jameson v. Klem, 54
Vill. L. Rev. 753, 753 (2009) [hereinafter Hall] (discussing adjudication in
federal district court); see also United States v. Timmreck, 441 U.S. 780,
784, 99 S. Ct. 2085, 2087–88, 60 L. Ed. 2d 634, 639 (1979) (noting that
“the vast majority of criminal convictions result from [guilty] pleas”
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(citation and internal quotation marks omitted)). The critics of plea
bargaining abound.1
While the criminal trial itself has been historically subject to a
number of relatively stringent procedural safeguards found in the Bill of
Rights, plea bargaining was largely unregulated until relatively recently
in our nation’s history. Stephanos Bibas, Regulating the Plea-Bargaining
Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev.
1117, 1119 (2011). In the 1960s, the United States Supreme Court
began to expand protections available to criminal defendants in the plea-
bargaining context both through rulemaking and case adjudication.
Many states, including Iowa, followed the Supreme Court’s lead.
Nearly all states now require through their rules of criminal procedure
that before a court accepts a guilty plea for serious crimes, the district
court must engage in some kind of colloquy with the defendant in order
to ensure that there is a factual basis for the plea and that the defendant
has knowingly and voluntarily waived important constitutional rights.
For instance, Iowa Rule of Criminal Procedure 2.8(2)(b) states, in
pertinent part, “The court may refuse to accept a plea of guilty, and shall
not accept a plea of guilty without first determining that the plea is made
voluntarily and intelligently and has a factual basis.”
While plea colloquies are now nearly universally required, a
number of important questions have arisen. For instance, controversies
1The classic critiques may be found in Stephen J. Schulhofer, Is Plea Bargaining
Inevitable?, 97 Harv. L. Rev. 1037 (1984), and Albert W. Alschuler, The Changing Plea
Bargaining Debate, 69 Cal. L. Rev. 652 (1981). Other critiques may be found in Julian
A. Cook, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal
Defendants, 75 U. Colo. L. Rev. 863 (2004), Susan R. Klein, Enhancing the Judicial Role
in Criminal Plea and Sentence Bargaining, 84 Tex. L. Rev. 2023, 2048–50 (2006), and
Máximo Langer, Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial
Adjudication in American Criminal Procedure, 33 Am. J. Crim. L. 223 (2006).
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have arisen regarding what a district court may rely upon in determining
that a guilty plea is supported by a factual basis. Further, there have
been disputes regarding the consequences resulting from an inadequate
plea colloquy.
In this case, we are asked to vacate a plea bargain on the ground
that the record made at the plea colloquy did not provide a factual basis
for the intent necessary to support a charge of attempted murder. To set
the stage for resolution of this case, we first survey the legal positions of
the parties. We then review the origins and development of guilty plea
jurisprudence in federal law and in our own law. In the survey of guilty
plea cases, we pay particular attention to the multiple goals of the guilty
plea colloquy and the difference between objective and subjective
inquiries. Finally, based on the principles gleaned from this review and
our caselaw, we resolve the issue posed in this case.
B. Positions of the Parties. Finney claims his conviction and
sentence were based on a flawed guilty plea process and must be
reversed. Citing Philo, Finney asserts an attorney does not provide
effective assistance when a defendant enters a plea and the record
developed at the time of the acceptance of the plea does not provide a
factual basis for the charge. Specifically, Finney claims his explanation,
“I shot Patty,” at the plea hearing does not establish that he specifically
intended to cause Harker’s death as required for the crime of attempted
murder under Iowa Code section 707.11 (2011). Citing State v. Straw,
709 N.W.2d 128, 138 (Iowa 2006), Finney asserts that due to the lack of
a factual basis in the plea colloquy, his conviction and sentence must be
vacated.
The State counters that while the plea colloquy in this case may
not touch upon the issue of specific intent to kill, the district court could
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nonetheless rely upon the entire record, including the minutes of
testimony, the defendant’s statements, the statements of the attorneys,
any presentence report, and any matter in the record. See, e.g., State v.
Brooks, 555 N.W.2d 446, 448 (Iowa 1996). The State emphasizes that
the record need not establish guilt beyond a reasonable doubt, but only a
factual basis for the guilty plea. State v. Keene, 630 N.W.2d 579, 581
(Iowa 2001). According to the State, the minutes of testimony
demonstrate an ample factual basis for the plea. In any event, the State
further argues that the remedy, to the extent the record is deficient, is a
remand to allow the State to establish a factual basis, not a vacation of
the judgment and sentence. State v. Schminkey, 597 N.W.2d 785, 792
(Iowa 1999).
The issue boils down to this: what happens when a district court
finds a factual basis for the charge at the plea hearing, but does not
identify support in the record for the finding and the plea colloquy
preceding the district court’s finding does not support an essential
element of the crime?
C. Regulation of Plea Bargaining by the United States
Supreme Court.
1. Introduction. In 1944, Congress enacted Rule 11 of the Federal
Rules of Criminal Procedure, which related to plea bargaining. As
originally drafted, Rule 11 simply provided that a district court should
not accept a plea “ ‘without first determining that the plea is made
voluntarily with understanding of the nature of the charge.’ ” Hall, 54
Vill. L. Rev. at 757 (quoting Fed. R. Civ. P. 11 (1944 adoption)). The
general command of the original rule created inconsistent applications,
however, and in 1966, the Supreme Court amended Rule 11 to require
specifically that the sentencing judge address the defendant personally,
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determine that the defendant entered the guilty plea voluntarily and with
an understanding of the nature of the charge, determine that the
defendant understood the consequences of his or her plea, and ensure
that a factual basis supported the plea. Id. at 757 & n.31. In particular,
the advisory committee noted the purpose of the new factual-basis
element was to “protect a defendant who is in the position of pleading
voluntarily with an understanding of the nature of the charge but
without realizing that his conduct does not actually fall within the
charge.” Fed. R. Crim. P. 11 advisory committee’s note to the 1966
amendment.
2. Blockbusters: McCarthy and Boykin. Following adoption of the
1966 amendment, the United States Supreme Court decided the case of
McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d
418 (1969). In McCarthy, the district court accepted a guilty plea in a
case of tax evasion without inquiring whether the defendant understood
the charges against him and without determining whether there was a
factual basis for the claim. Id. at 461–62, 89 S. Ct. at 1168–69, 22 L. Ed.
2d at 422–23. Based on the violation of Rule 11 and in the exercise of its
supervisory authority over federal courts, the Supreme Court reversed
the conviction and allowed the defendant to plead anew. Id. at 471–72,
89 S. Ct. at 1173–74, 22 L. Ed. 2d at 428–29.
McCarthy rested solely upon the failure of the district court to
explore the plea bargain with the defendant. Id. at 464 n.9, 89 S. Ct. at
1170 n.9, 22 L. Ed. 2d at 424 n.9. As a result, the McCarthy Court was
not called upon to consider whether the record as a whole established a
factual basis for the plea. Instead, the Court focused on the issue of
voluntariness under the Due Process Clause of the Fifth Amendment.
According to the Supreme Court, one of the purposes for the trial court’s
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personal interrogation of the defendant, as required by Rule 11, was to
assist the trial court in ascertaining the voluntariness of the plea. Id. at
465–66, 89 S. Ct. at 1170–71, 22 L. Ed. 2d at 424–25. The McCarthy
Court noted that under Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 1023, 82 L. Ed. 1461, 1466 (1938), constitutional rights may be
waived only when there is an “intentional relinquishment or
abandonment of a known right or privilege.” McCarthy, 394 U.S. at 466,
89 S. Ct. at 1170, 22 L. Ed. 2d at 425 (internal quotation marks
omitted). Such waivers, according to the Court, cannot be considered
truly voluntary “unless the defendant possesses an understanding of the
law in relation to facts.” Id. at 466, 89 S. Ct. at 1171, 22 L. Ed. 2d at
425. In particular, the Court noted that in this case the charge required
a form of specific intent which the defendant had repeatedly disavowed.
Id. at 470–71, 89 S. Ct. at 1173, 22 L. Ed. 2d at 427–28.
In addition, the McCarthy Court noted that a personal examination
of the defendant by the trial court provides a more complete record to
support the determination in a subsequent postconviction attack. Id. at
465–66, 89 S. Ct. at 1170–71, 22 L. Ed. 2d at 425. The Court observed
that the record established at the time of the plea bargain is superior to
that of a postconviction hearing, when disputed contentions of credibility
and reliability of memory cannot be avoided. Id. at 470, 89 S. Ct. at
1173, 22 L. Ed. 2d at 427.
On the important question of remedy, the Supreme Court declared
that the conviction should be vacated with the defendant allowed to
plead anew. Id. at 468–69, 89 S. Ct. at 1172, 22 L. Ed. 2d at 427.
Responding to a harmless error argument, the Court noted prejudice
“inheres in a failure to comply with Rule 11, for noncompliance deprives
the defendant of the Rule’s procedural safeguards that are designed to
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facilitate a more accurate determination of the voluntariness of his plea.”
Id. at 471–72, 89 S. Ct. at 1173–74, 22 L. Ed. 2d at 428. The Court
further declared that “[i]t is . . . not too much to require” that a district
court judge spend the few minutes of time necessary “to inform
[defendants] of their rights and to determine whether they understand
the action they are taking.” Id. at 472, 89 S. Ct. at 1174, 22 L. Ed. 2d at
428–29. Clearly, the Supreme Court in McCarthy took a firm stand on
mandatory compliance with the procedural requirements designed to
ensure voluntariness of pleas in Rule 11.
While McCarthy was based on Rule 11 and the Supreme Court’s
supervisory powers over federal courts, the Supreme Court soon
considered the constitutional implications of plea colloquies. Shortly
after McCarthy, the Supreme Court decided Boykin v. Alabama, 395 U.S.
238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The defendant in Boykin
was charged with five counts of common law robbery in Alabama state
court. 395 U.S. at 239, 89 S. Ct. at 1710, 23 L. Ed. 2d at 277. The trial
court did not ask the defendant any questions pertaining to his guilty
plea, which the court accepted three days after it had appointed defense
counsel. Id. The defendant was ultimately sentenced to death. Id. at
240, 89 S. Ct. at 1711, 23 L. Ed. 2d at 278.
The Supreme Court reversed. Id. at 244, 89 S. Ct. at 1713, 23 L.
Ed. 2d at 280. According to the Boykin Court, the state trial court was
required to establish on the record knowing relinquishment of three
constitutional rights: the right to a jury trial, the right against self-
incrimination, and the right to confront one’s accusers. Id. at 243, 89 S.
Ct. at 1712, 23 L. Ed. 2d at 279–80. Further, the Court declared that
the trial court “on the record” should satisfy itself that “the defendant
understands the nature of the charges, his right to a jury trial, the acts
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sufficient to constitute the offenses for which he is charged and the
permissible range of sentences.” Id. at 244 n.7, 89 S. Ct. at 1713 n.7, 23
L. Ed. 2d at 280 n.7 (citation and internal quotation marks omitted). The
Court noted that the three dissenting justices of the Alabama Supreme
Court stated the law accurately when they concluded reversible error
existed “because the record [did] not disclose that the defendant
voluntarily and understandingly entered his pleas of guilty.” Id. at 244,
89 S. Ct. at 1713, 23 L. Ed. 2d at 280 (citation and internal quotation
marks omitted).
3. Henderson v. Morgan: Application of McCarthy and Boykin to
the factual-basis requirement. The Supreme Court considered the failure
of the district court to find a factual basis for the intent required in a
guilty plea setting in Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253,
49 L. Ed. 2d 108 (1976). In Henderson, the defendant pled guilty in
New York state court to second-degree murder even though at the plea
colloquy he did not admit that he had the required intent to murder the
victim. Id. at 642–43, 96 S. Ct. at 2256–57, 49 L. Ed. 2d at 113. The
defendant later filed a petition for a writ of habeas corpus in federal
court. Id. at 639, 96 S. Ct. at 2255, 49 L. Ed. 2d at 111. The defendant
maintained he would not have pled guilty if he had known intent to kill
was a required element of second-degree murder. Id. at 643–44, 96
S. Ct. at 2257, 49 L. Ed. 2d at 114.
The Supreme Court held that the plea was invalid. Id. at 645–46,
96 S. Ct. at 2258, 49 L. Ed. 2d at 114–15. The Court distinguished
between the objective factual basis for the plea and the subjective
voluntariness of the defendant. Id. at 644–45 & n.12, 96 S. Ct. at 2257–
58 & n.12, 49 L. Ed. 2d at 114–15 & n.12. There was ample evidence to
support a second-degree murder charge, and the defendant’s lawyers
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had acted reasonably in encouraging their client to plead guilty. Id. Yet,
as the Court pointed out, even assuming there was overwhelming
evidence of guilt, the plea cannot support a judgment unless it is
“voluntary in a constitutional sense.” Id. at 644–45, 96 S. Ct. at 2257,
49 L. Ed. 2d at 114. Because the defendant did not know the necessary
elements of the charge, the Court concluded it could not find that his
plea to the unexplained charge of second-degree murder was voluntary.
Id. at 645–47, 96 S. Ct. at 2258–59, 49 L. Ed. 2d at 114–16. Plainly,
Henderson stands for the proposition that overwhelming evidence of guilt
from an objective point of view does not necessarily mean the defendant
subjectively made a knowing and voluntary waiver of his constitutional
rights or made a knowing and voluntary plea.
4. Remedial retreat: Timmreck and the 1983 amendment to Rule
11. As time passed, the Supreme Court came to soften its inflexible
enforcement of the procedural requirements of Rule 11. In Timmreck, the
Court considered a collateral attack on a guilty plea in which the trial
court failed to describe the mandatory special parole term required by
the applicable statute. 441 U.S. at 782, 99 S. Ct. at 2086, 60 L. Ed. 2d
at 637. The Court held that, at least on collateral attack, the defendant
had the burden of showing not only that the district court violated Rule
11, but also that he was actually prejudiced. Id. at 783–85, 99 S. Ct. at
2087–88, 60 L. Ed. 2d at 638–39. The Court declared that the defendant
failed to aver that he was either unaware of the penal provision or that,
had such an appropriate disclosure been given by the trial court, he
would have changed his plea. Id. at 784, 99 S. Ct. at 2087, 60 L. Ed. 2d
at 638–39. As a result, the technical violation of Rule 11 did not entitle
the defendant to collateral relief. Id. at 785, 99 S. Ct. at 2088, 60
L. Ed. 2d at 639.
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Following Timmreck, the Supreme Court adopted two amendments
to Rule 11. An amendment to Rule 11 in 1982 simply clarified that
courts should advise defendants of any special parole term as part of the
Rule 11 colloquy. See Fed. R. Crim. P. 11 advisory committee’s note to
the 1982 amendments. A more significant amendment related to
“harmless error,” however, was adopted in 1983. Specifically, the 1983
amendment provided, “A variance from the requirements of this rule is
harmless error if it does not affect substantial rights.” See id. R. 11(h);
id. R. 11 advisory committee’s note to the 1983 amendments.
While the 1983 amendment was obviously designed to impact
remedies available under Rule 11, the intended scope of the change is
not obvious from its general wording. The advisory committee’s note to
the amendment emphasized that the new provision “should not be read
as supporting extreme or speculative harmless error claims or as, in
effect, nullifying important Rule 11 safeguards.” Id. R. 11 advisory
committee’s note to the 1983 amendment. Further, the advisory
committee’s note cautioned that the amendment “should not be read as
an invitation to trial judges to take a more casual approach to Rule 11
proceedings.” Id. These advisory committee notes provided some mood
music, but little specific guidance regarding the proper interpretation of
the new amendment.
5. “Almost full circle”: Vonn, Dominguez Benitez, and Bradshaw.
Subsequent United States Supreme Court cases, however, have
suggested the scope of the 1983 amendment to Rule 11. In United States
v. Vonn, 535 U.S. 55, 75, 122 S. Ct. 1043, 1055, 152 L. Ed. 2d 90, 109–
10 (2002), the Court held that a reviewing court must look to the entire
record, and not simply to the plea proceedings alone, in resolving Rule 11
issues. In United States v. Dominguez Benitez, 542 U.S. 74, 83, 124
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S. Ct. 2333, 2340, 159 L. Ed. 2d 157, 168 (2004), the Court held that
when the district court fails to advise a defendant that he cannot
withdraw his plea if the sentencing court decides not to follow the plea
bargain recommendation, in plain violation of Rule 11, the defendant
must show “a reasonable probability that, but for the error, he would not
have entered the plea.”
Further, in Bradshaw v. Stumpf, 545 U.S. 175, 182–83, 125 S. Ct.
2398, 2405, 162 L. Ed. 2d 143, 152–53 (2005), the Court considered a
challenge to a guilty plea by a defendant sentenced to death who claimed
he did not understand the specific intent requirement for aggravated
murder. The defendant’s lawyer represented to the trial court at the plea
hearing that he had explained the elements of the charge to the
defendant. Id. at 183, 125 S. Ct. at 2405, 162 L. Ed. 2d 143 at 153. The
defendant agreed this had occurred. Id. The Court concluded the
representations of defense counsel, confirmed by the defendant, were
sufficient to avoid vacation of the plea under Rule 11. Id. at 183–84, 125
S. Ct. at 2405–06, 162 L. Ed. 2d at 153–54.
Vonn, Dominguez Benitez, and Bradshaw demonstrate how far the
current Supreme Court has moved from the inflexible remedial approach
of McCarthy and Boykin. As noted by one commentator, “[t]he road
traveled by the Supreme Court since McCarthy has come almost full
circle.” Julian A. Cook, III, Crumbs from the Master’s Table: The Supreme
Court, Pro Se Defendants and the Federal Guilty Plea Process, 81 Notre
Dame L. Rev. 1895, 1910 (2006).
6. Strands of constitutional analysis of factual-basis requirement.
While the United States Supreme Court’s caselaw under Rule 11 has
clearly evolved, the caselaw recognizes two distinct strands of
constitutional analysis related to guilty pleas. The first strand, rooted in
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the right to effective assistance of counsel under the Sixth Amendment,
requires competent advice. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct.
366, 370, 88 L. Ed. 2d 203, 210 (1985) (holding the Sixth Amendment
applies in the plea-bargaining context). It is a responsibility of defense
counsel to ensure that a client does not plead guilty to a charge for which
there is no objective factual basis. It follows that no advice to plead
guilty would be considered competent absent a showing of a factual basis
to support the crimes to which the accused has elected to plead guilty.
Where counsel falls short, a Sixth Amendment violation is present. The
determination of whether there is a factual basis in the record to support
the charge to which the defendant seeks to plead guilty is an objective
inquiry that has nothing to do with the state of mind of the accused, but
everything to do with the state of the record evidence. Henderson, 426
U.S. at 644 n.12, 96 S. Ct. at 2257 n.12, 49 L. Ed. 2d at 114 n.12.
The second strand, based on the Due Process Clauses of the Fifth
and Fourteenth Amendments, requires the trial court to determine the
defendant made a knowing and intelligent choice to waive constitutional
rights, including the right to a jury trial, the right to protection against
self-incrimination, the right to confront witnesses, and the right to plead
guilty to the underlying crime. Even overwhelming objective evidence of
guilt that amply satisfies the factual-basis requirement of Rule 11 will
not save a conviction when the subjective requirements of due process
have not been met. See Dominguez Benitez, 542 U.S. at 84 n.10, 124
S. Ct. at 2341 n.10, 159 L. Ed. 2d at 169 n.10. When a Fifth
Amendment due process voluntariness claim based on a lack of factual
basis is asserted, federal courts look on the record developed at the plea
colloquy for evidence of the subjective state of mind of the defendant.
See, e.g., United States v. Adams, 448 F.3d 492, 502 (2d Cir. 2006);
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United States v. Monzon, 429 F.3d 1268, 1271–72 (9th Cir. 2005).
Reference to the minutes of testimony is irrelevant for the purposes of
the voluntariness inquiry if the record does not show that the minutes
were reviewed and accepted as true on the record by the defendant.
D. Regulation of Plea Bargaining in Iowa.
1. Introduction. We now turn to an examination of Iowa law. As
will be seen below, much of it is patterned after federal guilty plea
jurisprudence. On the precise question posed by this case, namely,
whether a defendant is entitled to vacation of a conviction and to plead
anew when the district court has not identified the parts of the record
that provide a factual basis for the plea, our cases have been less than
clear or consistent.
Prior to 1969, there were some general restrictions on plea
bargaining. For example, in State v. Kellison, 232 Iowa 9, 15, 4 N.W.2d
239, 242–43 (1942), we reversed a guilty plea on a manslaughter
conviction when the plea was entered at noon, retained counsel sought
to withdraw it two hours later, and a formal judgment was entered at
three o’clock in the afternoon. We held that before a plea is entered, the
defendant must in some manner be acquainted with the effect of such
plea and the consequences of it. Id. at 14, 4 N.W.2d at 242. However,
prior to 1969, there was no detailed framework for considering whether a
plea satisfied this general requirement.
2. Blockbuster: State v. Sisco. The plea-bargaining landscape
dramatically changed in 1969, however, with what one commentator
called the “blockbuster” case of State v. Sisco, 169 N.W.2d 542 (Iowa
1969). See Arthur N. Bishop, Guilty Pleas in the Northern Midwest, 25
Drake L. Rev. 360, 363 (1975). In Sisco, we adopted the ABA Minimum
Standards for Criminal Justice, Pleas of Guilty, sections 1.4 through 1.7.
18
169 N.W.2d at 548, 550. The ABA standards required that “the court
should not enter a judgment upon such plea without making such
inquiry as may satisfy it that there is a factual basis for the plea.” Id. at
548 (internal quotation marks omitted). We noted that under the ABA
standards, the “inquiry into the accuracy of the plea” was to be made on
the “verbatim record of the proceedings at which the defendant enters a
plea of guilty.” Id. at 549–50 (internal quotation marks omitted). Relying
on McCarthy and Boykin, we reasoned that because the record did not
show that the defendant understood the charge, the legal consequences
of the plea, or that it was voluntarily made, the judgment had to be set
aside and the case remanded to the district court for further proceedings.
Id. at 550–51. Although not specifically stated, Sisco considered the
underlying constitutional difficulties with the plea process under a
voluntariness, or due process, theory.2
Sisco set forth four basic requirements that must be met before a
conviction could be entered on the basis of a guilty plea: (1) the
defendant must understand the charge, (2) the defendant must be aware
of the penal consequences of the plea, (3) the defendant must enter the
plea voluntarily, and (4) before pronouncing judgment, the district court
must determine whether there is a factual basis for the plea. Id. at 547–
48. While the first three requirements were to be determined prior to
accepting a plea, the factual-basis requirement was to be determined at
any time prior to the entry of judgment. Id. Thus, Sisco differentiated
between the requirements that a plea be entered voluntarily and with
2Defendants in plea-bargaining cases ordinarily cite the Sixth Amendment, and
occasionally the Fifth Amendment, to the United States Constitution. In no plea-
bargaining case to date has a defendant made a claim based upon the parallel
provisions of the Iowa Constitution, article I, section 9 (due process) and article I,
section 10 (right to counsel).
19
understanding from the requirement that the district court determine
there was a factual basis for the plea.
3. Ryan v. Iowa State Penitentiary and its progeny: application of
Sisco’s factual-basis requirement. In Ryan v. Iowa State Penitentiary, 218
N.W.2d 616 (1974), we considered a challenge to a guilty plea based
upon the failure of the district court to establish a factual basis of the
intent element for the crime of false drawing or uttering of checks. At the
plea colloquy, the district court inquired of the defendant, “[Y]ou are
telling me, in effect, ‘I did the things I am charged with?’ ” Id. at 617.
The defendant answered, “Yes, sir.” Id. at 618.
We recognized that a factual basis to support the plea could be
based upon “(1) inquiring of the defendant, (2) inquiring of the
prosecutor, and (3) examining the presentence report.” Id. at 619. Yet,
notwithstanding these potential sources, we found the factual-basis
determination flawed because the plea colloquy did not establish a
factual basis for the charge of false drawing or uttering of a check. Id. It
simply offered a conclusion. Id. Further, while the record showed the
defendant had been read the county attorney’s information prior to the
plea colloquy, the document contained legalese that would “confound
and confuse one unaccustomed to legal parlance.” Id. Thus, the mere
conclusory admitting of guilt at the plea colloquy, along with the prior
recitation of the county attorney’s information, was insufficient to
support the plea. Id. In addition, we held a conclusory statement by the
county attorney that he believed there was a factual basis was
insufficient to support the plea. Id.
Much of Ryan sounds more like a subjective due process
voluntariness claim than a claim of ineffective assistance based upon an
objective lack of a factual basis to support the plea. For instance, we
20
noted that an understanding of the factual basis by the petitioner was
essential to the plea. Id. Nonetheless, unlike in Sisco, the remedy in
Ryan was a remand for a determination of whether there was a factual
basis for the charge. Id. at 620. Thus, the remedy in Ryan was more
consistent with a claim that counsel breached the duty to the accused by
allowing him to plead on an insufficient record rather than a
voluntariness claim as in McCarthy and Boykin.
Shortly after Ryan, we decided State v. Hansen, 221 N.W.2d 274(1974), and State v. Marsan, 221 N.W.2d 278 (1974). In Hansen, we
distinguished between a claim based on voluntariness and a claim based
on a lack of factual basis. 221 N.W.2d at 276–77. With respect to the
later claim, though we declared it was preferable that the factual basis be
contained in the plea colloquy, we allowed the district court to find the
existence of a factual basis by considering other sources in the record.
Id. at 276. Similarly, in Marsan, we permitted a district court engaged in
determining whether the factual basis was adequate to consider the
colloquy, the information, and the minutes of testimony. Id. at 280.
Accordingly, in Hansen and Marsan we determined that a district court
may consider the minutes of testimony as a source for the factual basis
in addition to the three sources identified in Ryan. Neither Hansen nor
Marsan, however, addressed the question of whether the factual basis
must be disclosed on the record at the plea hearing.
4. Advance and retreat: Brainard, Reeves, the general assembly,
and Fluhr. In 1974, we decided Brainard v. State, 222 N.W.2d 711(1974). This five-to-four decision was a landmark in our plea-bargaining
jurisprudence. In Brainard, we considered an attack on guilty pleas to
two charges of larceny of a motor vehicle entered at separate plea
proceedings. Id. at 713. The defendant alleged the trial court in each
21
proceeding failed to personally address him to determine he understood
the charge, the penal consequences of his plea, and to ensure there was
a factual basis for the plea—three of the Sisco requirements. Id.
Compliance with the remaining Sisco requirement, voluntariness, was
only implicated to the extent it was affected by the courts’ noncompliance
with the first two Sisco requirements. Id. at 713, 718.
We adopted ABA Standard 4.2(a)(ii), Functions of the Trial Judge,
which offered a checklist of topics to be covered in the plea-bargaining
colloquy and required trial courts to ensure the defendant understood
that by pleading guilty he or she would waive the privilege against self-
incrimination, the right to a jury trial, and the right to confront his or her
accusers. Id. at 717–18. We also generally emphasized the importance
of the Sisco requirements. Id. at 713–14. We found the trial court’s
determination of the underlying factual basis lacking in both
proceedings. In the first plea proceeding, we noted the trial court had
essentially followed the same procedure condemned in Ryan by asking
the defendant whether he denied that he was “specifically charged with
the larceny of a motor vehicle, a certain Corvette, the property of Loren
Jordahl” or that he was “alleged to have done this on the 19th day of
August, 1971.” Id. at 718–19. As to the second proceeding, we noted
that the defendant had equivocated during the colloquy on the question
of whether he had the necessary intent to support the plea to the crime
of larceny of a motor vehicle. Id. at 721. Further, we could not
determine that the trial court made the needed determination from any
other source. Id.
Brainard certainly emphasized the need for a thorough and
systematic plea colloquy that accomplished more than obtaining
conclusory statements of guilt from defendants. We emphasized, “The
22
test of any guilty plea procedure is whether it establishes on the record
that the guilty plea has been voluntarily and intelligently entered and
that it has a factual basis.” Id. at 722. We thus recognized the Sisco
distinction between determining whether a plea was voluntarily and
intelligently entered and whether there was a factual basis in the record,
and at least implied that the factual basis, like voluntariness, should be
determined on the record at the plea colloquy.
A year after Brainard, we decided State v. Williams, 224 N.W.2d 17(Iowa 1974), and State v. Greene, 226 N.W.2d 829 (Iowa 1975). In these
cases, we emphasized that in determining whether a factual basis
existed, “[i]t is essential, whatever source is used, that the factual basis
be identified and disclosed in the record.” Greene, 226 N.W.2d at 831;
Williams, 224 N.W.2d at 18. We further noted it would be preferable for
the judge to ask the defendant, “What did you do?” Greene, 226 N.W.2d
at 831; Williams, 224 N.W.2d at 18. The language of Williams and
Greene suggests a district court should do more than simply state its
conclusion on the record, but should also identify the parts of the record
that support the finding.
Our caselaw took a new turn in State v. Reaves, 254 N.W.2d 488(Iowa 1977). In Reaves, a narrow majority of this court held that even
though the plea colloquy may have been deficient because the trial court
failed to advise the defendant that intent is one of the essential elements
of the crime of operating a motor vehicle without the owner’s consent,
that defect in the colloquy did not require reversal of the conviction when
defense counsel assured the court the accused had been advised of and
understood the Sisco requirements. Id. at 493. Although Reaves was a
voluntariness case and did not involve a challenge to the factual basis of
the plea, Reaves nonetheless tended to lessen the importance of dialogue
23
between the trial court and defendant during the plea colloquy. As noted
by the dissent, Reaves marked a departure from the earlier teaching of
McCarthy and Sisco. Id. at 502–03 (McCormick, J., dissenting).
Shortly before the Reaves decision, however, the general assembly
enacted legislation that established a rule that is now contained in Iowa
Rule of Criminal Procedure 2.8(2)(b). The rule itself is largely based on
the federal counterpart. The new rule provided, in relevant part, “ ‘The
court may refuse to accept a plea of guilty, and shall not accept such
plea without first addressing the defendant personally and determining
that the plea is made voluntarily and intelligently and has a factual
basis.’ ” Id. at 512 (quoting Iowa R. Crim. P. 8(2) (1977), now rule
2.8(2)(b) as amended); see also 1977 Iowa Acts ch. 153, § 20.
The question arose as to the effect of the new legislation on the
court’s approach to guilty pleas—a question we took up in State v. Fluhr,
287 N.W.2d 857 (Iowa 1980). In a five-to-four decision, we held the new
legislation embraced the approach of Sisco and Brainard and required an
in-court colloquy. Fluhr, 287 N.W.2d at 863–64. We emphasized that
the voluntariness requirement stems from the due process right that a
waiver of constitutional rights must be made voluntarily, which requires
that a plea be knowing and intelligently made. Id. at 863. We noted that
the defendant’s understanding of these matters involved a subjective
concern, requiring the trial court to delve into the accused’s state of
mind, and that such an inquiry is best done on the record through a
thorough personal colloquy between the court and the defendant as
suggested in Brainard. Id. We noted the fear of the Reaves majority—
that Sisco and Brainard would lead to excessive guilty plea attacks—had
proved unwarranted and that a court’s probing of the defendant’s
understanding of the meaning and consequences of his plea would
24
discourage rather than foster attacks. Id. at 864. Even so, we
recognized that even Sisco stated not every minor omission should be
considered fatal. Id. at 864. We stated, “Certainly a plea-taking error
which raises no doubt as to the voluntariness or factual accuracy of the
plea may be properly disregarded, provided the defendant is unable to
prove prejudice.”3 Id.
5. Common threads in factual-basis cases. After Fluhr, our
caselaw related to factual bases of guilty pleas continued its winding
course. In State v. Brooks, 555 N.W.2d 446, 448–49 (Iowa 1996), we
expansively suggested that in determining whether there was a factual
basis in the record, we consider “the entire record before the district
court” that “includes” statements made by the defendant during the plea
colloquy. We made a similar broad statement in State v. Carter, 582
N.W.2d 164, 165–66 (Iowa 1998). In Schminkey, however, we declared
that in factual basis cases, “the ultimate focus . . . is on the record before
the district court at the time of the guilty plea proceedings.” 597 N.W.2d
at 787. The Schminkey formulation, however, did not unambiguously
answer the question of whether the factual basis had to be specifically
3In Fluhr, the defendant pled guilty to third-degree theft, an aggravated
misdemeanor. 287 N.W.2d at 859–60. The oral plea colloquy was virtually devoid of
any indicia of compliance with rule 8(2)(b), now rule 2.8(2)(b) as amended, but the
defendant had executed a written plea form, which purported to cover the rule’s
requirements. Id. at 859–60, 862. Ultimately, we held the trial court could not use the
written plea form to satisfy the requirements of rule 8(2)(b). Id. at 864–65. A decade
later, we overruled this aspect of Fluhr in State v. Kirchoff, 452 N.W.2d 801, 804–05
(1990), wherein we held a trial court did not have to personally address the defendant
as to each of the rule 8(2)(b) requirements in cases involving guilty pleas to serious and
aggravated misdemeanors if the court supplemented the in-court colloquy with a
written plea form that otherwise satisfied the rule’s requirements. State v. Meron, 675
N.W.2d 537, 543 (Iowa 2004). Because of the graver consequences resulting from a
felony conviction, we explicitly declined to extend the rationale of Kirchoff to cases
involving guilty pleas to felonies in State v. Hook, 623 N.W.2d 865, 869–70 (Iowa 2001),
abrogated on other grounds by State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002) (per
curiam).
25
identified at the plea hearing or whether it simply had to be in the record
available to the district court at the time of the plea hearing.
We next decided Keene, in which we recognized the defendant did
not claim his plea was not entered voluntarily and intelligently, but only
that there was no factual basis to support the plea. 629 N.W.2d 362 n.2.
Keene thus implicitly recognized the difference between a due process
voluntariness claim and a claim of ineffective assistance of counsel based
upon the failure of counsel to object to the entry of a plea without a
factual basis in the record. The Keene court, however, continued to use
the phrases “on the record” and “in the record” interchangeably in its
analysis of the factual-basis inquiry. Id. at 366.
That brings us to the cases cited by the parties in this case. In
Philo, the State argued the district court could rely on his personal
knowledge of local speed limits to find a factual basis for a guilty plea.
697 N.W.2d at 485–86. We stated, “ ‘[I]f the district judge finds it
necessary to look to evidence other than the defendants’ statements to
establish the factual basis for the plea in any situation, these additional
facts or evidence must be specifically articulated on the record.’ ” Id.
(quoting United States v. Wetterlin, 583 F.2d 346, 353 (7th Cir. 1978)). In
Philo, however, the defendant made sufficient admissions in the plea
colloquy to support the guilty plea without reference to the extra-record
evidence purportedly relied upon by the district court. Id.
6. Remedial retreat: State v. Straw. As early as Sisco, we had
stated that minor omissions from the plea colloquy that did not affect
substantial rights would not undermine the finality of criminal
convictions. 169 N.W.2d at 551. Unlike some other states, where strict
compliance was required, we adopted a substantial compliance
approach. Id.
26
In 2006, we decided Straw. There, the district court failed to
disclose to the defendant the fact that he could receive consecutive
sentences for the crimes to which he was pleading guilty. 709 N.W.2d at
131, 134. Although the plea colloquy was flawed, we did not conclude
the judgment in the case was necessarily invalid. Instead, we concluded
the defendant had the burden to show he or she would not have pled
guilty if the court had addressed the maximum punishment for his or
her crimes. Id. at 137–39. We noted, among other things, that there was
nothing in the record indicating whether Straw’s trial counsel had
advised him of the possibility of a consecutive sentence. Id. at 138. As a
result, Straw was denied relief on direct appeal. We reaffirmed the
approach of Straw in State v. Bearse, 748 N.W.2d 211, 219 (Iowa 2008).
Our approach in Straw and Bearse was in many ways similar to
developments in the federal caselaw after the 1983 amendment to Rule
11.
7. Factual-basis cases after Straw. In two post-Straw cases, we
examined the record before the court to determine if a sufficient factual
basis existed for the plea.4 For instance, in State v. Ortiz, 789 N.W.2d
761, 763–64 (Iowa 2010), the district court asked the defendant whether
he was armed with a dangerous weapon. The defendant responded,
“Yes.” Id. at 764. While the factual basis of this conclusion was not
developed on the record at the time the plea was accepted, we proceeded
to canvas the minutes of testimony to determine if there was a factual
4After Straw, we also decided State v. Allen, 708 N.W.2d 361 (Iowa 2006). In
Allen, we held that the record before the district court demonstrated the defendant, as a
matter of law, did not commit the crime for which she was charged. Id. at 368. In this
situation, we ordered the conviction vacated and remanded the case back to the district
court to begin anew. Id. at 369. Allen involves a case where the facts demonstrate that
the crime was not committed and is thus materially different from this case.
27
basis. Id. at 768. We concluded, based on our review of the entire
record, that there was a factual basis for each element of the offense. Id.
Similarly, in State v. Rodriguez, 804 N.W.2d 844 (2011), we
considered a challenge to a guilty plea of reckless vehicular homicide.
We recognized that the law required that the factual basis for Rodriguez’s
plea be established “in the record.” Id. at 849. We looked not only to the
plea colloquy, but to the rest of the record, including the minutes of
testimony, to see whether sufficient facts were available to justify
counsel’s allowance of the plea and the court’s acceptance of it. Id. at
850. We emphasized that Rodriguez had not challenged the sufficiency
of the plea colloquy, which would have raised a due process
voluntariness issue, but only the factual basis for the plea. Id. at 853.
E. Resolution of the Issue Posed in This Case. In this case, we
address the apparent tension between Philo and its predecessors and
Oritz and Rodriguez. For the reasons expressed below, we conclude the
cases, for the most part, are reconcilable.
We begin by recognizing that our cases in other contexts involving
“on the record” and “in the record” language have been somewhat
inconsistent. For example, in State v. Lawrence, 344 N.W.2d 227, 229–
30 (Iowa 1984), we held that the phrase “in writing and on the record”
under the jury trial waiver provision of Iowa Rule of Criminal Procedure
16.1, now rule 2.17(1) as amended, did not require a reported proceeding
in open court. We later backtracked, however, and in State v. Liddell
held that “on the record” required an in-court proceeding, noting that “on
the record” in the context of the jury waiver rule did not mean “in the
file.” 672 N.W.2d 805, 811–13 (Iowa 2003) (overruling Lawrence, 344
N.W.2d at 299).
28
Nonetheless, we reaffirm that under rule 2.8(2)(b), the district
court is required to provide the factual basis supporting the plea on the
record at the plea hearing. The notion that the factual determination
was to be part of the verbatim proceeding at which the plea was accepted
was embraced in Sisco and has never been abandoned. Sisco, 169
N.W.2d at 549–50 (adopting ABA Minimum Standard 1.7, requiring a
verbatim record of the “proceedings at which the defendant enters a plea
of guilty,” and noting that the record should include the factual-basis
inquiry (internal quotation marks omitted)). Our cases that stressed the
need that the factual basis “must be identified and disclosed in the
record” embraced the approach of Sisco. See Greene, 226 N.W.2d at 831;
Williams, 224 N.W.2d at 18. We also note that the legislature’s 1977
enactment of rule 8(2)(b), now rule 2.8(2)(b) as amended, required a trial
court to determine the factual basis prior to accepting the plea, which at
least implied that the factual-basis determination was to be made in
tandem with the voluntariness determinations required by the rule.
We also note the on-the-record determination at the plea hearing
also serves important constitutional goals. An on-the-record discussion
during the plea colloquy between the court and the defendant enhances
the ability of the district court to determine the various due process
voluntariness issues which turn on the state of mind of the defendant at
the time the plea is made. State v. Randall, 258 N.W.2d 359, 361 (Iowa
1977) (noting the factual-basis requirement is designed to complement
the defendant’s right to counsel under the Sixth Amendment and to
ensure the plea is voluntary); Reaves, 254 N.W.2d at 491 (noting the first
three Sisco requirements are subjective states of mind). As the advisory
committee’s note to Federal Rule of Criminal Procedure 11 stated more
than fifty years ago, the district court’s personal review of the factual
29
basis with the defendant is designed to protect a defendant who
understands the charge, but who may not realize that his or her conduct
does not actually fall within it. Fed. R. Crim. P. 11 advisory committee’s
note to the 1966 amendment. A defendant’s plea is not truly voluntary
“unless the defendant possesses an understanding of the law in relation
to facts.” McCarthy, 394 U.S. at 466, 89 S. Ct. at 1171, 22 L. Ed. 2d at
425; Sisco, 169 N.W.2d at 546.
The requirement of rule 2.8(2)(b) that the factual basis of the plea
be stated on the record at the plea hearing, however, does not entitle
Finney to relief because of the narrow nature of his claim. Finney makes
no claim in this direct appeal that his plea was involuntary under the
Due Process Clause of either the Fourteenth Amendment or article I,
section 9 of the Iowa Constitution.5 The distinction between a
voluntariness claim and a claim based upon the lack of a factual basis
was recognized in Sisco and has been reiterated in our caselaw. See
Sisco, 169 N.W.2d at 550; see also Rodriguez, 804 N.W.2d at 853; Keene,
629 N.W.2d at 362 n.2; Fluhr, 287 N.W.2d at 863; Hansen, 221 N.W.2d
at 276–77; Ryan, 218 N.W.2d at 619. As a result, this case is distinctly
different than, for instance, McCarthy, Boykin, or Henderson.
On a claim that a plea bargain is invalid because of a lack of
accuracy on the factual-basis issue, the entire record before the district
court may be examined. That is the teaching of Ortiz and Rodriguez, and
it is consistent with the notion of Vonn and Stumpf under Federal Rule of
Criminal Procedure 11 as well as Straw and Bearse under Iowa Rule of
Criminal Procedure 2.8(2)(b) that insubstantial errors should not entitle
5We do not address the merits of any claim based on due process voluntariness
that might be asserted in a postconviction relief action.
30
a defendant to relief. Recourse to the entire record is appropriate
because, unlike a claim of due process involuntariness, the relevant
inquiry for purposes of determining the Sixth Amendment claim
presented by Finney does not involve an examination of his subjective
state of mind at the time the trial court accepted the plea, but instead
involves an examination of whether counsel performed poorly by allowing
Finney to plead guilty to a crime for which there was no objective factual
basis in the record. The failure of the district court in this case to
explain on the record the evidence supporting his finding of a factual
basis is thus an omission unrelated to the substantive claim being made.
See Fluhr, 287 N.W.2d at 864 (noting plea-taking error which raises no
doubt as to factual accuracy may be properly disregarded, provided
defendant is unable to prove prejudice); Sisco, 169 N.W.2d at 551
(requiring substantial compliance).
Once we look to the entire record, we have little difficulty in
concluding there was an adequate factual basis to support Finney’s
guilty plea to the charge of attempted murder. The minutes of testimony
provide evidence that Finney was jealous of Harker’s associations with
other men, that he retrieved a loaded shotgun after seeing Harker with
another man, that he went to Harker’s residence, that he argued with
Harker about Shimmin and indicated he knew Shimmin was in the
bathroom, that he fired through the bathroom door, and that, when
Harker turned to flee from the house, he shot her in the back. The
minutes of testimony further reveal that Finney had a history of violence
toward Harker and had previously threatened to kill her. Our cases do
not require that the district court have before it evidence that the crime
was committed beyond a reasonable doubt, but only that there be a
factual basis to support the charge. Ortiz, 789 N.W.2d at 768; Keane,
31
630 N.W.2d at 581. Clearly, the minutes of testimony provide sufficient
evidence from which a jury could infer that Finney had the requisite
intent when he “shot Patty” to support a charge of attempted murder.
See, e.g., State v. Jesperson, 360 N.W.2d 805, 807 (Iowa 1985) (intent
may be inferred from circumstances).
Nothing in this opinion, however, should be construed as an
invitation to district courts to short circuit rule 2.8(2)(b) when taking a
guilty plea. The taking of a guilty plea, though often appearing routine
and even ritualistic, has the same consequence for the defendant as a
criminal trial. The plea colloquy is an important backstop to help ensure
that defendants who might not be guilty do not end up with wrongful
convictions as the result of a flawed plea-bargaining process. In
addition, a thorough record at the time of the taking of a guilty plea
lessens the likelihood of later challenges and, if those challenges do
occur, provides an important contemporary record to assist reviewing
courts in evaluating the merits of such claims. Fluhr, 287 N.W.2d at
864; Brainard, 222 N.W.2d at 713–14; Hansen, 221 N.W.2d at 278;
Ryan, 218 N.W.2d at 619. While checklists such as that referenced in
Hansen, see 221 N.W.2d at 278 (citing United States v. Cody, 438 F.2d
287, 290 (8th Cir. 1971)), are not mandatory and must be adapted to
each particular case, they can provide an important aid to the
implementation of the rule 2.8(2)(b) requirements, Brainard, 222 N.W.2d
at 721–22.
V. Illegal Sentence.
During the plea colloquy, when the district court asked Finney if
he understood the mandatory minimum was eighty-five percent, Finney
responded affirmatively. Based on this interaction, Finney claims the
district court erroneously sentenced him to an eighty-five percent
32
mandatory minimum sentence on his twenty-five-year prison term for
attempted murder. The record reveals, however, that the court correctly
sentenced Finney to twenty-five years. See Iowa Code § 902.9(2). The
district court’s order did not specifically indicate any applicable
mandatory minimum or when Finney might be eligible for parole. It is a
lawful sentence.
Although it is doubtful whether the issue has been preserved,
Finney further asserts that the trial court failed to correctly state the
mandatory minimum sentence for attempted murder during the plea
colloquy and that his conviction must be reversed. In fact, Finney’s
twenty-five-year term is subject to a seventy percent minimum before he
is eligible for consideration for work release or parole. Id. § 902.12(2). In
addition, Finney would be eligible for discharge after serving eighty-five
percent of his sentence assuming he accumulated the maximum amount
of earned time. Id. § 903A.2(1)(b); see also Lowery v. State, 822 N.W.2d
739, 741–42 (Iowa 2012) (explaining the interaction between sections
902.12 and 903A.2). Thus the district court’s statement was at best
ambiguous. At worst, it was incorrect. In any event, it does not provide
a basis for relief on direct appeal. Bearse, 748 N.W.2d at 219; Straw,
709 N.W.2d at 138. There is nothing in the record indicating Finney
would have turned down the plea deal if he had known the mandatory
minimum was seventy percent instead of eighty-five percent. We
therefore preserve Finney’s claim for postconviction relief.
VI. Ineffectiveness Based Upon Failure to Investigate.
Finney claims his counsel did little to advance his defense and
that, as a result, he received ineffective assistance. Plainly, this is the
type of claim that must await development of a factual record in a
33
potential postconviction relief proceeding. State v. Utter, 803 N.W.2d
647, 651 (Iowa 2011). We do not address it now.
VII. Conclusion.
For the above reasons, the decision of the court of appeals is
vacated and the judgment of the district court is affirmed.
COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT
COURT AFFIRMED.