State v. Amadeo

• Decision Date: 13 June 2012
• Docket Number: No. 11–1426.,11–1426.
• Citation: 820 N.W.2d 158
• Parties: STATE of Iowa, Plaintiff–Appellee, v. Nathan Anthony AMADEO, Defendant–Appellant.
• Court: Iowa Court of Appeals

820 N.W.2d 158

STATE of Iowa, Plaintiff–Appellee,

v.Nathan Anthony AMADEO, Defendant–Appellant.

No. 11–1426.

Court of Appeals of Iowa.

June 13, 2012.

Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan (plea) and Carol L. Coppola (sentencing), District Associate Judges.

Defendant appeals his conviction, based on his guilty plea, to domestic abuse assault with intent to inflict a serious injury. SENTENCE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

Mark C. Smith, State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John Sarcone, County Attorney, and Shannon K. Archer, Assistant County Attorney, for appellee.

Considered en banc.

MULLINS, J.

I. Background Facts & Proceedings

Nathan Amadeo was charged with domestic abuse assault with intent to inflict a serious injury, in violation of Iowa Code section 708.2A(2)(c) (2011), an aggravated misdemeanor. On August 4, 2011, Amadeo entered a written guilty plea. He wrote, “on 7–16–11 in Polk County, IA, I assaulted [K.C.] by choking her and causing her bruises.” The district court accepted Amadeo's written plea as a plea of guilty to the charge of domestic abuse assault with intent to inflict a serious injury.

Amadeo was sentenced to a term of no more than two years in prison. The sentence was suspended and he was placed on probation for twenty-four months, with the requirement that he attend substance abuse treatment and a batterer's education program.

Amadeo now appeals his conviction, claiming he received ineffective assistance of counsel because his attorney permitted him to plead guilty when there was an insufficient factual basis in the record.

II. Scope of Review

We review claims of ineffective assistance of counsel de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008).

III. Merits

A court may not accept a guilty plea without first determining whether the plea has a factual basis. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). The court “must only be satisfied that the facts support the crime, ‘not necessarily that the defendant is guilty.’ “ State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (citation omitted). If counsel allows a defendant to plead guilty to a charge for which no factual basis exists, and then does not file a motion in arrest of judgment challenging the plea, counsel fails to perform an essential duty. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Prejudice is presumed under such circumstances. State v. Ortiz, 789 N.W.2d 761, 764–65 (Iowa 2010).

Before accepting a guilty plea, a court must be satisfied there is an adequate factual basis for the plea. Iowa R.Crim. P. 2.8(2)(b); Schminkey, 597 N.W.2d at 788;State v. Greene, 226 N.W.2d 829, 831 (Iowa 1975). The factual basis for a guilty plea must be disclosed in the record. State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011). 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,¹ and (4) minutes of evidence. Ortiz, 789 N.W.2d at 768. “This record, as a whole, must disclose facts to satisfy the elements of the crime .” Keene, 630 N.W.2d at 581.

For the crime of domestic abuse assault with intent to inflict a serious injury, the following elements must be established:

1. The defendant did an act which was meant to cause pain or injury to, or which was intended to result in physical contact which would be insulting or offensive to, the victim.

2. The defendant had the apparent ability to do the act.

3. At that time the defendant intended to cause a serious injury to the victim.

4. The assault came within one or more of the circumstances set forth in Iowa Code section 236.2(2)(a)-(e).

Iowa Code §§ 708.1(1), 708.2A(1), 708.2A(2)(c); Iowa Crim. Jury Instruction 830.4.

Amadeo concedes the record demonstrates a sufficient factual basis for the first two elements, based on his record admission in his written guilty plea. Our further discussion thus focuses on and relates to the third and fourth elements.

Amadeo asserts the record does not disclose an adequate factual basis for the third element, that he intended to inflict a serious injury upon K.C. He argues the record is insufficient to demonstrate he had the specific intent to cause K.C. a serious injury. Amadeo also asserts the record discloses no factual basis to support the fourth element, that his assault of K.C. was a “domestic” assault. He argues the record relied on to support his guilty plea is devoid of facts indicating a domestic relationship.

Although the district court may consider a variety of sources in determining whether a factual basis for a guilty plea exists, “[b]efore accepting a guilty plea, the district court must establish on the record a factual basis for the plea.” ²State v. Keene, 629 N.W.2d 360, 366 (Iowa 2001).

The factual basis for a guilty plea “must be disclosed by the record.” Keene, 630 N.W.2d at 581. Whatever the source of the factual basis, “ the record must disclose the factual basis relied on.” State v. Johnson, 234 N.W.2d 878, 879 (Iowa 1975) (emphasis added) (citing State v. Williams, 224 N.W.2d 17, 18–19 (Iowa 1974) (“It is essential, whatever source is used, that the factual basis be identified and disclosed in the record.” (Emphasis added.)). “The test of any guilty plea procedure is whether it establishes on the record that the guilty plea ... has a factual basis.” Brainard v. State, 222 N.W.2d 711, 723 (Iowa 1974) (emphasis added).

In a relatively recent case our supreme court dealt with the same issue presented in this case, a contention on direct appeal that trial counsel had rendered ineffective assistance by failing to file a motion in arrest of judgment following a plea of guilty, based on an assertion the record made in the trial court did not provide a factual basis for the plea. See State v. Philo, 697 N.W.2d 481, 484–85 (Iowa 2005). As relevant to our case, the court stated:

In construing Federal Rule of Criminal Procedure 11(f), the federal counterpart to our rule 2.8(2)( b ), the Supreme Court has stated that the rule requires the judge to “develop, on the record, the factual basis for the plea.” It has been held that “if 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.” Thus, if the district court in this case had relied on [evidence other than the defendant's statements] for a factual basis, those facts should have been made part of the record.

Philo, 697 N.W.2d at 486 (citations omitted) (second emphasis added).

The cases cited in the two immediately-preceding paragraphs, and in particular the language we have emphasized, indicate that if a source or sources other than on-the-record statements of the defendant (and perhaps on-the-record statements by the prosecutor) are to be relied on in whole or in part to establish a factual basis for a guilty plea, then such other source or sources must be identified in the record and must provide any facts, beyond the statements, that are necessary.

In a written order memorializing a court proceeding and setting a sentencing date, the court in our case stated:

By direct conversation with the Defendant on the record, the Court finds the Defendant understands the charge(s) and its penal consequences, the Constitutional rights being waived, that there is a factual basis for the plea and that the plea is voluntary. The Defendant's guilty plea is accepted.

However, in his written guilty plea Amadeo had waived his right to have a court reporter make a verbatim record of the guilty plea proceeding. The State and the court apparently acquiesced in that waiver, and no verbatim record was made. It thus appears that any conversation between the court and the defendant was in fact not “on the record.” ³ The court did not document in writing any of the content of the conversation. The unreported and undocumented conversation thus does not disclose in the record any facts that may be relied on to establish a factual basis for Amadeo's guilty plea. See Rodriguez, 804 N.W.2d at 849 (“The law requires that the factual basis for [a guilty] plea be disclosed in the record.” (Emphasis added.)). It does not articulate on the record facts or evidence relied on by the trial court. See Philo, 697 N.W.2d at 486 (quoting with approval the statement from Santabello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), that any “facts or evidence” relied on to support a guilty plea “must be specifically articulated on the record”). It does not identify the “facts or evidence” relied on by the trial court. See Williams, 224 N.W.2d at 18–19 (holding that the factual basis must be “identified ... in the record”).

According to the record made in the trial court, the sole basis for the trial court's determination that a factual base existed for Amadeo's guilty plea was the court's “conversation” with Amadeo. Nothing in the record indicates that Amadeo admitted the minutes of evidence reflected the facts. Nor does anything in the record indicate the trial court relied on, or even considered, the minutes of evidence for any facts necessary to support elements three and four. The State, and the dissent by the honorable Judge Tabor, nevertheless assume, without citing any holding in support of their assumption, that although there was no reference in the record to the minutes of evidence, and the trial court's written order indicates it relied only on its “conversation” with Amadeo for a factual basis, we may on appeal nevertheless look to the minutes for the...