State v. Velez

• Decision Date: 12 April 2013
• Docket Number: No. 11–0472.,11–0472.
• Parties: STATE of Iowa, Appellee, v. Valentin VELEZ, Appellant.
• Court: Iowa Supreme Court

829 N.W.2d 572

STATE of Iowa, Appellee,
v.
Valentin VELEZ, Appellant.

No. 11–0472.

Supreme Court of Iowa.

April 12, 2013.

[829 N.W.2d 574]

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, and Matthew Shimanovsky, Student Intern, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Jon J. Jacobmeier and Amy L. Zacharias, Assistant County Attorneys, for appellee.

[829 N.W.2d 575]

ZAGER, Justice.

Valentin Velez was charged by trial information with one count of robbery in the first degree, in violation of Iowa Code sections 711.1, 711.2, and 714.1 (2009), and one count of willful injury causing serious injury, in violation of Iowa Code section 708.4(1). These charges both stemmed from a single incident involving a single victim. Pursuant to a plea agreement with the prosecutor, Velez entered pleas of guilty to two counts of willful injury causing serious injury. The district court accepted the pleas after a reported proceeding. On appeal, a divided court of appeals found that there was not a sufficient factual basis in the record to support a second independent charge of willful injury causing serious injury. The court of appeals thus vacated one of the willful injury convictions. The State requested further review, which we granted. Upon our de novo review, we conclude the record established an independent factual basis for the second charge. Thus, we vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Factual Background and Procedural History.

On February 17, 2011, Valentin Velez entered pleas of guilty to two counts of willful injury causing serious injury. At that time, he waived his right to file a motion in arrest of judgment and waived his right to have a presentence investigative report prepared and considered by the court. Both the State and Velez requested immediate sentencing, and Velez was sentenced in that same hearing. Velez filed a timely appeal on March 18, 2011, challenging one of the two convictions. Velez alleged that no factual basis existed for the district court to find him guilty on both counts of willful injury, as the two convictions arose from a single incident involving a single victim. The court of appeals found that the record in its current state was not sufficient to show a factual basis for two separate assaults. It thus vacated one of the sentences imposed and remanded the case to the district court. It directed the district court to allow the State an opportunity to supplement the record in order to provide a sufficient factual basis for the vacated sentence. We agreed to hear the case on further review.

In the early morning hours of July 5, 2010, Valentin Velez and Jared Welsh forcibly entered the home of Tracee Crawford. Shawn Kennedy was sleeping on the couch. Velez was armed with a twelve-inch metal pole. He removed a baseball bat from a bracket in Crawford's home and handed it to Welsh. Velez claimed Kennedy owed him $500, presumably from a drug transaction. Velez repeatedly demanded the money from Kennedy while striking Kennedy approximately twenty to forty times with the metal pole. The attack lasted approximately five to ten minutes. Ultimately, Welsh sprayed mace in the room, as he thought the attack was “getting out of hand” and wanted to stop it. To escape the mace, both Velez and Welsh left Crawford's home. Kennedy sustained multiple injuries from the attack, including a broken left forearm, broken right forearm, and broken bones in his hand. He also sustained an injury to his leg. Additional facts will be discussed later, as necessary.

II. Standard of Review.

Generally, we review challenges to guilty pleas for the correction of errors at law. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). However, Velez claims his trial counsel was ineffective for allowing him to enter a guilty plea without a factual basis. Velez also claims his counsel was ineffective in assisting him based on

[829 N.W.2d 576]

double jeopardy grounds. Due to their constitutional dimensions under both the State and Federal Constitutions, we review claims of ineffective assistance of counsel de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).

III. Ineffective Assistance of Counsel.

Generally, ineffective-assistance-of-counsel claims are decided in postconviction relief proceedings. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). However, claims may be decided on direct appeal if the record is adequate to decide the claim. Id.

An appellant who makes a claim of ineffective assistance of counsel must satisfy a two-pronged test. Ennenga, 812 N.W.2d at 701. The appellant must demonstrate by a preponderance of the evidence that “(1) counsel failed to perform an essential duty, and (2) prejudice resulted.” Id. (citation and internal quotation marks omitted).

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.

Ortiz, 789 N.W.2d at 764–65 (citations omitted). Thus, in order to determine if Velez's counsel violated an essential duty resulting in prejudice to Velez, we must determine if there is a factual basis to support his guilty plea.

IV. Factual Basis.

A. Factual Basis Required for Guilty Plea. A factual basis is required for a guilty plea. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In evaluating whether a factual basis exists to support a guilty plea, we may examine “the minutes of testimony, statements made by the defendant and the prosecutor at the guilty plea proceeding, and the presentence investigation report.” State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). Velez waived the presentence investigation.¹ Thus, we look primarily to the minutes of testimony and the statements made by the defendant and the prosecutor at the guilty plea proceeding to determine whether the State established a factual basis for the second willful injury charge. See id. We note that the “record does not need to show the totality of evidence necessary to support a guilty conviction, but it need only demonstrate the facts that support the offense.” Ortiz, 789 N.W.2d at 768.

B. Disputed Factual Basis. Velez contends the State did not present sufficient evidence to provide a factual basis for conviction on two discrete counts of willful injury under Iowa Code section 708.4. This section provides,

Any person who does an act which is not justified and which is intended to cause serious injury to another commits the following:

[829 N.W.2d 577]

1. A class “C” felony, if the person causes serious injury to another.

2. A class “D” felony, if the person causes bodily injury to another.

Iowa Code § 708.4. The legislature also defined “serious injury” as follows:

1. “ Serious injury ” means any of the following:

a. Disabling mental illness.

b. Bodily injury which does any of the following:

(1) Creates a substantial risk of death.

(2) Causes serious permanent disfigurement.

(3) Causes protracted loss or impairment of the function of any bodily member or organ.

c. Any injury to a child that requires surgical repair and necessitates the administration of general anesthesia.

2. “ Serious injury ” includes but is not limited to skull fractures, rib fractures, and metaphyseal fractures of the long bones of children under the age of four years.

Id. § 702.18.

Velez concedes that Kennedy suffered multiple injuries that, separately, would constitute “serious injury” as prohibited by the willful injury statute and defined by Iowa Code section 702.18. The minutes of testimony of the doctor who examined Kennedy establish the extent of his injuries.

This witness will testify that on July 5, 2010, he treated Shawn Kennedy for injuries he suffered as a result of this incident. He will testify as to the extent of Kennedy's injuries. Kennedy suffered the following, but not limited to, scalp laceration, right distal ulnar fracture, right fourth and fifth metacarpal fracture, and left proximal ulnar fracture.

Thus, the fighting issue is a narrow one—whether Velez committed two “acts” causing serious injury. Unfortunately, the record is largely silent on details of the attack. According to the minutes of testimony, no direct eyewitnesses existed beyond the victim and the accomplice. Two third-party witnesses, Tracee Crawford and Jamie Bell, were present when Velez and Welsh entered Crawford's home. Crawford's minutes of testimony suggest that Bell may have witnessed the attack. Her minutes state that Bell “was laying on the back couch watching [the attack] and it lasted five to ten minutes.” However, Bell's minutes of testimony indicate he did not actually witness the event. Rather, the minutes indicate he witnessed Velez and Welsh enter the home, but nothing else. Bell stated he opened the door for Velez and Welsh when he was still “half asleep.” Velez and Welsh “shoved their way in” past him. Rather than follow Velez and Welsh into the room where Kennedy was sleeping on the couch, Bell stated he “had a feeling to stay out of there so he got his computer and ran out the door.” His minutes of testimony provide no information regarding the scope of the attack.

The other third-party witness, Crawford, had fallen asleep on the couch beside Kennedy prior to the appearance of Velez and Welsh. Crawford woke up and saw Velez and Welsh standing over Kennedy. Her minutes say “[s]he looked at Velez and said, ‘No’ and he gave her a look like ‘get out of the way,’ so she grabbed her phone and went and hid near the water heater” in a closet in an adjoining room. She claims she could not see the attack from that vantage point. She only heard Kennedy screaming and saying, “Stop,” and “Leave me alone.”

The victim was a reluctant witness. His minutes of testimony...