IN THE COURT OF APPEALS OF IOWA
No. 19-0040 Filed September 23, 2020
ARCHIE LEE JONES, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
The applicant appeals the district court decision denying his request for
postconviction relief. SENTENCES VACATED AND REMANDED.
Thomas Hurd of Greenberg & Hurd, LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., Greer, J., and Danilson, S.J.* May, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020). 2
DANILSON, Senior Judge.
Archie Jones appeals the district court decision denying his request for
postconviction relief (PCR). We determine Jones’s two sentences for possession
of marijuana, third offense, as a habitual offender, should be vacated. We remand
to give the State the opportunity to establish a factual basis for the offenses.
I. Background Facts & Proceedings
On June 15, 2016, Jones was charged in a felony case with four counts,
one being possession of marijuana, third offense, in violation of Iowa Code section
124.401(5) (2016). On June 16, he was charged in a misdemeanor case with two
counts, one being possession of marijuana, third offense, in violation of section
124.401(5). In both cases, he was charged as a habitual offender. Jones entered
into a plea agreement in which the State agreed to not pursue consecutive
sentences in the six charges, which could have led to a sentence of up to 150
years in prison.
During the plea proceeding, while reviewing the factual basis for other
charges, Jones stated he was convicted of felony possession of a controlled
substance with intent to deliver in 2002 and felony first-degree theft in 2007. He
also stated he had a controlled-substance violation in 2007.
On the first charge of possession of marijuana, the court stated Jones was
charged with “knowingly possess[ing] marijuana, having been previously convicted
of drug offenses on two prior occasions as well as being convicted of felonies on
two prior occasions.” On the second charge of possession of marijuana, the court
stated “it’s alleged that you possessed marijuana on May 3, 2016, having been
previously convicted of drug offenses on two or more occasions as well as having 3
two or more felony convictions.” Jones admitted he committed the offenses and
stated he possessed marijuana on the date of the instant offense. The court
accepted Jones’s guilty pleas.
Jones was sentenced to a term of imprisonment not to exceed fifteen years
on each of the charges of possession of marijuana, third offense, as a habitual
offender, to be served concurrently with his sentences on other charges. 1 Jones
did not appeal his convictions.
On August 9, 2017, Jones filed a PCR application, raising issues other than
those raised on appeal. The district court found Jones did not show he received
ineffective assistance of counsel and denied his PCR application. Jones appealed
the district court’s decision.
II. Standard of Review
We conduct a de novo review of claims of ineffective assistance of counsel.
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of
ineffective assistance of counsel, an applicant must prove: (1) counsel failed to
perform an essential duty and (2) the failure resulted in prejudice. State v. Straw,
709 N.W.2d 128, 133 (Iowa 2006). An applicant’s failure to prove either element
by a preponderance of the evidence is fatal to a claim of ineffective assistance.
See State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
III. Discussion
On appeal, Jones claims he received ineffective assistance because his
postconviction counsel did not raise the issue of whether defense counsel
1Jones was sentenced to a total of fifty years in prison, with all of his sentences to be served concurrently. 4
improperly permitted him to plead guilty to the two counts of possession of
marijuana, third offense, as a habitual offender, when there was not a sufficient
factual basis in the record for his pleas. He contends the court’s question
concerning whether he had been previously convicted of drug offenses was not
sufficiently specific, as there is a difference under section 124.401(5) for a person
charged with a possession of marijuana, third offense, when the person’s previous
convictions were for possession of marijuana and a person charged with
possession of marijuana, third offense, when the person had previous convictions
for other drug offenses.2
A court should not accept a guilty plea if there is not a sufficient factual basis
for the plea. State v. Chapman, 944 N.W.2d 864, 872 (Iowa 2020). We examine
the entire record to determine whether there is a factual basis for a defendant’s
guilty pleas. Yocum v. State, 891 N.W.2d 418, 419 (Iowa 2017). “[C]ounsel
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.” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa
2010). “Prejudice is presumed under these circumstances.” Id. at 764–65.
The State points out that Jones was charged with possession of marijuana,
third offense, as a class “D” felony and the minutes of testimony set out the
previous charges to support the offense. We note, however, the minutes do not
2 If a person is convicted of possession of marijuana, third offense, and the previous convictions are for possession of marijuana, the person is guilty of an aggravated misdemeanor. Iowa Code § 124.401(5). If the person’s previous convictions are for drug offenses other than possession of marijuana, the person is guilty of a class “D” felony. Id. 5
specify the prior offenses, stating only that Jones was previously convicted of
controlled-substance violations.
Also, during the plea colloquy, the court stated the present charges for
possession of marijuana were class “D” felonies. At the hearing, Jones stated he
was previously convicted of felony possession of a controlled substance with intent
to deliver in 2002. He also stated he was convicted of a controlled-substance
violation in 2007. The controlled substance was not named for either prior
conviction.
In State v. Cortez, 617 N.W.2d 1, 3 (Iowa 2000), the Iowa Supreme Court
agreed with the State’s position that
section 124.401(5) is only intended to grant leniency to those charged exclusively with marijuana related offenses.
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IN THE COURT OF APPEALS OF IOWA
No. 19-0040 Filed September 23, 2020
ARCHIE LEE JONES, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
The applicant appeals the district court decision denying his request for
postconviction relief. SENTENCES VACATED AND REMANDED.
Thomas Hurd of Greenberg & Hurd, LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., Greer, J., and Danilson, S.J.* May, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020). 2
DANILSON, Senior Judge.
Archie Jones appeals the district court decision denying his request for
postconviction relief (PCR). We determine Jones’s two sentences for possession
of marijuana, third offense, as a habitual offender, should be vacated. We remand
to give the State the opportunity to establish a factual basis for the offenses.
I. Background Facts & Proceedings
On June 15, 2016, Jones was charged in a felony case with four counts,
one being possession of marijuana, third offense, in violation of Iowa Code section
124.401(5) (2016). On June 16, he was charged in a misdemeanor case with two
counts, one being possession of marijuana, third offense, in violation of section
124.401(5). In both cases, he was charged as a habitual offender. Jones entered
into a plea agreement in which the State agreed to not pursue consecutive
sentences in the six charges, which could have led to a sentence of up to 150
years in prison.
During the plea proceeding, while reviewing the factual basis for other
charges, Jones stated he was convicted of felony possession of a controlled
substance with intent to deliver in 2002 and felony first-degree theft in 2007. He
also stated he had a controlled-substance violation in 2007.
On the first charge of possession of marijuana, the court stated Jones was
charged with “knowingly possess[ing] marijuana, having been previously convicted
of drug offenses on two prior occasions as well as being convicted of felonies on
two prior occasions.” On the second charge of possession of marijuana, the court
stated “it’s alleged that you possessed marijuana on May 3, 2016, having been
previously convicted of drug offenses on two or more occasions as well as having 3
two or more felony convictions.” Jones admitted he committed the offenses and
stated he possessed marijuana on the date of the instant offense. The court
accepted Jones’s guilty pleas.
Jones was sentenced to a term of imprisonment not to exceed fifteen years
on each of the charges of possession of marijuana, third offense, as a habitual
offender, to be served concurrently with his sentences on other charges. 1 Jones
did not appeal his convictions.
On August 9, 2017, Jones filed a PCR application, raising issues other than
those raised on appeal. The district court found Jones did not show he received
ineffective assistance of counsel and denied his PCR application. Jones appealed
the district court’s decision.
II. Standard of Review
We conduct a de novo review of claims of ineffective assistance of counsel.
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of
ineffective assistance of counsel, an applicant must prove: (1) counsel failed to
perform an essential duty and (2) the failure resulted in prejudice. State v. Straw,
709 N.W.2d 128, 133 (Iowa 2006). An applicant’s failure to prove either element
by a preponderance of the evidence is fatal to a claim of ineffective assistance.
See State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
III. Discussion
On appeal, Jones claims he received ineffective assistance because his
postconviction counsel did not raise the issue of whether defense counsel
1Jones was sentenced to a total of fifty years in prison, with all of his sentences to be served concurrently. 4
improperly permitted him to plead guilty to the two counts of possession of
marijuana, third offense, as a habitual offender, when there was not a sufficient
factual basis in the record for his pleas. He contends the court’s question
concerning whether he had been previously convicted of drug offenses was not
sufficiently specific, as there is a difference under section 124.401(5) for a person
charged with a possession of marijuana, third offense, when the person’s previous
convictions were for possession of marijuana and a person charged with
possession of marijuana, third offense, when the person had previous convictions
for other drug offenses.2
A court should not accept a guilty plea if there is not a sufficient factual basis
for the plea. State v. Chapman, 944 N.W.2d 864, 872 (Iowa 2020). We examine
the entire record to determine whether there is a factual basis for a defendant’s
guilty pleas. Yocum v. State, 891 N.W.2d 418, 419 (Iowa 2017). “[C]ounsel
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.” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa
2010). “Prejudice is presumed under these circumstances.” Id. at 764–65.
The State points out that Jones was charged with possession of marijuana,
third offense, as a class “D” felony and the minutes of testimony set out the
previous charges to support the offense. We note, however, the minutes do not
2 If a person is convicted of possession of marijuana, third offense, and the previous convictions are for possession of marijuana, the person is guilty of an aggravated misdemeanor. Iowa Code § 124.401(5). If the person’s previous convictions are for drug offenses other than possession of marijuana, the person is guilty of a class “D” felony. Id. 5
specify the prior offenses, stating only that Jones was previously convicted of
controlled-substance violations.
Also, during the plea colloquy, the court stated the present charges for
possession of marijuana were class “D” felonies. At the hearing, Jones stated he
was previously convicted of felony possession of a controlled substance with intent
to deliver in 2002. He also stated he was convicted of a controlled-substance
violation in 2007. The controlled substance was not named for either prior
conviction.
In State v. Cortez, 617 N.W.2d 1, 3 (Iowa 2000), the Iowa Supreme Court
agreed with the State’s position that
section 124.401(5) is only intended to grant leniency to those charged exclusively with marijuana related offenses. Once a defendant is convicted of a single offense involving other illegal substances, the State alleges all crimes committed prior or subsequent thereto could be used to enhance the offender’s sentence under the stricter, felony track.
Accord State v. Spencer, No. 17-0360, 2018 WL 2230722, at *4 (Iowa Ct. App.
May 16, 2018).
In the present case, the record is not sufficient to show whether Jones was
previously convicted exclusively with marijuana-related offenses or whether his
convictions involved other illegal substances. The State concedes, “Neither the
plea hearing transcript nor the trial information/minutes specifically state what the
‘controlled substance’ was in the two prior cases.”
Where the record does not present a factual basis for an offense, but “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 6
opportunity to establish a factual basis.” State v. Schminkey, 597 N.W.2d 785,
792 (Iowa 1999). If the State is not able to establish a factual basis for the plea on
remand, the court should vacate the plea. Yocum, 891 N.W.2d at 419 (“If the State
cannot establish a factual basis for the plea, the court should vacate the plea. After
vacating the plea, the court should allow the State to reinstate any charges
dismissed as part of the plea agreement and file any additional charges the
available evidence supports.” (citing State v. Allen, 708 N.W.2d 361, 369 (Iowa
2006))).
We determine Jones’s two sentences for possession of marijuana, third
offense, as a habitual offender, should be vacated. The case is remanded to the
district court to give the State the opportunity to present a factual basis for Jones’s
guilty pleas.
SENTENCES VACATED AND REMANDED.