IN THE COURT OF APPEALS OF IOWA
No. 13-0607 Filed May 29, 2014
GREGORY SHARKEY, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee.
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Applicant appeals the district court’s grant of summary judgment to the
State on his request for postconviction relief from his conviction for assault while
participating in a felony. AFFIRMED.
Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Heather Quick, Assistant Attorney
General, Ralph Potter, County Attorney, and Brigit Barnes, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., Mullins, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
EISENHAUER, S.J.
Gregory Sharkey appeals the district court’s grant of summary judgment to
the State on his request for postconviction relief (PCR) from his conviction for
assault while participating in a felony. He claims summary judgment was
inappropriate because there is a genuine issue of material fact as to whether he
received ineffective assistance because defense counsel permitted him to plead
guilty when there was not a sufficient factual basis for his guilty plea. We affirm.
I. Background Facts & Proceedings
According to the minutes of evidence, on December 15, 2007, Sharkey
entered Travis Bottom’s home without the right or privilege to do so. Bottom
asked Sharkey to leave, but he refused, stating “the cops are looking for me.”
While in the home, Sharkey assaulted Bottom by kicking and punching him,
causing a laceration to Bottom’s lower lip. The assault was observed by two
eyewitnesses. After the assault, Sharkey ran from the home but was soon
apprehended by police officers.
Sharkey was charged with first-degree burglary. Pursuant to a March 14,
2008 plea agreement, he entered an Alford plea1 to the reduced charge of
assault while participating in a felony, in violation of Iowa Code section 708.3
(2007). The court accepted Sharkey’s plea. The case immediately proceeded to
1 In an Alford plea, a defendant may consent to the imposition of a prison sentence without admitting to participating in the crime. See North Carolina v. Alford, 400 U.S. 25, 37 (1970). 3
sentencing, and Sharkey was sentenced to five years in prison. 2 He did not
appeal his conviction.
On March 14, 2011, Sharkey filed a PCR application. He raised several
claims of ineffective assistance, including a claim defense counsel should not
have permitted him to plead guilty because there was not a sufficient factual
basis for his plea. The State filed a motion for summary judgment. After a
hearing, the court granted the motion, finding “there are no material facts that are
in dispute and that the State is entitled to judgment as a matter of law.” Sharkey
now appeals the decision of the district court.
II. Standard of Review
We review a district court’s grant of summary judgment in a PCR action
for the correction of errors of law. Castro v. State, 795 N.W.2d 789, 792 (Iowa
2011). To the extent, however, an application raises a constitutional claim, such
as ineffective assistance of counsel, our review is de novo. Id.
III. Merits
Sharkey contends the district court should not have granted the State’s
motion for summary judgment because there is a genuine issue of material fact
as to whether he received ineffective assistance because defense counsel
permitted him to plead guilty when there was not a sufficient factual basis for his
guilty plea to assault while participating in a felony. To establish a claim of
ineffective assistance of counsel, an applicant must show (1) the attorney failed
2 Sharkey had accumulated a number of other charges, and he entered into a comprehensive plea agreement. His sentence for assault while participating in a felony was made concurrent to his sentences on other charges. 4
to perform an essential duty and (2) prejudice resulted to the extent it denied the
applicant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
We note Sharkey has not offered nor does he claim to have additional
facts not in the summary judgment record to support his arguments. Sharkey
first claims the record does not disclose the felony the State alleged he was
participating in at the time of the assault. The amended trial information alleged
Sharkey “assaulted Travis Bottom, while participating in a burglary, a felony.”
The State specified it was alleging Sharkey committed an assault while
participating in the felony of burglary. Thus, there is no genuine issue of material
fact on this issue. See Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002)
(stating summary judgment in PCR proceedings is appropriate “when there is no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law”). Sharkey has not shown he received ineffective assistance due to
counsel’s failure to raise this meritless issue. See State v. Brothern, 832 N.W.2d
187, 192 (Iowa 2013).
We turn then to Sharkey’s alternative argument, whether the State was
entitled to summary judgment on his claim he received ineffective assistance
because defense counsel permitted him to plead guilty when there was not a
sufficient factual basis to show he was participating in the felony of burglary. The
offense of burglary is defined as follows:
Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person’s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary. 5
Iowa Code § 713.1.
In Alford pleas, as in guilty pleas, there must be a sufficient factual basis
for the plea. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). “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.” State v. Finney, 834
N.W.2d 46, 54 (Iowa 2013). “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.” Id. at 62. The record needs only to demonstrate facts
to support the offense; there is no requirement to show guilt beyond a reasonable
doubt. State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010).
The minutes of evidence show Sharkey and Bottom were not previously
acquainted when Sharkey abruptly entered Bottom’s residence without
permission.
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IN THE COURT OF APPEALS OF IOWA
No. 13-0607 Filed May 29, 2014
GREGORY SHARKEY, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee.
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Applicant appeals the district court’s grant of summary judgment to the
State on his request for postconviction relief from his conviction for assault while
participating in a felony. AFFIRMED.
Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Heather Quick, Assistant Attorney
General, Ralph Potter, County Attorney, and Brigit Barnes, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., Mullins, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
EISENHAUER, S.J.
Gregory Sharkey appeals the district court’s grant of summary judgment to
the State on his request for postconviction relief (PCR) from his conviction for
assault while participating in a felony. He claims summary judgment was
inappropriate because there is a genuine issue of material fact as to whether he
received ineffective assistance because defense counsel permitted him to plead
guilty when there was not a sufficient factual basis for his guilty plea. We affirm.
I. Background Facts & Proceedings
According to the minutes of evidence, on December 15, 2007, Sharkey
entered Travis Bottom’s home without the right or privilege to do so. Bottom
asked Sharkey to leave, but he refused, stating “the cops are looking for me.”
While in the home, Sharkey assaulted Bottom by kicking and punching him,
causing a laceration to Bottom’s lower lip. The assault was observed by two
eyewitnesses. After the assault, Sharkey ran from the home but was soon
apprehended by police officers.
Sharkey was charged with first-degree burglary. Pursuant to a March 14,
2008 plea agreement, he entered an Alford plea1 to the reduced charge of
assault while participating in a felony, in violation of Iowa Code section 708.3
(2007). The court accepted Sharkey’s plea. The case immediately proceeded to
1 In an Alford plea, a defendant may consent to the imposition of a prison sentence without admitting to participating in the crime. See North Carolina v. Alford, 400 U.S. 25, 37 (1970). 3
sentencing, and Sharkey was sentenced to five years in prison. 2 He did not
appeal his conviction.
On March 14, 2011, Sharkey filed a PCR application. He raised several
claims of ineffective assistance, including a claim defense counsel should not
have permitted him to plead guilty because there was not a sufficient factual
basis for his plea. The State filed a motion for summary judgment. After a
hearing, the court granted the motion, finding “there are no material facts that are
in dispute and that the State is entitled to judgment as a matter of law.” Sharkey
now appeals the decision of the district court.
II. Standard of Review
We review a district court’s grant of summary judgment in a PCR action
for the correction of errors of law. Castro v. State, 795 N.W.2d 789, 792 (Iowa
2011). To the extent, however, an application raises a constitutional claim, such
as ineffective assistance of counsel, our review is de novo. Id.
III. Merits
Sharkey contends the district court should not have granted the State’s
motion for summary judgment because there is a genuine issue of material fact
as to whether he received ineffective assistance because defense counsel
permitted him to plead guilty when there was not a sufficient factual basis for his
guilty plea to assault while participating in a felony. To establish a claim of
ineffective assistance of counsel, an applicant must show (1) the attorney failed
2 Sharkey had accumulated a number of other charges, and he entered into a comprehensive plea agreement. His sentence for assault while participating in a felony was made concurrent to his sentences on other charges. 4
to perform an essential duty and (2) prejudice resulted to the extent it denied the
applicant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
We note Sharkey has not offered nor does he claim to have additional
facts not in the summary judgment record to support his arguments. Sharkey
first claims the record does not disclose the felony the State alleged he was
participating in at the time of the assault. The amended trial information alleged
Sharkey “assaulted Travis Bottom, while participating in a burglary, a felony.”
The State specified it was alleging Sharkey committed an assault while
participating in the felony of burglary. Thus, there is no genuine issue of material
fact on this issue. See Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002)
(stating summary judgment in PCR proceedings is appropriate “when there is no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law”). Sharkey has not shown he received ineffective assistance due to
counsel’s failure to raise this meritless issue. See State v. Brothern, 832 N.W.2d
187, 192 (Iowa 2013).
We turn then to Sharkey’s alternative argument, whether the State was
entitled to summary judgment on his claim he received ineffective assistance
because defense counsel permitted him to plead guilty when there was not a
sufficient factual basis to show he was participating in the felony of burglary. The
offense of burglary is defined as follows:
Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person’s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary. 5
Iowa Code § 713.1.
In Alford pleas, as in guilty pleas, there must be a sufficient factual basis
for the plea. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). “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.” State v. Finney, 834
N.W.2d 46, 54 (Iowa 2013). “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.” Id. at 62. The record needs only to demonstrate facts
to support the offense; there is no requirement to show guilt beyond a reasonable
doubt. State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010).
The minutes of evidence show Sharkey and Bottom were not previously
acquainted when Sharkey abruptly entered Bottom’s residence without
permission. Bottom asked Sharkey to leave more than once, but Sharkey
refused. Sharkey suddenly assaulted Bottom, kicking and punching him, and
causing a laceration to his lower lip. The incident was observed by two
witnesses. We determine the minutes demonstrate facts sufficient to show
Sharkey was participating in the felony of burglary at the time he committed the
assault. See id. Because there is a sufficient factual basis in the record to
support Sharkey’s guilty plea to assault while participating in a felony, there is no
genuine issue of material fact on the issue of whether he received ineffective
assistance of counsel.
We affirm the decision of the district court granting summary judgment to
the State on Sharkey’s request for postconviction relief.
AFFIRMED.