IN THE COURT OF APPEALS OF IOWA
No. 19-0880 Filed June 17, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
BREE DEONTEZ WRIGHT, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.
Bree Wright appeals after pleading guilty to third-degree sexual abuse.
AFFIRMED.
Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Doyle and Schumacher, JJ. 2
DOYLE, Judge.
Bree Wright pled guilty to third-degree sexual abuse. On direct appeal,
Wright contends that his trial counsel was ineffective in allowing him to plead guilty.
He claims his plea was not voluntary because he was not informed by the plea
court of an element of the offense. He also claims the record lacks a factual basis
for the plea. We review the claim de novo.1 See Lamasters v. State, 821 N.W.2d
856, 862 (Iowa 2012).
I. Facts and Background Proceedings
In February 2019, Wright was charged with third-degree sexual abuse. The
trial information accused Wright of committing, from January 2017 through April
2017, sexual abuse upon P.A., a child who was the age of fourteen or fifteen years
old, when he was more than four years older than her. It was determined that
Wright was the father of a child P.A. gave birth to in October 2017. In May 2019,
Wright pled guilty to sexual abuse in the third degree in violation of Iowa Code
sections 709.1(1) and 709.4(1)(b)(3)(d) (2017). In exchange for his plea, the State
dismissed a separate charge for enticing away a minor under the age of sixteen.
At the plea hearing, the district court asked Wright if he had discussed with
his counsel the existence of any possible defenses to that crime, for which he
replied “Yes, sir.” During the plea colloquy, the district court went through the
elements of the crime. The court told Wright that the State would have to prove
that he committed the crime of sexual abuse between January 2017 through April
1 Recent amendments to Iowa Code chapter 814 (2020) that limit a defendant’s right to appeal do not apply to cases pending on July 1, 2019, including this case. See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019). 3
2017, that he performed sex acts on P.A., that P.A. was a child fourteen or fifteen
years old, and that he was four or more years older than her. Wright acknowledged
he understood the State would have to prove those elements. When asked to tell
the court what he did to commit the crime, Wright responded, “I met [P.A.] February
16th of 2017. We had sex. A couple of months later we figured out she was
pregnant.” He told the court P.A. was fifteen and he was twenty-three at the time.
After Wright pled guilty, the district court asked both parties’ counsel whether they
knew of any legal reason why the plea should not be accepted by the court. Both
counsel responded “No.” The court then asked both counsel whether the court
had “omitted anything in this guilty plea colloquy that would later affect the legal
validity of this plea?” The prosecutor responded “Not that I’m aware of, Judge,
no.” Defense counsel responded “No, Your Honor.” The plea court then accepted
Wright’s guilty plea and imposed sentence. Wright appeals.
II. Analysis
To succeed on a claim of ineffective assistance of counsel, appellant must
show counsel breached a duty and prejudice resulted. See State v. Graves, 668
N.W.2d 860, 869 (Iowa 2003). In the context of a guilty plea, appellant shows
prejudice by proving that, but for counsel’s breach, there is a reasonable probability
appellant “would not have pled guilty and would have insisted on going to trial.”
State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
a. Voluntariness
If counsel allows a defendant to plead involuntarily and fails to move in
arrest of judgment challenging that plea, counsel breaches a duty. See State v.
Straw, 709 N.W.2d 128, 134 (Iowa 2006). For a plea to be voluntary, the court 4
must inform the defendant of and ensure the defendant understands, among other
things, “the nature of the charge to which the plea is offered.” See Iowa R. Crim.
P. 2.8(2)(b); State v. Everett, 372 N.W.2d 235, 236 (Iowa 1985). In determining
whether the requirements of rule 2.8(2)(b) have been met, “we apply the
substantial compliance standard” which requires the essence of each requirement
of the rule be expressed. State v. Weitzel, 905 N.W.2d 397, 406 (Iowa 2017).
Wright alleges that his plea was not voluntary because the trial court did not
ensure he was informed of and understood the nature of third-degree sexual
abuse, in violation of Iowa Code section 709.4(1)(b)(3)(d), because the court failed
to explain that a necessary element of the crime is that the “sex act is between
persons who are not at the time cohabitating as husband and wife[.]” The extent
of the court’s explanation varies with the circumstances of each case. See State
v. Dryer, 342 N.W.2d 881, 884 (Iowa 1983). When informing a defendant of the
nature of the charges, the court need not review and explain each element of the
crime if, under the circumstances, it is apparent that the accused understood the
nature of the charge. See State v. Null, 836 N.W.2d 41, 49 (Iowa 2013). In
determining how much explanation is necessary, we consider the complexity of
the charge as well as the defendant’s education and experience. See State v.
Victor, 310 N.W.2d 201, 204 (Iowa 1981).
A person commits third-degree sexual abuse under Iowa Code section
709.4(1)(b)(3)(d) when that person (1) performs a sex act, (2) the act is between
persons who are not at the time cohabiting as husband and wife, (3) the other
person is fourteen or fifteen years, and (4) the person is four or more years older
than the other person. Here, the court instructed Wright that the State had to prove 5
he performed sex acts on P.A., P.A. was a child fourteen or fifteen years, and he
was four or more years older than her. There was no mention of the State having
to prove that Wright and P.A. were not at the time of the act cohabitating as
husband and wife. Wright’s answers to the plea court also mention nothing about
his marital or cohabitating status with P.A. at the time of the act. No one alerted
the court to the colloquy’s omission of the not-cohabiting-as-husband-and-wife
element.
Although it is possible Wright was informed of all the elements of the crime
by his counsel, there is no record here showing what counsel told Wright. As is
often the case, the record is insufficient to allow us to resolve appellant’s claim on
direct appeal. See State v. Petty, 925 N.W.2d 190, 196 (Iowa 2019). So we
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IN THE COURT OF APPEALS OF IOWA
No. 19-0880 Filed June 17, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
BREE DEONTEZ WRIGHT, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.
Bree Wright appeals after pleading guilty to third-degree sexual abuse.
AFFIRMED.
Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Doyle and Schumacher, JJ. 2
DOYLE, Judge.
Bree Wright pled guilty to third-degree sexual abuse. On direct appeal,
Wright contends that his trial counsel was ineffective in allowing him to plead guilty.
He claims his plea was not voluntary because he was not informed by the plea
court of an element of the offense. He also claims the record lacks a factual basis
for the plea. We review the claim de novo.1 See Lamasters v. State, 821 N.W.2d
856, 862 (Iowa 2012).
I. Facts and Background Proceedings
In February 2019, Wright was charged with third-degree sexual abuse. The
trial information accused Wright of committing, from January 2017 through April
2017, sexual abuse upon P.A., a child who was the age of fourteen or fifteen years
old, when he was more than four years older than her. It was determined that
Wright was the father of a child P.A. gave birth to in October 2017. In May 2019,
Wright pled guilty to sexual abuse in the third degree in violation of Iowa Code
sections 709.1(1) and 709.4(1)(b)(3)(d) (2017). In exchange for his plea, the State
dismissed a separate charge for enticing away a minor under the age of sixteen.
At the plea hearing, the district court asked Wright if he had discussed with
his counsel the existence of any possible defenses to that crime, for which he
replied “Yes, sir.” During the plea colloquy, the district court went through the
elements of the crime. The court told Wright that the State would have to prove
that he committed the crime of sexual abuse between January 2017 through April
1 Recent amendments to Iowa Code chapter 814 (2020) that limit a defendant’s right to appeal do not apply to cases pending on July 1, 2019, including this case. See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019). 3
2017, that he performed sex acts on P.A., that P.A. was a child fourteen or fifteen
years old, and that he was four or more years older than her. Wright acknowledged
he understood the State would have to prove those elements. When asked to tell
the court what he did to commit the crime, Wright responded, “I met [P.A.] February
16th of 2017. We had sex. A couple of months later we figured out she was
pregnant.” He told the court P.A. was fifteen and he was twenty-three at the time.
After Wright pled guilty, the district court asked both parties’ counsel whether they
knew of any legal reason why the plea should not be accepted by the court. Both
counsel responded “No.” The court then asked both counsel whether the court
had “omitted anything in this guilty plea colloquy that would later affect the legal
validity of this plea?” The prosecutor responded “Not that I’m aware of, Judge,
no.” Defense counsel responded “No, Your Honor.” The plea court then accepted
Wright’s guilty plea and imposed sentence. Wright appeals.
II. Analysis
To succeed on a claim of ineffective assistance of counsel, appellant must
show counsel breached a duty and prejudice resulted. See State v. Graves, 668
N.W.2d 860, 869 (Iowa 2003). In the context of a guilty plea, appellant shows
prejudice by proving that, but for counsel’s breach, there is a reasonable probability
appellant “would not have pled guilty and would have insisted on going to trial.”
State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
a. Voluntariness
If counsel allows a defendant to plead involuntarily and fails to move in
arrest of judgment challenging that plea, counsel breaches a duty. See State v.
Straw, 709 N.W.2d 128, 134 (Iowa 2006). For a plea to be voluntary, the court 4
must inform the defendant of and ensure the defendant understands, among other
things, “the nature of the charge to which the plea is offered.” See Iowa R. Crim.
P. 2.8(2)(b); State v. Everett, 372 N.W.2d 235, 236 (Iowa 1985). In determining
whether the requirements of rule 2.8(2)(b) have been met, “we apply the
substantial compliance standard” which requires the essence of each requirement
of the rule be expressed. State v. Weitzel, 905 N.W.2d 397, 406 (Iowa 2017).
Wright alleges that his plea was not voluntary because the trial court did not
ensure he was informed of and understood the nature of third-degree sexual
abuse, in violation of Iowa Code section 709.4(1)(b)(3)(d), because the court failed
to explain that a necessary element of the crime is that the “sex act is between
persons who are not at the time cohabitating as husband and wife[.]” The extent
of the court’s explanation varies with the circumstances of each case. See State
v. Dryer, 342 N.W.2d 881, 884 (Iowa 1983). When informing a defendant of the
nature of the charges, the court need not review and explain each element of the
crime if, under the circumstances, it is apparent that the accused understood the
nature of the charge. See State v. Null, 836 N.W.2d 41, 49 (Iowa 2013). In
determining how much explanation is necessary, we consider the complexity of
the charge as well as the defendant’s education and experience. See State v.
Victor, 310 N.W.2d 201, 204 (Iowa 1981).
A person commits third-degree sexual abuse under Iowa Code section
709.4(1)(b)(3)(d) when that person (1) performs a sex act, (2) the act is between
persons who are not at the time cohabiting as husband and wife, (3) the other
person is fourteen or fifteen years, and (4) the person is four or more years older
than the other person. Here, the court instructed Wright that the State had to prove 5
he performed sex acts on P.A., P.A. was a child fourteen or fifteen years, and he
was four or more years older than her. There was no mention of the State having
to prove that Wright and P.A. were not at the time of the act cohabitating as
husband and wife. Wright’s answers to the plea court also mention nothing about
his marital or cohabitating status with P.A. at the time of the act. No one alerted
the court to the colloquy’s omission of the not-cohabiting-as-husband-and-wife
element.
Although it is possible Wright was informed of all the elements of the crime
by his counsel, there is no record here showing what counsel told Wright. As is
often the case, the record is insufficient to allow us to resolve appellant’s claim on
direct appeal. See State v. Petty, 925 N.W.2d 190, 196 (Iowa 2019). So we
preserve the issue for a potential postconviction-relief action to allow a full
development of the record. See id.
b. Factual Basis
If counsel allows a defendant to plead guilty without a factual basis, counsel
breaches a duty and we presume prejudice. See Rhoades v. State, 848 N.W.2d
22, 29 (Iowa 2014). The question “is whether the record before the district court
as a whole supports a factual basis for each element of the offense.” State v.
Brown, 911 N.W.2d 180, 183 (Iowa Ct. App. 2018). We look at the entire record
before the district court at the time of the plea to determine whether a factual basis
for the plea exists. See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). That
includes inquiry of the defendant, inquiry of the prosecutor, examination of the
presentence investigation report (if available at the time of the plea), and minutes 6
of the evidence.2 See State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010). When
analyzing a record to determine whether the record supports a factual basis for a
plea, courts “do not require the record ‘to show the totality of evidence necessary
to support a guilty conviction,’ but only that the record demonstrates the facts to
support the elements of the offense.” Rhoades, 848 N.W.2d at 29 (quoting Ortiz,
789 N.W.2d at 768). The evidence need not show the defendant is guilty beyond
a reasonable doubt, only that there is sufficient evidence by which a jury could find
the defendant guilty. See Finney, 834 N.W.2d at 50.
Wright alleges there was no factual basis for the charge of third-degree
sexual abuse because there was no mention during the plea colloquy that he was
not cohabitating with P.A. as husband and wife and therefore the record cannot
establish the not-cohabitating-as-husband-and-wife element. But when
determining whether there is a factual basis to support each element of the offense
we look to the record “as a whole” and not just the colloquy. Brown, 911 N.W.2d
at 183.
Here, the record as a whole supports a factual basis for the not-
cohabitating-as-husband-and-wife element of third-degree sexual abuse. The
May 2017 sexual abuse report attached to the minutes of testimony states:
“SUSPECTS RELATIONSHIP TO VICTIM: BOYFRIEND.” A May 2017
2 Iowa Rule of Criminal Procedure 2.5(3) employs the term “minutes of evidence” and “statement of the witness’ expected testimony.” Here (as is the standard practice throughout the state), the document filed by the prosecuting attorney as intended compliance with this rule was captioned “Minutes of Testimony,” and the parties and court used the term throughout the proceedings. Since the 1800’s, the term “minutes of testimony” has been commonly used interchangeably with “minutes of evidence.” See, e.g., State v. Wise, 50 N.W. 59, 60 (Iowa 1891) (using “minutes of testimony” and “minutes of the evidence” interchangeably). 7
supplemental police witness statement report attached to the minutes of testimony
states that P.A. said Wright was her boyfriend. The report states P.A. first met
Wright in the summer of 2016. Records show she was fourteen years old at the
time. The report then says, “The two met again on 16 Feb 17 . . . and had sex for
the first time.” The report states that since then the two had consensual sex.
Records show she was fifteen years old and he was twenty-three in February
2017. Their child was born in October 2017, about eight and a half months after
their first encounter in February 2017.
We note that in Iowa a marriage between individuals is valid only if each is
eighteen or older. See Iowa Code § 595.2(2). A marriage license may be issued
to a person sixteen or seventeen if the parents of the underage party consent. See
Id. at § 595.2(4). P.A. would not have qualified for an Iowa marriage license in
2017.
We conclude the record shows enough facts to support the not-
cohabitating-as-husband-and-wife element of third-degree sexual abuse.
Because there is a factual basis for his plea, Wright has failed to establish his
counsel was ineffective in this regard.
We affirm Wright’s conviction and sentence. We preserve the voluntariness
issue for a potential postconviction-relief action to allow a full development of the
record.