IN THE COURT OF APPEALS OF IOWA
No. 18-1510 Filed May 1, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
DEREK A. WESTWATER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, Mark E. Kruse,
Judge.
Defendant appeals his conviction for harassment in the first degree.
AFFIRMED.
Nate Nieman, Rock Island, Illinois, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ. 2
PER CURIAM
Derek Westwater appeals his conviction for harassment in the first degree.
We find Westwater failed to show he received ineffective assistance because
defense counsel permitted him to plead guilty to a count where there was not a
factual basis, as there was a sufficient factual basis for the plea. We affirm
Westwater’s conviction.
I. Background Facts & Proceedings
Westwater was charged with four counts of first-degree harassment based
on threats he made to Captain Kevin Church while in a holding cell at the Keokuk
Police Department. Westwater threatened to physically harm Captain Church, his
wife, daughter, and son.
Westwater filed a motion to dismiss, claiming he did not have personal
contact with Captain Church’s wife, daughter, or son and the charges involving
threats against them should be dismissed. The State resisted the motion to
dismiss, claiming Westwater threatened four people—Captain Church, his wife,
daughter, and son—while in personal contact with Captain Church and this gave
rise to the four charges.1 The district court denied the motion to dismiss.
Westwater subsequently entered into a plea agreement, in which he would
plead guilty to one count of first-degree harassment and the State would dismiss
the three other charges. In a written guilty plea, Westwater stated:
In order to provide a factual basis for the plea of guilty the Defendant does admit that on or about the 1st day of May, 2018, in South Lee County, Iowa, I did purposely and without legitimate
1 The State’s brief noted Westwater was not charged with threatening statements made to Captain Church while being transported to the police station or while being transported from the patrol car to the holding cell. 3
purpose have personal contact with Kevin Church with the intent to threaten, intimidate, or alarm Kevin Church, and in doing so did threaten to commit a forcible felony contrary to Iowa Code Sections 708.7(1) and 708.7(2) of the Iowa Criminal Code.
The district court accepted Westwater’s guilty plea to first-degree harassment, in
violation of Iowa Code section 708.7(2) (2018), an aggravated misdemeanor.
Westwater orally informed the court he wanted to withdraw his guilty plea.
He obtained new counsel, and a formal motion in arrest of judgment was filed.
Westwater and his previous defense counsel testified at a hearing on the motion.
The issue of a factual basis for the plea was not raised. The district court denied
the motion in arrest of judgment. Westwater was sentenced to a term of
imprisonment not to exceed two years, to be served concurrently with a sentence
in a different case. Westwater now appeals, claiming he received ineffective
assistance of counsel.
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, “a defendant must prove: (1) counsel failed to
perform an essential duty and (2) prejudice resulted” to the extent it denied the
defendant a fair trial. Id. A defendant’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. Ineffective Assistance
Westwater claims he received ineffective assistance because defense
counsel permitted him to plead guilty to first-degree harassment when there was 4
not a sufficient factual basis for the charge. Westwater claims there was not a
sufficient factual basis to show he intended to threaten, intimidate, or alarm
Captain Church by threatening to commit a forcible felony against him. He points
out the written plea agreement does not state the specific forcible felony he
threatened to commit.
“If trial counsel permits a defendant to plead guilty and waives the
defendant’s right to file a motion in arrest of judgment when there is no factual
basis to support the defendant’s guilty plea, trial counsel breaches an essential
duty.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). “[W]e consider the entire
record before the district court at the guilty plea hearing, including any statements
made by the defendant, facts related by the prosecutor, the minutes of testimony,
and the presentence report.” State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014)
(citation omitted). “Our cases do not require that the district court have before it
evidence that the crime was committed beyond a reasonable doubt, but only that
there be a factual basis to support the charge.” State v. Finney, 834 N.W.2d 46,
62 (Iowa 2013).
The State alleged Westwater violated section 708.7(1)(b), which provides,
“A person commits harassment when the person, purposefully and without
legitimate purpose, has personal contact with another person, with the intent to
threaten, intimidate, or alarm that other person.” First-degree harassment occurs
if a person “threat[ens] to commit a forcible felony.” Iowa Code § 708.7(2)(a)(1).
“[T]he harassment statute requires that at the time the defendant purposefully has
personal contact with another, he or she also has the specific intent to threaten,
intimidate, or alarm that person.” In re D.S., 856 N.W.2d 348, 354 (Iowa 2014). 5
In the written plea agreement, Westwater stated he “purposely and without
legitimate purpose [had] personal contact with Kevin Church with the intent to
threaten, intimidate, or alarm Kevin Church, and in doing so did threaten to commit
a forcible felony.” According to Captain Church’s report, attached to the minutes
of testimony, “Westwater continued to make threats to myself” while placed in a
holding cell. Westwater made threats to rape and kill Captain Church’s wife and
daughter, made threats of sexual violence against his son, “and ended this with he
was going to do the same to me at the end.” The report also states, “Westwater
knew or reasonably should have known that these threats were made for no other
reason than to cause fear or intimidation.”
Westwater admitted he had personal contact with Captain Church. See
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IN THE COURT OF APPEALS OF IOWA
No. 18-1510 Filed May 1, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
DEREK A. WESTWATER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, Mark E. Kruse,
Judge.
Defendant appeals his conviction for harassment in the first degree.
AFFIRMED.
Nate Nieman, Rock Island, Illinois, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ. 2
PER CURIAM
Derek Westwater appeals his conviction for harassment in the first degree.
We find Westwater failed to show he received ineffective assistance because
defense counsel permitted him to plead guilty to a count where there was not a
factual basis, as there was a sufficient factual basis for the plea. We affirm
Westwater’s conviction.
I. Background Facts & Proceedings
Westwater was charged with four counts of first-degree harassment based
on threats he made to Captain Kevin Church while in a holding cell at the Keokuk
Police Department. Westwater threatened to physically harm Captain Church, his
wife, daughter, and son.
Westwater filed a motion to dismiss, claiming he did not have personal
contact with Captain Church’s wife, daughter, or son and the charges involving
threats against them should be dismissed. The State resisted the motion to
dismiss, claiming Westwater threatened four people—Captain Church, his wife,
daughter, and son—while in personal contact with Captain Church and this gave
rise to the four charges.1 The district court denied the motion to dismiss.
Westwater subsequently entered into a plea agreement, in which he would
plead guilty to one count of first-degree harassment and the State would dismiss
the three other charges. In a written guilty plea, Westwater stated:
In order to provide a factual basis for the plea of guilty the Defendant does admit that on or about the 1st day of May, 2018, in South Lee County, Iowa, I did purposely and without legitimate
1 The State’s brief noted Westwater was not charged with threatening statements made to Captain Church while being transported to the police station or while being transported from the patrol car to the holding cell. 3
purpose have personal contact with Kevin Church with the intent to threaten, intimidate, or alarm Kevin Church, and in doing so did threaten to commit a forcible felony contrary to Iowa Code Sections 708.7(1) and 708.7(2) of the Iowa Criminal Code.
The district court accepted Westwater’s guilty plea to first-degree harassment, in
violation of Iowa Code section 708.7(2) (2018), an aggravated misdemeanor.
Westwater orally informed the court he wanted to withdraw his guilty plea.
He obtained new counsel, and a formal motion in arrest of judgment was filed.
Westwater and his previous defense counsel testified at a hearing on the motion.
The issue of a factual basis for the plea was not raised. The district court denied
the motion in arrest of judgment. Westwater was sentenced to a term of
imprisonment not to exceed two years, to be served concurrently with a sentence
in a different case. Westwater now appeals, claiming he received ineffective
assistance of counsel.
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, “a defendant must prove: (1) counsel failed to
perform an essential duty and (2) prejudice resulted” to the extent it denied the
defendant a fair trial. Id. A defendant’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. Ineffective Assistance
Westwater claims he received ineffective assistance because defense
counsel permitted him to plead guilty to first-degree harassment when there was 4
not a sufficient factual basis for the charge. Westwater claims there was not a
sufficient factual basis to show he intended to threaten, intimidate, or alarm
Captain Church by threatening to commit a forcible felony against him. He points
out the written plea agreement does not state the specific forcible felony he
threatened to commit.
“If trial counsel permits a defendant to plead guilty and waives the
defendant’s right to file a motion in arrest of judgment when there is no factual
basis to support the defendant’s guilty plea, trial counsel breaches an essential
duty.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). “[W]e consider the entire
record before the district court at the guilty plea hearing, including any statements
made by the defendant, facts related by the prosecutor, the minutes of testimony,
and the presentence report.” State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014)
(citation omitted). “Our cases do not require that the district court have before it
evidence that the crime was committed beyond a reasonable doubt, but only that
there be a factual basis to support the charge.” State v. Finney, 834 N.W.2d 46,
62 (Iowa 2013).
The State alleged Westwater violated section 708.7(1)(b), which provides,
“A person commits harassment when the person, purposefully and without
legitimate purpose, has personal contact with another person, with the intent to
threaten, intimidate, or alarm that other person.” First-degree harassment occurs
if a person “threat[ens] to commit a forcible felony.” Iowa Code § 708.7(2)(a)(1).
“[T]he harassment statute requires that at the time the defendant purposefully has
personal contact with another, he or she also has the specific intent to threaten,
intimidate, or alarm that person.” In re D.S., 856 N.W.2d 348, 354 (Iowa 2014). 5
In the written plea agreement, Westwater stated he “purposely and without
legitimate purpose [had] personal contact with Kevin Church with the intent to
threaten, intimidate, or alarm Kevin Church, and in doing so did threaten to commit
a forcible felony.” According to Captain Church’s report, attached to the minutes
of testimony, “Westwater continued to make threats to myself” while placed in a
holding cell. Westwater made threats to rape and kill Captain Church’s wife and
daughter, made threats of sexual violence against his son, “and ended this with he
was going to do the same to me at the end.” The report also states, “Westwater
knew or reasonably should have known that these threats were made for no other
reason than to cause fear or intimidation.”
Westwater admitted he had personal contact with Captain Church. See
Iowa Code § 708.7(7)(b) (“‘Personal contact’ means an encounter in which two or
more people are in visual or physical proximity to each other. ‘Personal contact’
does not require a physical touching or oral communication, although it may
include these types of contacts.”). Captain Church was in visual contact with
Westwater and heard his oral communications while Westwater was in a holding
cell at the Keokuk Police Department, so there is a factual basis for this element
of the offense.
In the written plea agreement, Westwater also admitted he purposefully and
without legitimate purpose had personal contact with Captain Church. The term
“purposeful” in section 708.7(1)(b) has been defined as “[h]aving a purpose;
intentional.” D.S., 856 N.W.2d at 352 (citation omitted). The Iowa Supreme Court
has determined a defendant committed purposeful acts, although the defendant
was detained, when the defendant “chose to make the threats, turning the 6
communication into harassment,” and it was the defendant’s acts that led to his
detention. State v. Button, 622 N.W.2d 480, 485 (Iowa 2001). We find there is a
factual basis for this element.
The written plea agreement states Westwater had “the intent to threaten,
intimidate, or alarm Kevin Church.” Harassment is a specific intent offense. D.S.,
856 N.W.2d at 352–53. “Because there must be a specific intent to threaten,
intimidate, or alarm, the only legitimate purpose that will avoid the criminal status
conferred by the statute would be a legitimate purpose to threaten, intimidate, or
alarm.” State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003). The statute “does not
even require that the victim actually feel threatened, intimidated, or alarmed, only
that the defendant act with the intent to cause such a reaction.” State v. Reynolds,
670 N.W.2d 405, 410 (Iowa 2003). In the minutes, Captain Church’s report states,
“Westwater knew or reasonably should have known that these threats were made
for no other reason than to cause fear or intimidation.” The written plea agreement
and the minutes provide a factual basis for this element.
Finally, Westwater was charged with first-degree harassment under a
theory he threatened Captain Church to commit a forcible felony. See Iowa Code
§ 708.7(2)(a)(1). The written plea agreement states Westwater “did threaten to
commit a forcible felony,” but does not specify the forcible felony. In the minutes,
Captain Church states Westwater made threats to rape, kill, and commit sexual
violence against his family, “and ended this with he was going to do the same to
me at the end.” Forcible felonies are considered to be “any felonious child
endangerment, assault, murder, sexual abuse, kidnapping, robbery, human
trafficking, arson in the first degree, or burglary in the first degree.” Id. § 702.11(1). 7
We conclude there is a factual basis to show Westwater threatened Captain
Church with a forcible felony.
We find Westwater has failed to show he received ineffective assistance
because defense counsel permitted him to plead guilty when there was not a
factual basis for harassment in the first degree, as there is a sufficient factual basis
in the record for the offense.
Westwater also claims the district court erred by accepting his guilty plea
when there was not a factual basis for the plea. He did not preserve error on this
claim because it was not raised in his motion in arrest of judgment. See State v.
Weitzel, 905 N.W.2d 397, 401 (Iowa 2017) (“If the defendant fails to file a motion
in arrest of judgment after the court has informed the defendant of his or her
obligation to do so, he or she cannot directly appeal from the guilty plea.”).
Westwater filed a motion in arrest of judgment but did not raise this issue, and we
conclude it has not been preserved.
We affirm Westwater’s conviction.