IN THE COURT OF APPEALS OF IOWA
No. 18-0070 Filed January 9, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
KAMESHA HOUSTON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, John Telleen (plea)
and Mark J. Smith (sentencing), Judges.
Kamesha Houston appeals her convictions for possession of marijuana and
carrying weapons, claiming a lack of factual basis for the carrying-weapons plea,
and the court erred in sentencing. VACATED IN PART AND REMANDED.
Nathan Legue of Legue Law, PC, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Kamesha Houston appeals her conviction and sentence for possession of
marijuana and carrying weapons. She contends her counsel provided ineffective
assistance in allowing her to plead guilty to a carrying-weapons charge without a
factual basis, and the district court abused its discretion in imposing sentence. We
find the court applied her guilty plea to the wrong carrying-weapons count and
vacate that conviction. We remand for further proceedings.
I. Background Facts & Proceedings
On May 30, 2017, Houston was pulled over by law enforcement for
speeding. The officer could smell marijuana inside the vehicle and asked Houston
and her passenger to step out of the vehicle. The officer began to search the
vehicle and found two small baggies of marijuana and 9mm ammunition in the
center console. Houston indicated to the officer the marijuana in the console
belonged to both her and her passenger and she had a loaded 9mm gun in her
purse with an Illinois permit to carry a weapon. The gun and permit were found in
her purse; the permit did not authorize the carrying of a concealed weapon. The
officer also found more marijuana and a .22-caliber pistol in a black backpack in
the back seat of the vehicle within reach of both the driver and passenger seats.
Houston denied knowing who owned the weapon in the backpack.1 The officer
arrested Houston for possession of marijuana, first offense, and carrying weapons.
On June 28, the State filed a trial information accusing Houston of four
counts: Count I, conspiracy to possess with intent to deliver marijuana, in violation
1 Houston’s passenger denied the .22-caliber weapon was his and had a large plastic bag of marijuana concealed in his clothes. 3
of Iowa Code section 124.401(1)(d) and (e) (2017); Count II, possession with intent
to deliver marijuana, in violation of section 124.401(1)(d) and (e); Count III, carrying
weapons by going armed with a .22-caliber pistol, in violation of section 724.4(1);
and Count IV, carrying weapons by going armed with a 9mm pistol, in violation of
section 724.4(1).
On October 11, Houston and the State filed a memorandum of plea
agreement drafted by the State. The plea agreement provided as the proposed
disposition: “The Defendant will plead guilty to Count 4 as charged. Defendant will
plead to the lesser included offense of Possession of a Controlled Substance
(Marijuana 1st offense). The State will dismiss Counts 2 and 4 with costs to the
Defendant.” The agreement was signed by Houston, her attorney, and the
assistant county attorney. In her written plea, Houston stated, “I possessed
marijuana in the center console for personal use; I legally owned a 9mm handgun
but impermissibly had it in my purse.”
The court’s order accepting her plea stated Houston had entered pleas to
Counts I and III. The plea hearing was not recorded or reported. The order
accepting the plea does not indicate Houston agreed to plead to Count III instead
of Count IV. No record indicates Houston’s counsel made any objection or attempt
to clarify with the court which weapons charge Houston was pleading to.
Counsel represented Houston at her sentencing hearing, but Houston did
not appear. Her counsel waived reporting and record of the hearing. Houston
requested a deferred judgment in light of having no prior criminal history. During
the sentencing hearing, the court made a statement that “there has been a lot of 4
gun crime” prior to entering sentence.2 The court imposed a two-day suspended
sentence for the possession offense and thirty-days suspended sentence for the
weapons charge, as well as applicable fines and surcharges. Houston was placed
on probation. Houston appeals.
II. Standard of Review
We review of claims of ineffective assistance of counsel de novo. 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. State v. Polly, 657 N.W.2d
462, 465 (Iowa 2003).
If a sentence is within the statutory limits, we review a district court’s
sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,
552 (Iowa 2015). “Thus, our task on appeal is not to second-guess the decision
made by the district court, but to determine if it was unreasonable or based on
untenable grounds.” Id. at 553 (citation omitted).
III. Merits
Houston makes three claims on appeal. First, she claims her attorney
provided ineffective assistance in allowing her to plead guilty to Count III without a
factual basis when she had provided a factual basis for Count IV. Next, she claims
2 Houston’s counsel submitted an uncontested affidavit with the court’s comment in a Statement of Proceedings under Iowa Rule of Appellate Procedure 6.806, which the court approved. 5
the court considered an improper factor in its sentencing—the recent prevalence
of gun crimes. Finally, Houston claims the court abused its discretion by not
granting her request for a deferred judgment.
A. Factual Basis. Houston claims her counsel provided ineffective
assistance by allowing her to plead guilty to a charge without a sufficient factual
basis. The problem originates in the plea agreement, which required Houston
plead to and the State to dismiss the same weapons count. Paragraph two of the
agreement states Houston will plead guilty to a lesser-included of one of the drug
offenses and to Count IV as charged—carrying weapons by going armed with a
9mm pistol on or about her person. The State agreed to dismiss two counts,
specified as Counts II and IV. A condition of the plea agreement was concurrence
of the court.
The written plea of guilty filed by Houston does not specify the particular
counts she was pleading to, just the name of the offense and the code section.
The factual basis Houston wrote in the plea for the carrying-weapons charge
specifically applied to Count IV, the count she was obligated to plead guilty to under
the plea agreement she signed.
In its order accepting the plea, the court specifically defers its decision to
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IN THE COURT OF APPEALS OF IOWA
No. 18-0070 Filed January 9, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
KAMESHA HOUSTON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, John Telleen (plea)
and Mark J. Smith (sentencing), Judges.
Kamesha Houston appeals her convictions for possession of marijuana and
carrying weapons, claiming a lack of factual basis for the carrying-weapons plea,
and the court erred in sentencing. VACATED IN PART AND REMANDED.
Nathan Legue of Legue Law, PC, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Kamesha Houston appeals her conviction and sentence for possession of
marijuana and carrying weapons. She contends her counsel provided ineffective
assistance in allowing her to plead guilty to a carrying-weapons charge without a
factual basis, and the district court abused its discretion in imposing sentence. We
find the court applied her guilty plea to the wrong carrying-weapons count and
vacate that conviction. We remand for further proceedings.
I. Background Facts & Proceedings
On May 30, 2017, Houston was pulled over by law enforcement for
speeding. The officer could smell marijuana inside the vehicle and asked Houston
and her passenger to step out of the vehicle. The officer began to search the
vehicle and found two small baggies of marijuana and 9mm ammunition in the
center console. Houston indicated to the officer the marijuana in the console
belonged to both her and her passenger and she had a loaded 9mm gun in her
purse with an Illinois permit to carry a weapon. The gun and permit were found in
her purse; the permit did not authorize the carrying of a concealed weapon. The
officer also found more marijuana and a .22-caliber pistol in a black backpack in
the back seat of the vehicle within reach of both the driver and passenger seats.
Houston denied knowing who owned the weapon in the backpack.1 The officer
arrested Houston for possession of marijuana, first offense, and carrying weapons.
On June 28, the State filed a trial information accusing Houston of four
counts: Count I, conspiracy to possess with intent to deliver marijuana, in violation
1 Houston’s passenger denied the .22-caliber weapon was his and had a large plastic bag of marijuana concealed in his clothes. 3
of Iowa Code section 124.401(1)(d) and (e) (2017); Count II, possession with intent
to deliver marijuana, in violation of section 124.401(1)(d) and (e); Count III, carrying
weapons by going armed with a .22-caliber pistol, in violation of section 724.4(1);
and Count IV, carrying weapons by going armed with a 9mm pistol, in violation of
section 724.4(1).
On October 11, Houston and the State filed a memorandum of plea
agreement drafted by the State. The plea agreement provided as the proposed
disposition: “The Defendant will plead guilty to Count 4 as charged. Defendant will
plead to the lesser included offense of Possession of a Controlled Substance
(Marijuana 1st offense). The State will dismiss Counts 2 and 4 with costs to the
Defendant.” The agreement was signed by Houston, her attorney, and the
assistant county attorney. In her written plea, Houston stated, “I possessed
marijuana in the center console for personal use; I legally owned a 9mm handgun
but impermissibly had it in my purse.”
The court’s order accepting her plea stated Houston had entered pleas to
Counts I and III. The plea hearing was not recorded or reported. The order
accepting the plea does not indicate Houston agreed to plead to Count III instead
of Count IV. No record indicates Houston’s counsel made any objection or attempt
to clarify with the court which weapons charge Houston was pleading to.
Counsel represented Houston at her sentencing hearing, but Houston did
not appear. Her counsel waived reporting and record of the hearing. Houston
requested a deferred judgment in light of having no prior criminal history. During
the sentencing hearing, the court made a statement that “there has been a lot of 4
gun crime” prior to entering sentence.2 The court imposed a two-day suspended
sentence for the possession offense and thirty-days suspended sentence for the
weapons charge, as well as applicable fines and surcharges. Houston was placed
on probation. Houston appeals.
II. Standard of Review
We review of claims of ineffective assistance of counsel de novo. 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. State v. Polly, 657 N.W.2d
462, 465 (Iowa 2003).
If a sentence is within the statutory limits, we review a district court’s
sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,
552 (Iowa 2015). “Thus, our task on appeal is not to second-guess the decision
made by the district court, but to determine if it was unreasonable or based on
untenable grounds.” Id. at 553 (citation omitted).
III. Merits
Houston makes three claims on appeal. First, she claims her attorney
provided ineffective assistance in allowing her to plead guilty to Count III without a
factual basis when she had provided a factual basis for Count IV. Next, she claims
2 Houston’s counsel submitted an uncontested affidavit with the court’s comment in a Statement of Proceedings under Iowa Rule of Appellate Procedure 6.806, which the court approved. 5
the court considered an improper factor in its sentencing—the recent prevalence
of gun crimes. Finally, Houston claims the court abused its discretion by not
granting her request for a deferred judgment.
A. Factual Basis. Houston claims her counsel provided ineffective
assistance by allowing her to plead guilty to a charge without a sufficient factual
basis. The problem originates in the plea agreement, which required Houston
plead to and the State to dismiss the same weapons count. Paragraph two of the
agreement states Houston will plead guilty to a lesser-included of one of the drug
offenses and to Count IV as charged—carrying weapons by going armed with a
9mm pistol on or about her person. The State agreed to dismiss two counts,
specified as Counts II and IV. A condition of the plea agreement was concurrence
of the court.
The written plea of guilty filed by Houston does not specify the particular
counts she was pleading to, just the name of the offense and the code section.
The factual basis Houston wrote in the plea for the carrying-weapons charge
specifically applied to Count IV, the count she was obligated to plead guilty to under
the plea agreement she signed.
In its order accepting the plea, the court specifically defers its decision to
the plea agreement. The order contains no reconciliation of the conflict in the plea
agreement, and no record was made of the hearing. The court applied Houston’s
plea to Counts I and III and dismissed Counts II and IV, upholding the State’s side
of the plea agreement. As a result, Houston was convicted of a count she did not
agree to plead guilty to—Count III, carrying a .22-caliber pistol on or about her. 6
Houston claims her counsel provided ineffective assistance for allowing her
to plead to a count without sufficient factual basis. Normally, we review the entire
record before the district court to determine if a factual basis exists. State v.
Finney, 834 N.W.2d 46, 62 (Iowa 2013). But the record here reveals no evidence
Houston pleaded guilty to Count III at all. Even a sufficient factual basis cannot
correct a plea that did not occur.
The State claims the plea agreement’s intent was Houston would plead
guilty to a carrying-weapons charge, and the difference in caliber of pistol between
her written plea and the count of conviction is immaterial. We disagree. The
factual details provided in a trial information used to distinguish between two
counts charging a violation of the same statute are not “irrelevant technicalit[ies].”
A trial information must provide sufficient factual particulars of a crime to enable a
defendant to prepare a defense and so the factfinder can determine to which count
the facts proven apply. Here, the factual particulars needed to distinguish between
the two weapons charges, which the trial information did via caliber of the weapon.
Multiple counts of the same charge cannot be interchangeable when the State
establishes its proof if our system of justice is to be fair and just.
The State further claims Houston’s intent to plead to one carrying-weapons
charge was clear. The record shows Houston freely admitted to carrying the 9mm
but denied knowledge of the .22-caliber pistol’s owner and specifically pleaded the
caliber of weapon and its location in her plea’s factual basis; it is clear she
specifically intended to plead to Count IV, not just any carrying-weapons charge.
The court convicted Houston of a crime she did not plead guilty to without
a trial. Allowing a client to be convicted of a count without a trial or a guilty plea 7
without a factual basis is a clear failure to provide effective assistance. It also
shows serious failures by the State and the court.
Houston intended and attempted to plead guilty to one of the two weapons
charges—Count IV, going armed with a 9mm pistol. We find it appropriate to
remand to the district court to enter Houston’s plea on the correct count and to give
the State an opportunity to establish a factual basis for Count IV. We vacate the
judgment of conviction and sentence for Count III and remand for further
proceedings. If on remand the factual basis cannot be shown, then the plea must
be set aside.
B. Improper Factor & Failure to Grant Deferred Judgment. Houston
claims the court abused its discretion by relying on an impermissible factor in
determining Houston’s sentence and in its refusal to grant her a deferred judgment.
The district court has the discretion to determine the appropriate sentence in light
of the circumstances of the case and characteristics of the defendant. Iowa Code
§ 907.3; State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002). Appellate review
only determines if the decision was unreasonable or based on untenable grounds.
Formaro, 638 N.W.2d at 725. However, “[i]f a district court improperly considers
unprosecuted and unproven additional charges, we will remand the case for
resentencing.” Id. The court sentenced the possession and weapons charges
together, necessarily considering an unprosecuted Count III when sentencing
Houston. We therefore vacate the sentence for Count I and remand for
resentencing.
VACATED IN PART AND REMANDED.