State of Iowa v. Rustin C. Harvey

• Court: Court of Appeals of Iowa
• Decided: February 25, 2015
• Docket: 13-2032
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 13-2032 Filed February 25, 2015

STATE OF IOWA, Plaintiff-Appellee,

vs.

RUSTIN C. HARVEY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Odell G. McGhee II,

District Associate Judge.

Rustin Harvey appeals from the judgment and sentence entered after

pleading guilty to possession of marijuana. AFFIRMED.

David Barajas of Gaudineer & George, L.L.P., West Des Moines, for

appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, John M. Sarcone, County Attorney, and Andrea M. Petrovich, Assistant

County Attorney, for appellee.

Considered by Danilson, C.J., Potterfield, J., and Miller, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2

MILLER, S.J.

Rustin Harvey appeals from the judgment and sentence entered after

pleading guilty to possession of marijuana. He contends his trial counsel was

ineffective in allowing him to plead guilty without a factual basis. Specifically, he

contends the record does not support a finding he knowingly possessed

marijuana.

Harvey was arrested on October 15, 2013, after Officer Christopher Mock

observed him lying on a concrete landscape wall with his eyes closed, speaking

to himself. Harvey told Officer Mock he had smoked methamphetamine and

“fake weed” within the past twenty-four hours. When asked if he had anything in

his possession that the officer “needed to know about,” Harvey hesitated,

reaching for his backpack several times before pulling away from it. When

Officer Mock did a safety check of Harvey’s person, he discovered a pipe

commonly used to smoke marijuana and a sandwich baggie containing “Good

Times” cigarette rolling papers and a “cigarette blunt” containing a green, leafy

substance that had a strong odor of marijuana. Harvey claimed the substance

was tobacco but did not answer when asked why it smelled of marijuana.

On November 21, 2013, Harvey entered a written guilty plea to

possession of marijuana, stating, “In Polk County, Iowa, I possessed marijuana.”

He was sentenced to a suspended 180-day jail sentence and one year of

probation. He filed his notice of appeal on December 19, 2013.

Harvey’s sole contention on appeal is that he received ineffective

assistance of counsel because his trial counsel allowed him to plead guilty to

possession of marijuana when the record does not establish he knowingly 3

possessed marijuana. Counsel has a duty to ensure a client does not plead

guilty to a charge for which no objective factual basis appears in the record, and

allowing a client to do so violates the Sixth Amendment right to counsel. State v.

Finney, 834 N.W.2d 46, 54-55 (Iowa 2013). To determine whether a factual

basis exists, we look at the entire record before the district court. Id. at 62. This

includes the minutes of evidence. State v. Ortiz, 789 N.W.2d 761, 768 (Iowa

2010). The record need only demonstrate facts that support the offense. Id.

Upon our de novo review, see State v. Keene, 630 N.W.2d 579, 581 (Iowa

2001), we conclude the record demonstrates sufficient facts to support Harvey’s

guilty plea to possession of marijuana. Harvey possessed on his person the type

of pipe commonly used for smoking marijuana, “Good Times” cigarette rolling

papers, and a rolled cigarette filled with a substance that looked and smelled like

marijuana; this is sufficient to demonstrate actual possession. See State v.

Maxwell, 743 N.W.2d 185, 193 (Iowa 2008) (“A person has actual possession of

a controlled substance when the substance is found on the person.”). The

marijuana and paraphernalia found on his person, coupled with the behavior

observed by Officer Mock, demonstrates Harvey had knowledge of its nature.

See State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973) (stating knowledge of the

narcotic character of a drug may be shown by the defendant’s conduct, behavior,

and declarations). Because the record before the district court at the time the

guilty plea supports a finding Harvey knew he possessed marijuana, a factual

basis for his guilty plea exists, and counsel was not ineffective in allowing him to

plead guilty.

AFFIRMED.