Opinion
No. 1-710 / 01-0364.
Filed January 9, 2002.
Appeal from the Iowa District Court for Scott County, NANCY TABOR, guilty plea, and MARK J. SMITH, sentencing, Judges.
Brian Anthony Summage appeals the district court's judgment and sentence following his guilty plea to neglect or abandonment of a dependant person in violation of Iowa Code section 726.3 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Brian Anthony Summage appeals the district court's judgment and sentence following his guilty plea to neglect or abandonment of a dependent person in violation of Iowa Code section 726.3 (1999). He contends his trial counsel was ineffective for allowing him to plead guilty and failing to file a motion in arrest of judgment as there was no factual basis for the plea. We affirm.
I. BACKGROUND FACTS
On September 21, 2000 Brian Summage (Summage) went to his sister's home to pick up his four-month-old infant son, Brian Jr. (Brian), and decided to stay there that night because it was too late to take his son home. Summage alleges he washed Brian and placed him on his lap in order to put a fresh diaper on him. Summage contends Brian was wet at the time and thus slipped through his legs. When he then "instinctively" grabbed Brian so he did not hit the floor Summage claims he heard and felt a pop in the baby's arm. Brian allegedly did not cry at the time but did fuss the next day when Summage touched his arm. Therefore, Summage and Brian's mother took Brian to the emergency room the next day and discovered Brian had in fact suffered a broken arm.
Summage was subsequently named as the perpetrator in a founded child abuse report for physical abuse and was placed on the child abuse registry. After release from the hospital Brian was removed from this parent's care and placed with his maternal grandparents due to risk of further injury.
Summage was initially charged with child endangerment with serious injury in violation of Iowa Code section 726.6(2) (1999), a forcible felony. See 1999 Iowa Acts ch. 65, § 2 (codified at Iowa Code § 702.11(1) (2001)). The trial information was later amended to add a second count, neglect or abandonment of a dependent person in violation of Iowa Code section 726.3, a non-forcible felony. Pursuant to a plea agreement Summage plead guilty to the non-forcible felony charge of neglect of a dependent person and the State dismissed the child endangerment charge. Summage did not file a motion in arrest of judgment. The court sentenced Summage to an indeterminate term of imprisonment not to exceed ten years.
Summage appeals contending his trial counsel was ineffective for allowing him to plead guilty and failing to file a motion in arrest of judgment as there was no factual basis in the record for the plea. Specifically, Summage alleges there are insufficient facts in the record to establish the necessary element of recklessness for a charge of neglect of a dependent under Iowa Code section 726.3.
II. SCOPE OF REVIEW
This appeal is brought as an ineffective assistance of counsel claim. Generally we review challenges to guilty pleas for correction of errors at law. Iowa R. App. P. 4. However, when, as here, a defendant claims trial counsel is ineffective for permitting him or her to plead guilty to a charge not supported by a factual basis our review is de novo. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
Summage's failure to file a motion in arrest of judgment after entry of his guilty plea bars a direct appeal of his conviction. Iowa R. Crim. P. 23(3)(a). However, because Summage attributes this failure to the ineffective assistance of his trial counsel, the failure does not bar this challenge to his guilty plea. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).
III. MERITS
A defendant is entitled to the assistance of counsel under the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. See State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
To establish an ineffective assistance of counsel claim, the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wenmark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). An ineffective-assistance-of-counsel claim may be disposed of if the defendant fails to prove either of the two prongs of such claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
While we often preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Neither party suggests we should preserve Summage's ineffective assistance claim for postconviction proceedings and we believe the record is adequate to address his claim on direct appeal.
It is axiomatic that a trial court may not accept a guilty plea without first determining that the plea has a factual basis and that basis must be disclosed by the record. Keene, 630 N.W.2d at 581. We determine whether a factual basis exists for the guilty plea based on the entire record before the district court at the guilty plea hearing. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
The record to support a factual basis for a guilty plea includes the minutes of testimony, statements made by the defendant and the prosecutor at the guilty plea proceeding, and the presentence investigation report. This record, as a whole, must disclose facts to satisfy the elements of the crime. However, the trial court is not required to extract a confession from the defendant. Instead, it must only be satisfied that the facts support the crime, "not necessarily that the defendant is guilty."
Keene, 630 N.W.2d at 581 (citations omitted).
"We will find counsel failed to perform an essential duty if defense counsel allowed the defendant to plead guilty to a charge for which no factual basis exists and thereafter fails to file a motion in arrest of judgment challenging the plea." Brooks, 555 N.W.2d at 448; see also Keene, 630 N.W.2d at 581 ("If a defendant enters a plea of guilty to a crime and the record fails to disclose a factual basis, defense counsel fails to provide effective assistance."). Prejudice in such a case is inherent. Keene, 630 N.W.2d at 581; Schminkey, 597 N.W.2d at 788. Thus, the issue here is whether a factual basis existed in the record for Summage's guilty plea to the crime of neglect of a dependent person.
The crime to which Summage plead guilty is defined as follows:
A person who is the father, mother, or some other person having custody of a child . . . who knowingly or recklessly exposes such person to a hazard or danger against which such person cannot reasonably be expected to protect such person's self . . . commits a class "C" felony.
Iowa Code § 726.3 (1999). For the reasons that follow we conclude the record before the district court at the plea proceeding demonstrated a factual basis for Summage's plea of guilty.
The minutes of evidence (including the attached reports and records) indicate that Brian suffered an oblique, nondisplaced fracture to his right humerus while being cared for by Summage. They show that Summage gave several differing accounts of when and how he believed Brian's arm was broken, finally settling on the version set forth above which he told the court during the plea colloquy. The minutes indicate his explanations were not consistent with the type and extent of the injury Brian suffered and that injury is typically not an accidental injury. The minutes also show that Summage had been found to be the perpetrator in a founded child abuse report for physical abuse of Brian as a result of the incident involved in the criminal charge.
Summage acknowledged he had injured Brian. The trial court asked both the defense and the State at the plea proceeding if there was an adequate factual basis for the plea, and both agreed there was. Defense counsel specifically stated he had spoken with Summage and determined that the required recklessness had existed and thus there was a factual basis for the plea. The prosecution stated, "Given what is in the file and what the medical testimony would be about the kind of force that would cause this kind of injury, I believe that there is a satisfactory factual basis with regard to neglect of a dependent." (At the sentencing hearing although Summage claimed that what he had done had been done unintentionally, he again acknowledged it had been done recklessly.)
Based on the evidence in the record before the district court we conclude a factual basis for Summage's guilty plea existed in the record. Accordingly, Summage's counsel did not breach an essential duty by permitting him to plead guilty and did not breach an essential duty by not filing a motion in arrest of judgment to challenge the plea. Summage's ineffective assistance of counsel claim is without merit.
AFFIRMED.