STATE OF IOWA, Plaintiff-Appellee, vs. BRYAN LEE JOHNSON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-446 / 05-0535
Filed August 23, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRYAN LEE JOHNSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James C.
Bauch, Judge.
Defendant appeals his convictions for manufacturing a controlled
substance and possession of a precursor. AFFIRMED.
Mark A. Milder of Correll, Sheerer, Benson, Engels, Galles & Demro,
P.L.C., Cedar Falls, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant
County Attorney, for appellee.
Considered by Zimmer, P.J., and Vaitheswaran, J., and Nelson, S.J.*
*Senior Judge assigned by order pursuant to Iowa Code section 602.9206
(2005).
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NELSON, S.J.
I.
Background Facts & Proceedings
Bryan Johnson was charged with Count I, manufacture of five grams or
less of methamphetamine, in violation of Iowa Code section 124.401(1)(c)
(2003), a class C felony, and Count II, possession of ether with intent to
manufacture a controlled substance, in violation of section 124.401(4), a class D
felony.
On November 15, 2004, Johnson was in the process of manufacturing
methamphetamine in a shed behind his father’s house when he was discovered
by Evansdale police officers.
methamphetamine residue.
In the shed officers found coffee filters with
They also found three glass jars of liquids that
contained methamphetamine. The amount of methamphetamine, including that
in its liquid form, exceeded five grams. If the liquids were dried, however, the
total amount of pure methamphetamine was less than five grams.
The State amended Count I of the trial information to charge Johnson with
manufacture of more than five grams of methamphetamine, in violation of section
124.401(1)(b), a class B felony. Johnson entered Alford pleas to the charges. 1
He was sentenced to a term of imprisonment not to exceed twenty-five years on
Count I, subject to a one-third mandatory minimum, reduced by one-third for
pleading guilty. He was sentenced to a term of imprisonment not to exceed five
years on Count II, made concurrent to Count I. Johnson now appeals.
1
In an Alford plea, a defendant acknowledges the evidence strongly negates the
defendant’s claim of innocence, and enters a guilty plea to avoid a harsher sentence.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167, 27 L. Ed. 2d 162, 171
(1970); State v. Knight, 701 N.W.2d 83, 85 (Iowa 2005).
3
II.
Factual Basis
Johnson contends that he received ineffective assistance of counsel
because his attorney permitted him to plead guilty to a violation of section
124.401(1)(b), when there was not a factual basis in the evidence to support a
finding that he was manufacturing more than five grams of methamphetamine. 2
He states that when the liquids were dried, the total amount of pure
methamphetamine taken from the shed weighed only 4.27 grams.
To establish a claim of ineffective assistance of counsel, a defendant must
show (1) the attorney failed to perform an essential duty, and (2) prejudice
resulted to the extent it denied defendant a fair trial. State v. Shanahan, 712
N.W.2d 121, 136 (Iowa 2006). When an attorney permits a defendant to plead
guilty to a crime for which there is no factual basis, there has been a breach of an
essential duty and prejudice is presumed. State v. Allen, 708 N.W.2d 361, 368
(Iowa 2006).
Iowa Code section 124.401(1)(b)(7) does not require a finding that the
defendant manufactured more than five grams of pure methamphetamine. State
v. Rivera, 614 N.W.2d 581, 584 (Iowa Ct. App. 2000). The statute prohibits the
manufacture of:
[m]ore than five grams but not more than five kilograms
methamphetamine, its salts, isomers, or salts of isomers,
analogs of methamphetamine, or any compound, mixture,
preparation which contains any quantity or detectable amount
methamphetamine, its salts, isomers, or salts of isomers,
analogs of methamphetamine.
2
of
or
or
of
or
Generally, when a defendant claims ineffective assistance based on counsel’s failure
to object to the lack of a factual basis for a guilty plea, the claim may be considered on
appeal despite the failure to file a motion in arrest of judgment. See State v. Royer, 632
N.W.2d 905, 909 (Iowa 2001).
4
Iowa Code § 124.401(1)(b)(7). See also State v. Adney, 639 N.W.2d 246, 252
(Iowa Ct. App. 2001) (noting the statute prohibits the manufacture of
methamphetamine, or any compound, mixture, or preparation containing any
quantity or detectable amount of the same).
In applying this statute, we have stated:
We find the statute is plain on its face and does include any
compound or mixture which contains any quantity or detectable
amount of methamphetamine. Despite Rivera’s arguments to the
contrary, the plain meaning of the statute clearly includes
methamphetamine in a less-than-finished state. The statutory
weight was, therefore, satisfied by including the weight of the liquid
seized as it contained a detectable amount of methamphetamine.
Rivera, 614 N.W.2d at 584. The supreme court concurs with this interpretation of
section 124.401(1)(b). State v. Royer, 632 N.W.2d 905, 908 (Iowa 2001).
During the manufacturing process, Johnson processed methamphetamine
and a liquid. The liquid contained a detectable amount of methamphetamine,
and so under section 124.401(1)(b), the total weight of the liquid was properly
considered in determining whether Johnson manufactured more than five grams
of methamphetamine or a compound, mixture, or preparation which contained
methamphetamine.
We find there was a factual basis in the evidence for
Johnson’s guilty plea to a violation of section 124.401(1)(b).
We conclude
Johnson has failed to show that he received ineffective assistance of counsel on
this issue.
III.
Guilty Plea
Johnson claims that he received ineffective assistance because his
counsel did not advise him to plead guilty at the time of his arraignment to the
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class C felony charged against him at that time. He asks to have this claim
preserved for possible postconviction relief. The State agrees that this issue
should be preserved. We determine the issue should be preserved. See State
v. Tate, 710 N.W.2d 237, 241 (Iowa 2006).
We affirm Johnson’s convictions.
AFFIRMED.
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