STATE OF IOWA, Plaintiff-Appellee, vs. DERRICK JUSTIN GREEN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-397 / 08-1978
Filed June 17, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DERRICK JUSTIN GREEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister
(motion to suppress) and Margaret L. Lingreen (plea), Judges.
Defendant appeals following his plea of guilty to possession of a controlled
substance, third offense, contending trial counsel was ineffective in failing to
assert his Alford plea was not supported by a factual basis. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Thomas J. Gaul, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Tom Ferguson, County Attorney, and Jeremy Westendorf, Assistant
County Attorney, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
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MAHAN, P.J.
Derrick Green appeals following his plea of guilty to possession of a
controlled substance, third offense, contending trial counsel was ineffective in
failing to assert his plea was not supported by a factual basis.
Because ineffective-assistance-of-counsel claims raise issues under the
Sixth Amendment to the Federal Constitution, we perform a de novo review,
making an independent evaluation of the circumstances as shown by the entire
record. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999).
The district court may not accept a guilty plea without first determining the
plea has a factual basis. See Iowa R. Crim. P. 2.8(2)(b); State v. Burtlow, 299
N.W.2d 665, 668 (Iowa 1980). This requirement exists even where the plea is an
Alford plea.1 North Carolina v. Alford, 400 U.S. 25, 38 n.10, 91 S.Ct. 160, 168
n.10, 27 L.Ed.2d 162, 171-72 n.10 (1970). Where a factual basis for a charge
does not exist, and trial counsel allows the defendant to plead guilty anyway,
counsel has failed to perform an essential duty. See State v. Schminkey, 597
N.W.2d 785, 788 (Iowa 1999). Prejudice in such a case is inherent. See id.
Therefore, our only inquiry is whether the record shows a factual basis for
Green‟s guilty plea to the charge of possession of a controlled substance, third
offense. In deciding whether a factual basis exists, we 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. See id. This record, as a whole, must disclose facts to
1
Alford, 400 U.S. at 37, 91 S. Ct. at 167, 27 L. Ed. 2d at 171 (holding that an accused
may consent to the imposition of a prison sentence even if he is unwilling or unable to
admit his participation in the acts constituting the crime).
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satisfy the elements of the crime. State v. Keene, 630 N.W.2d 579, 581 (Iowa
2001). However, the trial court “must only be satisfied that the facts support the
crime, „not necessarily that the defendant is guilty.‟” Id. (quoting 1A Charles Alan
Wright, Federal Practice and Procedure § 174, at 199 (1999)).
The record upon which the trial court could draw to determine whether a
factual basis existed for Green‟s plea of guilty to the possession charge was
sufficient. The court had before it the minutes of testimony and the transcript of
the suppression hearing. See Schminkey, 597 N.W.2d at 790 (noting factual
basis for an Alford plea may be determined from the minutes).
From the minutes of testimony and the transcript of the suppression
hearing, it can be established that officers found Green about midnight walking
down the middle of the street when a sidewalk was available to him. As they
approached, they could smell the strong odor of burnt marijuana and they saw a
cloud of smoke coming from Green‟s mouth. The officers told Green to stop;
however, he looked behind and continued to walk away from the officers. They
exited their patrol car and again told Green to stop, but he refused. The officers
then detained Green and, upon checking his mouth, observed “burnt blunt
residue” (the remnants of a marijuana cigarette) in his mouth. Green had two
previous convictions for possession of a controlled substance. We conclude a
factual basis existed to support Green‟s Alford plea.
Accordingly, Green‟s
counsel was not ineffective for permitting Green to plead guilty.
AFFIRMED.
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