Archie Lee Jones v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-0040
Filed September 23, 2020

ARCHIE LEE JONES,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

The applicant appeals the district court decision denying his request for

postconviction relief. SENTENCES VACATED AND REMANDED.

Thomas Hurd of Greenberg & Hurd, LLP, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., Greer, J., and Danilson, S.J.* May, J.,

takes no part.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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DANILSON, Senior Judge.

Archie Jones appeals the district court decision denying his request for

postconviction relief (PCR). We determine Jones’s two sentences for possession

of marijuana, third offense, as a habitual offender, should be vacated. We remand

to give the State the opportunity to establish a factual basis for the offenses.

I. Background Facts & Proceedings

On June 15, 2016, Jones was charged in a felony case with four counts,

one being possession of marijuana, third offense, in violation of Iowa Code section

124.401(5) (2016). On June 16, he was charged in a misdemeanor case with two

counts, one being possession of marijuana, third offense, in violation of section

124.401(5). In both cases, he was charged as a habitual offender. Jones entered

into a plea agreement in which the State agreed to not pursue consecutive

sentences in the six charges, which could have led to a sentence of up to 150

years in prison.

During the plea proceeding, while reviewing the factual basis for other

charges, Jones stated he was convicted of felony possession of a controlled

substance with intent to deliver in 2002 and felony first-degree theft in 2007. He

also stated he had a controlled-substance violation in 2007.

On the first charge of possession of marijuana, the court stated Jones was

charged with “knowingly possess[ing] marijuana, having been previously convicted

of drug offenses on two prior occasions as well as being convicted of felonies on

two prior occasions.” On the second charge of possession of marijuana, the court

stated “it’s alleged that you possessed marijuana on May 3, 2016, having been

previously convicted of drug offenses on two or more occasions as well as having
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two or more felony convictions.” Jones admitted he committed the offenses and

stated he possessed marijuana on the date of the instant offense. The court

accepted Jones’s guilty pleas.

Jones was sentenced to a term of imprisonment not to exceed fifteen years

on each of the charges of possession of marijuana, third offense, as a habitual

offender, to be served concurrently with his sentences on other charges. 1 Jones

did not appeal his convictions.

On August 9, 2017, Jones filed a PCR application, raising issues other than

those raised on appeal. The district court found Jones did not show he received

ineffective assistance of counsel and denied his PCR application. Jones appealed

the district court’s decision.

II. Standard of Review

We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, an applicant must prove: (1) counsel failed to

perform an essential duty and (2) the failure resulted in prejudice. State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006). An applicant’s failure to prove either element

by a preponderance of the evidence is fatal to a claim of ineffective assistance.

See State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

III. Discussion

On appeal, Jones claims he received ineffective assistance because his

postconviction counsel did not raise the issue of whether defense counsel

1Jones was sentenced to a total of fifty years in prison, with all of his sentences to
be served concurrently.
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improperly permitted him to plead guilty to the two counts of possession of

marijuana, third offense, as a habitual offender, when there was not a sufficient

factual basis in the record for his pleas. He contends the court’s question

concerning whether he had been previously convicted of drug offenses was not

sufficiently specific, as there is a difference under section 124.401(5) for a person

charged with a possession of marijuana, third offense, when the person’s previous

convictions were for possession of marijuana and a person charged with

possession of marijuana, third offense, when the person had previous convictions

for other drug offenses.2

A court should not accept a guilty plea if there is not a sufficient factual basis

for the plea. State v. Chapman, 944 N.W.2d 864, 872 (Iowa 2020). We examine

the entire record to determine whether there is a factual basis for a defendant’s

guilty pleas. Yocum v. State, 891 N.W.2d 418, 419 (Iowa 2017). “[C]ounsel

violates an essential duty when counsel permits defendant to plead guilty and

waive his right to file a motion in arrest of judgment when there is no factual basis

to support defendant’s guilty plea.” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa

2010). “Prejudice is presumed under these circumstances.” Id. at 764–65.

The State points out that Jones was charged with possession of marijuana,

third offense, as a class “D” felony and the minutes of testimony set out the

previous charges to support the offense. We note, however, the minutes do not

2 If a person is convicted of possession of marijuana, third offense, and the
previous convictions are for possession of marijuana, the person is guilty of an
aggravated misdemeanor. Iowa Code § 124.401(5). If the person’s previous
convictions are for drug offenses other than possession of marijuana, the person
is guilty of a class “D” felony. Id.
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specify the prior offenses, stating only that Jones was previously convicted of

controlled-substance violations.

Also, during the plea colloquy, the court stated the present charges for

possession of marijuana were class “D” felonies. At the hearing, Jones stated he

was previously convicted of felony possession of a controlled substance with intent

to deliver in 2002. He also stated he was convicted of a controlled-substance

violation in 2007. The controlled substance was not named for either prior

conviction.

In State v. Cortez, 617 N.W.2d 1, 3 (Iowa 2000), the Iowa Supreme Court

agreed with the State’s position that

section 124.401(5) is only intended to grant leniency to those
charged exclusively with marijuana related offenses. Once a
defendant is convicted of a single offense involving other illegal
substances, the State alleges all crimes committed prior or
subsequent thereto could be used to enhance the offender’s
sentence under the stricter, felony track.

Accord State v. Spencer, No. 17-0360, 2018 WL 2230722, at *4 (Iowa Ct. App.

May 16, 2018).

In the present case, the record is not sufficient to show whether Jones was

previously convicted exclusively with marijuana-related offenses or whether his

convictions involved other illegal substances. The State concedes, “Neither the

plea hearing transcript nor the trial information/minutes specifically state what the

‘controlled substance’ was in the two prior cases.”

Where the record does not present a factual basis for an offense, but “it is

possible that a factual basis could be shown, it is more appropriate merely to

vacate the sentence and remand for further proceedings to give the State an
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opportunity to establish a factual basis.” State v. Schminkey, 597 N.W.2d 785,

792 (Iowa 1999). If the State is not able to establish a factual basis for the plea on

remand, the court should vacate the plea. Yocum, 891 N.W.2d at 419 (“If the State

cannot establish a factual basis for the plea, the court should vacate the plea. After

vacating the plea, the court should allow the State to reinstate any charges

dismissed as part of the plea agreement and file any additional charges the

available evidence supports.” (citing State v. Allen, 708 N.W.2d 361, 369 (Iowa

2006))).

We determine Jones’s two sentences for possession of marijuana, third

offense, as a habitual offender, should be vacated. The case is remanded to the

district court to give the State the opportunity to present a factual basis for Jones’s

guilty pleas.

SENTENCES VACATED AND REMANDED.