IN THE COURT OF APPEALS OF IOWA

No. 15-0196

Filed December 9, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

HARRY JAY PERKINS JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Henry W. Latham II 

(plea) and Joel W. Barrows (sentencing), Judges. 

A defendant appeals his conviction and sentence, based upon a guilty 

plea, alleging counsel was ineffective in allowing him to plead guilty without a 

factual basis. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. 

Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney 

General, for appellee.

Considered by Doyle, P.J., and Mullins and Bower, JJ.
2

MULLINS, Judge.

Harry Perkins Jr. appeals his conviction and sentence following his guilty 

plea to domestic abuse assault, third offense, in violation of Iowa Code section 

708.2A(4) (2013), a class “D” felony. Perkins asserts his trial counsel was 

ineffective in allowing him to plead guilty to domestic abuse assault without a 

factual basis for the crime. 

I. Background Facts and Proceedings

On January 24, 2014, Perkins assaulted his on-again/off-again girlfriend, 

Camilla.1 Camilla told police she and Perkins were drinking alcohol and got into 

a verbal argument when Perkins pushed her, kicked her, and stomped on her 

hand causing it to break. Camilla told police she and Perkins were living together 

at the time of the assault. Police arrested Perkins on March 24, 2014. 

On April 11, 2014, the State filed a trial information charging Perkins with 

domestic abuse assault, third offense, in violation of Iowa Code section 

708.2A(4), a class “D” felony, and willful injury resulting in serious injury, in 

violation of Iowa Code section 708.4(1), a class “C” felony. On September 5, 

2014, Perkins entered into a written plea agreement, agreeing to plead guilty to 

domestic abuse assault in exchange for a dismissal of the willful-injury charge 

and the State’s agreement not to pursue an habitual offender enhancement. 

That same day, Perkins entered a plea of guilty on the record and the court 

accepted it. During the plea colloquy, Perkins denied living with Camilla within 

the previous year. The State did not challenge Perkins’s denial. 

 

1 Camilla and Perkins do not have any children together and have never been married. 
3

On September 25, 2014, Perkins filed a pro se motion in arrest of 

judgment. On October 2, 2014, Perkins’s counsel filed another motion in arrest 

of judgment and a motion to withdraw as counsel. On October 9, 2014, Perkins 

withdrew his motions in arrest of judgment. On November 12, 2014, Perkins 

reasserted his motion in arrest of judgment on the record, again claiming that he 

had not lived with Camilla in over a year. Perkins’s counsel then refiled his 

motion to withdraw. The following day, the court granted counsel’s motion to 

withdraw, appointed new counsel to represent Perkins, and set a hearing on the 

motion in arrest of judgment. On December 31, 2014, Perkins again withdrew 

his motion in arrest of judgment, and the court proceeded to sentencing, 

imposing a sentence of an indeterminate term not to exceed five years, with a 

one-year mandatory minimum. Perkins appeals. 

II. Standard of Review

In order to challenge a guilty plea on appeal, a defendant must file a 

motion in arrest of judgment.2 State v. Bearse, 748 N.W.2d 211, 218 (Iowa 

2008); see also Iowa R. Crim. P. 2.24(3)(a). However, when a defendant raises 

a claim that counsel was ineffective in allowing him to plead guilty to a charge 

that lacked a factual basis, he may challenge the guilty plea on appeal. State v. 

Finney, 834 N.W.2d 46, 49 (Iowa 2013). We review claims of ineffective 

assistance of counsel de novo because the claims implicate the defendant’s 

Sixth Amendment right to counsel. State v. Thorndike, 860 N.W.2d 316, 319 

(Iowa 2015). An ineffective-assistance-of-counsel claim may be raised and 

 

2 Perkins filed two motions in arrest of judgment but later withdrew both of them. 
4

decided on direct appeal when the record is adequate to address the claim. Iowa 

Code § 814.7(2), .7(3). To succeed on a claim of ineffective assistance of 

counsel, the defendant must show by a preponderance of the evidence: “(1) his 

trial counsel failed to perform an essential duty, and (2) this failure resulted in 

prejudice.” Thorndike, 860 N.W.2d at 320 (quoting State v. Adams, 810 N.W.2d 

365, 372 (Iowa 2012)); accord. Strickland v. Washington, 466 U.S. 668, 687 

(1984). “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. Prejudice in such a case is inherent.” State v. Schminkey, 597 

N.W.2d 785, 788 (Iowa 1999) (citation omitted); see also State v. Ortiz, 789 

N.W.2d 761, 764–65 (Iowa 2010). 

III. Analysis

Perkins contends his attorney was ineffective in allowing him to plead 

guilty to domestic abuse assault without a factual basis. We find the record 

adequate to address this claim. See State v. Utter, 803 N.W.2d 647, 651 (Iowa 

2011). 

Iowa Rule of Criminal Procedure 2.8(2)(b) requires a district court to find a 

factual basis supporting the guilty plea before accepting it. A factual basis differs 

from the evidence required at a trial to prove a defendant’s guilt beyond a 

reasonable doubt. Finney, 834 N.W.2d at 62 (“Our cases do not require that the 

district court have before it evidence that the crime was committed beyond a

reasonable doubt, but only that there be a factual basis to support the charge.”). 

Establishing a factual basis requires the defendant “to acknowledge facts that are 

consistent with the elements of the crime.” Rhoades v. State, 848 N.W.2d 22, 30 
5

(Iowa 2014). When a defendant challenges the factual basis to support a guilty 

plea, our court examines the entire record before the district court at the guiltyplea hearing. Finney, 834 N.W.2d at 62. Generally, this includes “any 

statements made by the defendant, facts related by the prosecutor, the minutes 

of testimony, and the presentence report.” Schminkey, 597 N.W.2d at 788. 

Perkins entered a plea of guilty to domestic abuse assault, third offense, in 

violation of Iowa Code section 708.2A(4). Section 708.2A(1) provides “domestic 

abuse assault” means an assault as defined in section 708.1, which is domestic 

abuse as defined in section 236.2, subsection 2, paragraph ‘a’, ‘b’, ‘c’, or ‘d’.”3 

Section 708.2A does not include paragraph (e) of section 236.2(2), which 

provides an assault is “domestic abuse” if it is “between persons who are in an 

intimate relationship or have been in an intimate relationship and have had 

contact within the past year of the assault.” At the plea proceeding, Perkins 

specifically denied living with Camilla both at the time of the assault and in the 

year leading up to the assault. See Iowa Code § 236.2(2)(a), (d). He had never 

been married to Camilla and did not have any children with her. See id.

 

3 Domestic abuse is defined in section 236.2(2) as 

[C]ommitting assault as defined in section 708.1 under any of the 

following circumstances:

a. The assault is between family or household members who 

resided together at the time of the assault.

b. The assault is between separated spouses or persons divorced 

from each other and not residing together at the time of the assault.

c. The assault is between persons who are parents of the same 

minor child, regardless of whether they have been married or have lived 

together at any time.

d. The assault is between persons who have been family or 

household members residing together within the past year and are not 

residing together at the time of the assault.
6

§ 236.2(2)(b), (c). Perkins admitted that he had been in an intimate relationship 

with Camilla. See id. § 236.2(2)(e). At the sentencing hearing, the State 

conceded on the record that Perkins’s motion in arrest of judgment was a valid

challenge to the plea proceeding. The State acknowledged that section 

708.2A(1) did not extend to paragraph (e) of section 236.2(2). The record shows 

“that all parties understand that there is a potential problem with the factual basis 

that [Perkins] gave,” but all also assumed that withdrawal of the motion in arrest 

of judgment would constitute a waiver of any future postconviction challenge to 

the plea proceeding. The State also asserted that a jury could find the two were 

cohabiting based upon Camilla’s statements to police contained within the 

minutes of testimony that she and Perkins lived together at the time of the 

assault. 

The State’s argument is a misapplication of the principles reviewed in 

Finney. The lesson from Finney is that a guilty-plea colloquy that results in minor 

omissions of facts may be supplemented by other portions of the record in the 

district court, including the minutes of testimony. See 834 N.W.2d at 62. There 

is no suggestion in Finney that a plea-taking court should look to other portions of 

the record to determine whether the defendant’s denial of an element of an 

offense would be rejected by a jury. Our law will not permit a court to accept a 

guilty plea when a defendant affirmatively maintains a denial of facts necessary 

to support an element of the crime.4 See Rhoades, 848 N.W.2d at 30. “Nothing 

 

4 The State asks us to find Perkins’s plea constituted an Alford plea. At the sentencing 

hearing, Perkins admitted he could be convicted of domestic abuse assault and asked 

the court to consider his plea an Alford plea; a request the court denied. We agree with 
7

in [the Finney] opinion . . . should be construed as an invitation to district courts 

to short circuit rule 2.8(2)(b) when taking a guilty plea.” 848 N.W.2d at 62. 

When a defendant specifically denies an element of the offense charged, 

as Perkins did here, “it is error for the court to find that a factual basis exists 

when the defendant actively contests a fact constituting an element of the 

offense in the absence of circumstances warranting the conclusion that the 

defendant’s protestations are ‘unworthy of belief.’” State v. Elphic, No. 14-0600, 

2015 WL 408092, at *4 (Iowa Ct. App. Jan. 28, 2015) (quoting United States v. 

Culbertson, 670 F.3d 183, 190–91 (2d Cir. 2012)). We conclude that a factual 

basis to support a guilty plea is so fundamental that it cannot be waived. See id.; 

see also United States v. Adams, 448 F.3d 492, 502 (2d Cir. 2006) (“A lack of a 

factual basis for a plea is a substantial defect calling into question the validity of 

the plea. ‘Such defects are not technical, but are so fundamental as to cast 

serious doubt on the voluntariness of the plea,’ and require reversal and remand 

so that the defendant may plead anew or stand trial.” (quoting Godwin v. United 

States, 687 F.2d 585, 591 (2d Cir. 1982) (citations omitted))). Therefore, we 

reverse and remand Perkins’s conviction and sentence for domestic abuse 

assault, third offense, for further proceedings. 

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

 

the district court that Perkins entered a plea of guilty, not an Alford plea, and decline to 

consider his plea in the context of an Alford plea on appeal.