IN THE COURT OF APPEALS OF IOWA

No. 18-0507

Filed October 24, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DAVID M. LEYH,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Fayette County, John J. 

Bauercamper, Judge.

David Leyh challenges his conviction for possession of marijuana. 

AFFIRMED.

John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant 

Attorney General, for appellee.

Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

David Leyh challenges his conviction for possession of marijuana. Leyh 

claims he received ineffective assistance when counsel allowed him to plead guilty 

without a sufficient factual basis to support the charge. We find there is a factual 

basis to support the charge and counsel did not provide ineffective assistance. We

affirm.

I. Background Facts & Proceedings

In February 2018, law enforcement pulled Leyh over for a broken taillight. 

After discovering Leyh’s vehicle registration had expired in 2015 and he had no 

automobile insurance, the officers impounded the vehicle. One officer spoke with 

Leyh while the other performed an inventory search prior to the vehicle being 

towed. The searching officer found a small bag containing a green leafy substance 

in Leyh’s wallet in the vehicle’s console. Leyh told the officers he had picked it up 

off the ground near his home, afraid children might find it, but had not contacted 

police when he found it. Leyh was arrested for possession of marijuana, in 

violation of Iowa Code section 124.401(5) (2018).

Leyh entered a written guilty plea on March 14. Among other provisions, 

Leyh’s written plea includes the following statement:

3. I admit that on or about the 16th day of February, 2018, 

while in Fayette County, Iowa, I did the following things that 

constitute the criminal offense:

a. I knowingly and intentionally possessed a controlled 

substance, to wit: marijuana,

b. Knowing that such substance was in fact marijuana.
3

On March 16, the court accepted Leyh’s plea and imposed sentence of a 

$100 fine plus surcharges.1

Leyh appeals.

II. Scope & Standard of Review

“We review ineffective-assistance-of-counsel claims de novo.” State v. 

Gines, 844 N.W.2d 437, 440 (Iowa 2014). “To establish his claim of ineffective 

assistance of counsel, [a defendant] must demonstrate (1) his trial counsel failed 

to perform an essential duty, and (2) this failure resulted in prejudice.” State v. 

Straw, 709 N.W.2d 128, 133 (Iowa 2006). “If trial counsel permits a defendant to 

plead guilty and waives the defendant’s right to file a motion in arrest of judgment 

when there is no factual basis to support the defendant’s guilty plea, trial counsel 

breaches an essential duty.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). 

“Prejudice in such a case is inherent.” State v. Schminkey, 597 N.W.2d 785, 788 

(Iowa 1999). The record “need only demonstrate facts that support the offense,” 

it does not need to prove guilt beyond a reasonable doubt. State v. Ortiz, 789 

N.W.2d 761, 768 (Iowa 2010).

III. Merits

Leyh’s sole allegation regarding the factual basis for his conviction is the 

lack of lab confirmation the green leafy substance found in a bag in his wallet was 

 

1

 We note Leyh’s written plea, provided by his attorney, incorrectly stated the maximum 

punishment as a fine of $1875 and one year in jail plus surcharges. The correct maximum 

punishment is a $1000 fine plus surcharges, six months in jail, and license revocation. 

Iowa Code § 124.401(5). The minimum punishment stated was correct. However, Leyh 

has made no claim on appeal regarding the adequacy of his plea. The sentence of a fine 

of $100, surcharges, and suspended license is only available under the correct 

punishment range, Leyh benefited from the dismissal of traffic charges, and there is no 

prejudice.
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marijuana. He claims this is of particular relevance due to his explanation he had 

picked the bag up off the ground intending to dispose of it. We look to the entire 

record available to the court when it accepted the guilty plea, including Leyh’s 

written guilty plea and the minutes of testimony. See State v. Sutton, 853 N.W.2d 

284, 286 (Iowa Ct. App. 2014) (relying on statements from the written plea, minutes 

of testimony, and law enforcement investigative reports to find a factual basis).

The State is not required to test the purported drug, but it must have 

sufficient circumstantial evidence to find the substance is an illegal drug. State v. 

Brubaker, 805 N.W.2d 164, 172 (Iowa 2011). The minutes of testimony, as well 

as Leyh’s written admission, sufficiently demonstrate facts to support the offense 

of possession of marijuana. 

In Leyh’s written plea he admitted to knowingly and intentionally possessing 

the substance and knowing it was marijuana. The police reports submitted indicate 

the officer searching Leyh’s vehicle detected “a light odor of marijuana.” The 

officer then advised Leyh a small bag of marijuana had been found and asked if it 

was his. Leyh then advised the officer he had picked up the bag so children could 

not get it. Leyh’s reasoning indicates his belief the green leafy substance was 

marijuana.

The minutes and the written guilty plea establish an adequate factual basis 

to support the crime of possession of marijuana. Accordingly, Leyh’s attorney did 

not breach an essential duty in allowing him to plead guilty and then failing to file 

a motion in arrest of judgment challenging the factual basis for the plea. We affirm 

the judgment and sentence imposed by the district court.

AFFIRMED.