IN THE SUPREME COURT OF IOWA

No. 09–0895

Filed October 15, 2010

STATE OF IOWA,

Appellee,

vs.

RICARDO ORTIZ,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Plymouth County, 

Jeffrey A. Neary, Judge.

The State argues the court of appeals erred in vacating defendant’s 

guilty plea to robbery in the first degree in violation of Iowa Code sections 

711.1 and 711.2 because the record lacked a factual basis to support the 

conviction. DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds, 

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary E. Tabor (until 

withdrawal) and then Thomas S. Tauber, Assistant Attorneys General, 

and Darin J. Raymond, County Attorney, for appellee.
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BAKER, Justice.

The State seeks further review from the court of appeals’ decision 

to vacate the sentence of the defendant, Ricardo Ortiz, following his 

guilty plea to robbery in the first degree in violation of Iowa Code sections 

711.1 and 711.2 (2009). The State contends the court of appeals erred 

in holding defendant received ineffective assistance of counsel because 

defendant’s trial counsel permitted defendant to plead guilty to robbery 

in the first degree without a sufficient factual basis in the record in 

violation of Iowa Rule of Criminal Procedure 2.8(2)(b). The State asserts 

the record contains a sufficient factual basis to support first-degree 

robbery. We agree. We find the record contains a factual basis that a 

dangerous weapon was used in the robbery. The decision of the court of 

appeals is vacated, and the district court judgment is affirmed.

I. Background Facts and Proceedings.

Ricardo Ortiz pleaded guilty to robbery in the first degree in 

violation of Iowa Code sections 711.1 and 711.2. The minutes of 

evidence contained in the trial information allege Ortiz was one of three 

or four masked men who entered K.S.’s house through her garage with 

the intent to steal property. One of the intruders displayed a box cutter 

or utility knife in his left hand. This intruder was waving the 

instrument. K.S. was frightened and was yelling. At one point during 

the invasion, the intruder who possessed the box cutter confronted K.S. 

in the hallway, placing himself between her and the bedroom. K.S. and 

the intruder then struggled over the door; K.S. tried to close the door to 

keep the intruder out while the intruder tried to open the door. K.S.’s 

screaming and yelling eventually caused the intruders to leave and flee

the scene.
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Another resident, F.T., was in the master bedroom and did not see 

the intruders, but he did contact police. The deputies located and 

pursued the intruders’ car. The intruders lost control of their car, and it

became lodged in a snow bank. Three individuals fled, and two 

individuals, including Ortiz, were apprehended in the car. Ortiz’s 

footprints matched foot treads found outside of K.S. and F.T.’s home. 

Ortiz admitted to the police they entered the house “to see what they 

could get.” He admitted to wearing a black stocking cap and a red 

bandanna covering his face. Ortiz also carried a black trash bag to carry 

stolen goods.

Deputies found a fixed five-inch knife with a black rubber handle 

and a silver metal hatchet located near the snow bank where the 

intruders’ car stopped. The record does not indicate that a box cutter or 

utility knife was ever found. David Zamora, one of the participants, told 

the deputies that Michael Carson, another participant, “threw something 

and he thought it was a knife out of the back window prior to going into 

the ditch.”

Ortiz pleaded guilty to robbery in the first degree. As part of his 

plea, Ortiz waived his right to file a motion in arrest of judgment. He was 

sentenced to a term of twenty-five years with a seventy percent 

mandatory minimum.

During the plea colloquy, the court was confused as to what 

additional elements triggered first-degree robbery as opposed to seconddegree robbery. The prosecutor advised the judge that first-degree 

robbery requires the additional element that the defendant “purposely 

inflict serious injury or attempt to inflict serious injury or is armed with a 

dangerous weapon.” Ortiz and his trial counsel discussed the additional 
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first-degree robbery element off the record. Then, the following 

conversation occurred:

THE COURT: All right. Uh, I think my last question, 

Mr. Sloan [defense counsel], was are you prepared to address 

which one of those options under 711.2 might apply to this 

particular case? MR. SLOAN: I-I believe it is armed with a 

dangerous weapon, Your Honor.

THE COURT: All right. Uh, Mr. Ortiz, do you agree 

that either you or someone with whom you were, uh, 

participating in this robbery with was armed with a 

dangerous weapon? DEFENDANT: Yes.

THE COURT: All right. Have, uh, you, uh, visited with 

Mr. Sloan about what’s involved and what the definition of a 

dangerous weapon is? DEFENDANT: Yes.

THE COURT: Ok Mr. Raymond [the prosecutor], are 

you satisfied with the factual basis? MR. RAYMOND: I am, 

Your Honor.

Earlier in the colloquy, Ortiz also admitted he “purposely put 

someone in fear of a serious injury.” At the end of the colloquy, the court 

accepted Ortiz’s plea. Subsequently, Ortiz filed a notice of appeal 

asserting ineffective assistance of counsel alleging that his trial counsel 

failed to file a motion in arrest of judgment. Specifically, he alleged there 

was no factual basis in the record that anyone participating in the 

robbery possessed a dangerous weapon within the meaning of Iowa Code 

section 702.7; therefore, there was no factual basis to support his firstdegree robbery plea.

We transferred the case to the court of appeals. The court of 

appeals found the record contained no factual basis that anyone involved 

in the robbery used a dangerous weapon and vacated the district court’s 

sentence. We granted further review.

II. Scope of Review.

Normally we review challenges to guilty pleas for correction of 

errors at law. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2009); Iowa R. 
5

App. P. 4. Because Ortiz claims his guilty plea results from ineffective 

trial counsel, a claim with constitutional dimensions, our review is de 

novo. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).

III. Preservation of Error.

To preserve error for appeal, generally, defendants challenging a 

guilty plea must file a motion in arrest of judgment prior to sentencing. 

State v. Gant, 597 N.W.2d 501, 503–04 (Iowa 1999). We recognize an 

exception to this general rule for ineffective assistance of counsel claims. 

Keene, 630 N.W.2d at 581. Nevertheless, the State contends Ortiz did 

not properly preserve error because Ortiz, as part of his plea agreement, 

waived his right to file a motion in arrest of judgment; therefore, Ortiz 

cannot allege on appeal his counsel was ineffective for not filing a motion 

in arrest of judgment. If we accept the State’s argument, then Ortiz’s 

plea agreement would waive his right to challenge the factual basis of his 

plea; such a result empowers the State to deprive defendants of their 

right to effective counsel as a condition of the plea bargaining process, an 

untenable result. See State v. Philo, 697 N.W.2d 481, 484–85 (Iowa 

2005) (noting that counsel’s failure to file a motion in arrest of judgment 

when defendant’s plea lacks a factual basis constitutes ineffective 

counsel). We adhere to precedent. Ineffective counsel claims are an 

exception to our error preservation requirements. Id. at 485.

IV. Discussion and Analysis.

To prove ineffective assistance, the defendant must demonstrate by 

a preponderance of evidence that “(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) (citing Strickland v. Washington, 

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d. 674, 693 

(1984)). Defense counsel violates an essential duty when counsel 
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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. Philo, 697 N.W.2d at 485; Iowa R. Crim. P. 2.8(2)(b). 

Prejudice is presumed under these circumstances. State v. Schminkey, 

597 N.W.2d 785, 788 (Iowa 1999).

Therefore, to succeed on the essential duty prong, Ortiz must 

demonstrate the record lacks a factual basis to support his guilty plea to 

first-degree robbery. First-degree robbery requires the accused to 

commit robbery “armed with a dangerous weapon.” Iowa Code § 711.2. 

The precise issue then is whether the record demonstrates a factual 

basis that a dangerous weapon was used in the robbery.1

Iowa Code section 702.7 defines the term dangerous weapon in 

three different manners. We must examine whether the record 

demonstrates a factual basis that a dangerous weapon was used in the 

robbery within the framework of each statutory definition of dangerous 

weapon.

A. Dangerous Weapon Defined Generally.

Initially, section 702.7 defines “dangerous weapon” generally:

A “dangerous weapon” is any instrument or device 

designed primarily for use in inflicting death or injury upon 

a human being or animal, and which is capable of inflicting 

death upon a human being when used in the manner for 

which it was designed, except a bow and arrow when 

possessed and used for hunting or any other lawful purpose.

The record contains facts demonstrating that a small utility knife 

or box cutter was present during the robbery. These instruments do not 

have the primary purpose of inflicting death or injury, nor were they 

 1Under aider and abettor liability, Ortiz personally did not have to use a 

dangerous weapon in the robbery to be convicted of first-degree robbery as long as one 

of the coparticipants possessed a dangerous weapon. Iowa Code § 703.1.
7

designed for that purpose. There is no factual basis in the record to 

support that a dangerous weapon under this definition was used in the 

robbery.

B. Dangerous Weapon Per Se.

Section 702.7 also defines “dangerous weapon” in terms of per se 

dangerous weapons:

Dangerous weapons include but are not limited to any 

offensive weapon, pistol, revolver, or other firearm, dagger, 

razor, stiletto, switchblade knife, knife having a blade 

exceeding five inches in length, or any portable device or 

weapon directing an electric current, impulse, wave, or beam 

that produces a high-voltage pulse designed to immobilize a 

person.

The State argues that because K.S. described the weapon as “a box 

cutter knife that contained a razor blade” and because section 702.7 

includes the term “razor” in its definition of dangerous weapons per se,

we should hold that a box cutter is a dangerous weapon per se. In 

Durham we held that 

[i]t is apparent from the context that the term “razor” as used 

in the former statute [Iowa Code section 695.1 (1977)] and in 

section 702.7 is limited to the straight razor, a common 

shaving instrument before invention of the safety razor.

State v. Durham, 323 N.W.2d 243, 245 (Iowa 1982).

The State argues our finding in Durham, that the term “razor” is 

limited to a straight razor, is dicta and urges us to reexamine this issue. 

We decline to do so and reaffirm Durham. The term “razor” as used in 

section 702.7 is limited to the straight razor.

Even were we to reexamine Durham, our result remains the same. 

We recognize that some other courts have found the term “razor” to 

encompass box cutter instruments that contain a razor blade on the 

basis of legislative intent. See, e.g., In re Z.R., 86 Cal. Rptr. 3d 495, 
8

497–98 (Ct. App. 2008) (holding that a box cutter is a “razor with an 

unguarded blade” within the context of a statute prohibiting weapons at 

school for the purposes of reducing violence at schools). However, 

identifying a clear and particular legislative purpose or meaning behind 

section 702.7 is challenging given its general purpose and application. 

Section 702.7 is grouped in the criminal law definitional section of the 

Code and is a definitional provision that is incorporated into numerous 

other criminal law provisions. See, e.g., Iowa Code ch. 708 (“dangerous 

weapon” is used ten times in assault-related provisions); Iowa Code 

§ 709.3 (“dangerous weapon” is an element of second-degree sexual 

abuse); Iowa Code § 719.1 (“dangerous weapon” may be an element of 

interference with official acts). It is far from self-evident from the text of 

section 702.7 and its incorporation into numerous other criminal law 

provisions whether the legislature intended a box cutter to be a razor in 

the context of the per se dangerous weapon definition. Answering that 

question affirmatively would require speculation.

Moreover, “[i]f a criminal statute is ambiguous we resolve any 

doubt in favor of the accused.” State v. Finders, 743 N.W.2d 546, 548 

(Iowa 2008). The Virginia Supreme Court invoked this same rule of 

lenity when it held a box cutter was not a razor within the meaning of its 

weapons possession statute. Harris v. Commonwealth, 650 S.E.2d 89, 

91 (Va. 2007). In Harris, the defendant, a convicted felon, was convicted 

of possession of a concealed weapon, a box cutter, in violation of Virginia

Code Annotated section 18.2–308.2(A). Id. at 90. The statute prohibited 

convicted felons from carrying numerous weapons including a “razor.” 

The court looked to the dictionary definition of both a razor and a box 

cutter and found definitional differences:
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The current dictionary definition of the term “razor” 

refers to both a straight razor and a safety razor. A box 

cutter is neither; it is defined as “a small cutting tool that is 

designed for opening cardboard boxes and typically consists 

of a retractable razor blade in a thin metal sheath.”

Merriam-Webster’s Collegiate Dictionary 148 (11th ed. 2004). 

Furthermore, when a razor was added to the list of items 

that could not lawfully be carried concealed, see 1884 Acts 

ch. 143, the term “razor” was defined as “a knife with a keen 

edge and broad back, used for shaving.” A Dictionary of the 

English Language 828 (1885); see also A Dictionary of the 

English Language 1187 (1880) (defining the term “razor” as 

“[a] knife or instrument for shaving off beard or hair”).

Id. at 91 (footnote omitted). The court then noted it was required to 

construe ambiguous penal statutes narrowly and the definitional 

differences between a razor and a box cutter required the court to 

conclude that a box cutter was not a razor within the meaning of the 

statute. Id.

We find this reasoning persuasive. Simply put, a box cutter is not 

a razor. While the two instruments may be capable of posing similar 

threats if misused, the instruments are different in design and utility. It 

would be speculative for us to conclude that the legislature intended a 

box cutter to constitute a per se dangerous weapon when it classified a 

razor as such. A criminal statute’s ambiguity requires this court to 

construe the ambiguity narrowly. We continue to hold a box cutter is not 

a razor within the meaning of section 702.7 and reaffirm Durham.

C. Dangerous Weapon in Manner Used.

Finally, section 702.7 defines “dangerous weapon” in terms of 

actual use:

Additionally, any instrument or device of any sort 

whatsoever which is actually used in such a manner as to 

indicate that the defendant intends to inflict death or serious 

injury upon the other, and which, when so used, is capable 

of inflicting death upon a human being, is a dangerous 

weapon.
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The first question under this definition is whether a box cutter 

“when so used, is capable of inflicting death upon a human being.” Iowa 

Code § 702.7. We have stated that “[d]angerous weapons, in fact, can 

encompass almost any instrumentality under certain circumstances.” 

State v. Greene, 709 N.W.2d 535, 537 (Iowa 2006). Practical experience

tells us that a box cutter or utility knife when so intended is capable of 

inflicting death. Other courts have also found that a box cutter is not a 

per se dangerous weapon but may be used in a dangerous manner. 

Harris, 650 S.E.2d at 92 (“We are keenly aware that a box cutter is a 

potentially dangerous instrumentality . . . .”); State v. Doisey, 590 S.E.2d 

886, 893 (N.C. Ct. App. 2004) (holding that a box cutter is a dangerous 

weapon only in appropriate circumstances). As a box cutter may be used 

in a manner that causes serious bodily harm, we turn to the other

definitional requirement.

The last requirement under this definition of dangerous weapon is 

whether the defendant “actually used [the instrument] in such a manner 

as to indicate that the defendant intends to inflict death or serious injury 

upon the other.” Iowa Code § 702.7. The word “indicate” makes clear 

that this inquiry is objective, and “the other” as used in the provision is 

most plausibly read to mean the victim. Therefore, an accused satisfies 

this definitional requirement when the accused objectively manifests to 

the victim his or her intent to inflict serious harm upon the victim. This 

construction is consistent with our past precedent. Greene, 709 N.W.2d 

at 537 (stating the test “is whether the device is used in such a way as to 

show an intent to kill or injure a person”).

Our past cases suggest that a defendant objectively indicates 

intent to inflict harm when the defendant engages in a personal 

confrontation with another while possessing an instrument capable of 
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causing bodily harm. Greene held that steel shards placed under a 

victim’s car tires were not used as a dangerous weapon. Id. at 538. 

However, the court posited 

[i]f the shards were held in the defendant’s hand in a 

personal confrontation with a victim, there would be little 

doubt that they were dangerous weapons, as they would 

have been used in a manner indicating an intent to kill or 

injure.

Id. Similarly, we have held that a three foot metal pipe was actually used 

as a dangerous weapon when the defendant stood over his victim “poised 

to strike.” State v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000); see also

State v. Hill, 258 Iowa 932, 936, 140 N.W.2d 731, 733 (1966) (“It has 

been said, and we agree, that the character of a dangerous weapon 

attaches by adoption when the instrument is applied or is carried for use 

against another in furtherance of an assault.”). Thus we determine that 

a box cutter may be “used in such a manner as to indicate that the 

defendant intends to inflict death or serious injury.”

Before turning to the record, we must determine the evidentiary 

threshold required for district courts to accept a guilty plea. Iowa Rule of

Criminal Procedure 2.8(2)(b) requires the court to ensure the defendant’s 

plea has a factual basis before accepting the defendant’s plea. The 

factual basis must be contained in the record, and the record, as a 

whole, must disclose facts to satisfy all elements of the offense. Keene, 

630 N.W.2d at 581. A factual basis can be discerned from four sources: 

(1) inquiry of the defendant, (2) inquiry of the prosecutor, (3) examination 

of the presentence report, and (4) minutes of evidence. State v. Williams, 

224 N.W.2d 17, 18–19 (Iowa 1974). Moreover, we have held the record 

does not need to show the totality of evidence necessary to support a 

guilty conviction, but it need only demonstrate facts that support the 

offense. Keene, 630 N.W.2d at 581. Federal courts have construed 
12

Federal Rule of Criminal Procedure 11(b)(3), the counterpart to our rule

2.8(2)(b), similarly. See, e.g., United States v. Serrano-Beauvaix, 400 F.3d 

50, 53 (1st Cir. 2005); United States v. Rea, 300 F.3d 952, 958 (8th Cir. 

2002). Thus, we need only “be satisfied that the facts support the 

crime.” Keene, 630 N.W.2d at 581.

We now turn to the record to determine if the record demonstrates 

a factual basis that Ortiz possessed a dangerous weapon and indicated 

intent, through use of the box cutter, to cause severe bodily harm to the 

victim, K.S. The minutes of evidence state that K.S. saw a “box cutter 

type knife that contained a razor blade” in the left hand of the lead 

intruder into her home. The intruder was “waving” the box cutter and 

caused K.S. to be frightened and yell. Also, the minutes of evidence 

detail a personal altercation between the intruder possessing the box 

cutter and K.S. in the hallway as well a struggle between the two with the 

bedroom door.

Ortiz made statements at his plea colloquy that tend to show that 

a dangerous weapon was used in the robbery. Ortiz admitted during his 

colloquy that he “purposely put someone in fear of a serious injury.” We 

think this admission tends to establish that an intruder used an 

instrument “in such a manner to indicate that the defendant intends to 

inflict death or serious injury.” Iowa Code § 702.7. The dangerous 

weapon determination turns in part on the intruders’ indication of intent; 

here, Ortiz admits he acted with the intent to purposely put K.S. in fear 

of serious injury. We believe that Ortiz’s admission that he intentionally 

put the victim in fear of serious injury is probative that someone in the 

robbery indicated intent to inflict serious injury with a weapon, especially 

when this admission is placed in context with the minutes of evidence 

describing an intruder confronting K.S. with a box cutter.
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The record, when viewed as a whole, demonstrates facts similar to 

the personal confrontation contemplated in Greene and present in 

Lambert. Greene, 709 N.W.2d at 537–38; Lambert, 612 N.W.2d at 815. 

The record shows K.S. identified a box cutter or utility knife in the left 

hand of the lead intruder, the intruder was waving the instrument while 

in the house, K.S. was scared, K.S. was confronted by this man in the 

hallway, K.S. struggled with this man opening and closing a bedroom 

door, and Ortiz admitted he “purposely put someone in fear of a serious 

injury.” We find the record demonstrates a factual basis that an 

“instrument [was] . . . actually used in such a manner as to indicate that 

the defendant intends to inflict death or serious injury upon the other.” 

Iowa Code § 702.7.

V. Disposition.

Because the record contained a factual basis to support a finding 

that a dangerous weapon was used in the robbery, Ortiz’s counsel did 

not breach an essential duty when he permitted Ortiz to plead guilty to 

first-degree robbery or when he declined to file a motion in arrest of 

judgment. See State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004) (defense 

counsel does not have a duty to assert challenges that lack merit). The 

decision of the court of appeals is vacated and the district court 

judgment reinstated.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.