### 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.

T he 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 COU RT OF APPEALS VACATE D; DISTRICT
COURT JUDGMENT AFFIRMED
.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds,
As s istant State Appellate Defender , for appellant

.

Thomas J. Miller, Attorney General, Mary E. Tabor (until withdrawal) and then Tho mas S. Tauber, Assistant Attorneys General, and Darin J. Raymond, County Attorney , for appellee

.2

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 O rtiz pleaded guilty to robber y i n 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

. T his 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 confro nted 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

screa ming and yelling eventually caused the intruders to leave and fle e the scene.3
Another resident, F.T. , was in the master bedroom and did not see the intruders, but he did contact police. The deputies located and
p ursued the intruder s ’ car. The intruder s l ost control of their car , and it became lodged in a snow bank. Three individuals fled, and two
indivi duals, 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 blac k stocking cap and a red
bandann a covering his face. Ortiz also carried a black t rash bag to carry stolen goods. Deputies found a fixed five

- in ch knife with a black rubber handle
and a silver metal hatchet located near the snow bank where the
intruder s ’ 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 de puties 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 fil e a motion in arrest of judgment. He was

sen tenced to a term of twenty

- five years with a sev enty percent mandatory minimum. During the plea colloquy , the court was confused as to what additional elements triggered first

- degre e robbery as opposed to secon d

degree 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 tri al counsel discussed the additional4

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 wi th whom you were, uh, participating in this robbery with was armed with a dangerous weapon? DEFENDANT: Yes. T HE COURT: All right. Have, uh, you, uh, visited with Mr. Sloan about what ’ s involved and what the definition of a dangerous weapon is? DEFEND ANT: 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 f ear 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 factu al 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 first

degree robbery plea.
We transferred the case to the court of appeals. The court of appeals found the record contained no factual basis tha t 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 chall enges 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. B ecause Ortiz claims his guilty plea results from ineffective trial counsel, a claim with constitutional dimensions, our review is d e

novo. State v. Keene , 6 30 N.W.2d 579, 581 (Iowa 2001).
III. Preservation of Error. To preserve error for appeal, generally, defendant s challenging a guilty plea must file a motion in arrest of judgment prior to sentencing.
S t ate 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 agr eement, 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. I neffective 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. 66 8, 687, 104 S. Ct. 2052, 2064 , 8 0 L. Ed. 2d. 674, 693 (1984)). Defense counsel violates an essential duty when counsel6 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 circum stances. 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. W e must examine whether the record demonstrates a factual basis that a dangerous weapon was used in the robbery w ithin the framework of each statutory definition of dangerous
weapon. A. Dangerous Weapon Defined Generally
. Initially, section 702.7 defi nes “ 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 th e robbery. These instruments do not have the primary purpose of inflicting death or injury, nor were they

1 Under 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, switchbla de 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. de scribed 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 inventio n of the safety razor

. S tate 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 use d 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 o ther 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 ., 8 6 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 weapon s 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 g eneral purpose and application.
Section 7 02.7 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
weapo n” is used ten times in assault

- r elated 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
int erference with official acts). It is far from self

- evide nt 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

. A nswering that question affirmati vely 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 violatio n of V irginia
Code Ann otated s ection 18.2

– 308.2(A ). Id. at 90. The statute prohibited convicted felons from carrying numerous weapons including a “razor.”
The court looked to t he dictionary definition of both a razor and a box
cutter and found definitional differences:9 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 cutt ing 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 s tatutes narrowly and the definitional
differences between a razor and a box cutte r required the court to
conclude that a box cutter was not a razor within the mea ning 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 co nstitute 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.10

The first question under this definition is whether a box cutter “when so used, is capable of inf licting 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 a ware 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 ma nner 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 pla usibly read to mean the victim. Therefore, an accused sati sfies 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 w hether 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 posses sing an instrument capable of11 causing bodily harm

. Greene held that steel shards placed under a victim’s car tires were not used as a dangerous weapon. Id. at 5 38. 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 R ule of
Crim inal P rocedure 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 58 1

. A factual basis can be discerned from four sources: (1) inquiry of the defendant, (2) in quiry of the prosecutor, (3) examination of the pr esentence 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 58 1

. Federal courts have construed12 Federal Rule of Criminal Procedure 11(b)(3), the counterpart to our rule 2.8(2)( b ), similarly. See , e.g. , United Stat es 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 th at 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 an d K.S. in the hallway as well a struggle between the two with the bedroom door.
Ortiz mad e s tatements at his plea colloquy that tend to show that a dangerous weapon was used in the ro bber y. O rtiz 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 deat h 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 admiss ion that he intentionally put the victim in fear of serious injury is probative that someone in the robbery indicated intent to infli ct serious injury with a weapon, especially when this admission is placed in context with the minutes of evidence describin g an intruder conf ronting K.S. with a box cutte r.13

T he rec ord, 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 o pening and closing a bedroom door, and Ortiz admitted he “purposely put someone in fear of a serious injur y. ” W e find the record demonstrates a factual basi s t hat 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 ha ve 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; DIS TRICT COURT JUDGMENT AFFIRMED
.