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 

 

1 Jones 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.