Opinion
No. 4-054 / 03-0916
Filed March 10, 2004
Appeal from the Iowa District Court for Mills County, James M. Richardson, Judge.
Raymond Hendrickson appeals from his conviction, following a guilty plea, for possession of a precursor, to wit: anhydrous ammonia, with intent to manufacture a controlled substance. VACATED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, and Marci Prier, County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Raymond Hendrickson appeals from his conviction, following a guilty plea, for possession of a precursor, to wit: anhydrous ammonia, with intent to manufacture a controlled substance, in violation of Iowa Code section 124.401(4)(d) (2003). We vacate the conviction and remand for further proceedings.
Background Facts and Proceedings.
The State initially charged Hendrickson with possession of anhydrous ammonia with intent to manufacture a controlled substance, transportation of anhydrous in an unauthorized container, and possession of drug paraphernalia. Hendrickson later entered into a plea agreement with the State whereby he pled guilty to possession with intent to manufacture a controlled substance in exchange for the State's agreement to drop the other charges and recommend a probationary sentence. The district court accepted the plea. Hendrickson waived his right to file a motion in arrest of judgment. The court then sentenced him to a five-year indeterminate term of incarceration, suspended the sentence, and ordered probation.
A review of the minutes of testimony, on which the district court based its finding of a factual basis for the plea, reveals the following facts. Around 2:00 a.m. on March 13, 2003, two Mills County sheriff's deputies attempted to stop a vehicle driven by Danielle Villani for the display of expired license plates. Raymond Hendrickson was a passenger in the vehicle. Villani refused to stop, running through a stop sign and leading the deputies on a short chase. Eventually, her vehicle hit railroad tracks and stalled. Villani and Hendrickson exited from the car and fled, before being apprehended by the deputies.
While handcuffing the defendant, one deputy noticed the smell of anhydrous ammonia coming from the vehicle. A subsequent search of the vehicle turned up a concealed fire extinguisher containing anhydrous ammonia. The deputies also discovered a small glass tube used to smoke controlled substances. Upon questioning, Hendrickson claimed he had found the fire extinguisher alongside the road and that they had picked it up thinking they could dispose of it. Villani informed officers she recently had used methamphetamine and was high. She claimed Hendrickson had asked her for a ride to get anhydrous ammonia. She took him to a rural farm, where he exited the car, went behind a fence, and returned with the fire extinguisher.
Trent Walker, a detective for the Southwest Iowa Narcotics Taskforce and who was present at the scene following Hendrickson's and Villani's arrests, noted that fire extinguishers are commonly used to steal and transport anhydrous ammonia for use in the production of methamphetamine.
Hendrickson's Claims on Appeal.
On appeal, Hendrickson first asserts the district court erred by failing to establish a factual basis to the charge prior to accepting his guilty plea. Second, he argues in the alternative that counsel provided ineffective assistance in allowing him to plead guilty to an offense for which no factual basis exists.
We conclude Hendrickson's first claim is not preserved for our review. "[A]ny challenges to a plea of guilty based on alleged defects in the plea proceedings must be raised in a motion in arrest of judgment and . . . failure to raise such challenges shall preclude the right to assert them on appeal. Iowa R. Crim. P. 2.8(2)( d). No motion in arrest of judgment was made here. We therefore proceed to address this question under an ineffective assistance of counsel analysis. See State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998).
Ineffective Assistance of Counsel.
We review ineffective assistance of counsel claims de novo. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). Hendrickson must prove that his trial counsel "failed to perform an essential duty" and that he "was prejudiced by counsel's error." State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). In applying this test to a claim that the defendant's guilty plea had no factual basis, our supreme court has stated:
We will find counsel failed to perform an essential duty if defense counsel allows the defendant to plead guilty to a charge for which no factual basis exists and thereafter fails to file a motion in arrest of judgment challenging the plea. On the other hand, where a factual basis exists for the plea, counsel usually will not be found ineffective for allowing the defendant to plead guilty.
Id. (citations omitted). The pivotal issue, then, is whether a factual basis exists for Hendrickson's guilty plea to the charge of possession of anhydrous ammonia with intent to manufacture a controlled substance. In deciding this issue, we consider the entire record before the district court, including any plea colloquy. See id. at 448-49.
Factual Basis.
Iowa Code section 124.401(4)(d) makes it unlawful for an individual to possess anhydrous ammonia "with the intent to use the product to manufacture any controlled substance." Iowa Code § 124.401(4)(d). Two elements thus come into play here: (1) possession and (2) the intent to manufacture. Because we conclude a factual basis exists regarding the possession aspect of the plea, we proceed to address whether a factual basis supports a conclusion that Hendrickson intended to use the anhydrous ammonia to manufacture a controlled substance.
After careful review of the evidence presented in the minutes of testimony, we conclude that the evidence was insufficient to support a factual basis that Hendrickson intended to manufacture methamphetamine. See United States v. Weston, 4 F.3d 672, 674 (8th Cir. 1993) (concluding mere possession of a precursor is insufficient, standing alone, to establish the intent to manufacture a controlled substance). Counsel thus provided ineffective assistance in failing to raise the issue in a motion in arrest of judgment.
While the evidence indicates that Hendrickson possessed the fire extinguisher containing anhydrous ammonia, the minutes set forth no other evidence from which a finding could be made that he intended to manufacture a controlled substance. Police officers discovered no other precursors or utensils commonly used in the methamphetamine manufacturing process in the vehicle or on Villani's or Hendrickson's person. There is no evidence or admission that Hendrickson knew how to manufacture methamphetamine. Other than speculation and suspicion, nothing in the minutes of testimony provides an indication of Hendrickson's intent to use the anhydrous ammonia to manufacture methamphetamine. We acknowledge that the minutes of testimony disclose Villani claimed to know the purpose for which the anhydrous-ammonia was to be used. The record does not, however, disclose what that intended use was.
When a guilty plea has no factual basis, two possible remedies exist. See State v. Schminkey, 597 N.W.2d 785, 792 (Iowa 1999). Where the record establishes that the defendant was charged with the wrong crime, we may vacate the judgment of conviction and sentence and remand for dismissal of the charge. Id. Where, however, it is possible that a factual basis could be shown, we may vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis. Id. We believe this case falls in the latter category. We therefore vacate the conviction, but remand to allow the State further opportunity to establish a factual basis for a guilty plea in this case.