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IN THE COURT OF APPEALS OF IOWA No. 2-108 / 11-1426 Filed June 13, 2012 STATE OF IOWA, Plaintiff-Appellee, vs. NATHAN ANTHONY AMADEO, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan (plea) and Carol L. Coppola (sentencing), District Associate Judges.

Defendant appeals his conviction, based on his guilty plea, to domestic abuse assault with intent to inflict a serious injury. SENTENCE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

Mark C. Smith, State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John Sarcone, County Attorney, and Shannon K. Archer, Assistant County Attorney, for appellee.

Considered en banc.

2 MULLINS, J. I. Background Facts & Proceedings

Nathan Amadeo was charged with domestic abuse assault with intent to inflict a serious injury, in violation of Iowa Code section 708.2A(2)(c) (2011), an aggravated misdemeanor. On August 4, 2011, Amadeo entered a written guilty plea. He wrote, "on 7-16-11 in Polk County, IA, I assaulted [K.C.] by choking her and causing her bruises." The district court accepted Amadeo's written plea as a plea of guilty to the charge of domestic abuse assault with intent to inflict a serious injury. Amadeo was sentenced to a term of no more than two years in prison. The sentence was suspended and he was placed on probation for twenty-four months, with the requirement that he attend substance abuse treatment and a batterer's education program. Amadeo now appeals his conviction, claiming he received ineffective assistance of counsel because his attorney permitted him to plead guilty when there was an insufficient factual basis in the record. II. Scope of Review

We review claims of ineffective assistance of counsel de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008).

3 III. Merits

A court may not accept a guilty plea without first determining whether the plea has a factual basis. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). The court "must only be satisfied that the facts support the crime, `not necessarily that the defendant is guilty.'" State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (citation omitted). If counsel allows a defendant to plead guilty to a charge for which no factual basis exists, and then does not file a motion in arrest of judgment challenging the plea, counsel fails to perform an essential duty. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Prejudice is presumed under such circumstances. State v. Ortiz, 789 N.W.2d 761, 764-65 (Iowa 2010). Before accepting a guilty plea, a court must be satisfied there is an adequate factual basis for the plea. Iowa R. Crim. P. 2.8(2)(b); Schminkey, 597 N.W.2d at 788; State v. Greene, 226 N.W.2d 829, 831 (Iowa 1975). The factual basis for a guilty plea must be disclosed in the record. State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011). A factual basis for a guilty plea may be found from: (1) inquiry of the defendant, (2) inquiry of the prosecutor, (3) examination of the presentence report,1 and (4) minutes of evidence. Ortiz, 789 N.W.2d at 768. "This record, as a whole, must disclose facts to satisfy the elements of the crime." Keene, 630 N.W.2d at 581. For the crime of domestic abuse assault with intent to inflict a serious injury, the following elements must be established:
1

A presentence report will only support the factual basis for a guilty plea if it is in existence at the time of the plea. Iowa R. Crim. P. 2.8(2)(b); State v. Fluhr, 287 N.W.2d 857, 868 (Iowa 1980) overruled on other grounds by State v. Kirchoff, 452 N.W.2d 801, 805 (Iowa 1990). The presentence report will also support a factual basis only if it has been considered by the court. See State v. Randall, 258 N.W.2d 359, 362 (Iowa 1977).

4 1. The defendant did an act which was meant to cause pain or injury to, or which was intended to result in physical contact which would be insulting or offensive to, the victim. 2. The defendant had the apparent ability to do the act. 3. At that time the defendant intended to cause a serious injury to the victim. 4. The assault came within one or more of the circumstances set forth in Iowa Code section 236.2(2)(a)-(e). Iowa Code

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