State of Iowa v. Wichang Gach Chawech

IN THE COURT OF APPEALS OF IOWA

No. 19-0808
Filed September 2, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

WICHANG GACH CHAWECH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

Wichang Chawech appeals the district court’s entry of judgment and

sentence on his guilty plea. SENTENCE VACATED AND REMANDED FOR

FURTHER PROCEEDINGS.

Joseph C. Glazebrook of Glazebrook & Hurd, LLP, Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
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VAITHESWARAN, Presiding Judge.

Des Moines police officers saw a vehicle with an improperly completed

temporary license tag. They stopped the vehicle and immediately observed an

open container of alcohol in the rear seat. The driver, Wichang Gach Chawech,

stated he did not have an ID and was not valid to drive. The officers detained him.

They removed the three other occupants, searched the vehicle, and discovered

thirty small plastic bags of marijuana inside.

The State charged Chawech with several crimes arising from the stop and

search. Chawech entered an Alford plea to the crime of failure to affix a tax stamp

(42.5 grams marijuana).1 See Iowa Code §§ 453B.3; .12 (2018). After the district

court imposed sentence, Chawech appealed.

Chawech contends his attorney was ineffective in failing to (1) file a motion

to suppress evidence gained in the vehicle search and (2) challenge the factual

basis for the plea. “Ordinarily, ineffective assistance of counsel claims are best

resolved by postconviction proceedings to enable a complete record to be

developed and afford trial counsel an opportunity to respond to the claim.” 2 State

v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004).

1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of
[a] crime may voluntarily, knowingly, and understandingly consent to the imposition
of a prison sentence even if [the individual] is unwilling or unable to admit . . .
participation in the acts constituting the crime.”).
2 Iowa Code section 814.7 (2020) was amended in 2019 and now requires

ineffective-assistance-of-counsel claims in criminal cases to “be determined by
filing an application for postconviction relief.” See 2019 Iowa Acts ch. 140, § 30.
The dispositional order in this case was filed before the effective date of the statute,
which does not apply retroactively. See State v. Macke, 933 N.W.2d 226, 228 (Iowa
2019).
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The record is inadequate to address the suppression claim. See State v.

Oberhart, 789 N.W.2d 161, 163 (Iowa 2010); State v. Woods, No. 19-1028, 2020

WL 1888769, at *1 (Iowa Ct. App. Apr. 15, 2020). Accordingly, we preserve that

claim for a possible postconviction-relief action. See Iowa Code § 814.7(3). The

record is adequate to address the factual-basis claim. See State v. Schminkey,

597 N.W.2d 785, 788 (Iowa 1999). We proceed to the merits of that claim.

“The district court may not accept a guilty plea without first determining that

the plea has a factual basis.” Id. “This requirement exists even where the plea is

an Alford plea.” Id.; see also State v. Chapman, 944 N.W.2d 864, 872 (Iowa 2020).

“Where a factual basis for a charge does not exist, and trial counsel allows the

defendant to plead guilty anyway, counsel has failed to perform an essential duty.

Prejudice in such a case is inherent.” Schminkey, 597 N.W.2d at 788 (internal

citation omitted); see Strickland v. Washington, 466 U.S. 668, 687 (1984) (requiring

a person raising an ineffective-assistance-of-counsel claim to prove deficient

performance and prejudice).

Iowa Code section 453B.3 provides in relevant part: “A dealer shall not

possess, distribute, or offer to sell a taxable substance unless the tax imposed

under this chapter has been paid as evidenced by a stamp, label, or other official

indicia permanently affixed to the taxable substance.” Iowa Code § 453B.3(1). A

taxable substance is “a controlled substance, a counterfeit substance, a simulated

controlled substance, or marijuana, or a mixture [of these items].” Id. § 453B.1(10).

In the context of marijuana, a dealer includes “any person who ships, transports, or

imports into this state, or acquires, purchases, possesses . . . forty-two and one-
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half grams or more of processed marijuana or of a substance consisting of or

containing marijuana.” Id. § 453B.1(3)(a)(2).

Chawech argues the record lacks a factual basis to support the weight

requirement. In his view, “The [m]inutes merely state that marijuana recovered was

packaged in 30 individual baggies without regard to the quantity of actual

marijuana.”

At the plea hearing, the prosecutor affirmed the district court’s summary of

the elements, which included a reference to the 42.5 gram requirement:

In order to prove your guilt beyond a reasonable doubt, the State
would have to prove that on or about July 6th of 2018, here in Polk
County, Iowa, that you possessed 42.5 or more grams of marijuana
while not having affixed to that marijuana a State of Iowa drug tax
stamp label or other official indicia.

Chawech “stipulate[d] and agree[d] that the minutes of evidence . . . attached to the

trial information would establish” his guilt “beyond a reasonable doubt.” However,

as Chawech now points out, those minutes failed to specify the gram weight of the

thirty marijuana baggies, either individually or in combination. See Rhoades v.

State, 848 N.W.2d 22, 29–30 (Iowa 2014) (noting that the district court informed the

defendant of an element of the crime and the defendant agreed the element was

satisfied but concluding the State failed to establish the facts that were consistent

with the elements of the crime).

The State acknowledges that “the minutes do not include a lab report or

official notation of individual weight or combined weight of the bags containing

marijuana.” But in the State’s view, the minutes “impl[y] such evidence is available.”

The State hangs its hat on the State’s disclosure of a Division of Criminal
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Investigation witness who would “testify . . . regarding the results of the analyses

as documented in the DCI laboratory report prepared in connection with this case.”

That reference says nothing about the weight of the marijuana. See State v.

Martens, 569 N.W.2d 482, 487 (Iowa 1997) (concluding “[t]he State failed to prove

that the certified weight, exclusive of marijuana stalk, met the gram weight specified

under Iowa Code section 453B.1(3)(b), to prove the commission of the offense”);

cf. State v. Blow, No. 11-0463, 2011 WL 6740165, at *2 (Iowa Ct. App. Dec. 21,

2011) (concluding a factual basis existed where “[t]he laboratory report attached to

the minutes of testimony listed the weight of the marijuana at 49.2 grams total” and

“[t]he minutes further provided that an investigator would testify that he conducted

a preliminary weighing of the marijuana with packaging, and it weighed 51.27

grams”). Absent any mention of the highly-specific statutory weight requirement,

we conclude the record lacks a factual basis for the “dealer” element of the crime.

See Iowa Code § 453B.1(3)(a)(2).

Because the record lacks a factual basis, Chawech’s attorney breached an

essential duty in allowing Chawech to plead guilty and prejudice is presumed.

Schminkey, 597 N.W.2d at 788. We vacate the sentence and remand for further

proceedings to give the State an opportunity to establish a factual basis. See id. at

792.

SENTENCE VACATED AND REMANDED FOR FURTHER

PROCEEDINGS.