State of Iowa v. Christopher Michael Retman ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0707
Filed March 4, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHRISTOPHER MICHAEL RETMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy,
Judge.
Christopher Retman appeals following his guilty plea to arson in the third
degree. AFFIRMED.
Karmen Anderson of Anderson & Taylor, P.L.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., May, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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MAHAN, Senior Judge.
Christopher Retman appeals, challenging the factual basis for his guilty plea
to the charge of arson in the third degree. Upon our review, we affirm.
Retman contends his counsel was ineffective in allowing him to plead guilty
to the arson charge without a factual basis.1 To prevail on his claim,2 Retman must
show counsel (1) failed to perform an essential duty and (2) prejudice resulted.
See Strickland v. Washington, 466 U.S. 668, 687 (1984). If counsel allows a
defendant to plead guilty without a factual basis, counsel has breached a duty and
we presume the defendant was prejudiced. See State v. Rodriguez, 804 N.W.2d
844, 849 (Iowa 2011).
A guilty plea may not be accepted by a court without the court first
determining the plea is supported by a factual basis. See Iowa R. Crim.
P. 2.8(2)(b). When analyzing a record to determine if the record supports a factual
basis for a plea, courts “do not require the record to show the totality of evidence
necessary to support a guilty conviction, but only that the record demonstrates the
facts to support the elements of the offense.” Rhoades v. State, 848 N.W.2d 22,
29 (Iowa 2014). A factual basis can be discerned from “(1) the prosecutor’s
statements, (2) the defendant’s statements, (3) the minutes of testimony, and
1 Iowa Code section 814.7 was recently amended, eliminating direct-appeal
ineffective-assistance-of-counsel claims. See 2019 Iowa Acts ch. 140, § 31
(codified at Iowa Code § 814.7 (2019)). This amendment applies only
prospectively and therefore does not apply to this case, which was pending on July
1, 2019. See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019).
2 Generally, a defendant’s failure to file a motion in arrest of judgment bars a direct
appeal of the conviction, see Iowa R. Crim. P. 2.24(3)(a), but this failure does not
bar a challenge to a guilty plea if the failure to file a motion in arrest of judgment
resulted from ineffective assistance of counsel, as alleged by Retman, see State
v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).
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(4) the presentence report, if available at the time of the plea.” Id. In reviewing
minutes of testimony, the court will consider police reports that include a
defendant’s statements. See id. at 31.
To determine whether Retman’s guilty plea is supported by a factual basis,
we first turn to the elements of the offense. The Code defines arson as follows:
Causing a fire or explosion, or placing any burning or
combustible material, or any incendiary or explosive device or
material, in or near any property with the intent to destroy or damage
such property, or with the knowledge that such property will probably
be destroyed or damaged, is arson, whether or not any such property
is actually destroyed or damaged.
Iowa Code § 712.1(1).
“Arson is arson in the first degree when the presence of one or more
persons can be reasonably anticipated in or near the property which is the subject
of the arson, or the arson results in the death of a fire fighter, whether paid or
volunteer.” Id. § 712.2.
Arson which is not arson in the first degree is arson in the second
degree when the property which is the subject of the arson is a
building or a structure, or real property of any kind, or standing crops,
or is personal property the value of which exceeds five hundred
dollars.[3]
Id. § 712.3. “Arson which is not arson in the first degree or arson in the second
degree is arson in the third degree.” Id. § 712.4.
The record in this case reflects the following. Retman drove onto
Christopher Cook’s property,4 threw a lit and smoking cylinder object at Cook’s
3 This statute was amended effective July 1, 2019, to increase the value of property
to seven hundred fifty dollars. See 2019 Iowa Acts ch. 140, § 10 (codified at Iowa
Code § 712.3 (2019)).
4 Cook was a witness in a case Retman was involved in.
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residence from his moving vehicle, and then drove away. The “cylinder object,”
later determined to be a firework, landed on top of a dumpster near Cook’s
vehicles. The dumpster was burned, but the firework eventually extinguished on
its own due to moisture on the dumpster lid.
The State charged Retman with arson in the third degree and tampering
with a witness, but an agreement was reached in which Retman would plead guilty
to arson in the third degree and the tampering-with-a-witness charge would be
dismissed. Retman’s written guilty plea stated: “I placed an incendiary device, a
smoke grenade, adjacent to a building on Chris Cook’s property in Jasper County,
IA on 10/1/18, knowing that it would likely cause damage thereon.”
Evidence in the record provided a factual basis to support his plea of arson
in the third degree. See Iowa Code § 712.1(1) (defining one alternative of arson
as “placing any burning or combustible material . . . in or near any property . . . with
the knowledge that such property will probably be destroyed or damaged”). But
Retman contends because he pled guilty to the “explosive or incendiary device”
alternative of the statute and because a firework “smoke bomb is not an explosive
or incendiary device,” his plea lacked a factual basis. Cf. id. § 712.1(1) (defining
another alternative of arson as “placing any . . . incendiary or explosive device . . .
in or near any property . . . with the knowledge that such property will probably be
destroyed or damaged”).
Even accepting, arguendo, Retman’s claim that a firework “smoke bomb” is
not an explosive or incendiary device,5 we find his factual-basis argument
5See State v. Durgin, 328 N.W.2d 507, 509 (Iowa 1983) (distinguishing fireworks,
specifically excluded under the Code definition of explosives, from explosive
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unpersuasive. The State charged Retman with arson in the third degree, without
setting forth any specific theory of the case:
Arson in the Third Degree, a violation of Iowa Code section(s) 712.1,
712.4, in that on or about October 1, 2018 in Jasper County, Iowa,
the Defendant directly and unlawfully committed arson in the third
degree upon the personal property of Christopher and Elizabeth
Cook, the value of which does not exceed $500.
The State’s charge against Retman carried with it all included offenses. See
Iowa R. Crim. P. 2.22(3) (stating “[i]n all cases, the defendant may be found guilty
of any offense the commission of which is necessarily included in that with which
the defendant is charged”); cf. State v. Lipsey, No. 13-1062, 2014 WL 3931434, at
*2 (Iowa Ct. App. Aug. 13, 2014). Iowa Code section 712.1(1) sets forth different
modes of committing the offense of arson, and sections 712.2 and 712.3 provide
for circumstances in which those offenses in section 712.1(1) qualify as arson in
the first degree or second degree. “Arson which is not arson in the first degree or
arson in the second degree is arson in the third degree.” Id. § 712.4.
It was the district court’s obligation to determine whether there was a factual
basis supporting Retman’s guilty plea to the crime charged. Cf. State v. Gross,
No. 18-0048, 2018 WL 6120052, at *3 (Iowa Ct. App. Nov. 21, 2018) (“The statute
sets forth different modes of committing the offense of arson in the second
degree. . . . While the prosecutor thought the “building or structure” alternative
was applicable here, that did not preclude the district court from inquiring about
devices, and holding fireworks were pyrotechnic devices manufactured for the
purpose of producing visible or audible effect); 4 Robert R. Rigg, Iowa Practice
Series: Criminal Law § 9:15 (2019-2020 ed.) (same); see also Iowa Code § 702.21(“An ‘incendiary device’ is a device, contrivance, or material causing or designed
to cause destruction of property by fire.”).
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another mode of committing the offense. . . . Instead, it was the district court’s
obligation to determine whether there was a factual basis supporting the
defendant’s guilty plea to the crime charged.”). As noted above, Retman’s guilty
plea to arson in the third degree was supported by a factual basis. See Iowa Code
§§ 712.1(1), 712.4. Accordingly, defense counsel was not ineffective in failing to
challenge the plea on that basis.
AFFIRMED.