IN THE COURT OF APPEALS OF IOWA
No. 13-0465 Filed March 26, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
DAMIAN DERAE WARE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt
(guilty plea) and James D. Birkenholz (sentencing), District Associate Judges.
Damian Ware appeals from his conviction and sentence for operating a
motor vehicle while his license is barred as a habitual offender. AFFIRMED.
Jeremy B. A. Feitelson of Feitelson Law, L.L.C., West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, John P. Sarcone, County Attorney, and Anastasia Hurn, Assistant
County Attorney, for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ. 2
DOYLE, J.
Damian Ware appeals from a judgment and sentence following his plea of
guilty to operating a motor vehicle while his license was barred as a habitual
offender. He contends his trial counsel was ineffective in permitting him to plead
guilty where there is an insufficient factual basis for his guilty plea, in permitting
him to waive a verbatim record of the plea and sentencing proceedings, and in
failing to file a motion in arrest of judgment. We affirm.
I. Background Facts and Proceedings.
On September 12, 2012, the State filed a trial information charging Ware
with driving while barred as a habitual offender, an aggravated misdemeanor, in
violation of Iowa Code sections 321.560 and 321.561 (2011). Accompanying the
trial information were detailed minutes of testimony, stating a Johnston police
officer would testify he “observed [Ware] operate a motor vehicle in Polk County,
Iowa, on August 6, 2012.” It further stated the officer could identify Ware and
would “testify to these and other matters pertaining to the crime, all of which
occurred in Polk County, Iowa.” The minutes also stated an Iowa Department of
Transportation official would testify as to Ware’s driving records, specifically, that
his privileges of operating a motor vehicle were barred as a habitual offender on
August 5, 2012.
Ware initially waived an attorney and entered a plea of not guilty. At some
point, Ware applied for appointment of counsel. Counsel was appointed on
February 7, 2013, the day of the status conference in the case.
That same day, Ware signed a preprinted form entitled “petition to plead
guilty to driving while barred and order setting sentencing” (agreement). The 3
agreement was also signed by Ware’s counsel. Among other things, the
agreement stated: “I am knowingly and intelligently pleading guilty to this charge
because I am guilty.” It also stated:
I understand that to challenge this guilty plea based on alleged defects in the plea proceedings I must file a Motion in Arrest of Judgment not later than [forty-five] days after my plea of guilty but no later than [five] days prior to sentencing. I further understand that failure to file the motion precludes my right to assert any challenge to the guilty plea on appeal. I also waive the preparation and use of a pre-sentence investigation report. I waive my right to have a verbatim record of these proceedings.
An “X” was marked next to each of these propositions on the agreement.
Towards the bottom of the agreement, it stated: “In order to establish a factual
basis I ask the court to accept as true the minutes of testimony, the date of
offense is [8-6-121] and I admit I did the following,” with blank lines provided
thereafter. Handwritten in the blank lines was “operate a vehicle while my
license was barred as a habitual offender.”
The court accepted Ware’s written plea, and the matter was set for
sentencing. Ware was subsequently fined $625 plus a surcharge and ordered to
serve twenty days in jail, with credit given for two days already served. No
verbatim record was made at either proceeding.
Ware now appeals, asserting claims of ineffective assistance of counsel.
We review his claims de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa
2010). However, we first address the State’s error preservation concerns.
1 This date was handwritten on the form in the space provided for the date. 4
II. Error Preservation.
Generally, a defendant’s failure to file a motion in arrest of judgment bars
a direct appeal of the conviction. 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. State v. Rodriguez,
804 N.W.2d 844, 848 (Iowa 2011). We therefore proceed to the merits of Ware’s
ineffective-assistance-of-counsel claims.
III. Discussion.
We address Ware’s assertions on appeal only in so far as they are
characterized as claims of ineffective assistance of counsel. Ware contends his
trial counsel was ineffective for allowing him to plead guilty to a charge where
there is an insufficient factual basis for his guilty plea, in permitting him to waive a
verbatim record of the plea and sentencing proceedings, and in failing to file a
motion in arrest of judgment.
A. Factual Basis.
A guilty plea may not be accepted by a court without the court first
determining the plea has a factual basis. Iowa R. Crim. P. 2.8(2)(b). If there is
no factual basis to support a defendant’s guilty plea and the defendant’s counsel
permits the defendant “to plead guilty and waive his right to file a motion in arrest
of judgment” anyway, that counselor renders the defendant ineffective
assistance. See State v. Ortiz, 789 N.W.2d 761, 764-65 (Iowa 2010) (“[C]ounsel
violates an essential duty,” and “[p]rejudice is presumed under these
circumstances.”). 5
Consequently, to succeed on the essential duty prong, Ware must
demonstrate the record lacks a factual basis to support his guilty plea to driving
while barred as a habitual offender. See id. at 765. There are only two elements
to the offense of driving while barred: (1) that a person was operating a motor
vehicle in Iowa and (2) the person’s driver’s license was barred. See Iowa Code
§ 321.561; State v. Wise, 697 N.W.2d 489, 492 (Iowa Ct. App. 2005).
Here, Ware argues because he did not write on the agreement where the
incident occurred, and because “the record is devoid of any indication that this
crime occurred in Polk County or even in the State of Iowa,” the location portion
of element one of the crime is not supported by the record. Because the later
argument is factually incorrect, we disagree.
“On a claim that a plea bargain is invalid because of a lack of accuracy on
the factual-basis issue, the entire record before the district court may be
examined.” State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). We also note the
agreement signed by Ware asked the court to “accept as true the minutes of
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IN THE COURT OF APPEALS OF IOWA
No. 13-0465 Filed March 26, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
DAMIAN DERAE WARE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt
(guilty plea) and James D. Birkenholz (sentencing), District Associate Judges.
Damian Ware appeals from his conviction and sentence for operating a
motor vehicle while his license is barred as a habitual offender. AFFIRMED.
Jeremy B. A. Feitelson of Feitelson Law, L.L.C., West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, John P. Sarcone, County Attorney, and Anastasia Hurn, Assistant
County Attorney, for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ. 2
DOYLE, J.
Damian Ware appeals from a judgment and sentence following his plea of
guilty to operating a motor vehicle while his license was barred as a habitual
offender. He contends his trial counsel was ineffective in permitting him to plead
guilty where there is an insufficient factual basis for his guilty plea, in permitting
him to waive a verbatim record of the plea and sentencing proceedings, and in
failing to file a motion in arrest of judgment. We affirm.
I. Background Facts and Proceedings.
On September 12, 2012, the State filed a trial information charging Ware
with driving while barred as a habitual offender, an aggravated misdemeanor, in
violation of Iowa Code sections 321.560 and 321.561 (2011). Accompanying the
trial information were detailed minutes of testimony, stating a Johnston police
officer would testify he “observed [Ware] operate a motor vehicle in Polk County,
Iowa, on August 6, 2012.” It further stated the officer could identify Ware and
would “testify to these and other matters pertaining to the crime, all of which
occurred in Polk County, Iowa.” The minutes also stated an Iowa Department of
Transportation official would testify as to Ware’s driving records, specifically, that
his privileges of operating a motor vehicle were barred as a habitual offender on
August 5, 2012.
Ware initially waived an attorney and entered a plea of not guilty. At some
point, Ware applied for appointment of counsel. Counsel was appointed on
February 7, 2013, the day of the status conference in the case.
That same day, Ware signed a preprinted form entitled “petition to plead
guilty to driving while barred and order setting sentencing” (agreement). The 3
agreement was also signed by Ware’s counsel. Among other things, the
agreement stated: “I am knowingly and intelligently pleading guilty to this charge
because I am guilty.” It also stated:
I understand that to challenge this guilty plea based on alleged defects in the plea proceedings I must file a Motion in Arrest of Judgment not later than [forty-five] days after my plea of guilty but no later than [five] days prior to sentencing. I further understand that failure to file the motion precludes my right to assert any challenge to the guilty plea on appeal. I also waive the preparation and use of a pre-sentence investigation report. I waive my right to have a verbatim record of these proceedings.
An “X” was marked next to each of these propositions on the agreement.
Towards the bottom of the agreement, it stated: “In order to establish a factual
basis I ask the court to accept as true the minutes of testimony, the date of
offense is [8-6-121] and I admit I did the following,” with blank lines provided
thereafter. Handwritten in the blank lines was “operate a vehicle while my
license was barred as a habitual offender.”
The court accepted Ware’s written plea, and the matter was set for
sentencing. Ware was subsequently fined $625 plus a surcharge and ordered to
serve twenty days in jail, with credit given for two days already served. No
verbatim record was made at either proceeding.
Ware now appeals, asserting claims of ineffective assistance of counsel.
We review his claims de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa
2010). However, we first address the State’s error preservation concerns.
1 This date was handwritten on the form in the space provided for the date. 4
II. Error Preservation.
Generally, a defendant’s failure to file a motion in arrest of judgment bars
a direct appeal of the conviction. 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. State v. Rodriguez,
804 N.W.2d 844, 848 (Iowa 2011). We therefore proceed to the merits of Ware’s
ineffective-assistance-of-counsel claims.
III. Discussion.
We address Ware’s assertions on appeal only in so far as they are
characterized as claims of ineffective assistance of counsel. Ware contends his
trial counsel was ineffective for allowing him to plead guilty to a charge where
there is an insufficient factual basis for his guilty plea, in permitting him to waive a
verbatim record of the plea and sentencing proceedings, and in failing to file a
motion in arrest of judgment.
A. Factual Basis.
A guilty plea may not be accepted by a court without the court first
determining the plea has a factual basis. Iowa R. Crim. P. 2.8(2)(b). If there is
no factual basis to support a defendant’s guilty plea and the defendant’s counsel
permits the defendant “to plead guilty and waive his right to file a motion in arrest
of judgment” anyway, that counselor renders the defendant ineffective
assistance. See State v. Ortiz, 789 N.W.2d 761, 764-65 (Iowa 2010) (“[C]ounsel
violates an essential duty,” and “[p]rejudice is presumed under these
circumstances.”). 5
Consequently, to succeed on the essential duty prong, Ware must
demonstrate the record lacks a factual basis to support his guilty plea to driving
while barred as a habitual offender. See id. at 765. There are only two elements
to the offense of driving while barred: (1) that a person was operating a motor
vehicle in Iowa and (2) the person’s driver’s license was barred. See Iowa Code
§ 321.561; State v. Wise, 697 N.W.2d 489, 492 (Iowa Ct. App. 2005).
Here, Ware argues because he did not write on the agreement where the
incident occurred, and because “the record is devoid of any indication that this
crime occurred in Polk County or even in the State of Iowa,” the location portion
of element one of the crime is not supported by the record. Because the later
argument is factually incorrect, we disagree.
“On a claim that a plea bargain is invalid because of a lack of accuracy on
the factual-basis issue, the entire record before the district court may be
examined.” State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). We also note the
agreement signed by Ware asked the court to “accept as true the minutes of
testimony.” Here, the minutes of testimony, as indicated above, explicitly provide
that the named officer would testify that Ware operated the vehicle “in Polk
County, Iowa” and other related details, “all of which occurred in Polk County,
Iowa.” There is simply no merit to his claim. Because the minutes clearly
provide a factual basis for Ware’s plea, his trial counsel was not ineffective for
permitting him to plead guilty. Ware’s counsel was not ineffective in failing to file
a motion in arrest of judgment concerning this issue. 6
B. Verbatim Record.
Ware argues his trial counsel was ineffective in permitting him to waive a
verbatim record of the guilty plea and sentencing. Ware cites Iowa Rule of
Criminal Procedure 2.8(3), which states: “A verbatim record of the proceedings at
which the defendant enters a plea shall be made.” Beyond this rule, Ware cites
no legal authority for the proposition that transcription of the guilty plea and
sentencing hearings cannot be waived, nor do we find any.
A defendant who enters a plea of guilty waives certain constitutional
rights. See Kyle v. State, 364 N.W.2d 558, 561 (Iowa 1985). It would be
incongruous for the criminal rules to allow a defendant to waive constitutional
rights, as set forth in rule 2.8(2)(b), but not allow a defendant to waive the right by
rule to a verbatim record. See State v. Hinners, 471 N.W.2d 841, 845 (Iowa
1991) (“We too think that if a defendant can waive such important constitutional
rights, the defendant ought to be able to waive a lesser statutory right such as
the right of appeal.”). Furthermore, the fact rule 2.8(3) does not contain an
express authorization for waiver is not an impediment to waiver of the provision.
See State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002) (“The absence of [rule
2.8(2)(b)’s requirement that the court must address the defendant personally] in
[rule 2.8(2)(d)] convinces us that defendants charged with serious or aggravated
misdemeanors may enter into a valid written waiver of the right to file a motion in
arrest of judgment and thus trigger the bar that rule 2.24(3)(a) imposes to
challenging a guilty plea on appeal.”).
Additionally, we note this issue was recently raised in Finney, but it was
ultimately not addressed by our supreme court because “Finney [made] no claim 7
[in that] appeal that his plea was involuntary under the Due Process Clause of
either the Fourteenth Amendment or article I, section 9 of the Iowa Constitution.”
834 N.W.2d at 61. The court explained the distinction between a challenge of a
guilty plea based upon voluntariness versus and a claim based upon the lack of a
factual basis. See id. at 61-62 (and cases cited therein). On a lack-of-factual-
basis claim, the entire record may be examined to objectively determine if a
factual basis exists. Id. at 50, 53, 62. However, whether a defendant’s plea is
voluntary requires “an examination of [the defendant’s] subjective state of mind at
the time the trial court accepted the plea.” Id. at 53, 54, 62.
In this case, Ware waived a verbatim record, and he has not challenged
the voluntariness of his plea. Thus, a more detailed review is not required to
determine his state of mind at the time he entered in to the plea. See id.
Because counsel had no duty to object to Ware’s waiver of a verbatim record of
the proceedings, Ware’s trial counsel was not ineffective for permitting him to do
so. Ware’s counsel was not ineffective in failing to file a motion in arrest of
judgment concerning this issue.
IV. Conclusion.
We have carefully considered all of the claims raised. Those not
addressed specifically in this decision are either disposed of by our resolution of
other claims or are without merit. Because we conclude Ware’s trial counsel did
not render ineffective assistance, we affirm his conviction and sentence for
operating a motor vehicle while his license was barred as a habitual offender.
AFFIRMED.