IN THE COURT OF APPEALS OF IOWA
No. 16-0836 Filed March 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
DAVID JOSEPH JOHNSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Odell G. McGhee,
District Associate Judge.
A defendant challenges his conviction for driving while barred. AFFIRMED.
Thomas A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., McDonald, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018). 2
TABOR, Presiding Judge
David Johnson appeals his conviction for driving while barred under Iowa
Code section 321.561 (2016) contending his attorney was constitutionally remiss
by not ensuring a factual basis for his guilty plea. Specifically, he claims the record
did not “support the habitual offender status element” and did not indicate whether
the State honored his right to counsel for the offenses underlying the habitual-
offender adjudication by the Iowa Department of Transportation (DOT). See Iowa
Code §§ 321.555, .556. Because the validity of the administrative decision to bar
Johnson’s license was not an element of his criminal offense, counsel did not
breach a duty. Accordingly, we affirm his conviction.
I. Facts and Prior Proceedings
On January 15, 2016 Johnson was involved in a traffic accident. He told
police he left the scene because his license was barred. The next month the State
charged Johnson with driving while barred in violation of Iowa Code sections
321.555 and 321.561. The State extended a plea offer, noting Johnson’s three
prior convictions for driving while barred and five convictions for driving with a
suspended license. In March 2016, Johnson entered a written guilty plea. The
plea form stated as follows:
“In order to establish a factual basis I ask the court to accept as true the minutes of testimony, the date of offense is [handwritten] 1-15-2016 [end handwriting] and I admit I did the following: [handwritten] I was driving barred and I should not have been [end handwriting.]” 3
Johnson and his attorney both signed the form. According to the sentencing order
dated May 12, 2016, Johnson appeared for sentencing “having previously pled
guilty” to “driving while barred as habitual offender.” The district court sentenced
Johnson to a one-year prison term and suspended all but thirty days. The court
also placed Johnson on supervised probation for one year. Johnson now appeals
his conviction.
II. Scope and Standards of Review
Generally, the defense must challenge a defect in the guilty-plea proceeding
by filing a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a). When
counsel fails to file such a motion, a defendant may attack the plea on appeal by
claiming counsel was ineffective. State v. Perkins, 875 N.W.2d 190, 192 (Iowa Ct.
App. 2015). Because ineffective-assistance-of-counsel claims are rooted in the
Sixth Amendment, we review them de novo. State v. Thorndike, 860 N.W.2d 316,
319 (Iowa 2015). We will resolve ineffective-assistance claims on direct appeal
only when the record is sufficient to do so; if the record is lacking, we will preserve
the claim for postconviction proceedings. See id. To prevail, Johnson must show
by a preponderance of the evidence that (1) counsel failed to perform an essential
duty and (2) prejudice resulted. See id. at 320. If Johnson is unable to prove either
element, then he cannot prevail. See id.
III. Analysis of Ineffective-Assistance-of-Counsel Claim
A. Habitual-Offender Adjudication
In assessing a factual-basis claim, we look to the guilty-plea record as a
whole. State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010). The record need not
show the totality of evidence necessary to prove Johnson guilty of the crime 4
charged. See id. We require only that the filings demonstrate facts to support the
offense to which he is pleading guilty. See id.
Johnson maintains the guilty-plea record did not show a factual basis for
the predicate crimes which landed him in the category of habitual offender under
Iowa Code section 321.555. Section 321.561 provides, “It shall be unlawful for
any person found to be a habitual offender to operate any motor vehicle in this
state during the period of time specified in section 321.560 . . . .” Section
321.555(1)(c) defines an “habitual offender” as a person who has accumulated
three or more separate and distinct convictions for “[d]riving a motor vehicle while
the person’s license is suspended, denied, revoked, or barred.” But the reason
the DOT issued a bar to Johnson’s license under the habitual-offender provisions1
is not an element of driving while barred.
Our case law suggests the crime of driving while barred has only two
elements: (1) defendant’s license has been barred and (2) defendant operated a
motor vehicle while his license was barred. See State v. Carmer, 465 N.W.2d 303,
304 (Iowa Ct. App. 1990) (comparing elements of driving while barred to elements
of driving while revoked); see also State v. Harmon, No. 17-0353, 2018 WL
739314, at *1 (Iowa Ct. App. Feb. 7, 2018) (discussing State v. Williams, No. 16-
0894, 2017 WL 3524729, at *3 (Iowa Ct. App. Aug. 16, 2017),2 where the majority
and dissent agreed the crime had only two elements but disagreed whether the
1 Proceedings to determine whether a person qualifies as an habitual offender are civil actions. Iowa Dep't of Transp. v. Iowa Dist. Court for Poweshiek Cty., 530 N.W.2d 725, 727 (Iowa 1995). 2 Williams is currently pending on further review to our supreme court. 5
first element required the State to prove the DOT properly mailed notice of the
barment to the defendant).
Here, the minutes of evidence allege a DOT official would testify that
Johnson’s driving privileges were barred on January 15, 2016, the day of the
accident, and that receipt of service of notice was on file at the DOT. The minutes
also reflect an officer would testify Johnson was driving a motor vehicle on the day
in question. Further, Johnson admitted in his written guilty plea that he “was driving
barred” and “should not have been.” This evidence provides a sufficient factual
basis for the guilty plea, and defense counsel did not breach an essential duty by
failing to file a motion in arrest of judgment. See State v. Ross, 845 N.W.2d 692,
701 (Iowa 2014) (reaffirming counsel has no duty to file meritless motion).
B. Representation During Prior Convictions
Johnson also asserts defense counsel was ineffective in failing to challenge
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IN THE COURT OF APPEALS OF IOWA
No. 16-0836 Filed March 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
DAVID JOSEPH JOHNSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Odell G. McGhee,
District Associate Judge.
A defendant challenges his conviction for driving while barred. AFFIRMED.
Thomas A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., McDonald, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018). 2
TABOR, Presiding Judge
David Johnson appeals his conviction for driving while barred under Iowa
Code section 321.561 (2016) contending his attorney was constitutionally remiss
by not ensuring a factual basis for his guilty plea. Specifically, he claims the record
did not “support the habitual offender status element” and did not indicate whether
the State honored his right to counsel for the offenses underlying the habitual-
offender adjudication by the Iowa Department of Transportation (DOT). See Iowa
Code §§ 321.555, .556. Because the validity of the administrative decision to bar
Johnson’s license was not an element of his criminal offense, counsel did not
breach a duty. Accordingly, we affirm his conviction.
I. Facts and Prior Proceedings
On January 15, 2016 Johnson was involved in a traffic accident. He told
police he left the scene because his license was barred. The next month the State
charged Johnson with driving while barred in violation of Iowa Code sections
321.555 and 321.561. The State extended a plea offer, noting Johnson’s three
prior convictions for driving while barred and five convictions for driving with a
suspended license. In March 2016, Johnson entered a written guilty plea. The
plea form stated as follows:
“In order to establish a factual basis I ask the court to accept as true the minutes of testimony, the date of offense is [handwritten] 1-15-2016 [end handwriting] and I admit I did the following: [handwritten] I was driving barred and I should not have been [end handwriting.]” 3
Johnson and his attorney both signed the form. According to the sentencing order
dated May 12, 2016, Johnson appeared for sentencing “having previously pled
guilty” to “driving while barred as habitual offender.” The district court sentenced
Johnson to a one-year prison term and suspended all but thirty days. The court
also placed Johnson on supervised probation for one year. Johnson now appeals
his conviction.
II. Scope and Standards of Review
Generally, the defense must challenge a defect in the guilty-plea proceeding
by filing a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a). When
counsel fails to file such a motion, a defendant may attack the plea on appeal by
claiming counsel was ineffective. State v. Perkins, 875 N.W.2d 190, 192 (Iowa Ct.
App. 2015). Because ineffective-assistance-of-counsel claims are rooted in the
Sixth Amendment, we review them de novo. State v. Thorndike, 860 N.W.2d 316,
319 (Iowa 2015). We will resolve ineffective-assistance claims on direct appeal
only when the record is sufficient to do so; if the record is lacking, we will preserve
the claim for postconviction proceedings. See id. To prevail, Johnson must show
by a preponderance of the evidence that (1) counsel failed to perform an essential
duty and (2) prejudice resulted. See id. at 320. If Johnson is unable to prove either
element, then he cannot prevail. See id.
III. Analysis of Ineffective-Assistance-of-Counsel Claim
A. Habitual-Offender Adjudication
In assessing a factual-basis claim, we look to the guilty-plea record as a
whole. State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010). The record need not
show the totality of evidence necessary to prove Johnson guilty of the crime 4
charged. See id. We require only that the filings demonstrate facts to support the
offense to which he is pleading guilty. See id.
Johnson maintains the guilty-plea record did not show a factual basis for
the predicate crimes which landed him in the category of habitual offender under
Iowa Code section 321.555. Section 321.561 provides, “It shall be unlawful for
any person found to be a habitual offender to operate any motor vehicle in this
state during the period of time specified in section 321.560 . . . .” Section
321.555(1)(c) defines an “habitual offender” as a person who has accumulated
three or more separate and distinct convictions for “[d]riving a motor vehicle while
the person’s license is suspended, denied, revoked, or barred.” But the reason
the DOT issued a bar to Johnson’s license under the habitual-offender provisions1
is not an element of driving while barred.
Our case law suggests the crime of driving while barred has only two
elements: (1) defendant’s license has been barred and (2) defendant operated a
motor vehicle while his license was barred. See State v. Carmer, 465 N.W.2d 303,
304 (Iowa Ct. App. 1990) (comparing elements of driving while barred to elements
of driving while revoked); see also State v. Harmon, No. 17-0353, 2018 WL
739314, at *1 (Iowa Ct. App. Feb. 7, 2018) (discussing State v. Williams, No. 16-
0894, 2017 WL 3524729, at *3 (Iowa Ct. App. Aug. 16, 2017),2 where the majority
and dissent agreed the crime had only two elements but disagreed whether the
1 Proceedings to determine whether a person qualifies as an habitual offender are civil actions. Iowa Dep't of Transp. v. Iowa Dist. Court for Poweshiek Cty., 530 N.W.2d 725, 727 (Iowa 1995). 2 Williams is currently pending on further review to our supreme court. 5
first element required the State to prove the DOT properly mailed notice of the
barment to the defendant).
Here, the minutes of evidence allege a DOT official would testify that
Johnson’s driving privileges were barred on January 15, 2016, the day of the
accident, and that receipt of service of notice was on file at the DOT. The minutes
also reflect an officer would testify Johnson was driving a motor vehicle on the day
in question. Further, Johnson admitted in his written guilty plea that he “was driving
barred” and “should not have been.” This evidence provides a sufficient factual
basis for the guilty plea, and defense counsel did not breach an essential duty by
failing to file a motion in arrest of judgment. See State v. Ross, 845 N.W.2d 692,
701 (Iowa 2014) (reaffirming counsel has no duty to file meritless motion).
B. Representation During Prior Convictions
Johnson also asserts defense counsel was ineffective in failing to challenge
the factual basis for the guilty plea on the ground the record does not establish
Johnson was represented or properly waived counsel in connection with the
underlying convictions giving rise to his habitual-offender status. Johnson argues
counsel should have filed a motion in arrest of judgment because “no showing was
made that he was not entitled to, was provided, or waived counsel for the
underlying offenses leading to the finding he was a habitual offender.” Johnson
compares his situation to State v. Young, 863 N.W.2d 249, 281 (Iowa 2015)
(holding a defendant’s prior uncounseled misdemeanor conviction could not be
used as a predicate offense to enhance sentence for subsequent third-degree theft
conviction). 6
Johnson’s comparison to Young is inapt. Young involved the district court’s
direct enhancement of a sentence based on prior criminal offenses. Young, 863
N.W.2d. Here, any challenge by defense counsel to Johnson’s habitual-offender
status as part of the criminal proceedings would have constituted a collateral attack
on the decision of the DOT. See State v. Clark, 608 N.W.2d 5, 8-9 (Iowa 2000).
If Johnson was not properly represented by counsel when he was convicted of the
offenses underlying the habitual-offender determination, the proper time to raise
that issue would have been in the administrative proceeding afforded for him to
challenge the bar of his driver’s license. See Iowa Code § 321.556; Clark, 608
N.W.2d at 8.
The record establishes a factual basis showing Johnson’s driving privileges
were barred by the DOT when he operated a motor vehicle in January 2016.
Johnson admitted knowing his license was barred and driving anyway. Counsel
did not breach an essential duty by failing to challenge Johnson’s guilty plea.
AFFIRMED.