                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0048
                             Filed October 25, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LOREN PATRICK CRAMBLIT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William P. Kelly

(guilty plea) and Robert B. Hanson (sentencing), Judges.



      Defendant appeals his conviction for criminal mischief in the third degree.

AFFIRMED.




      William L. Kutmus and Trever T. Hook of Kutmus, Pennington & Hook,

P.C., West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Loren Cramblit appeals his conviction for criminal mischief in the third

degree. We find Cramblit has not preserved error on his claim there was not a

sufficient factual basis in the record to support his guilty plea. We also find

Cramblit did not receive an illegal sentence. We affirm Cramblit’s conviction and

sentence.

       I.     Background Facts & Proceedings

       According to the minutes of testimony, Cramblit rented a home from

Shane O’Malley in West Des Moines. In February 2016, O’Malley went to the

property and found it had been vandalized.         Police officers investigated the

incident and concluded Cramblit was involved in the damage to the property.

Cramblit was charged with criminal mischief in the first degree.

       Cramblit entered into a plea agreement in which he agreed to plead guilty

to the lesser included offense of criminal mischief in the third degree, in violation

of Iowa Code section 716.5 (2016), an aggravated misdemeanor.               Cramblit

signed a written plea agreement, which was filed on June 7, 2016. The district

court accepted his plea. Before sentencing, Cramblit filed a motion in arrest of

judgment, claiming his plea was not knowing and voluntary because he was not

fully apprised of the consequences of his plea. The court granted the motion in

arrest of judgment.

       On November 10, 2016, Cramblit filed a new written guilty plea to third-

degree criminal mischief. The written plea stated, “I admit I did the following: on

January 27, 2016, in Polk Co., Iowa, I did intentionally deface a wall w/spray

paint in a rental home in Polk Co. causing more than $500 in damage but less
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than $1000.” The written plea also requested the court to accept as true the

minutes of testimony to further establish the factual basis for the plea. The court

accepted Cramblit’s plea. Cramblit was sentenced to 365 days in jail, with all but

thirty days suspended, and placed on probation.           Cramblit now appeals his

conviction.

      II.     Guilty Plea

      Cramblit claims the district court should not have accepted his guilty plea

because there was not an adequate factual basis in the record for the plea. “The

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

has a factual basis.” State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999); see

also Iowa R. Crim. P. 2.8(2)(b). We review challenges to a guilty plea for the

correction of errors at law. State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001).

      The State claims Cramblit did not preserve error on this issue because he

did not file a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a) (“A

defendant’s failure to challenge the adequacy of a guilty plea proceeding by

motion in arrest of judgment shall preclude the defendant’s right to assert such

challenge on appeal.”). The written guilty plea states,

             To contest this plea I must file a Motion in Arrest of
      Judgment within 45 days after this plea but no later than 5 days
      prior to sentencing. I understand that by seeking immediate
      sentencing I give up this right and forever waive my right to
      challenge this plea and to appeal my plea.

      Although Cramblit was not seeking immediate sentencing, we determine

Cramblit was adequately advised “failure to challenge the plea by filing the

motion within the time provided prior to sentencing precludes a right to assert the

challenge on appeal.” See State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004). In
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addition to the statement in the written guilty plea, Cramblit was aware of his right

to file a motion in arrest of judgment because he had previously successfully filed

a similar motion in this case. Based on these circumstances, the notice in the

written plea agreement substantially complied with the requirement to inform

Cramblit of the necessity of filing a motion in arrest of judgment to challenge his

guilty plea. See State v. Fisher, 877 N.W.2d 676, 681 (Iowa 2016) (noting the

substantial compliance standard).      We conclude Cramblit is precluded from

challenging the factual basis for his guilty plea because he did not file a motion in

arrest of judgment. See State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999).

       III.   Sentencing

       Cramblit claims the court imposed an illegal sentence. He states the court

could not sentence him to a determinate term for an aggravated misdemeanor.

He claims the maximum penalty for an aggravated misdemeanor is a term of

imprisonment not to exceed two years, which is an indeterminate sentence.

Cramblit states the court could suspend part of a determinate sentence but could

not partially suspend an indeterminate sentence. When a defendant challenges

a sentence as being outside the court's statutory authority, we review for errors at

law. See State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987).

       “Criminal mischief in the third degree is an aggravated misdemeanor.”

Iowa Code § 716.5(2). Section 903.1(2) provides:

               When a person is convicted of an aggravated misdemeanor,
       and a specific penalty is not provided for, the maximum penalty
       shall be imprisonment not to exceed two years. There shall be a
       fine of at least six hundred twenty-five dollars but not to exceed six
       thousand two hundred fifty dollars. When a judgment of conviction
       of an aggravated misdemeanor is entered against any person and
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       the court imposes a sentence of confinement for a period of more
       than one year the term shall be an indeterminate term.

       In considering section 903.1(2), the Iowa Supreme Court has stated,

“Defendant could have been imprisoned for a period not to exceed two years.

This includes the possibility of a determinate sentence of not more than one

year.” State v. Erickson, 362 N.W.2d 528, 534 (Iowa 1985); see also State v.

Shield, 368 N.W.2d 721, 722 (Iowa 1985) (noting a determinate sentence of one

year or less was a possible sentence for an aggravated misdemeanor). When

the court imposes a determinate sentence, the court may “suspend any part of

the sentence, and place the person on probation.” State v. Steuk, 368 N.W.2d

171, 172 (Iowa 1985). We conclude Cramblit has not shown he received an

illegal sentence.

       We affirm Cramblit’s conviction and sentence for third-degree criminal

mischief.

       AFFIRMED.
