              IN THE SUPREME COURT OF IOWA
                              No. 12–0010

                           Filed July 5, 2013


STATE OF IOWA,

      Appellee,

vs.

CRAIG ANTHONY FINNEY,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Pottawattamie County,

Mark J. Eveloff, Judge.



      The State seeks further review of a court of appeals decision

vacating a criminal defendant’s conviction and sentence. DECISION OF

COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT

AFFIRMED.


      Sean M. Conway of Dornan, Lustgarten & Troia, PC LLO, Omaha,

Nebraska, for appellant.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, Matthew D. Wilber, County Attorney, and Christine M.

Shockey, Assistant County Attorney, for appellee.
                                    2

APPEL, Justice.

      In this case, we consider a challenge to a guilty plea on grounds of

ineffective assistance of counsel when the guilty plea colloquy failed to

establish a factual basis for the underlying charge, but when the minutes

of testimony provide substantial support for the crime.      The court of

appeals held that the guilty plea must be vacated because of the

inadequacy of the colloquy. It remanded the case to the district court for

further proceedings.   We granted further review.     We now vacate the

decision of the court of appeals and affirm the conviction and sentence of

the district court.

      I. Factual and Procedural Background.

      The State charged Craig Finney with the attempted murder of Patty

Harker, the attempted murder of Benjamin Shimmin, two counts of

assault while participating in a felony, and one count each of first-degree

burglary, willful injury causing serious injury, going armed with intent,

and flight to avoid prosecution.   The minutes of testimony outline the

factual basis of the charges.

      According to the minutes, Finney and Harker had previously

dated. The minutes allege that in the early morning hours of June 17,

2011, Finney, after seeing Harker and Shimmin together at a bar, went

to Harker’s house with a shotgun, kicked open the door, fired one shot

through a door into the bathroom where Shimmin was hiding, and shot

Harker in the back as she attempted to flee. The minutes also allege that

Finney shot himself and fled the scene. After the incident, Finney put

his gun in his truck, parked it at a local pond, solicited the help of his

son, changed clothes, and got into another vehicle.       Police recovered

Finney’s truck and shotgun and apprehended him the next day in

Missouri.
                                     3

      Finney initially pled not guilty to the charges. He later agreed to

plead guilty to the attempted murder of Harker in exchange for the

dismissal of the other charges. At the plea hearing, the court informed

Finney of his rights. The following colloquy then occurred regarding the

factual basis for Finney’s guilty plea to the crime of attempted murder:

      THE COURT: Would you explain to the Court exactly what
      you did, why you are pleading guilty to the charge of
      attempted murder?

      [FINNEY]: Oh, yes. I shot Patty.

      THE COURT: By Patty—

      [FINNEY]: I could go—I don’t know—

      THE COURT: —is that Patty Harker?

      [FINNEY]: Yes, it is.

At this point, the district court accepted Finney’s guilty plea to the crime

of attempted murder.

      Finney then waived his right to file a motion in arrest of judgment

and elected to be sentenced immediately. Finney addressed the district

court, expressing remorse for his “terrible” actions and for his inability to

pay restitution to his victims. He further stated: “I took a plea because

never once I pled innocent. I never said I was innocent. I—I took the

plea because I’m guilty.”

      The State addressed the court, stating that Finney had repeatedly

abused Harker during their ten-year relationship.          The State then

provided the court with an overview of the allegations contained in the

minutes of testimony. The district court sentenced Finney to twenty-five

years in prison and ordered him to pay restitution.

      Finney appealed, claiming he received ineffective assistance of

counsel because his trial counsel permitted him to plead guilty to
                                    4

attempted murder without an established factual basis for each element

of the crime.     He also argued that the court illegally imposed a

mandatory sentence of eighty-five percent of the twenty-five-year

sentence for attempted murder instead of the statutorily established

minimum sentence of seventy percent.

      We transferred the case to the court of appeals.       The court of

appeals vacated Finney’s conviction and sentence. The court of appeals

reasoned that under State v. Philo, 697 N.W.2d 481, 485–86 (Iowa 2005),

a trial court accepting a guilty plea must specify on the record the facts

and evidence relied upon to establish the factual basis for the plea if the

facts or evidence are gleaned from a source other than the defendant’s

own statements.      The court of appeals found that Finney’s in-court

statement, “I shot Patty,” standing alone, was insufficient to provide a

factual basis for Finney’s intent to cause Harker’s death as required for

the crime of attempted murder. As a result, the court of appeals vacated

Finney’s conviction and sentence and remanded the case for further

proceedings to allow the State to supplement the record to establish a

factual basis for the plea.

      We granted further review. For the reasons expressed below, we

now vacate the decision of the court of appeals and affirm Finney’s

conviction and sentence.

      II. Preservation of Error.

      Iowa Rule of Criminal Procedure 2.24(3)(a) provides that a

defendant is precluded from challenging a guilty plea on appeal unless

the defendant files a motion in arrest of judgment. We have recognized

an exception to the rule, however, when a defendant alleges trial counsel

was ineffective for permitting him to plead guilty to a charge for which

there is no factual basis and for failing to thereafter file a motion in
                                     5

arrest of judgment. See, e.g., State v. Allen, 708 N.W.2d 361, 368 (Iowa

2006); Philo, 697 N.W.2d at 488; State v. Royer, 632 N.W.2d 905, 909

(Iowa 2001); State v. Schoelerman, 315 N.W.2d 67, 72–73 (Iowa 1982).

Accordingly, because Finney argues his counsel was ineffective for

permitting the guilty plea without establishing a factual basis of each

element, we may consider the claim.

      III. Scope of Review.

      We review claims of ineffective assistance of counsel de novo.

Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010).            Although we

normally preserve ineffective-assistance claims for postconviction relief

actions, “we will address such claims on direct appeal when the record is

sufficient to permit a ruling.” State v. Wills, 696 N.W.2d 20, 22 (Iowa

2005).   The record in this case is sufficient to allow us to address

Finney’s ineffective-assistance claim on direct appeal.

      IV. Discussion of Challenge to Plea Bargain.

      A. Introduction.    Plea bargaining plays an essential role in the

modern criminal justice system in the United States.          It has been

estimated that approximately ninety-five percent of the criminal matters

in this country are resolved through plea bargaining. Kristen M. Hall,

Ignorance Is Not Necessarily Bliss: The Third Circuit Expands the

Requirements for a Knowing and Voluntary Plea in Jameson v. Klem, 54

Vill. L. Rev. 753, 753 (2009) [hereinafter Hall] (discussing adjudication in

federal district court); see also United States v. Timmreck, 441 U.S. 780,

784, 99 S. Ct. 2085, 2087–88, 60 L. Ed. 2d 634, 639 (1979) (noting that

“the vast majority of criminal convictions result from [guilty] pleas”
                                           6

(citation and internal quotation marks omitted)).               The critics of plea

bargaining abound.1

       While the criminal trial itself has been historically subject to a

number of relatively stringent procedural safeguards found in the Bill of

Rights, plea bargaining was largely unregulated until relatively recently

in our nation’s history. Stephanos Bibas, Regulating the Plea-Bargaining

Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev.

1117, 1119 (2011).        In the 1960s, the United States Supreme Court

began to expand protections available to criminal defendants in the plea-

bargaining context both through rulemaking and case adjudication.

       Many states, including Iowa, followed the Supreme Court’s lead.

Nearly all states now require through their rules of criminal procedure

that before a court accepts a guilty plea for serious crimes, the district

court must engage in some kind of colloquy with the defendant in order

to ensure that there is a factual basis for the plea and that the defendant

has knowingly and voluntarily waived important constitutional rights.

For instance, Iowa Rule of Criminal Procedure 2.8(2)(b) states, in

pertinent part, “The court may refuse to accept a plea of guilty, and shall

not accept a plea of guilty without first determining that the plea is made

voluntarily and intelligently and has a factual basis.”

       While plea colloquies are now nearly universally required, a

number of important questions have arisen. For instance, controversies


       1The  classic critiques may be found in Stephen J. Schulhofer, Is Plea Bargaining
Inevitable?, 97 Harv. L. Rev. 1037 (1984), and Albert W. Alschuler, The Changing Plea
Bargaining Debate, 69 Cal. L. Rev. 652 (1981). Other critiques may be found in Julian
A. Cook, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal
Defendants, 75 U. Colo. L. Rev. 863 (2004), Susan R. Klein, Enhancing the Judicial Role
in Criminal Plea and Sentence Bargaining, 84 Tex. L. Rev. 2023, 2048–50 (2006), and
Máximo Langer, Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial
Adjudication in American Criminal Procedure, 33 Am. J. Crim. L. 223 (2006).
                                     7

have arisen regarding what a district court may rely upon in determining

that a guilty plea is supported by a factual basis. Further, there have

been disputes regarding the consequences resulting from an inadequate

plea colloquy.

      In this case, we are asked to vacate a plea bargain on the ground

that the record made at the plea colloquy did not provide a factual basis

for the intent necessary to support a charge of attempted murder. To set

the stage for resolution of this case, we first survey the legal positions of

the parties. We then review the origins and development of guilty plea

jurisprudence in federal law and in our own law. In the survey of guilty

plea cases, we pay particular attention to the multiple goals of the guilty

plea colloquy and the difference between objective and subjective

inquiries. Finally, based on the principles gleaned from this review and

our caselaw, we resolve the issue posed in this case.

      B. Positions of the Parties.       Finney claims his conviction and

sentence were based on a flawed guilty plea process and must be

reversed.   Citing Philo, Finney asserts an attorney does not provide

effective assistance when a defendant enters a plea and the record

developed at the time of the acceptance of the plea does not provide a

factual basis for the charge. Specifically, Finney claims his explanation,

“I shot Patty,” at the plea hearing does not establish that he specifically

intended to cause Harker’s death as required for the crime of attempted

murder under Iowa Code section 707.11 (2011). Citing State v. Straw,

709 N.W.2d 128, 138 (Iowa 2006), Finney asserts that due to the lack of

a factual basis in the plea colloquy, his conviction and sentence must be

vacated.

      The State counters that while the plea colloquy in this case may

not touch upon the issue of specific intent to kill, the district court could
                                     8

nonetheless rely upon the entire record, including the minutes of

testimony, the defendant’s statements, the statements of the attorneys,

any presentence report, and any matter in the record. See, e.g., State v.

Brooks, 555 N.W.2d 446, 448 (Iowa 1996). The State emphasizes that

the record need not establish guilt beyond a reasonable doubt, but only a

factual basis for the guilty plea. State v. Keene, 630 N.W.2d 579, 581

(Iowa 2001).     According to the State, the minutes of testimony

demonstrate an ample factual basis for the plea. In any event, the State

further argues that the remedy, to the extent the record is deficient, is a

remand to allow the State to establish a factual basis, not a vacation of

the judgment and sentence. State v. Schminkey, 597 N.W.2d 785, 792

(Iowa 1999).

      The issue boils down to this: what happens when a district court

finds a factual basis for the charge at the plea hearing, but does not

identify support in the record for the finding and the plea colloquy

preceding the district court’s finding does not support an essential

element of the crime?

      C. Regulation     of   Plea   Bargaining   by   the   United   States

Supreme Court.

      1. Introduction. In 1944, Congress enacted Rule 11 of the Federal

Rules of Criminal Procedure, which related to plea bargaining.          As

originally drafted, Rule 11 simply provided that a district court should

not accept a plea “ ‘without first determining that the plea is made

voluntarily with understanding of the nature of the charge.’ ” Hall, 54

Vill. L. Rev. at 757 (quoting Fed. R. Civ. P. 11 (1944 adoption)).     The

general command of the original rule created inconsistent applications,

however, and in 1966, the Supreme Court amended Rule 11 to require

specifically that the sentencing judge address the defendant personally,
                                    9

determine that the defendant entered the guilty plea voluntarily and with

an understanding of the nature of the charge, determine that the

defendant understood the consequences of his or her plea, and ensure

that a factual basis supported the plea. Id. at 757 & n.31. In particular,

the advisory committee noted the purpose of the new factual-basis

element was to “protect a defendant who is in the position of pleading

voluntarily with an understanding of the nature of the charge but

without realizing that his conduct does not actually fall within the

charge.”   Fed. R. Crim. P. 11 advisory committee’s note to the 1966

amendment.

      2. Blockbusters: McCarthy and Boykin. Following adoption of the

1966 amendment, the United States Supreme Court decided the case of

McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d

418 (1969). In McCarthy, the district court accepted a guilty plea in a

case of tax evasion without inquiring whether the defendant understood

the charges against him and without determining whether there was a

factual basis for the claim. Id. at 461–62, 89 S. Ct. at 1168–69, 22 L. Ed.

2d at 422–23. Based on the violation of Rule 11 and in the exercise of its

supervisory authority over federal courts, the Supreme Court reversed

the conviction and allowed the defendant to plead anew. Id. at 471–72,

89 S. Ct. at 1173–74, 22 L. Ed. 2d at 428–29.

      McCarthy rested solely upon the failure of the district court to

explore the plea bargain with the defendant. Id. at 464 n.9, 89 S. Ct. at

1170 n.9, 22 L. Ed. 2d at 424 n.9. As a result, the McCarthy Court was

not called upon to consider whether the record as a whole established a

factual basis for the plea.   Instead, the Court focused on the issue of

voluntariness under the Due Process Clause of the Fifth Amendment.

According to the Supreme Court, one of the purposes for the trial court’s
                                        10

personal interrogation of the defendant, as required by Rule 11, was to

assist the trial court in ascertaining the voluntariness of the plea. Id. at

465–66, 89 S. Ct. at 1170–71, 22 L. Ed. 2d at 424–25. The McCarthy

Court noted that under Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.

1019, 1023, 82 L. Ed. 1461, 1466 (1938), constitutional rights may be

waived      only    when   there   is   an   “intentional   relinquishment   or

abandonment of a known right or privilege.” McCarthy, 394 U.S. at 466,

89 S. Ct. at 1170, 22 L. Ed. 2d at 425 (internal quotation marks

omitted).    Such waivers, according to the Court, cannot be considered

truly voluntary “unless the defendant possesses an understanding of the

law in relation to facts.” Id. at 466, 89 S. Ct. at 1171, 22 L. Ed. 2d at

425. In particular, the Court noted that in this case the charge required

a form of specific intent which the defendant had repeatedly disavowed.

Id. at 470–71, 89 S. Ct. at 1173, 22 L. Ed. 2d at 427–28.

      In addition, the McCarthy Court noted that a personal examination

of the defendant by the trial court provides a more complete record to

support the determination in a subsequent postconviction attack. Id. at

465–66, 89 S. Ct. at 1170–71, 22 L. Ed. 2d at 425. The Court observed

that the record established at the time of the plea bargain is superior to

that of a postconviction hearing, when disputed contentions of credibility

and reliability of memory cannot be avoided.          Id. at 470, 89 S. Ct. at

1173, 22 L. Ed. 2d at 427.

      On the important question of remedy, the Supreme Court declared

that the conviction should be vacated with the defendant allowed to

plead anew.        Id. at 468–69, 89 S. Ct. at 1172, 22 L. Ed. 2d at 427.

Responding to a harmless error argument, the Court noted prejudice

“inheres in a failure to comply with Rule 11, for noncompliance deprives

the defendant of the Rule’s procedural safeguards that are designed to
                                     11

facilitate a more accurate determination of the voluntariness of his plea.”

Id. at 471–72, 89 S. Ct. at 1173–74, 22 L. Ed. 2d at 428. The Court

further declared that “[i]t is . . . not too much to require” that a district

court judge spend the few minutes of time necessary “to inform

[defendants] of their rights and to determine whether they understand

the action they are taking.” Id. at 472, 89 S. Ct. at 1174, 22 L. Ed. 2d at

428–29. Clearly, the Supreme Court in McCarthy took a firm stand on

mandatory compliance with the procedural requirements designed to

ensure voluntariness of pleas in Rule 11.

      While McCarthy was based on Rule 11 and the Supreme Court’s

supervisory powers over federal courts, the Supreme Court soon

considered the constitutional implications of plea colloquies.       Shortly

after McCarthy, the Supreme Court decided Boykin v. Alabama, 395 U.S.

238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The defendant in Boykin

was charged with five counts of common law robbery in Alabama state

court. 395 U.S. at 239, 89 S. Ct. at 1710, 23 L. Ed. 2d at 277. The trial

court did not ask the defendant any questions pertaining to his guilty

plea, which the court accepted three days after it had appointed defense

counsel. Id. The defendant was ultimately sentenced to death. Id. at

240, 89 S. Ct. at 1711, 23 L. Ed. 2d at 278.

      The Supreme Court reversed. Id. at 244, 89 S. Ct. at 1713, 23 L.

Ed. 2d at 280. According to the Boykin Court, the state trial court was

required to establish on the record knowing relinquishment of three

constitutional rights: the right to a jury trial, the right against self-

incrimination, and the right to confront one’s accusers. Id. at 243, 89 S.

Ct. at 1712, 23 L. Ed. 2d at 279–80. Further, the Court declared that

the trial court “on the record” should satisfy itself that “the defendant

understands the nature of the charges, his right to a jury trial, the acts
                                       12

sufficient to constitute the offenses for which he is charged and the

permissible range of sentences.” Id. at 244 n.7, 89 S. Ct. at 1713 n.7, 23

L. Ed. 2d at 280 n.7 (citation and internal quotation marks omitted). The

Court noted that the three dissenting justices of the Alabama Supreme

Court stated the law accurately when they concluded reversible error

existed “because the record [did] not disclose that the defendant

voluntarily and understandingly entered his pleas of guilty.” Id. at 244,

89 S. Ct. at 1713, 23 L. Ed. 2d at 280 (citation and internal quotation

marks omitted).

      3. Henderson v. Morgan: Application of McCarthy and Boykin to

the factual-basis requirement. The Supreme Court considered the failure

of the district court to find a factual basis for the intent required in a

guilty plea setting in Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253,

49 L. Ed. 2d 108 (1976).     In Henderson, the defendant pled guilty in

New York state court to second-degree murder even though at the plea

colloquy he did not admit that he had the required intent to murder the

victim. Id. at 642–43, 96 S. Ct. at 2256–57, 49 L. Ed. 2d at 113. The

defendant later filed a petition for a writ of habeas corpus in federal

court. Id. at 639, 96 S. Ct. at 2255, 49 L. Ed. 2d at 111. The defendant

maintained he would not have pled guilty if he had known intent to kill

was a required element of second-degree murder.        Id. at 643–44, 96

S. Ct. at 2257, 49 L. Ed. 2d at 114.

      The Supreme Court held that the plea was invalid. Id. at 645–46,

96 S. Ct. at 2258, 49 L. Ed. 2d at 114–15.      The Court distinguished

between the objective factual basis for the plea and the subjective

voluntariness of the defendant. Id. at 644–45 & n.12, 96 S. Ct. at 2257–

58 & n.12, 49 L. Ed. 2d at 114–15 & n.12. There was ample evidence to

support a second-degree murder charge, and the defendant’s lawyers
                                      13

had acted reasonably in encouraging their client to plead guilty. Id. Yet,

as the Court pointed out, even assuming there was overwhelming

evidence of guilt, the plea cannot support a judgment unless it is

“voluntary in a constitutional sense.” Id. at 644–45, 96 S. Ct. at 2257,

49 L. Ed. 2d at 114. Because the defendant did not know the necessary

elements of the charge, the Court concluded it could not find that his

plea to the unexplained charge of second-degree murder was voluntary.

Id. at 645–47, 96 S. Ct. at 2258–59, 49 L. Ed. 2d at 114–16. Plainly,

Henderson stands for the proposition that overwhelming evidence of guilt

from an objective point of view does not necessarily mean the defendant

subjectively made a knowing and voluntary waiver of his constitutional

rights or made a knowing and voluntary plea.

      4. Remedial retreat: Timmreck and the 1983 amendment to Rule

11.   As time passed, the Supreme Court came to soften its inflexible

enforcement of the procedural requirements of Rule 11. In Timmreck, the

Court considered a collateral attack on a guilty plea in which the trial

court failed to describe the mandatory special parole term required by

the applicable statute. 441 U.S. at 782, 99 S. Ct. at 2086, 60 L. Ed. 2d

at 637. The Court held that, at least on collateral attack, the defendant

had the burden of showing not only that the district court violated Rule

11, but also that he was actually prejudiced. Id. at 783–85, 99 S. Ct. at

2087–88, 60 L. Ed. 2d at 638–39. The Court declared that the defendant

failed to aver that he was either unaware of the penal provision or that,

had such an appropriate disclosure been given by the trial court, he

would have changed his plea. Id. at 784, 99 S. Ct. at 2087, 60 L. Ed. 2d

at 638–39. As a result, the technical violation of Rule 11 did not entitle

the defendant to collateral relief.    Id. at 785, 99 S. Ct. at 2088, 60

L. Ed. 2d at 639.
                                    14

      Following Timmreck, the Supreme Court adopted two amendments

to Rule 11.   An amendment to Rule 11 in 1982 simply clarified that

courts should advise defendants of any special parole term as part of the

Rule 11 colloquy. See Fed. R. Crim. P. 11 advisory committee’s note to

the 1982 amendments.        A more significant amendment related to

“harmless error,” however, was adopted in 1983. Specifically, the 1983

amendment provided, “A variance from the requirements of this rule is

harmless error if it does not affect substantial rights.” See id. R. 11(h);

id. R. 11 advisory committee’s note to the 1983 amendments.

      While the 1983 amendment was obviously designed to impact

remedies available under Rule 11, the intended scope of the change is

not obvious from its general wording. The advisory committee’s note to

the amendment emphasized that the new provision “should not be read

as supporting extreme or speculative harmless error claims or as, in

effect, nullifying important Rule 11 safeguards.”      Id. R. 11 advisory

committee’s note to the 1983 amendment.            Further, the advisory

committee’s note cautioned that the amendment “should not be read as

an invitation to trial judges to take a more casual approach to Rule 11

proceedings.” Id. These advisory committee notes provided some mood

music, but little specific guidance regarding the proper interpretation of

the new amendment.

      5. “Almost full circle”: Vonn, Dominguez Benitez, and Bradshaw.

Subsequent    United   States   Supreme   Court   cases,   however,   have

suggested the scope of the 1983 amendment to Rule 11. In United States

v. Vonn, 535 U.S. 55, 75, 122 S. Ct. 1043, 1055, 152 L. Ed. 2d 90, 109–

10 (2002), the Court held that a reviewing court must look to the entire

record, and not simply to the plea proceedings alone, in resolving Rule 11

issues.   In United States v. Dominguez Benitez, 542 U.S. 74, 83, 124
                                      15

S. Ct. 2333, 2340, 159 L. Ed. 2d 157, 168 (2004), the Court held that

when the district court fails to advise a defendant that he cannot

withdraw his plea if the sentencing court decides not to follow the plea

bargain recommendation, in plain violation of Rule 11, the defendant

must show “a reasonable probability that, but for the error, he would not

have entered the plea.”

      Further, in Bradshaw v. Stumpf, 545 U.S. 175, 182–83, 125 S. Ct.

2398, 2405, 162 L. Ed. 2d 143, 152–53 (2005), the Court considered a

challenge to a guilty plea by a defendant sentenced to death who claimed

he did not understand the specific intent requirement for aggravated

murder. The defendant’s lawyer represented to the trial court at the plea

hearing that he had explained the elements of the charge to the

defendant. Id. at 183, 125 S. Ct. at 2405, 162 L. Ed. 2d 143 at 153. The

defendant agreed this had occurred.         Id.   The Court concluded the

representations of defense counsel, confirmed by the defendant, were

sufficient to avoid vacation of the plea under Rule 11. Id. at 183–84, 125

S. Ct. at 2405–06, 162 L. Ed. 2d at 153–54.

      Vonn, Dominguez Benitez, and Bradshaw demonstrate how far the

current Supreme Court has moved from the inflexible remedial approach

of McCarthy and Boykin.        As noted by one commentator, “[t]he road

traveled by the Supreme Court since McCarthy has come almost full

circle.” Julian A. Cook, III, Crumbs from the Master’s Table: The Supreme

Court, Pro Se Defendants and the Federal Guilty Plea Process, 81 Notre

Dame L. Rev. 1895, 1910 (2006).

      6. Strands of constitutional analysis of factual-basis requirement.

While the United States Supreme Court’s caselaw under Rule 11 has

clearly   evolved,   the   caselaw   recognizes   two   distinct   strands   of

constitutional analysis related to guilty pleas. The first strand, rooted in
                                    16

the right to effective assistance of counsel under the Sixth Amendment,

requires competent advice. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct.

366, 370, 88 L. Ed. 2d 203, 210 (1985) (holding the Sixth Amendment

applies in the plea-bargaining context). It is a responsibility of defense

counsel to ensure that a client does not plead guilty to a charge for which

there is no objective factual basis.     It follows that no advice to plead

guilty would be considered competent absent a showing of a factual basis

to support the crimes to which the accused has elected to plead guilty.

Where counsel falls short, a Sixth Amendment violation is present. The

determination of whether there is a factual basis in the record to support

the charge to which the defendant seeks to plead guilty is an objective

inquiry that has nothing to do with the state of mind of the accused, but

everything to do with the state of the record evidence. Henderson, 426

U.S. at 644 n.12, 96 S. Ct. at 2257 n.12, 49 L. Ed. 2d at 114 n.12.

      The second strand, based on the Due Process Clauses of the Fifth

and Fourteenth Amendments, requires the trial court to determine the

defendant made a knowing and intelligent choice to waive constitutional

rights, including the right to a jury trial, the right to protection against

self-incrimination, the right to confront witnesses, and the right to plead

guilty to the underlying crime. Even overwhelming objective evidence of

guilt that amply satisfies the factual-basis requirement of Rule 11 will

not save a conviction when the subjective requirements of due process

have not been met. See Dominguez Benitez, 542 U.S. at 84 n.10, 124

S. Ct. at 2341 n.10, 159 L. Ed. 2d at 169 n.10.             When a Fifth

Amendment due process voluntariness claim based on a lack of factual

basis is asserted, federal courts look on the record developed at the plea

colloquy for evidence of the subjective state of mind of the defendant.

See, e.g., United States v. Adams, 448 F.3d 492, 502 (2d Cir. 2006);
                                    17

United States v. Monzon, 429 F.3d 1268, 1271–72 (9th Cir. 2005).

Reference to the minutes of testimony is irrelevant for the purposes of

the voluntariness inquiry if the record does not show that the minutes

were reviewed and accepted as true on the record by the defendant.

      D. Regulation of Plea Bargaining in Iowa.

      1. Introduction. We now turn to an examination of Iowa law. As

will be seen below, much of it is patterned after federal guilty plea

jurisprudence.   On the precise question posed by this case, namely,

whether a defendant is entitled to vacation of a conviction and to plead

anew when the district court has not identified the parts of the record

that provide a factual basis for the plea, our cases have been less than

clear or consistent.

      Prior to 1969, there were some general restrictions on plea

bargaining. For example, in State v. Kellison, 232 Iowa 9, 15, 4 N.W.2d

239, 242–43 (1942), we reversed a guilty plea on a manslaughter

conviction when the plea was entered at noon, retained counsel sought

to withdraw it two hours later, and a formal judgment was entered at

three o’clock in the afternoon. We held that before a plea is entered, the

defendant must in some manner be acquainted with the effect of such

plea and the consequences of it. Id. at 14, 4 N.W.2d at 242. However,

prior to 1969, there was no detailed framework for considering whether a

plea satisfied this general requirement.

      2. Blockbuster: State v. Sisco.      The plea-bargaining landscape

dramatically changed in 1969, however, with what one commentator

called the “blockbuster” case of State v. Sisco, 169 N.W.2d 542 (Iowa

1969). See Arthur N. Bishop, Guilty Pleas in the Northern Midwest, 25

Drake L. Rev. 360, 363 (1975). In Sisco, we adopted the ABA Minimum

Standards for Criminal Justice, Pleas of Guilty, sections 1.4 through 1.7.
                                         18

169 N.W.2d at 548, 550. The ABA standards required that “the court

should not enter a judgment upon such plea without making such

inquiry as may satisfy it that there is a factual basis for the plea.” Id. at

548 (internal quotation marks omitted). We noted that under the ABA

standards, the “inquiry into the accuracy of the plea” was to be made on

the “verbatim record of the proceedings at which the defendant enters a

plea of guilty.” Id. at 549–50 (internal quotation marks omitted). Relying

on McCarthy and Boykin, we reasoned that because the record did not

show that the defendant understood the charge, the legal consequences

of the plea, or that it was voluntarily made, the judgment had to be set

aside and the case remanded to the district court for further proceedings.

Id. at 550–51.       Although not specifically stated, Sisco considered the

underlying constitutional difficulties with the plea process under a

voluntariness, or due process, theory.2

       Sisco set forth four basic requirements that must be met before a

conviction could be entered on the basis of a guilty plea: (1) the

defendant must understand the charge, (2) the defendant must be aware

of the penal consequences of the plea, (3) the defendant must enter the

plea voluntarily, and (4) before pronouncing judgment, the district court
must determine whether there is a factual basis for the plea. Id. at 547–

48.   While the first three requirements were to be determined prior to

accepting a plea, the factual-basis requirement was to be determined at

any time prior to the entry of judgment. Id. Thus, Sisco differentiated

between the requirements that a plea be entered voluntarily and with

       2Defendants    in plea-bargaining cases ordinarily cite the Sixth Amendment, and
occasionally the Fifth Amendment, to the United States Constitution. In no plea-
bargaining case to date has a defendant made a claim based upon the parallel
provisions of the Iowa Constitution, article I, section 9 (due process) and article I,
section 10 (right to counsel).
                                        19

understanding from the requirement that the district court determine

there was a factual basis for the plea.

      3. Ryan v. Iowa State Penitentiary and its progeny: application of

Sisco’s factual-basis requirement. In Ryan v. Iowa State Penitentiary, 218

N.W.2d 616 (1974), we considered a challenge to a guilty plea based

upon the failure of the district court to establish a factual basis of the

intent element for the crime of false drawing or uttering of checks. At the

plea colloquy, the district court inquired of the defendant, “[Y]ou are

telling me, in effect, ‘I did the things I am charged with?’ ” Id. at 617.

The defendant answered, “Yes, sir.” Id. at 618.

      We recognized that a factual basis to support the plea could be

based upon “(1) inquiring of the defendant, (2) inquiring of the

prosecutor, and (3) examining the presentence report.” Id. at 619. Yet,

notwithstanding these potential sources, we found the factual-basis

determination flawed because the plea colloquy did not establish a

factual basis for the charge of false drawing or uttering of a check. Id. It

simply offered a conclusion. Id. Further, while the record showed the

defendant had been read the county attorney’s information prior to the

plea colloquy, the document contained legalese that would “confound

and confuse one unaccustomed to legal parlance.” Id. Thus, the mere

conclusory admitting of guilt at the plea colloquy, along with the prior

recitation of the county attorney’s information, was insufficient to

support the plea. Id. In addition, we held a conclusory statement by the

county attorney that he believed there was a factual basis was

insufficient to support the plea. Id.

      Much of Ryan sounds more like a subjective due process

voluntariness claim than a claim of ineffective assistance based upon an

objective lack of a factual basis to support the plea. For instance, we
                                    20

noted that an understanding of the factual basis by the petitioner was

essential to the plea.   Id. Nonetheless, unlike in Sisco, the remedy in

Ryan was a remand for a determination of whether there was a factual

basis for the charge. Id. at 620. Thus, the remedy in Ryan was more

consistent with a claim that counsel breached the duty to the accused by

allowing him to plead on an insufficient record rather than a

voluntariness claim as in McCarthy and Boykin.

      Shortly after Ryan, we decided State v. Hansen, 221 N.W.2d 274

(1974), and State v. Marsan, 221 N.W.2d 278 (1974).        In Hansen, we

distinguished between a claim based on voluntariness and a claim based

on a lack of factual basis. 221 N.W.2d at 276–77. With respect to the

later claim, though we declared it was preferable that the factual basis be

contained in the plea colloquy, we allowed the district court to find the

existence of a factual basis by considering other sources in the record.

Id. at 276. Similarly, in Marsan, we permitted a district court engaged in

determining whether the factual basis was adequate to consider the

colloquy, the information, and the minutes of testimony.       Id. at 280.

Accordingly, in Hansen and Marsan we determined that a district court

may consider the minutes of testimony as a source for the factual basis

in addition to the three sources identified in Ryan. Neither Hansen nor

Marsan, however, addressed the question of whether the factual basis

must be disclosed on the record at the plea hearing.

      4. Advance and retreat: Brainard, Reeves, the general assembly,

and Fluhr.   In 1974, we decided Brainard v. State, 222 N.W.2d 711

(1974). This five-to-four decision was a landmark in our plea-bargaining

jurisprudence. In Brainard, we considered an attack on guilty pleas to

two charges of larceny of a motor vehicle entered at separate plea

proceedings. Id. at 713. The defendant alleged the trial court in each
                                     21

proceeding failed to personally address him to determine he understood

the charge, the penal consequences of his plea, and to ensure there was

a factual basis for the plea—three of the Sisco requirements.                Id.

Compliance with the remaining Sisco requirement, voluntariness, was

only implicated to the extent it was affected by the courts’ noncompliance

with the first two Sisco requirements. Id. at 713, 718.

      We adopted ABA Standard 4.2(a)(ii), Functions of the Trial Judge,

which offered a checklist of topics to be covered in the plea-bargaining

colloquy and required trial courts to ensure the defendant understood

that by pleading guilty he or she would waive the privilege against self-

incrimination, the right to a jury trial, and the right to confront his or her

accusers. Id. at 717–18. We also generally emphasized the importance

of the Sisco requirements.     Id. at 713–14.       We found the trial court’s

determination    of   the   underlying    factual    basis   lacking   in   both

proceedings. In the first plea proceeding, we noted the trial court had

essentially followed the same procedure condemned in Ryan by asking

the defendant whether he denied that he was “specifically charged with

the larceny of a motor vehicle, a certain Corvette, the property of Loren

Jordahl” or that he was “alleged to have done this on the 19th day of

August, 1971.” Id. at 718–19. As to the second proceeding, we noted

that the defendant had equivocated during the colloquy on the question

of whether he had the necessary intent to support the plea to the crime

of larceny of a motor vehicle.       Id. at 721.       Further, we could not

determine that the trial court made the needed determination from any

other source. Id.

      Brainard certainly emphasized the need for a thorough and

systematic plea colloquy that accomplished more than obtaining

conclusory statements of guilt from defendants.          We emphasized, “The
                                    22

test of any guilty plea procedure is whether it establishes on the record

that the guilty plea has been voluntarily and intelligently entered and

that it has a factual basis.” Id. at 722. We thus recognized the Sisco

distinction between determining whether a plea was voluntarily and

intelligently entered and whether there was a factual basis in the record,

and at least implied that the factual basis, like voluntariness, should be

determined on the record at the plea colloquy.

      A year after Brainard, we decided State v. Williams, 224 N.W.2d 17

(Iowa 1974), and State v. Greene, 226 N.W.2d 829 (Iowa 1975). In these

cases, we emphasized that in determining whether a factual basis

existed, “[i]t is essential, whatever source is used, that the factual basis

be identified and disclosed in the record.” Greene, 226 N.W.2d at 831;

Williams, 224 N.W.2d at 18. We further noted it would be preferable for

the judge to ask the defendant, “What did you do?” Greene, 226 N.W.2d

at 831; Williams, 224 N.W.2d at 18.        The language of Williams and

Greene suggests a district court should do more than simply state its

conclusion on the record, but should also identify the parts of the record

that support the finding.

      Our caselaw took a new turn in State v. Reaves, 254 N.W.2d 488

(Iowa 1977). In Reaves, a narrow majority of this court held that even

though the plea colloquy may have been deficient because the trial court

failed to advise the defendant that intent is one of the essential elements

of the crime of operating a motor vehicle without the owner’s consent,

that defect in the colloquy did not require reversal of the conviction when

defense counsel assured the court the accused had been advised of and

understood the Sisco requirements. Id. at 493. Although Reaves was a

voluntariness case and did not involve a challenge to the factual basis of

the plea, Reaves nonetheless tended to lessen the importance of dialogue
                                   23

between the trial court and defendant during the plea colloquy. As noted

by the dissent, Reaves marked a departure from the earlier teaching of

McCarthy and Sisco. Id. at 502–03 (McCormick, J., dissenting).

      Shortly before the Reaves decision, however, the general assembly

enacted legislation that established a rule that is now contained in Iowa

Rule of Criminal Procedure 2.8(2)(b). The rule itself is largely based on

the federal counterpart. The new rule provided, in relevant part, “ ‘The

court may refuse to accept a plea of guilty, and shall not accept such

plea without first addressing the defendant personally and determining

that the plea is made voluntarily and intelligently and has a factual

basis.’ ”   Id. at 512 (quoting Iowa R. Crim. P. 8(2) (1977), now rule

2.8(2)(b) as amended); see also 1977 Iowa Acts ch. 153, § 20.

      The question arose as to the effect of the new legislation on the

court’s approach to guilty pleas—a question we took up in State v. Fluhr,

287 N.W.2d 857 (Iowa 1980). In a five-to-four decision, we held the new

legislation embraced the approach of Sisco and Brainard and required an

in-court colloquy. Fluhr, 287 N.W.2d at 863–64. We emphasized that

the voluntariness requirement stems from the due process right that a

waiver of constitutional rights must be made voluntarily, which requires

that a plea be knowing and intelligently made. Id. at 863. We noted that

the defendant’s understanding of these matters involved a subjective

concern, requiring the trial court to delve into the accused’s state of

mind, and that such an inquiry is best done on the record through a

thorough personal colloquy between the court and the defendant as

suggested in Brainard. Id. We noted the fear of the Reaves majority—

that Sisco and Brainard would lead to excessive guilty plea attacks—had

proved unwarranted and that a court’s probing of the defendant’s

understanding of the meaning and consequences of his plea would
                                           24

discourage rather than foster attacks.                Id. at 864.        Even so, we

recognized that even Sisco stated not every minor omission should be

considered fatal. Id. at 864. We stated, “Certainly a plea-taking error

which raises no doubt as to the voluntariness or factual accuracy of the

plea may be properly disregarded, provided the defendant is unable to

prove prejudice.”3 Id.

       5. Common threads in factual-basis cases.                    After Fluhr, our

caselaw related to factual bases of guilty pleas continued its winding

course.      In State v. Brooks, 555 N.W.2d 446, 448–49 (Iowa 1996), we

expansively suggested that in determining whether there was a factual

basis in the record, we consider “the entire record before the district

court” that “includes” statements made by the defendant during the plea

colloquy.     We made a similar broad statement in State v. Carter, 582

N.W.2d 164, 165–66 (Iowa 1998). In Schminkey, however, we declared

that in factual basis cases, “the ultimate focus . . . is on the record before

the district court at the time of the guilty plea proceedings.” 597 N.W.2d

at 787.      The Schminkey formulation, however, did not unambiguously

answer the question of whether the factual basis had to be specifically



       3In  Fluhr, the defendant pled guilty to third-degree theft, an aggravated
misdemeanor. 287 N.W.2d at 859–60. The oral plea colloquy was virtually devoid of
any indicia of compliance with rule 8(2)(b), now rule 2.8(2)(b) as amended, but the
defendant had executed a written plea form, which purported to cover the rule’s
requirements. Id. at 859–60, 862. Ultimately, we held the trial court could not use the
written plea form to satisfy the requirements of rule 8(2)(b). Id. at 864–65. A decade
later, we overruled this aspect of Fluhr in State v. Kirchoff, 452 N.W.2d 801, 804–05
(1990), wherein we held a trial court did not have to personally address the defendant
as to each of the rule 8(2)(b) requirements in cases involving guilty pleas to serious and
aggravated misdemeanors if the court supplemented the in-court colloquy with a
written plea form that otherwise satisfied the rule’s requirements. State v. Meron, 675
N.W.2d 537, 543 (Iowa 2004). Because of the graver consequences resulting from a
felony conviction, we explicitly declined to extend the rationale of Kirchoff to cases
involving guilty pleas to felonies in State v. Hook, 623 N.W.2d 865, 869–70 (Iowa 2001),
abrogated on other grounds by State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002) (per
curiam).
                                     25

identified at the plea hearing or whether it simply had to be in the record

available to the district court at the time of the plea hearing.

      We next decided Keene, in which we recognized the defendant did

not claim his plea was not entered voluntarily and intelligently, but only

that there was no factual basis to support the plea. 629 N.W.2d 362 n.2.

Keene thus implicitly recognized the difference between a due process

voluntariness claim and a claim of ineffective assistance of counsel based

upon the failure of counsel to object to the entry of a plea without a

factual basis in the record. The Keene court, however, continued to use

the phrases “on the record” and “in the record” interchangeably in its

analysis of the factual-basis inquiry. Id. at 366.

      That brings us to the cases cited by the parties in this case. In

Philo, the State argued the district court could rely on his personal

knowledge of local speed limits to find a factual basis for a guilty plea.

697 N.W.2d at 485–86.        We stated, “ ‘[I]f the district judge finds it

necessary to look to evidence other than the defendants’ statements to

establish the factual basis for the plea in any situation, these additional

facts or evidence must be specifically articulated on the record.’ ”      Id.

(quoting United States v. Wetterlin, 583 F.2d 346, 353 (7th Cir. 1978)). In

Philo, however, the defendant made sufficient admissions in the plea

colloquy to support the guilty plea without reference to the extra-record

evidence purportedly relied upon by the district court. Id.

      6. Remedial retreat: State v. Straw.      As early as Sisco, we had

stated that minor omissions from the plea colloquy that did not affect

substantial rights would not undermine the finality of criminal

convictions. 169 N.W.2d at 551. Unlike some other states, where strict

compliance    was   required,   we   adopted    a    substantial   compliance

approach. Id.
                                          26

         In 2006, we decided Straw.            There, the district court failed to

disclose to the defendant the fact that he could receive consecutive

sentences for the crimes to which he was pleading guilty. 709 N.W.2d at

131, 134. Although the plea colloquy was flawed, we did not conclude

the judgment in the case was necessarily invalid. Instead, we concluded

the defendant had the burden to show he or she would not have pled

guilty if the court had addressed the maximum punishment for his or

her crimes. Id. at 137–39. We noted, among other things, that there was

nothing in the record indicating whether Straw’s trial counsel had

advised him of the possibility of a consecutive sentence. Id. at 138. As a

result, Straw was denied relief on direct appeal.                 We reaffirmed the

approach of Straw in State v. Bearse, 748 N.W.2d 211, 219 (Iowa 2008).

Our approach in Straw and Bearse was in many ways similar to

developments in the federal caselaw after the 1983 amendment to Rule

11.

         7. Factual-basis cases after Straw. In two post-Straw cases, we

examined the record before the court to determine if a sufficient factual

basis existed for the plea.4 For instance, in State v. Ortiz, 789 N.W.2d

761, 763–64 (Iowa 2010), the district court asked the defendant whether
he was armed with a dangerous weapon.                   The defendant responded,

“Yes.”    Id. at 764.    While the factual basis of this conclusion was not

developed on the record at the time the plea was accepted, we proceeded

to canvas the minutes of testimony to determine if there was a factual



        4After Straw, we also decided State v. Allen, 708 N.W.2d 361 (Iowa 2006). In

Allen, we held that the record before the district court demonstrated the defendant, as a
matter of law, did not commit the crime for which she was charged. Id. at 368. In this
situation, we ordered the conviction vacated and remanded the case back to the district
court to begin anew. Id. at 369. Allen involves a case where the facts demonstrate that
the crime was not committed and is thus materially different from this case.
                                     27

basis.    Id. at 768.   We concluded, based on our review of the entire

record, that there was a factual basis for each element of the offense. Id.

         Similarly, in State v. Rodriguez, 804 N.W.2d 844 (2011), we

considered a challenge to a guilty plea of reckless vehicular homicide.

We recognized that the law required that the factual basis for Rodriguez’s

plea be established “in the record.” Id. at 849. We looked not only to the

plea colloquy, but to the rest of the record, including the minutes of

testimony, to see whether sufficient facts were available to justify

counsel’s allowance of the plea and the court’s acceptance of it. Id. at

850. We emphasized that Rodriguez had not challenged the sufficiency

of the plea colloquy, which would have raised a due process

voluntariness issue, but only the factual basis for the plea. Id. at 853.

         E. Resolution of the Issue Posed in This Case. In this case, we

address the apparent tension between Philo and its predecessors and

Oritz and Rodriguez. For the reasons expressed below, we conclude the

cases, for the most part, are reconcilable.

         We begin by recognizing that our cases in other contexts involving

“on the record” and “in the record” language have been somewhat

inconsistent. For example, in State v. Lawrence, 344 N.W.2d 227, 229–

30 (Iowa 1984), we held that the phrase “in writing and on the record”

under the jury trial waiver provision of Iowa Rule of Criminal Procedure

16.1, now rule 2.17(1) as amended, did not require a reported proceeding

in open court.     We later backtracked, however, and in State v. Liddell

held that “on the record” required an in-court proceeding, noting that “on

the record” in the context of the jury waiver rule did not mean “in the

file.”   672 N.W.2d 805, 811–13 (Iowa 2003) (overruling Lawrence, 344

N.W.2d at 299).
                                   28

      Nonetheless, we reaffirm that under rule 2.8(2)(b), the district

court is required to provide the factual basis supporting the plea on the

record at the plea hearing.   The notion that the factual determination

was to be part of the verbatim proceeding at which the plea was accepted

was embraced in Sisco and has never been abandoned.            Sisco, 169

N.W.2d at 549–50 (adopting ABA Minimum Standard 1.7, requiring a

verbatim record of the “proceedings at which the defendant enters a plea

of guilty,” and noting that the record should include the factual-basis

inquiry (internal quotation marks omitted)). Our cases that stressed the

need that the factual basis “must be identified and disclosed in the

record” embraced the approach of Sisco. See Greene, 226 N.W.2d at 831;

Williams, 224 N.W.2d at 18.    We also note that the legislature’s 1977

enactment of rule 8(2)(b), now rule 2.8(2)(b) as amended, required a trial

court to determine the factual basis prior to accepting the plea, which at

least implied that the factual-basis determination was to be made in

tandem with the voluntariness determinations required by the rule.

      We also note the on-the-record determination at the plea hearing

also serves important constitutional goals. An on-the-record discussion

during the plea colloquy between the court and the defendant enhances

the ability of the district court to determine the various due process

voluntariness issues which turn on the state of mind of the defendant at

the time the plea is made. State v. Randall, 258 N.W.2d 359, 361 (Iowa

1977) (noting the factual-basis requirement is designed to complement

the defendant’s right to counsel under the Sixth Amendment and to

ensure the plea is voluntary); Reaves, 254 N.W.2d at 491 (noting the first

three Sisco requirements are subjective states of mind). As the advisory

committee’s note to Federal Rule of Criminal Procedure 11 stated more

than fifty years ago, the district court’s personal review of the factual
                                        29

basis with the defendant is designed to protect a defendant who

understands the charge, but who may not realize that his or her conduct

does not actually fall within it. Fed. R. Crim. P. 11 advisory committee’s

note to the 1966 amendment. A defendant’s plea is not truly voluntary

“unless the defendant possesses an understanding of the law in relation

to facts.” McCarthy, 394 U.S. at 466, 89 S. Ct. at 1171, 22 L. Ed. 2d at

425; Sisco, 169 N.W.2d at 546.

      The requirement of rule 2.8(2)(b) that the factual basis of the plea

be stated on the record at the plea hearing, however, does not entitle

Finney to relief because of the narrow nature of his claim. Finney makes

no claim in this direct 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.5              The distinction between a

voluntariness claim and a claim based upon the lack of a factual basis

was recognized in Sisco and has been reiterated in our caselaw.                See

Sisco, 169 N.W.2d at 550; see also Rodriguez, 804 N.W.2d at 853; Keene,

629 N.W.2d at 362 n.2; Fluhr, 287 N.W.2d at 863; Hansen, 221 N.W.2d

at 276–77; Ryan, 218 N.W.2d at 619. As a result, this case is distinctly

different than, for instance, McCarthy, Boykin, or Henderson.
      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. That is the teaching of Ortiz and Rodriguez, and

it is consistent with the notion of Vonn and Stumpf under Federal Rule of

Criminal Procedure 11 as well as Straw and Bearse under Iowa Rule of

Criminal Procedure 2.8(2)(b) that insubstantial errors should not entitle


       5We do not address the merits of any claim based on due process voluntariness

that might be asserted in a postconviction relief action.
                                      30

a defendant to relief.     Recourse to the entire record is appropriate

because, unlike a claim of due process involuntariness, the relevant

inquiry for purposes of determining the Sixth Amendment claim

presented by Finney does not involve an examination of his subjective

state of mind at the time the trial court accepted the plea, but instead

involves an examination of whether counsel performed poorly by allowing

Finney to plead guilty to a crime for which there was no objective factual

basis in the record.     The failure of the district court in this case to

explain on the record the evidence supporting his finding of a factual

basis is thus an omission unrelated to the substantive claim being made.

See Fluhr, 287 N.W.2d at 864 (noting plea-taking error which raises no

doubt as to factual accuracy may be properly disregarded, provided

defendant is unable to prove prejudice); Sisco, 169 N.W.2d at 551

(requiring substantial compliance).

      Once we look to the entire record, we have little difficulty in

concluding there was an adequate factual basis to support Finney’s

guilty plea to the charge of attempted murder. The minutes of testimony

provide evidence that Finney was jealous of Harker’s associations with

other men, that he retrieved a loaded shotgun after seeing Harker with

another man, that he went to Harker’s residence, that he argued with

Harker about Shimmin and indicated he knew Shimmin was in the

bathroom, that he fired through the bathroom door, and that, when

Harker turned to flee from the house, he shot her in the back.        The

minutes of testimony further reveal that Finney had a history of violence

toward Harker and had previously threatened to kill her. Our cases do

not require that the district court have before it evidence that the crime

was committed beyond a reasonable doubt, but only that there be a

factual basis to support the charge. Ortiz, 789 N.W.2d at 768; Keane,
                                    31

630 N.W.2d at 581. Clearly, the minutes of testimony provide sufficient

evidence from which a jury could infer that Finney had the requisite

intent when he “shot Patty” to support a charge of attempted murder.

See, e.g., State v. Jesperson, 360 N.W.2d 805, 807 (Iowa 1985) (intent

may be inferred from circumstances).

      Nothing in this opinion, however, should be construed as an

invitation to district courts to short circuit rule 2.8(2)(b) when taking a

guilty plea. The taking of a guilty plea, though often appearing routine

and even ritualistic, has the same consequence for the defendant as a

criminal trial. The plea colloquy is an important backstop to help ensure

that defendants who might not be guilty do not end up with wrongful

convictions as the result of a flawed plea-bargaining process.          In

addition, a thorough record at the time of the taking of a guilty plea

lessens the likelihood of later challenges and, if those challenges do

occur, provides an important contemporary record to assist reviewing

courts in evaluating the merits of such claims.     Fluhr, 287 N.W.2d at

864; Brainard, 222 N.W.2d at 713–14; Hansen, 221 N.W.2d at 278;

Ryan, 218 N.W.2d at 619. While checklists such as that referenced in

Hansen, see 221 N.W.2d at 278 (citing United States v. Cody, 438 F.2d

287, 290 (8th Cir. 1971)), are not mandatory and must be adapted to

each particular case, they can provide an important aid to the

implementation of the rule 2.8(2)(b) requirements, Brainard, 222 N.W.2d

at 721–22.

      V. Illegal Sentence.

      During the plea colloquy, when the district court asked Finney if

he understood the mandatory minimum was eighty-five percent, Finney

responded affirmatively.   Based on this interaction, Finney claims the

district court erroneously sentenced him to an eighty-five percent
                                     32

mandatory minimum sentence on his twenty-five-year prison term for

attempted murder. The record reveals, however, that the court correctly

sentenced Finney to twenty-five years. See Iowa Code § 902.9(2). The

district court’s order did not specifically indicate any applicable

mandatory minimum or when Finney might be eligible for parole. It is a

lawful sentence.

      Although it is doubtful whether the issue has been preserved,

Finney further asserts that the trial court failed to correctly state the

mandatory minimum sentence for attempted murder during the plea

colloquy and that his conviction must be reversed.         In fact, Finney’s

twenty-five-year term is subject to a seventy percent minimum before he

is eligible for consideration for work release or parole. Id. § 902.12(2). In

addition, Finney would be eligible for discharge after serving eighty-five

percent of his sentence assuming he accumulated the maximum amount

of earned time. Id. § 903A.2(1)(b); see also Lowery v. State, 822 N.W.2d

739, 741–42 (Iowa 2012) (explaining the interaction between sections

902.12 and 903A.2).     Thus the district court’s statement was at best

ambiguous. At worst, it was incorrect. In any event, it does not provide

a basis for relief on direct appeal. Bearse, 748 N.W.2d at 219; Straw,

709 N.W.2d at 138.     There is nothing in the record indicating Finney

would have turned down the plea deal if he had known the mandatory

minimum was seventy percent instead of eighty-five percent.              We

therefore preserve Finney’s claim for postconviction relief.

      VI. Ineffectiveness Based Upon Failure to Investigate.

      Finney claims his counsel did little to advance his defense and

that, as a result, he received ineffective assistance. Plainly, this is the

type of claim that must await development of a factual record in a
                                    33

potential postconviction relief proceeding.   State v. Utter, 803 N.W.2d

647, 651 (Iowa 2011). We do not address it now.

      VII. Conclusion.

      For the above reasons, the decision of the court of appeals is

vacated and the judgment of the district court is affirmed.

      COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT

COURT AFFIRMED.
