                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0848
                               Filed April 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERICK BYICAZA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Eric Byizaca appeals the judgment and sentence entered after he pled guilty

to one count of dependent adult abuse. AFFIRMED.



      Jeremy B. A. Feitelson of Nelsen & Feitelson Law Group, P.L.C., West Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., Mullins, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                              2


DOYLE, Presiding Judge.

       Eric Byizaca appeals the judgment and sentence entered after he pled guilty

to one count of dependent adult abuse, in violation of Iowa Code section

235B.20(4) (2017). He contends his trial counsel was ineffective by allowing him

to plead guilty and the court failed to ensure he entered his plea knowingly and

voluntarily as required by Iowa Rule of Criminal Procedure 2.8(2)(b).

       At the outset, we note that Byizaca failed to challenge his plea by moving in

arrest of judgment. Ordinarily, this failure precludes a defendant from challenging

the plea on direct appeal. 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.”).   However, Byizaca raises two of his claims under the ineffective-

assistance-of-counsel rubric, which is an exception to the error-preservation rule.

See Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016). Because Byizaca’s does

not raise his knowing and voluntary claim as one of ineffective assistance, we

decline to address it on direct appeal.1

       We turn then to Byizaca’s two ineffective-assistance claims. In order to

prove a claim of ineffective assistance, a defendant must prove trial counsel failed

to perform a duty and prejudice resulted. See State v. Graves, 668 N.W.2d 860,


1
  Although Byicaza erroneously states he preserved error on the claim by filing a timely
notice of appeal, see Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in
Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (Fall
2006), he also claims the appeal is not precluded by the rules of error preservation
because it “is in part based on ineffective assistance of counsel for failing to file a motion
in arrest of judgment.” Unlike the other claims raised in this appeal, Byicaza does not
specifically articulate his claim concerning the voluntariness of his plea as one of
ineffective assistance of counsel. Even assuming Byicaza is raising it as an ineffective-
assistance claim, the record is insufficient to allow us to address it on direct appeal.
                                         3


869 (Iowa 2003). In the context of a guilty plea, a defendant shows prejudice by

proving that, but for counsel’s breach, there is a reasonable probability the

defendant “would not have pled guilty and would have insisted on going to trial.”

State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). Unless the defendant proves

both prongs, the ineffective-assistance claim fails. See State v. Clay, 824 N.W.2d

488, 495 (Iowa 2012).        Although we ordinarily preserve such claims for

postconviction proceedings, we will resolve them on direct appeal when the record

is adequate. See id. at 494.

       Byizaca first argues his trial counsel rendered ineffective assistance by

allowing him to enter his plea without a factual basis to support the charge. See

Iowa R. Crim. P. 2.8(2)(b) (stating that the district court shall not accept a plea

without first determining it has a factual basis). If counsel allows a defendant to

plead guilty to a charge without a factual basis, then an essential duty has been

breached and “[p]rejudice is inherent.” State v. Gines, 844 N.W.2d 437, 441 (Iowa

2014). We look at the entire record before the district court at the time of the plea

to determine whether a factual basis for the plea exists. See State v. Finney, 834

N.W.2d 46, 62 (Iowa 2013).       “[T]he record must disclose facts to satisfy all

elements of the offense.” Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014).

       A person commits a class “C” felony of dependent adult abuse by engaging

in intentional dependent adult abuse that results in physical injury. See Iowa Code

§ 235B.20(4). Dependent adult abuse occurs if a caretaker’s willful or negligent

acts or omissions result in an injury to or assault of a dependent adult.         Id.

§ 235B.2(5)(a)(1)(a). The minutes of evidence allege that Byizaca struck the

dependent adult in the face with an open hand, resulting in bruising and scratches
                                           4


near the dependent adult’s eye. Both the dependent adult and a staff member

who witnessed the incident reported Byizaca’s actions. There is a sufficient factual

basis in the record for Byicaza’s plea. Although Byicaza claims the record fails to

establish that the offense occurred without justification, the State is not required to

disprove an affirmative defense. See State v. Antenucci, 608 N.W.2d 19, 19 (Iowa

2000) (observing that a guilty plea “waives all defenses and objections”); State v.

Delay, 320 N.W.2d 831, 834 (Iowa 1982) (noting that “justification is an affirmative

defense to assault”); State v. Ledesma, No 18-0253, 2018 WL 5291356, at *3-4

(Iowa Ct. App. Oct. 24, 2018) (holding State is not required to prove absence of an

affirmative defense to establish a factual basis for guilty plea); State v. McKibbon,

No. 17-1533, 2018 WL 1631384, at *2 (Iowa Ct. App. Apr. 4, 2018) (holding

defendant failed to establish counsel was ineffective in permitting him to plead

guilty to assault charge where the minutes of evidence “clearly provide a factual

basis” for the plea and lack “any evidence or even a suggestion” that defendant

asserted a justification for the assault); State v. Spencer, No. 12-1329, 2013 WL

264214, at *2 (Iowa Ct. App. Jan. 24, 2013) (finding a factual basis for acceptance

of defendant’s guilty plea where the record established the State could prove each

element of assault beyond a reasonable doubt and contained no evidence that the

defendant attempted to prove justification).

       Finally, Byicaza alleges his trial counsel was ineffective for allowing him to

plead guilty because the definition of “dependent adult abuse” concerning willful or

negligent acts or omissions of a caretaker that result in “injury which is at a variance

with the history given of the injury” is unconstitutionally vague.         Iowa Code

§ 235B.2(5)(a)(1)(a). Byicaza was not convicted of dependent adult abuse on this
                                        5

basis. Therefore, he lacks standing to raise this claim. See State v. Reed, 618

N.W.2d 327, 332 (Iowa 2000) (holding that although a defendant has standing to

claim a statute is unconstitutionally vague as applied to the defendant, that does

not mean a defendant has standing to claim the statute is unconstitutional as

applied to others).

       Because Byicaza has failed to prove his counsel was ineffective based on

the two grounds raised in this appeal, we affirm his conviction and sentence.

       AFFIRMED.
