                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0460
                            Filed December 10, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PIERRE TOBIAS BAUGH,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Russell G. Keast

(plea) and Casey D. Jones (sentencing), District Associate Judges.



      A defendant appeals asserting counsel was ineffective in failing to file a

motion in arrest of judgment challenging his guilty pleas. AFFIRMED.



      Ann Kinney Long of Ann Long Law Firm, Cedar Rapids, for appellant.

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

General, Jerry Vander Sanden, County Attorney, and Brian Claney, Assistant

County Attorney, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, J.

       Pierre Baugh appeals following his guilty pleas to two counts of driving

while barred as a habitual offender and one count of operating a motor vehicle

while intoxicated (OWI), first offense, in violation of Iowa Code sections 321.561

and 321J.2 (2013). Baugh asserts his guilty pleas were accepted by the court

without the court finding a factual basis for the crimes and without the court

informing him of each element of the crimes to which he pled guilty. He claims

counsel was ineffective in failing to file a motion in arrest of judgment challenging

his guilty pleas on these grounds. We affirm Baugh’s convictions.

I. Background Facts and Proceedings.

       Baugh was charged in case AGCR104072 with OWI and driving while

barred for events arising on June 16, 2013. Baugh was subsequently charged in

case AGCR105631 with driving while barred for events arising on October 6,

2013. A plea agreement was reached with the State whereby Baugh would

plead guilty to the three offenses and receive concurrent sentences of one year

in jail, with work release up to seventy hours per week, and the applicable fines

and surcharges. Baugh filed written guilty plea forms in both cases which stated

the charged offenses as abbreviations: “DWB” and “OWI.”               Among other

acknowledgments, the guilty plea forms stated Baugh admitted the State “can

prove all of the elements of this offense so that there remains no reasonable

doubt and that there is a basis in reality which establishes my guilt.” In each

case, Baugh also filed a form entitled “Consent to Waive Presence, Immigration

Notice, Attorney Fee Notice,” which provided among other statements that Baugh
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consented to the court accepting his plea of guilty without a formal record being

made by a court reporter, that the trial information and minutes of testimony “are

substantially correct and also admit there is a factual basis for the charge(s),”

and that Baugh gave up his right to challenge or appeal any irregularities or

errors in the taking of his guilty plea that must be raised by filing a motion in

arrest of judgment. These forms were also signed by Baugh’s attorney asserting

among other things that the written guilty plea is knowingly and voluntarily and

intelligently made by Baugh and that there is a factual basis for the charges for

which the guilty pleas were entered.

       The court entered an “Order Accepting Plea and Setting Sentencing” in

each case, though the content of the orders is substantially different. Both orders

stated that Baugh and his attorney were present for the hearing, but the order in

AGCR105631 states the written guilty plea shows Baugh’s plea is “voluntary,

being freely and intelligently made, with an understanding of the charge, with

knowledge of the penal consequences of the plea, with full knowledge of the

defendant’s constitutional rights . . . and the Court finds there is a factual basis

for the defendant’s plea of guilty.”    The order also said the court “accepts”

Baugh’s plea. The order in AGCR104072 simply stated Baugh entered guilty

pleas to both charges, ordered Baugh to obtain a substance abuse evaluation,

and set the matter for sentencing. It contains none of the verbiage quoted above

from the AGCR105631 order.

       Baugh was sentenced in conformity with the plea agreement, and he now

appeals, claiming the court erred in failing to find a factual basis for his guilty
                                           4



pleas and failing to inquire whether he was informed of each element of the

crimes to which he was pleading guilty. He claims counsel was ineffective in not

filing a motion in arrest of judgment challenging his guilty pleas on these

grounds.

II. Guilty Pleas.

         In order to challenge a guilty plea on appeal, a defendant must file a

motion in arrest of judgment. State v. Bearse, 748 N.W.2d 211, 218 (Iowa 2008).

No motion in arrest of judgment was filed in this case, though this failure does not

bar Baugh’s claims if the failure to file the motion resulted from ineffective

assistance of counsel. See id. To prove counsel provided ineffective assistance,

Baugh must show counsel failed to perform an essential duty and he suffered

prejudice as a result. See id. at 219. To prove prejudice in a guilty plea case, a

defendant must show but for counsel’s errors he would not have pled guilty and

would have insisted on going to trial. Id. Our review of ineffective-assistance

claims is de novo because the claims implicate the defendant’s Sixth

Amendment right to counsel. See State v. Lyman, 776 N.W.2d 865, 877 (Iowa

2010).

         A. Factual Basis. Baugh first claims his attorney was ineffective for

failing to challenge the district court’s failure to find a factual basis for the crimes

charged. He claims there is nothing in the record to show he understood the

connection between the offense and what he is alleged to have done. Baugh

misunderstands a factual-basis challenge. The supreme court explained in State

v. Finney, 834 N.W.2d 46, 62 (Iowa 2013), that the relevant inquiry when a
                                          5



defendant claims there is no factual basis to support the guilty plea is not an

examination of the defendant’s subjective state of mind but is instead an

examination of the entire record to determine whether objectively a factual basis

exists. “The failure of the district court . . . 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.” Finney, 834 N.W.2d at 62.

       When we examine the entire record including the minutes of testimony, we

have no difficulty concluding a factual basis does exist for all three of Baugh’s

guilty pleas. The minutes of testimony in AGCR104072 provide that on June 16,

2013, police stopped Baugh after observing a bag of garbage fall off Baugh’s car

and scatter on the highway.       They noted signs of intoxication and had him

perform field sobriety tests. Baugh admitted to consuming “a couple of beers,”

and a breath sample taken after implied consent was invoked showed a .192

BAC. The minutes also stated that Baugh’s driver’s license had been barred.

The minutes of testimony for AGCR105631 state police observed Baugh driving

on October 6, 2013, and that his license had been barred on May 12, 2011, for a

period of four years. This establishes a factual basis to support both charges of

driving while barred and the OWI charge. Id. (“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.”).

Thus, we find counsel did not provide ineffective assistance by not filing a motion

in arrest of judgment challenging the guilty pleas on this ground.
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       B. Nature of the Charges. Next, Baugh claims the court failed to advise

him of the elements of the offenses to which he was pleading guilty. He points

out the written guilty pleas only contain abbreviations of the crimes (i.e., “DWB”

and “OWI”) and there is no record of any in-court colloquy regarding the

elements of the crime.1

       “Lack of explanation of the elements of an offense is not reversible error if,

under all the circumstances, it is apparent the accused understood the charge.

State v. Victor, 310 N.W.2d 201, 204 (Iowa 1981). Our supreme court has held

that in some instances the name given to a crime is “sufficiently descriptive of its

nature to obviate further explanation.” Brainard v. State, 222 N.W.2d 711, 714

(Iowa 1974). While it is a better practice for the court or the written guilty plea to

explain the elements of the charge, the failure to do so does not automatically

invalidate the plea.     Id.   Instead, we look to the entire record including the

complexity of the charge and other circumstances surrounding the plea. Id.

       The supreme court has found the charge of OWI to be sufficiently

descriptive to satisfy the requirement the defendant understand the nature of the

charge found in Iowa Rule of Criminal Procedure 2.8(2)(b)(1). State v. Worley,


1
  We note Baugh waived the requirement of a formal record of the plea proceedings,
though the court’s order indicates he was present in court with his attorney when his
guilty pleas were accepted. When a transcript of a proceeding is unavailable, our rules
of appellate procedure provide a way for a record to be created for the purposes of
appeal. See Iowa R. App. P. 6.806. No such statement was prepared and submitted
with this appeal. We thus have no record of what transpired between the district court
and Baugh to know whether or not he was advised of the elements of the crimes to
which he pled guilty. Failing to provide us a record on appeal normally results in a
waiver of the claim asserted. State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995) (“It is a
defendant’s obligation to provide this court with a record affirmatively disclosing the error
relied upon. We conclude that, by voluntarily failing to provide such a record, Mudra has
waived error on his claim.”). However, because the claim fails on other grounds, we
chose to address the claim in spite of the lack of a record of the plea proceeding.
                                         7



297 N.W.2d 368, 371 (Iowa 1980). We likewise find in this case that the name of

the charge of driving while barred is also sufficiently descriptive.     It is not a

complex crime with multiple elements, and the record indicates Baugh had been

convicted of driving while barred on twelve prior occasions, indicating a familiarity

with the crime and its elements. See Hoskins v. State, 246 N.W.2d 266, 268

(Iowa 1976) (considering factors such as the complexity of the charge and the

education and experience of the defendant when determining if the court

substantially complied with the requirement the defendant understand the nature

of the charge against him when pleading guilty).

       Because we find a factual basis supports the conviction and Baugh

understood the nature of the charges against him when he entered his written

guilty pleas, counsel was not ineffective for failing to file a motion in arrest of

judgment challenging the guilty pleas on these grounds. We therefore affirm

Baugh’s convictions and sentences.

       AFFIRMED.
