                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0091
                            Filed February 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIAM J. KIRCHNER JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown (guilty plea) and Mark E. Kruse (sentencing), Judges.



      William Kirchner Jr. appeals after pleading guilty to possession of a firearm

by a felon and possession of a controlled substance, third offense. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.

       William Kirchner Jr. pled guilty to possession of a firearm by a felon and

possession of a controlled substance, third offense.          On direct appeal, he

challenges the knowing and voluntary nature of his pleas and contends he

received ineffective assistance of counsel.1 He also contends the district court

abused its discretion in refusing to allow him to withdraw his pleas.

       I. Knowing and Voluntary Nature of the Pleas.

       We first address Kirchner’s claim that his pleas were not knowing and

voluntary. To ensure a plea is knowing and voluntary, Iowa Rule of Criminal

Procedure 2.8(2)(b) lists the criteria the court must inform a defendant of and

ensures the defendant’s understanding. See State v. Kress, 636 N.W.2d 12, 21

(Iowa 2001) (stating that failure to substantially comply with the rule renders a plea

involuntary). Kirchner claims the court failed to inform him of the nature of the

controlled-substance charge as required by rule 2.8(2)(b)(1) because the court

never informed him the State must prove possession without a valid prescription.

He also claims the court failed to inform him of the mandatory minimum and

maximum possible punishment as required by rule 2.8(2)(b)(2) because it never

informed him of the applicable surcharges or a forty-eight-hour minimum sentence.

       But this appeal presents an error-preservation concern. Kirchner filed his

motion in arrest of judgment more than forty-five days after pleading guilty, making


1 Our supreme court decided recent amendments to Iowa Code section 814.6
(2019), limiting direct appeals from guilty pleas apply only prospectively and do not
apply to cases, like this one, pending on July 1, 2019. See State v. Macke, 933
N.W.2d 226, 235 (Iowa 2019). Likewise, it held that amendments to Iowa Code
section 814.7, which prohibit consideration of ineffective-assistance-of counsel
claims on direct appeal, do not apply to cases pending on July 1, 2019. See id.
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it untimely. See Iowa R. Crim. P. 2.24(3)(b) (“The motion must be made not later

than 45 days after plea of guilty . . . , but in any case not later than five days before

the date set for pronouncing judgment.”). Ordinarily, this would bar him from

challenging the adequacy of the plea proceedings on appeal. See Iowa R. Crim.

P. 2.24(3)(a). But Kirchner argues that his appeal falls under an exception to the

rule because the court did not properly advise him of the consequences of failing

to file a motion in arrest of judgment, as required by rule 2.8(2)(d). See State v.

Fisher, 877 N.W.2d 676, 680 (Iowa 2016) (noting the rule does not apply if the

court fails to inform the defendant of the requirement during the plea proceeding).

For the reasons below, we disagree.

       At the plea hearing, the court told Kirchner “that if for any reason you want

to challenge these guilty pleas, you have to do it before you’re sentenced or you

lose your chance to appeal.” The court then stated,

       If you think there was a defect in the pleas today, you have to bring
       it up in a motion in arrest of judgment. If you want to file a motion in
       arrest of judgment, it has to be filed within 45 days of today’s date
       but in no case fewer than 5 days before the date for sentencing.

Kirchner argues the court failed to connect the requirement for preserving an

appeal with the requirement that he move in arrest of judgment. Reading the

statements in isolation, he argues the court only stated that he had to challenge

his pleas before sentencing in order to appeal. But read together, the court

informed Kirchner that (1) he had to challenge his pleas before sentencing to

preserve an appeal and (2) the means for challenging his pleas was by moving in

arrest of judgment. The court then offered a more definitive timeline on when

Kirchner needed to move in arrest of judgment. When read in context, the court’s
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statement substantially complied with the requirements of rule 2.8(2)(d). See id.

at 681 (employing a substantial compliance standard to determine whether the trial

court has discharged its duty under rule 2.8(2)(d)). Because the court adequately

advised Kirchner of his need to file a timely motion in arrest of judgment to

challenge his pleas and he failed to do so, he cannot challenge the voluntariness

of his pleas on direct appeal.2

       II. Ineffective Assistance of Counsel.

       Kirchner also claims that he received ineffective assistance of counsel,

which provides another exception to our error preservation rules. See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We review this claim de novo. See

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). To succeed, Kirchner must

show counsel breached a duty and prejudice resulted. See State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003). But if Kirchner can show no factual basis exists for

his plea, his counsel breached a duty by allowing him to plead guilty and we

presume prejudice. See Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014) (“If trial

counsel permits a defendant to plead guilty and waives the defendant’s right to file

a motion in arrest of judgment when there is no factual basis to support the

defendant’s guilty plea, trial counsel breaches an essential duty. It is well-settled



2 In the alternative, Kirchner asks that we invalidate his plea under the plain error
rule. But our supreme court has stated, “We do not subscribe to the plain error
rule in Iowa, have been persistent and resolute in rejecting it, and are not at all
inclined to yield on the point.” State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999).
This pronouncement binds us. See State v. Hastings, 466 N.W.2d 697, 700 (Iowa
Ct. App. 1990) (“We are not at liberty to overturn Iowa Supreme Court precedent.”);
State v. Hughes, 457 N.W.2d 25, 28 (Iowa Ct. App. 1990) (“If our previous holdings
are to be overruled, we should ordinarily prefer to do it ourselves.” (citation
omitted)).
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law that under these circumstances, we presume prejudice.” (internal citation

omitted)).

        Kirchner claims there is no factual basis to support his plea to possession

of a controlled substance because the record does not show he lacked a valid

prescription for the methamphetamine he possessed.                  See Iowa Code

§ 124.401(5) (stating it is unlawful to knowingly or intentionally possess a

controlled substance “unless such substance was obtained directly from, or

pursuant to, a valid prescription or order of a practitioner”). But a valid prescription

is an affirmative defense to possession, not an element of the offense. See State

v. Gibbs, 239 N.W.2d 866, 869 (Iowa 1976) (stating that unless a defendant

introduces evidence to show a valid prescription exists, the State need not assume

the burden of negating the exception). Counsel did not breach a duty by failing to

move in arrest of judgment challenging the factual basis for the possession-of-a-

controlled-substance charge. Kirchner’s ineffective-assistance claim fails.

       III. Motion to Withdraw.

       Finally, Kirchner contends the district court erred by refusing to allow him to

withdraw his pleas. See Iowa R. Crim. P. 2.8(2)(a) (stating that the court may

permit a defendant to withdraw a guilty plea at any time before judgment). We

review the denial for an abuse of discretion. See State v. Matty, 573 N.W.2d 594,

596 (Iowa 1998). The court abuses its discretion when it exercises it on untenable

grounds or reasons or to an unreasonable extent. See id. We will affirm the refusal

to allow a defendant to withdraw a plea if a defendant had full knowledge of the

charge, the rights afforded by law, and the consequences of entering the plea and

did so “understandably and without fear or persuasion.” Id. (citation omitted).
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       Kirchner wrote to the court one week before sentencing, claiming he was

not guilty of possession of a firearm and asking to withdraw his plea. Kirchner

alleged he “was not in the right state of mind when [he] was coaxed into entering

a guilty plea” and “was under the influence of illegal drugs at the time [he] was in

the courtroom entering” his pleas. He reiterated those claims at the start of the

sentencing hearing. But the record belies these claims. At the plea hearing,

Kirchner told the court it was his decision to plead guilty, no one pressured or

forced him to do so, he was not under the influence of medication, and his ability

to understand was in no way limited by medical problems. He denied being under

the influence of drugs or alcohol. And his attorney stated his belief that Kirchner

was coherent and understood the issues and consequences of pleading guilty. On

this record, the court was within its discretion to deny Kirchner’s request to

withdraw his guilty plea.

       Finding no merit to his arguments on appeal, we affirm Kirchner’s

convictions for possession of a firearm by a felon and possession of a controlled

substance, third offense.

       AFFIRMED.
