                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-2036
                            Filed November 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KEYSEAN DAMOUR CHUMLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David N. May, Judge.



      The defendant appeals after pleading guilty to eluding. AFFIRMED.



      Thomas A. Hurd of Glazebrook, Glazebrook & Hurd, LLP, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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TABOR, Judge.

       Keysean Chumley appeals his conviction for eluding. He argues trial

counsel was ineffective for allowing him to plead guilty absent a factual basis for

an element of eluding, namely, a visual signal given by a police officer. Because

the district court had a sufficient factual basis to accept Chumley’s plea, we affirm.

I.     Facts and Prior Proceedings.

       In March 2017, Chumley was driving a black Fiat 500 on the north side of

Des Moines. Working patrol, Officer Jordan Wall saw the Fiat cross two lanes of

traffic while making a left-hand turn. The Fiat’s maneuver caused a pickup truck

to swerve onto the sidewalk to avoid a collision.          Officer Wall turned on his

“emergency lights and sirens to initiate a traffic stop” of the Fiat. Instead of pulling

over, Chumley sped up. Police arrested Chumley after a chase.

       As part of a bargain consolidating other charges, Chumley pleaded guilty to

felony eluding. Felony eluding requires proof of the following elements:

           [T]he driver willfully fails to bring the motor vehicle to a stop or
           otherwise eludes or attempts to elude a marked official law
           enforcement vehicle that is driven by a uniformed peace officer
           after being given a visual and audible signal[1] and in doing so
           exceeds the speed limit by twenty-five miles per hour or more,
           and . . . the driver is in violation of section . . . 124.401[2]. . . .

Iowa Code § 321.279(3)(b) (2017).

       On appeal, Chumley claims his counsel was ineffective in permitting him to

plead guilty without a factual basis because the color of the lights used in the

officer’s visual signal is absent from the record.


1
  Subsection 321.279(1) defines the necessary visual and audible signal as “flashing red
light, or . . . flashing red and blue lights, and siren.”
2
  Section 124.401 prohibits possession of controlled substances.
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II.        Scope and Standard of Review.

           We review guilty pleas allegedly resulting from counsel’s ineffective

assistance de novo.3 State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011). To prevail

in his claim of ineffective assistance, Chumley must establish “counsel failed to

perform an essential duty and prejudice resulted from such failure.” See id. at 652

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “If an attorney allows

a defendant to plead guilty to an offense for which there is no factual basis and to

waive the right to file a motion in arrest of judgment, the attorney breaches an

essential duty.” State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005). We presume

prejudice when the record reveals no factual basis for a guilty plea. See State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

III.       Analysis.

           Chumley argues trial counsel was ineffective in allowing him to enter a guilty

plea because the record does not contain facts supporting each element of felony

eluding. He zeroes in on the section 321.279(1) requirement the visual signal

given by the peace officer “shall be by flashing red light, or by flashing red and blue

lights.”     During the plea colloquy, Chumley admitted driving the Fiat while

possessing marijuana and acknowledged a marked law enforcement vehicle

driven by a uniformed police officer gave him an audible and visual signal to stop.

Missing from the colloquy, by Chumley’s estimation, were sufficient details about

the visual signal to stop.


3
   We generally preserve ineffective-assistance claims for postconviction-relief
proceedings. State v. Virgil, 895 N.W.2d 873, 879 (Iowa 2017). But when the record is
adequate, we can resolve claims on direct appeal. Id. Here, the record is adequate for
review.
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       The court must determine a sufficient factual basis exists before accepting

a guilty plea. Iowa R. Crim. P. 2.8(2)(b). The evidentiary threshold for accepting

a guilty plea differs from the proof beyond a reasonable doubt necessary to support

a conviction.   State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010).           When

discussing the factual basis requirement for pleas, our supreme court noted

“insubstantial errors should not entitle a defendant to relief.” State v. Finney, 834

N.W.2d 46, 62 (Iowa 2013). And the district court need only “be satisfied that the

facts support the crime” and be provided a description sufficient to allow it to

determine whether a factual basis for a plea exists. State v. Keene, 630 N.W.2d

579, 581–82 (Iowa 2001) (holding factual basis existed for guilty plea to

dissemination of obscene material to minors even though district court did not

personally view obscene material).

        To determine whether a factual basis existed, we may examine the entire

record available to the district court. Finney, 834 N.W.2d at 62. We must decide

if Chumley’s admission to receiving a visual signal to stop—coupled with the

reference in the officer’s expected testimony to “emergency lights” without

specifying they were “flashing red” or “flashing red and blue”—provided an

adequate factual basis for the eluding charge.

       Chumley relies on our recent decision in State v. Hankins, where we

vacated and remanded the eluding plea because the record did not reveal whether

the police officer was in uniform as required by section 321.279. 17-1436, 2018

WL 2084825, *2 (Iowa Ct. App. May 2, 2018) (quoting Iowa Code § 321.279(2)).

By contrast, the record in the present case is not entirely lacking facts about the
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visual signal. See id. The minutes of evidence disclose “Officer Wall was traveling

in Des Moines Police Department issued patrol vehicle, turn[ed] on his emergency

lights and sirens to initiate a traffic stop of the black Fiat.”     The record here

establishes the officer’s emergency lights were on, but not whether the emergency

lights were the color described in the statute.         Accordingly, Hankins is not

analogous. See id.

       The district court could infer the visual signal included “flashing red light” or

“flashing red and blue lights” from the officer’s expected testimony he activated his

“emergency lights.” See Keene, 630 N.W.2d at 581–82. Case law and statutes

reflect the accepted understanding of emergency lights as red or red and blue.

See, e.g., State v. Prusha, 874 N.W.2d 627, 628 (Iowa 2016) (“[The peace officer]

activated the vehicle’s rear amber directional lights but not its red and blue

emergency lights.”); State v. White, 887 N.W.2d 172, 174, 176 (Iowa 2016) (per

curiam) (finding officer seized defendant, in part, by using his emergency lights

and later describing those lights as “flashing red and blue”); State v. Berry, No. 12–

0964, 2013 WL 1453036, at *1 (Iowa Ct. App. Apr. 10, 2013) (rejecting factual

basis challenge to eluding plea when minutes stated deputy “activated his

emergency lights”); see also Iowa Code § 321.324 (describing emergency vehicles

as having red and blue lights). These references in case law and code provide a

solid foundation in support of the inference necessary to establish a factual basis.

       Under the principles articulated above, Chumley’s recognition of the police

car’s lights as a signal to stop, together with the officer’s description of activating

his “emergency lights” when pursing Chumley, satisfied the factual basis for the
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“visual signal” element of eluding. See Finney, 834 N.W.2d at 62. We affirm

Chumley’s eluding conviction.

      AFFIRMED.
