                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1766
                            Filed October 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

VADIM IGOREVICH SHULTSEV,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Kevin A. Parker,

District Associate Judge.



      A defendant appeals his convictions for driving while his license was

revoked. AFFIRMED.



      Unes J. Booth of Booth Law Firm, Osceola, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                            2


TABOR, Judge.

       Vadim Shultsev appeals two convictions for driving while license revoked.

Those convictions followed guilty pleas.        Before entering his pleas, Shultsev

waived his right to counsel. Now Shultsev wishes to challenge the factual basis

for his pleas. But he did not timely move in arrest of judgment, a necessary step

to preserve error for a guilty-plea challenge. And because he represented himself,

he cannot bypass the error preservation rule by claiming ineffective assistance of

counsel. This predicament leads him to a novel argument. He invites us to expand

the reach of Schmidt v. State, 909 N.W.2d 778 (Iowa 2018), by allowing him to

raise an actual-innocence claim on direct appeal from those unchallenged guilty

pleas.1 We decline the invitation.

       The State charged Shultsev with two separate violations of Iowa Code

section 321J.21 (2016) for driving while revoked first in April 2016, and again in

May 2016. Rather than seeking representation in these serious misdemeanor

cases, Shultsev signed a waiver of his right to an attorney. In August, he reached

an agreement with the State and pleaded guilty to both crimes. On the written plea

forms, Shultsev filled in the following factual basis: “Drove while revoked as

habitual offender.” The deal provided for consecutive terms of sixty days in jail. In

writing, Shultsev acknowledged the need to move in arrest of judgment to contest

the guilty pleas and the consequences of not doing so.




1
 Schmidt grounded the right to a free-standing claim of actual innocence in the Iowa
Constitution. Id. at 795. Given that grounding, if we could reach the merits of Shultsev’s
actual-innocence argument, we would engage in de novo review. See Nguyen v. State,
878 N.W.2d 744, 750 (Iowa 2016) (reviewing claims under article I, section 10).
                                             3


       When Shultsev failed to appear for sentencing in November, the court

issued a warrant for his arrest. After that, he retained counsel. By then it was too

late to move in arrest of judgment to challenge his guilty pleas.2

       At sentencing, the State recommended the court impose the jail time

bargained for in the plea agreement. The State reviewed Shultsev’s prior offenses,

noting his convictions for operating while intoxicated in 2011 and 2014, and his six

driving-while-revoked offenses over ten years. Shultsev admitted his criminal

history, but still asked for probation. The district court imposed consecutive terms

of sixty days in jail for the two convictions. Shultsev now appeals those convictions

and sentences.

       Normally, Shultsev’s guilty pleas would waive all defenses and objections

not intrinsic to those pleas. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

But as our court said in State v. Kudron, “This principle is subject to a significant

asterisk.” No. 17-0614, 2018 WL 2722784, at *1 (Iowa Ct. App. June 6, 2018).

       The asterisk relates to Schmidt’s recent changes to postconviction practice

in Iowa.    That case held “convicted defendants can attack their pleas when

claiming actual innocence even if the attack is extrinsic to the pleas.” Schmidt,

909 N.W.2d at 789–90 (overruling cases to the contrary). The Schmidt majority

recognized a right under the Iowa Constitution for postconviction applicants to

bring “freestanding claims of actual innocence” even if they have pleaded guilty.


2
  The deadline for moving in arrest of judgment is not later than 45 days after a guilty plea
and, in any case, not later than five days before the date set for pronouncing judgment.
Iowa R. Crim. P. 2.24(3)(b). After being appointed, counsel filed motions in arrest of
judgment and to extend the deadline, but the district court denied both, finding Shultsev
received an adequate explanation of the above requirement. On appeal, Shultsev
concedes his motion was untimely.
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Id. at 795.     Although the vehicle for raising the claim in Schmidt was a

postconviction-relief action, the court did not limit convicted defendants to that

route. Id. at 798 (“We emphasize sections 822(1)(a) and (d) are not the exclusive

vehicles to bring freestanding actual-innocence claims because applicants may file

such claims independently of chapter 822.”).

       Here, Shultsev contends “direct appeal is an appropriate vehicle for bringing

a freestanding actual-innocence claim, particularly where the record below clearly

fails to establish a factual basis for a guilty plea. No action is required to preserve

error for review on direct appeal of a freestanding actual innocence claim.”

Shultsev argues no factual basis exists to support his convictions. He alleges the

State charged him with “the wrong crimes” and he is actually innocent of the

charged offenses. He asks that we vacate his sentences and remand for dismissal

of the charges.3

       The State begs to differ. Distinguishing Schmidt as a case of preserved

error,4 the State insists we cannot hear a challenge to the factual basis for

Shultsev’s guilty pleas because he did not timely move in arrest of judgment. See

Iowa Rs. Crim. P. 2.8(2)(d), 2.24(3)(a) (barring appellate challenges to guilty pleas

when defendant fails to file a proper motion in arrest of judgment); see State v.

Barnes, 652 N.W.2d 466, 468 (Iowa 2002) (holding defendant failed to preserve

error by not moving in arrest of judgment when informed failure to do so would bar


3
  Shultsev did not timely raise an actual-innocence claim in the district court and does not
ask on appeal for a remand to present evidence supporting such a claim. These
circumstances distinguish this case from State v. Bendickson, No. 18-0229, also decided
today.
4
  See id. at 781 (“An applicant filed a postconviction-relief action claiming he was
actually innocent although he knowingly and voluntarily pled guilty to the charged
crimes.”).
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any challenge to his plea on appeal); see also State v. Worley, 297 N.W.2d 368,

370 (Iowa 1980) (“Where the trial court informs the defendant of this procedural

requirement, we will not hesitate to preclude challenges to plea proceedings on

appeal.”).

       The State is right.      Schmidt did not erase the long-standing error-

preservation requirement for guilty-plea appeals. True, Schmidt left the door open

to applicants filing actual-innocence claims outside the postconviction chapter.

909 N.W.2d at 798. But that dicta did not contemplate such claims being raised

for the first time on appeal from an uncontested guilty plea.

       The court explained “both parties are entitled to their day in court to litigate

their positions under the new standard we have adopted today.” Id. at 800. That

new standard places the burden on the applicant to “show by clear and convincing

evidence that, despite the evidence of guilt supporting the conviction, no

reasonable fact finder could convict the applicant of the crimes for which the

sentencing court found the applicant guilty in light of all the evidence . . . .” Id. at

797. In remanding Schmidt’s actual-innocence claim to the district court for further

development, the supreme court recognized: “Only after the parties develop a

record in [at least] a summary proceeding can the court decide if a genuine issue

of material fact exists.” Id. at 800. These passages from Schmidt compel the

conclusion the majority expects applicants to raise actual-innocence claims first at

the district court, not on appeal from an otherwise uncontested guilty plea.

       Shultsev’s request on appeal deviates from the expectations in Schmidt.

Because he did not timely challenge his guilty plea before the district court and a

direct appeal from an uncontested guilty plea is not a viable vehicle to introduce a
                                         6


claim of actual innocence, we cannot reach the merits of Shultsev’s factual-basis

challenge. But even if we overlooked Shultsev’s failure to preserve error, “[a]t this

stage, we simply have a bare allegation unsupported by evidence or affidavits.”

See Kudron, 2018 WL 2722784, at *2. The plea record does not satisfy Shultsev’s

burden to show by clear and convincing evidence that no reasonable fact finder

could convict him of driving while barred under Iowa Code section 321J.21. On

this record, we decline to address the merits of Shultsev’s claim.

       AFFIRMED.
