                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0799
                              Filed April 18, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GILBERTO MORALES CHAVEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carol S. Egly, District

Associate Judge.



      Gilberto Morales Chavez appeals from his conviction for operating while

intoxicated, third offense. AFFIRMED.




      James R. Hinchliff of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

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

General, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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DANILSON, Chief Judge.

       Gilberto Morales Chavez appeals from his conviction for operating while

intoxicated (OWI), third offense, a class “D” felony, in violation of Iowa Code

section 321J.2(2)(c) (2017). Chavez contends there is not substantial evidence to

establish his prior OWI convictions.

       Our review of sufficiency-of-the-evidence claims is for correction of errors

at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The evidence supporting

the verdict is substantial if “a rational trier of fact could conceivably find the

defendant guilty beyond a reasonable doubt.” Id. We view the evidence in the

light most favorable to the State. Id.

       Chavez stipulated to a trial on the minutes of evidence in this matter. The

minutes of evidence provide the Polk County Clerk of Court would testify Chavez

was convicted of OWI on October 16, 2008, in case number OWOM065667 and

was represented by counsel or knowingly waived the right to be represented during

the proceedings. The minutes also provide the Pottawattamie County Clerk of

Court would testify Chavez was convicted of OWI on April 1, 2015, in case number

OWMG150568 and was represented by counsel or knowingly waived the right to

be represented during the proceedings. Additionally, the minutes of evidence

provide officers from Polk and Pottawattamie Counties would testify Chavez was

the defendant in those prior OWI cases. The minutes of evidence specifically set

forth the details of Chavez’s prior OWI convictions including the case numbers,

dispositions, and dates of the convictions; list as witnesses the county clerks of

court that had care, custody, and control over the conviction records; state certified

copies of the court records and documents would be offered into evidence to
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establish Chavez’s prior convictions; and provide officers would proffer testimony

to further identify Chavez as the individual convicted of OWI in the prior cases.

There is substantial evidence supporting Chavez’s conviction for OWI, third

offense.

       To the extent Chavez contends he was entitled to an additional trial on the

issue of prior offenses, such a requirement was waived by Chavez’s consent to a

trial on the minutes. See State v. Chandler, No. 16-0925, 2017 WL 3077945, at

*3 (Iowa Ct. App. July 19, 2017) (“[The defendant] contends the State did not

satisfactorily prove the prior convictions on which the enhancements were

predicated. The State counters that [the defendant] waived his right to raise this

issue by stipulating to a trial on the minutes of evidence. We agree with the

State.”).

       Our supreme court previously noted the requirements of the trial court when

a defendant stipulates to a bench trial on the minutes of evidence:

              If a defendant intends to plead guilty, a trial court must adhere
       to the guilty plea procedures set forth in Iowa Rule of Criminal
       Procedure [2.8(2)(b)]. If a defendant is in fact stipulating to a bench
       trial on the minutes, then a trial court must (1) verify that the
       defendant has waived his right to a jury trial in accordance with Iowa
       Rule of Criminal Procedure [2.17(1)]; (2) confirm the extent of the
       factual record to which the parties are stipulating; and (3) “find the
       facts specially and on the record,” separately state its conclusion of
       law, and render an appropriate verdict as is required by Iowa Rule of
       Criminal procedure [2.17(2)].

State v. Sayre, 566 N.W.2d 193, 196 (Iowa 1997). The requirements for habitual-

offender colloquies as set out in State v. Kukowski, 704 N.W.2d 687, 691-94 (Iowa

2005), and State v. Harrington, 893 N.W.2d 36, 45-46 (Iowa 2017), are
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inapplicable to a bench trial on the minutes.1 See id. at 195 (“This court has

previously held a bench trial on a stipulated factual record is not the same as a

guilty plea proceeding, and due process does not require the court to undertake a

guilty plea colloquy prior to accepting a stipulated factual record.”); State v. Huss,

430 N.W.2d 621, 624 (Iowa 1988) (“[A] bench trial on the stipulated evidence is

not the same as a guilty plea proceeding, principally because no matter how

overwhelming the evidence of guilt, the question of whether to convict or acquit

remains with the trier of fact.”). Upon our review, we find the trial court satisfactorily

complied with requirements consistent with Sayre.

          We conclude there is substantial evidence of Chavez’s prior convictions and

the trial court properly followed the procedure for a bench trial on the minutes. We

affirm.

          AFFIRMED.




1
  We note our supreme court has recently held, “[T]he [S]tate must prove prior convictions
in rule 2.19(9) proceedings in both habitual offender and repeat-OWI scenarios. We
conclude the rationale for the rule adopted in Harrington applies with equal force to
proceedings in which repeat-OWI-offender enhancements are at issue.” State v.
Brewster, 907 N.W.2d 489, 494 (Iowa 2018). However, in Brewster the defendant was
tried by jury for the underlying OWI offense, and before the case was submitted to the jury
for deliberation, the court engaged Brewster in a short colloquy to which Brewster
stipulated to a prior OWI conviction. Id. at 491-92. The rationale applicable to requiring
rule 2.19(9) proceedings for a defendant’s stipulation to a prior OWI conviction itself does
not apply where the defendant stipulates to trial on the minutes of evidence which state
there is evidence of prior OWI convictions. The trial court must still review the evidence
and make findings of fact, and could ultimately determine the evidence does not support
the elements charged by the State. Thus, when the defendant has stipulated to a trial on
the minutes of evidence—as Chavez has done here—the required procedures by the trial
court differ. See Sayre, 566 N.W.2d at 196.
