                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0836
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID JOSEPH JOHNSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Odell G. McGhee,

District Associate Judge.



      A defendant challenges his conviction for driving while barred. AFFIRMED.



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

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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TABOR, Presiding Judge

       David Johnson appeals his conviction for driving while barred under Iowa

Code section 321.561 (2016) contending his attorney was constitutionally remiss

by not ensuring a factual basis for his guilty plea. Specifically, he claims the record

did not “support the habitual offender status element” and did not indicate whether

the State honored his right to counsel for the offenses underlying the habitual-

offender adjudication by the Iowa Department of Transportation (DOT). See Iowa

Code §§ 321.555, .556. Because the validity of the administrative decision to bar

Johnson’s license was not an element of his criminal offense, counsel did not

breach a duty. Accordingly, we affirm his conviction.

       I.     Facts and Prior Proceedings

       On January 15, 2016 Johnson was involved in a traffic accident. He told

police he left the scene because his license was barred. The next month the State

charged Johnson with driving while barred in violation of Iowa Code sections

321.555 and 321.561. The State extended a plea offer, noting Johnson’s three

prior convictions for driving while barred and five convictions for driving with a

suspended license. In March 2016, Johnson entered a written guilty plea. The

plea form stated as follows:




   “In order to establish a factual basis I ask the court to accept as true the minutes
   of testimony, the date of offense is [handwritten] 1-15-2016 [end handwriting] and
   I admit I did the following: [handwritten] I was driving barred and I should not have
   been [end handwriting.]”
                                          3


Johnson and his attorney both signed the form. According to the sentencing order

dated May 12, 2016, Johnson appeared for sentencing “having previously pled

guilty” to “driving while barred as habitual offender.” The district court sentenced

Johnson to a one-year prison term and suspended all but thirty days. The court

also placed Johnson on supervised probation for one year. Johnson now appeals

his conviction.

       II.    Scope and Standards of Review

       Generally, the defense must challenge a defect in the guilty-plea proceeding

by filing a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a). When

counsel fails to file such a motion, a defendant may attack the plea on appeal by

claiming counsel was ineffective. State v. Perkins, 875 N.W.2d 190, 192 (Iowa Ct.

App. 2015). Because ineffective-assistance-of-counsel claims are rooted in the

Sixth Amendment, we review them de novo. State v. Thorndike, 860 N.W.2d 316,

319 (Iowa 2015). We will resolve ineffective-assistance claims on direct appeal

only when the record is sufficient to do so; if the record is lacking, we will preserve

the claim for postconviction proceedings. See id. To prevail, Johnson must show

by a preponderance of the evidence that (1) counsel failed to perform an essential

duty and (2) prejudice resulted. See id. at 320. If Johnson is unable to prove either

element, then he cannot prevail. See id.

       III.   Analysis of Ineffective-Assistance-of-Counsel Claim

       A.     Habitual-Offender Adjudication

       In assessing a factual-basis claim, we look to the guilty-plea record as a

whole. State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010). The record need not

show the totality of evidence necessary to prove Johnson guilty of the crime
                                          4

charged. See id. We require only that the filings demonstrate facts to support the

offense to which he is pleading guilty. See id.

       Johnson maintains the guilty-plea record did not show a factual basis for

the predicate crimes which landed him in the category of habitual offender under

Iowa Code section 321.555. Section 321.561 provides, “It shall be unlawful for

any person found to be a habitual offender to operate any motor vehicle in this

state during the period of time specified in section 321.560 . . . .”         Section

321.555(1)(c) defines an “habitual offender” as a person who has accumulated

three or more separate and distinct convictions for “[d]riving a motor vehicle while

the person’s license is suspended, denied, revoked, or barred.” But the reason

the DOT issued a bar to Johnson’s license under the habitual-offender provisions1

is not an element of driving while barred.

       Our case law suggests the crime of driving while barred has only two

elements: (1) defendant’s license has been barred and (2) defendant operated a

motor vehicle while his license was barred. See State v. Carmer, 465 N.W.2d 303,

304 (Iowa Ct. App. 1990) (comparing elements of driving while barred to elements

of driving while revoked); see also State v. Harmon, No. 17-0353, 2018 WL

739314, at *1 (Iowa Ct. App. Feb. 7, 2018) (discussing State v. Williams, No. 16-

0894, 2017 WL 3524729, at *3 (Iowa Ct. App. Aug. 16, 2017),2 where the majority

and dissent agreed the crime had only two elements but disagreed whether the




1
  Proceedings to determine whether a person qualifies as an habitual offender are civil
actions. Iowa Dep't of Transp. v. Iowa Dist. Court for Poweshiek Cty., 530 N.W.2d 725,
727 (Iowa 1995).
2
  Williams is currently pending on further review to our supreme court.
                                          5


first element required the State to prove the DOT properly mailed notice of the

barment to the defendant).

       Here, the minutes of evidence allege a DOT official would testify that

Johnson’s driving privileges were barred on January 15, 2016, the day of the

accident, and that receipt of service of notice was on file at the DOT. The minutes

also reflect an officer would testify Johnson was driving a motor vehicle on the day

in question. Further, Johnson admitted in his written guilty plea that he “was driving

barred” and “should not have been.” This evidence provides a sufficient factual

basis for the guilty plea, and defense counsel did not breach an essential duty by

failing to file a motion in arrest of judgment. See State v. Ross, 845 N.W.2d 692,

701 (Iowa 2014) (reaffirming counsel has no duty to file meritless motion).

       B.      Representation During Prior Convictions

       Johnson also asserts defense counsel was ineffective in failing to challenge

the factual basis for the guilty plea on the ground the record does not establish

Johnson was represented or properly waived counsel in connection with the

underlying convictions giving rise to his habitual-offender status. Johnson argues

counsel should have filed a motion in arrest of judgment because “no showing was

made that he was not entitled to, was provided, or waived counsel for the

underlying offenses leading to the finding he was a habitual offender.” Johnson

compares his situation to State v. Young, 863 N.W.2d 249, 281 (Iowa 2015)

(holding a defendant’s prior uncounseled misdemeanor conviction could not be

used as a predicate offense to enhance sentence for subsequent third-degree theft

conviction).
                                         6

       Johnson’s comparison to Young is inapt. Young involved the district court’s

direct enhancement of a sentence based on prior criminal offenses. Young, 863

N.W.2d. Here, any challenge by defense counsel to Johnson’s habitual-offender

status as part of the criminal proceedings would have constituted a collateral attack

on the decision of the DOT. See State v. Clark, 608 N.W.2d 5, 8-9 (Iowa 2000).

If Johnson was not properly represented by counsel when he was convicted of the

offenses underlying the habitual-offender determination, the proper time to raise

that issue would have been in the administrative proceeding afforded for him to

challenge the bar of his driver’s license. See Iowa Code § 321.556; Clark, 608

N.W.2d at 8.

       The record establishes a factual basis showing Johnson’s driving privileges

were barred by the DOT when he operated a motor vehicle in January 2016.

Johnson admitted knowing his license was barred and driving anyway. Counsel

did not breach an essential duty by failing to challenge Johnson’s guilty plea.

       AFFIRMED.
