                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0810
                              Filed May 14, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WALTER SCOTT SUTTON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Madison County, David L.

Christensen, Judge.



      A defendant raises challenges to the factual basis supporting and

voluntariness of his guilty plea. AFFIRMED.



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

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, and Michelle Rivera, County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
                                         2


MULLINS, J.

       Walter Sutton appeals his conviction for public intoxication asserting his

written guilty plea was invalid and his counsel was ineffective in failing to file a

motion in arrest of judgment based on the lack of a factual basis for his plea and

the court’s failure to ensure he understood the nature of the charge. Because we

find a factual basis to support the guilty plea and that the written record

established Sutton understood the nature of the charge, we affirm his conviction.

I. Background Facts and Proceedings.

       An Osceola police officer was dispatched to an apartment building on a

complaint that a person threw a microwave oven from the top floor of the

building. A witness identified Walter Sutton as the offender, stated he had a

bottle containing alcohol, and said he consumed the beverage as he came down

the stairs. The officer spoke to Sutton, who emitted a strong odor of alcohol, and

arrested him for public intoxication. He subsequently found two hydrocodone

pills in Sutton’s pocket.

       Sutton filed a written guilty plea to the aggravated misdemeanor crime of

public intoxication, third or subsequent offense, on January 22, 2013. See Iowa

Code §§ 123.46, 123.91(2) (2011). In the written plea, Sutton stated, “I did

appear in [a] public area and I was intoxicated with being convicted at least twice

before of same crime.” The court noted the entry of a written guilty plea the

same day, ordered a presentence investigation report, and set sentencing for

March 14, 2013. The sentencing hearing was continued until May 9, 2013, at

which time the court entered judgment on the guilty plea. At the sentencing

hearing the court had available the presentence investigation report in which the
                                        3


defendant provided a written statement of his “side of the story of how this crime

happened.” Sutton wrote:

              I was at a friend’s apartment uptown drinking with him. He
       and his wife started arguing and she locked me out of the
       apartment and I wasn’t able to call my wife for a ride. I went
       outside, saw a green Cadillac that I thought belonged to my son. I
       got into the passenger side and realized it wasn’t my son’s car. I
       got back out and sat down on the steps to figure out how I would
       get home. A police officer arrived and stated there was a complaint
       about me getting into the car, which belonged to someone she
       knew. I was then arrested for being intoxicated.

The district court sentenced Sutton to two years in prison, suspended the fine,

and ordered Sutton to pay restitution for attorney fees and the law enforcement

surcharge. Sutton appeals.

II. Guilty Plea.

       Sutton contends his attorney was ineffective in failing to file a motion in

arrest of judgment to challenge the factual basis and voluntariness of his plea.

See Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s failure to challenge the

adequacy of a guilty plea proceeding by motion in arrest of judgment shall

preclude the defendant’s right to assert such challenge on appeal.”). To prevail,

Sutton must prove his attorney breached an essential duty and prejudice

resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984).

       A. Factual Basis. We begin with Sutton’s claim the plea lacked a factual

basis. We find the record adequate to address this claim. See State v. Utter,

803 N.W.2d 647, 651 (Iowa 2011) (noting the applicable standard of review).

       Generally, a factual basis may be discerned from “(1) inquiry of the

defendant, (2) inquiry of the prosecutor, (3) examination of the presentence
                                          4

report,[1] and (4) [review of the] minutes of evidence.” State v. Ortiz, 789 N.W.2d

761, 768 (Iowa 2010). He concedes his written guilty plea included an admission

that he was “intoxicated” but contends “there is no indication in this admission

that he understood that the intoxication had to be the result of the consumption of

alcohol and not the result of drugs or a combination of alcohol and drugs.”

        Sutton’s understanding of intoxication makes little difference in the factual

basis analysis because the focus is on an objective reading of the record rather

than on Sutton’s subjective state of mind. The supreme court in State v. Finney,

834 N.W.2d 46, 62 (Iowa 2013), stated when a challenge is to the factual basis to

support a guilty plea, our court looks to the entire record because,

        unlike a claim of due process involuntariness, the relevant inquiry
        for purposes of determining the Sixth Amendment claim . . . does
        not involve an examination of [the defendant’s] subjective state of
        mind at the time the trial court accepted the plea, but instead
        involves an examination of whether counsel performed poorly by
        allowing [the defendant] to plead guilty to a crime for which there
        was no objective factual basis in the record.

For that reason, we find it unnecessary to determine in this inquiry Sutton’s

understanding of the meaning of “intoxication” in section 123.46. We instead

look to the entire record available to the court when it accepted the guilty plea

and pronounced judgment to see if there is a factual basis to support the guilty

plea.

        As noted, the written guilty plea includes Sutton’s statement that he “did

appear in public area” and “was intoxicated.” It also specifically states that the

court, in determining a factual basis, may look to the minutes of testimony and

1
 This assumes the presentence investigation report was available at the time of the
guilty plea proceeding. See State v. Fluhr, 287 N.W.2d 857, 868 (Iowa 1980), overruled
on other grounds by State v. Kirchoff, 452 N.W.2d 801 (Iowa 1990).
                                           5


the law enforcement investigative reports, and may ask him or counsel to recount

the material facts. The minutes of testimony state the arresting officer was slated

to testify that he spoke to a witness, who saw Sutton “come down the stairs,

consuming a beverage from a glass bottle.” The officer also was slated to testify

“[t]he female witness pointed out the bottle which was sitting on the sidewalk”

and would state “that the bottle was half full of an alcoholic beverage.” The

officer was expected to testify that “he attempted to converse with the Defendant

and was immediately aware of a strong odor of alcoholic beverage emitting from

the Defendant’s person,” Sutton “was unable to communicate with” him “due to

his being highly intoxicated,” and the officer “was unable to understand anything

that the Defendant tried to say to him.”

       The minutes and the written guilty plea establish a factual basis for the

crime of public intoxication. Accordingly, Sutton’s attorney did not breach an

essential duty in failing to file a motion in arrest of judgment challenging the

factual basis for the plea.

       In reaching this conclusion, we have not considered the result of a

preliminary breath test conducted by the arresting officer. For that reason, we

find it unnecessary to address Sutton’s arguments regarding inclusion of those

results in a factual-basis analysis.

       B.    Voluntariness.       We turn to Sutton’s assertion his plea was

involuntary. Sutton specifically asserts, “[i]n order for [his] guilty plea to be valid,

the Court was required to establish subjectively that [he] understood that his

intoxication was the result of alcohol consumption alone.” This claim is distinct

from an assertion that counsel was ineffective in failing to challenge the factual
                                          6

basis of the plea. See Finney, 834 N.W.2d at 62 (noting the difference between

a factual basis challenge and a claim of due process involuntariness).

       In order to accept a guilty plea, the court must determine the plea is

voluntary and intelligent and has a factual basis. Iowa R. Crim. P. 2.8(2)(b). The

court must determine the defendant understands, among other things, “the

nature of the charge to which the plea is offered.” Iowa R. Crim. P. 2.8(2)(b)(1);

see also Finney, 834 N.W.2d at 53 (citing Henderson v. Morgan, 426 U.S. 637,

645–47 (1976), and noting a defendant must subjectively know the necessary

elements of the charge for his plea to be knowing and voluntary).

       Sutton asserts the record fails to show he subjectively knew that

intoxication must be the result of consumption of alcohol under section 123.46(2).

He points out the minutes of testimony state he was in possession of two

hydrocodone pills at the time of his arrest, and thus, he argues the record implies

he “may have been under the influence of hydrocodone or a combination of

hydrocodone and alcohol.”         Because neither his attorney nor the court

established his intoxication was from alcohol consumption alone, he claims his

guilty plea is invalid due to a lack of his subjective understanding of intoxication.

       We first determine whether intoxication under section 123.46 requires the

consumption of alcohol alone or whether a defendant can be found guilty of

public intoxication after ingesting other substances.          Section 123.46(2) is

contained within Iowa Code chapter 123, the “Iowa Alcoholic Beverage Control

Act.” See Iowa Code § 123.1. This chapter does not define intoxication, but it

only deals with regulating alcoholic beverages. Specifically, section 123.46(2)

provides:
                                        7


             2. A person shall not use or consume alcoholic liquor, wine,
      or beer upon the public streets or highways. A person shall not use
      or consume alcoholic liquor in any public place except premises
      covered by a liquor control license. A person shall not possess or
      consume alcoholic liquors, wine, or beer on public school property
      or while attending a public or private school-related function. A
      person shall not be intoxicated in a public place. A person violating
      this subsection is guilty of a simple misdemeanor.

The section clearly pertains only to “alcoholic liquor, wine, or beer.” Nowhere

does it refer to other substances, the ingestion of which can lead to intoxication.

See State v. Harris, 490 N.W.2d 561, 563 (Iowa 1992) (noting “the public

intoxication statute, contained within a chapter entitled the ‘Iowa Alcoholic

Beverage Control Act,’ makes no reference to intoxication by any other controlled

substances”); compare Iowa Code § 123.46, with Iowa Code § 321J.2 (noting a

person commits the offense of operating while intoxicated if the person operates

a vehicle “while under the influence of an alcoholic beverage or other drug or a

combination of such substances”). We therefore hold that for someone to be

guilty of public intoxication under section 123.46, the person must be under the

influence of an alcoholic beverage.

      Now we turn our attention to Sutton’s claim that he did not know

intoxication by alcohol consumption was an element of the offense to which he

pled guilty. We apply a substantial compliance standard in determining whether

a court has adequately informed a defendant of the rule 2.8(2)(b) advisories.

See State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). “‘Substantial compliance’

requires at a minimum that the defendant be informed of these matters and

understand them.” Id. (citation omitted).

      In applying this standard to the requirement that the defendant
      know and understand the nature of the charges against him, we
                                           8

       have held the court need not review and explain each element of
       the crime if it is “apparent in the circumstances the defendant
       understood the nature of the charge.”

Id. (emphasis added) (citation omitted). The court did not give misleading or

inaccurate information to Sutton regarding the nature of the offense or its

elements. See id. The court accepted Sutton’s request to waive his presence at

the guilty-plea proceeding.      Although not fully briefed, Sutton has raised a

challenge to the court’s failure to engage in an in-court colloquy as a part of his

subjective-knowledge claim. And the dissent asserts that a written guilty plea

can never be sufficient to establish voluntariness of a guilty plea in the absence

of at least some in-court colloquy between the court and a defendant.

       Read in context, rule 2.8(2)(b) and the case law cited below do not require

an in-court conversation for every serious and aggravated misdemeanor case, as

long as the written guilty plea is adequate, the defendant waives presence,

nothing else appears in the record to dilute the strength of the written guilty plea,

the court exercises its discretion to waive the in-court colloquy,2 and the court is

satisfied the plea is voluntarily and intelligently offered.      In other words, it is

possible for a court to substantially comply with rule 2.8(2)(b) by accepting a well-

drafted written guilty plea, properly documented by a well-drafted order accepting

the plea, without having engaged the defendant personally in court.

       In State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990), the supreme court

for the first time approved the use of a written guilty plea together with an in-court

colloquy to satisfy the requirements of rule 2.8(2)(b) as it then existed. In 2001,

2
  Rule 2.8(2)(b) para. 6 provides in part: “The court may, in its discretion and with
approval of the defendant, waive the above procedures in a plea of guilty to a serious or
aggravated misdemeanor.” (Emphasis added.)
                                            9


the court was still following the requirement that a written guilty plea together with

a colloquy with the court could satisfy rule 2.8(2) in misdemeanor cases when it

clarified that a written plea could not substitute for an in-court colloquy in felony

cases:

         Our court in Kirchoff determined that these requirements in Rule
         [2.]8 can be adequately satisfied in a guilty plea to an aggravated
         misdemeanor when the procedure employed combines written
         admissions and statements with oral colloquy between the
         defendant and the court. Kirchoff, 452 N.W.2d at 804-05. This
         holding, limited to misdemeanors, is now codified in Rule [2.]8.

State v. Hook, 623 N.W.2d 865, 869 (Iowa 2001), abrogated by State v. Barnes,

652 N.W.2d 466 (Iowa 2002).3 In Barnes, the court explained that in Hook the

court had suggested “that the court must personally inform the defendant

concerning the consequences of failing to file a motion in arrest of judgment and

that this may not be accomplished by the contents of a written plea agreement.”

652 N.W.2d at 468. Then the court clarified:

         However, further reflection on our part suggests that this
         interpretation of rule 2.8(2)(d) would unduly restrict the written plea
         process that subparagraph (5) of rule 2.8(2)(b) is designed to foster
         in prosecutions for serious or aggravated misdemeanors. We now
         conclude that the reason paragraph (b) of rule 2.8(2) contains an
         express authorization for waiver of a personal colloquy and
         paragraph (d) of that rule does not is because, unlike paragraph
         (b), paragraph (d) contains no requirement that “the court must
         address the defendant personally.”             The absence of that
         requirement in paragraph (d) convinces us that defendants charged
         with serious or aggravated misdemeanors may enter into a valid
         written waiver of the right to file a motion in arrest of judgment and
         thus trigger the bar that rule 2.24(3)(a) imposes to challenging a
         guilty plea on appeal. That is what occurred in the present case.

Id. (emphasis added).


3
  Although each of these cases involves issues concerning motions in arrest of
judgment, the focus of this opinion is on the factual basis and voluntariness of the plea.
                                        10

       In the case of State v. Meron, 675 N.W.2d 537, 542 (Iowa 2004), the

defendant had appealed from a guilty plea, claiming it was not intelligently and

voluntarily made. Meron had not filed a written guilty plea, so the supreme court

was only considering an in-court colloquy to determine compliance with rule

2.8(2)(b). During that colloquy, the district court had not fully informed her of all

the rights she was giving up by pleading guilty and had failed to inform her of the

right to file a motion in arrest of judgment and the consequences of failing to file

such a motion.    Meron, 675 N.W.2d at 540.        There was some limited record

suggesting that Meron had orally waived her right to be informed of such matters,

but the supreme court determined that any such waiver did not constitute

substantial compliance with rule 2.8(2)(b). Id. at 541-54.

       The Meron court then reviewed the case law and rule development relating

to written waivers:

       In Kirchoff, however, we said that the requirements for the court to
       personally address a defendant to cover the necessary areas of
       inquiry—now listed under rule 2.8(2)(b)—could be satisfied in cases
       involving pleas of guilty to serious and aggravated misdemeanors
       by supplementing the in-court colloquy with a written plea that
       tracked with the language of the rule. See 452 N.W.2d at 804-05.
               We recognize that the waiver language of rule 2.8(2)(b) was
       a codification of our holding in Kirchoff. Hook, 623 N.W.2d at 869.
       Thus, while the rule embraces the use of written waiver forms,
       neither Kirchoff nor the waiver language of rule 2.8(2)(b) diminishes
       the importance and necessity of the court’s role to ensure each
       plea is voluntary, intelligent, and supported by facts. Instead, they
       simply recognize that the court, in making its required determination
       in misdemeanor cases, can use a defendant’s written
       acknowledgement. The language of the waiver portion of the rule
       adopted after Kirchoff tracks with this approach and explains why it
       is written to permit the court to waive the procedures, subject to the
       approval of the defendant. See Iowa R. Crim. P. 2.8(2)(b). It
       allows the court, upon examination of a written plea, to waive the
       necessity of a full in-court colloquy. It does not give the defendant
                                          11


       the right to waive the means for the court to determine that the plea
       is voluntarily and intelligently entered.
              This background reveals the flaw in the State’s argument.
       There are two separate components of rule 2.8(2)(b). See Myers,
       653 N.W.2d at 577-78. The first concerns the requirement of an in-
       court colloquy. See id. The second concerns the requirement the
       defendant is informed. See id. Although the court in guilty pleas to
       serious and aggravated misdemeanors can waive the in-court
       colloquy component, the rule still requires substantial compliance
       with the requirement that the defendant be informed. The waiver
       language of rule 2.8(2)(b) only means the full in-court colloquy can
       be waived and the written plea can serve to establish substantial
       compliance with the rule. We have already determined that there
       was no substantial compliance in this case.

Id. at 543 (emphasis added).

       The dissent reads the foregoing to mean that only a “full in-court colloquy

can be waived;” thus, requiring some in-court colloquy. We read it to mean that

the colloquy, identified as a “full in-court colloquy,” can be waived by the court if

the defendant approves a waiver of presence and the written guilty plea

substantially complies with the rule by showing the defendant was adequately

informed of all the matters required by rule 2.8(2)(b), thus forming an appropriate

basis for the court to conclude the plea was voluntarily and intelligently tendered.

After all, the ultimate objective of rule 2.8(2)(b) is to make certain that there is a

factual basis for the guilty plea and that the same was voluntarily and intelligently

made. The permissive language from Kirchoff, allowing the use of a written plea

to supplement an in-court colloquy, does not create a requirement that written

guilty pleas be relegated to only supplementation of colloquies.4 So long as


4
  At first read, footnote 3 of State v. Finney was concerning. Finney, 834 N.W.2d at 59
n.3. It cites to Meron and Kirchoff approving the use of a written guilty plea to
supplement an in-court colloquy. Id. It should be noted that Finney was an attempted
murder case, not a misdemeanor case. While it is true that a written plea may be used
to supplement an in-court colloquy, Meron allows substantial compliance of the rule
                                        12


there is substantial compliance with those requirements, there need not be a

colloquy under Meron.

      Two years after Meron, in State v. Majeres, 722 N.W.2d 179 (Iowa 2006),

our supreme court considered whether a second offense operating while

intoxicated (OWI),5 an aggravated misdemeanor which resulted in incarceration,

could be considered a second offense for purposes of convicting the defendant

of a third offense OWI. Her second offense OWI conviction was founded on a

written guilty plea and written waiver of counsel. Majeres, 722 N.W.2d at 181. In

Majeres, the defendant was challenging her written waiver of counsel in the

second offense case as having been inadequate. Id. Her written guilty plea,

which contained the written waiver of counsel, also waived her presence in court.

Id. In fact, her written plea and waiver of counsel was tendered to the court by

the county attorney in Majeres’s absence. Id. The court had accepted the plea

without engaging the defendant in any colloquy as the defendant was not

present. Id. The supreme court explained:

              At the time Majeres entered her guilty plea, our rule allowed
      a defendant, when pleading guilty to a serious or aggravated
      misdemeanor, to waive the defendant’s appearance in open court
      to engage in an in-court colloquy. Iowa R. Crim. P. 8(2)(b) (2001)
      (amended Nov. 9, 2001, eff. Feb. 15, 2002; amended Dec. 22,
      2003, eff. Nov. 1, 2004). In the Sioux County case, Majeres signed
      a written plea of guilty without counsel. In that written plea, she
      acknowledged the charge against her as OWI, second offense; her
      right to counsel; and the maximum and minimum sentences. Thus,
      her written plea met the informational requirements under Tovar to
      waive the right to counsel and plead guilty. An in-court colloquy is
      not necessary to ensure the waiver was voluntary, knowing, and


without an in-court colloquy in serious and aggravated misdemeanor cases. See Meron,
675 N.W.2d at 543.
5
  The second offense was committed in November 2001. Majeres, 722 N.W.2d at 181.
Meron was decided in 2004. Meron, 675 N.W.2d at 542.
                                            13

       intelligent. See [Iowa v.] Tovar, 541 U.S. [77,] 87–88, 124 S. Ct.
       [1379,] 1387, 158 L. Ed. 2d [209,] 220 [2004] (stating the Court has
       not “prescribed any formula or script to be read to a defendant” in
       regards to the intelligence of waiving the right to counsel). A written
       guilty plea containing such a waiver is prima facie evidence the
       defendant gave the waiver voluntarily, knowingly, and intelligently.
       See State v. Liddell, 672 N.W.2d 805, 811 (Iowa 2003) (holding a
       written waiver of the right to a jury trial is prima facie evidence the
       waiver was voluntary, knowing, and intelligent).
               ....
               Consequently, the district court may use Majeres’
       uncounseled guilty plea to the OWI, second offense, in Sioux
       County to enhance the offense in this case, even though the court
       imposed incarceration as part of its sentence without an in-court
       colloquy.

Id. at 182-83 (emphasis added).

       While the court was focused on the waiver of counsel, the foregoing

demonstrates that the court clearly stated that “our rule allowed a defendant,

when pleading guilty to a serious or aggravated misdemeanor, to waive the

defendant’s appearance in open court to engage in an in-court colloquy.” Id. at

182.

       Since 2001, our court has considered at least twenty-four unpublished

cases involving the use of written guilty pleas.6 As these are unpublished cases,


6
  See State v. Hilson, No. 13-0895, 2014 WL 970187, at *2 (Iowa Ct. App. Mar. 12,
2014) (finding the written plea adequately advised the defendant how to challenge his
guilty plea; defendant failed to file a motion in arrest of judgment and thus could not
challenge his plea on appeal); State v. Earnest, No. 13-0388, 2014 WL 472036, at *3
(Iowa Ct. App. Feb. 5, 2014) (holding trial counsel breached an essential duty by failing
to contest the defendant’s plea after the district court did not indicate it exercised
discretion to waive the plea colloquy or discharged its duty to ensure the plea was
voluntary, intelligent, and had factual basis and counsel’s failure was prejudicial); Eaves
v. State, No. 12-1929, 2013 WL 6700354, at *1, *3 (Iowa Ct. App. Dec. 18, 2013)
(stating ,“[w]hile the court may streamline the colloquy in misdemeanor cases that
include a written plea agreement, the court may not dispense with the colloquy” but
holding the court’s failure to advise the defendant about the section 903B.2 special
sentence did not result in prejudice because the defendant failed to prove he would have
proceeded to trial); State v. Bakalar, No. 12-1103, 2013 WL 3273826, at *2 (Iowa Ct.
App. June 26, 2013) (finding the plea agreement was not adequately disclosed and
                                             14



preserving the defendant’s claims that the plea was involuntary, unintelligent, and
without a factual basis for postconviction relief claims so that a record regarding the plea
agreement can be developed); State v. Loew, No. 12-1692, 2013 WL 2638230, at *2, *3
(Iowa Ct. App. June 12, 2013) (stating “the court in Meron was clear to note while written
forms are permissible in misdemeanor cases they do not diminish the necessity of some
type of colloquy with the court, to ensure the integrity of the plea” and finding the record
of the written guilty plea and plea colloquy show defendant knowingly and voluntarily
pled guilty); State v. Chao Zhang, No. 11-1367, 2012 WL 664503, at *2 (Iowa Ct. App.
Feb. 29, 2012) (preserving the ineffective-assistance-of-counsel claims because there
was no evidence on the record regarding defense counsel’s advice to the defendant of
immigration consequences, whether the defendant’s conviction will impact his
immigration status, or that the defendant would have not pled guilty if advised of
immigration consequences); State v. Taylor, No. 10-1555, 2011 WL 3689010, at *1
(Iowa Ct. App. Aug. 24, 2011) (holding the district court properly accepted the
defendant’s written guilty plea and written waiver of counsel without an in-court
colloquy); State v. Clark, No. 11-0240, 2011 WL 3480967, at *1 (Iowa Ct. App. Aug. 10,
2011) (finding Clark’s admission in his written guilty plea of a prior offense was sufficient
to establish the prior conviction for enhancement purposes without an in-court colloquy);
State v. Brammeier, No. 10-1157, 2011 WL 2556076, at *2 (Iowa Ct. App. June 29,
2011) (finding no prejudice and therefore the guilty plea was knowing and intelligent
because the defendant’s sentence and fine were less than what defendant had been
advised in the written guilty plea); State v. Rydl, No. 10-0493, 2010 WL 3894604, at *1,
*3 (Iowa Ct. App. Oct. 6, 2010) (finding that it was acceptable for there to be no direct
colloquy between the court and the defendant when entering judgment on a written guilty
plea but remanding so that the State may supplement the record to establish a factual
basis); State v. Tiegen, No. 09-0465, 2009 WL 3380065, at *2 (Iowa Ct. App. Oct. 21,
2009) (holding the defendant’s written guilty plea adequately advised the defendant that
terms of incarceration might run consecutively and “his claim his pleas were not knowing
and voluntary is thus without merit”); State v. Madrigal, No. 08-1623, 2009 WL 3086558,
at *1 n.1, *3, (Iowa Ct. App. Sept. 17, 2009) (holding there was a factual basis to support
the written guilty plea that was entered without the defendant’s presence, but preserving
for postconviction relief the defendant’s ineffective-assistance claims because the record
was inadequate to determine counsel’s advice about the immigration consequences and
the defendant’s level of understanding of English); State v. Thompson, No. 08-1386,
2009 WL 1886111, *1 n.1, *2 (Iowa Ct. App. July 2, 2009) (involving a written guilty plea
entered without an in-court colloquy, the court remanded the case so the State could
have opportunity to establish a factual basis for the plea); State v. Hurd, No. 08-0707,
2009 WL 606234, at *1 (Iowa Ct. App. Mar. 11, 2009) (preserving claims for
postconviction relief because the record was incomplete due to the lack of plea colloquy
transcript); State v. Aceves-Hernandez, No. 07-0830, 2008 WL 2752110, at *1 (Iowa Ct.
App. July 16, 2008) (finding the defendant waived his right to challenge his written guilty
plea and did not assert any ineffective-assistance claims so judgment was affirmed);
State v. Howell, No. 07-1179, 2008 WL 783760, at *1, *2 (Iowa Ct. App. Mar. 26, 2008)
(holding the defendant did not preserve his right to challenge to his written guilty plea but
still finding substantial compliance with rule 2.8(2)(b)(2) because court’s errors in written
plea were harmless); State v. Rich, No. 06-0990, 2007 WL 1063031, *1, *2 (Iowa Ct.
App. Apr. 11, 2007) (finding the written plea adequately informed the defendant of the
consequence of failing to file a timely motion in arrest of judgment; however, the dissent
asserted the defendant “was entitled to an on-the-record court proceeding and . . . trial
counsel was ineffective in failing to ensure that such a proceeding was held,” citing
                                              15


we call attention to them only to demonstrate two points: (1) written guilty pleas

are widely used and apparently an important tool for the district and district

associate judges, who dispose of high volumes of these cases, often without

ready access to court reporters who could make a record of colloquies; and (2)

our court has not ruled consistently as to whether a colloquy is always and

automatically required when a written guilty plea is tendered. For our purposes

here, it is sufficient to say that the cases show a mixed bag of some cases

approving written guilty pleas without colloquies, some approving written guilty




Meron); State v. Marlenee, No. 04-1755, 2006 WL 1229993, at *3 (Iowa Ct. App. Apr.
26, 2006) (holding the defendant’s plea was a voluntary, knowing, and intelligent waiver
of right to trial when the written guilty plea contained the requirements of rule 2.8 and the
court gave an abbreviated in-court colloquy which discussed the plea agreement and
voluntariness of the defendant’s plea); State v. Jenkins, No. 04-0969, 2004 WL
2387527, at *1 (Iowa Ct. App. Oct. 27, 2004) (holding the statement in written guilty plea
that “I freely and voluntarily plead guilty . . . and authorize my attorney to present this . . .
plea of guilty to the Court without my being present” established the plea was voluntary
and did not require the trial court to specifically address voluntariness of the plea); State
v. Root, No. 03-1941, 2004 WL 2173422, *3–4 (Iowa Ct. App. Sept. 29, 2004) (finding
the written guilty plea adequately set forth all rights and procedures waived, it was not
necessary for the court to conduct an in-court colloquy with the defendant, and it was
within the court’s discretion to waive the guilty plea procedures); State v. Hayes, No. 04-
0043, 2004 WL 2002596, at *7 (Iowa Ct. App. Sept. 9, 2004) (finding the written guilty
plea and limited in-court colloquy demonstrated substantial compliance with rule
2.8(2)(b)); State v. Saqib, No. 03-1053, 2004 WL 433967, at *1–2 (Iowa Ct. App. Mar.
10, 2004) (finding there was not an in-court colloquy and none of the documents signed
by the defendant advised him of the immigration consequences, but preserving the
ineffective-assistance claims for postconviction relief so that trial counsel can explain);
State v. Hoffpauir, No. 02-0219, 2003 WL 554599, at *2 (Iowa Ct. App. Feb. 28, 2003)
(finding the district court substantially complied with rule 2.8(2)(d) when it informed the
defendant of the consequence of failing to challenge its acceptance of the written guilty
plea); State v. Carmona, No. 01-1283, 2002 WL 1332735, at *1 (Iowa Ct. App. June 19,
2002) (holding the defendant “gave up his right ‘to discuss with the judge each of the
rights and legal concept set out’ in the guilty plea document, including the right to
counsel” and therefore the district court had no obligation to conduct an in-court colloquy
regarding defendant’s waiver of right to counsel); State v. Porter, No. 00-290, 2001 WL
98529, at *3 (Iowa Ct. App. Feb. 7, 2001) (finding counsel did not breach a duty when
counsel failed to file a motion in arrest of judgment following the defendant’s written
guilty pleas because the defendant agreed to sentencing after the court informed him it
would reserve its sentencing options despite the terms of the plea agreement).
                                            16


pleas with at least some colloquies, some disapproving written guilty pleas

without colloquies, and a number of variations on those rulings.

       If we require a colloquy, even less than a full in-court colloquy, it follows

that a court reporter must make a record of the event. What is the purpose of

requiring a colloquy if there is no record of what was said and by whom?7

       Rule 2.8(2)(b) and the applicable case law give the court the discretion to

waive an in-person colloquy with a defendant, with defendant’s approval, so long

as a written guilty plea adequately provides the court sufficient information from

which the court can make a finding that the plea is voluntarily and intelligently

tendered, and that the court finds there is a factual basis for the plea. For us to

rule otherwise would effectively deny the court the exercise of discretion the rule

expressly provides. Because no in-person colloquy is required in serious and

aggravated misdemeanor cases, we conclude the requirement that a defendant

understand “[t]he nature of the charge to which the plea is offered” can be

satisfied by a written guilty plea.

       Turning our attention to Sutton’s case, a review of the written guilty plea

and the information available to the court when it accepted the guilty plea in this

case and entered judgment thereon shows the court properly exercised its

discretion and substantially complied with the requirement Sutton understand the

nature of the charge to which he was pleading guilty—including the requirement

that intoxication be from the ingestion of alcohol.           Sutton asserted he was


7
  Realizing the limited role of our court, we respectfully mention that making a record
takes time and costs money, not just for the courts, but for the litigants. Court costs and
attorney fees will increase, and delays resulting from increasing the workload of the
district courts will be substantial.
                                        17


“intoxicated” in the written guilty plea. He stated in the presentence investigation

report that he was “drinking” at a friend’s apartment. He also admits to having

been convicted of this same crime at least twice before, showing his familiarity

with the elements of the crime. A review of the minutes of testimony establishes

that Sutton actually had five previous convictions for public intoxication.

Nowhere in the record or in his brief does Sutton claim that his behavior on the

date in question was the result of his ingestion of some other substance other

than alcohol. Nor does he assert he would not have pled guilty had he known

intoxication required the consumption of alcohol.     He does not claim that he

consumed hydrocodone. His sole claim is simply that the court did not make a

finding that he knew the element of intoxication could only be satisfied by proof of

alcohol consumption.

       Beyond his bald assertion that the court did not establish whether he had

subjective knowledge, we find no evidence to support his claim.          We reject

Sutton’s challenge to his guilty plea on the ground that the court did not find he

subjectively knew that intoxication required the ingestion of alcohol. We find the

record establishes the district court substantially complied with the requirement

Sutton understand the nature of the charge, and we therefore reject Sutton’s

claim that counsel was ineffective in not challenging the guilty plea by a motion in

arrest of judgment on this ground.

III. Conclusion.

       We affirm Sutton’s judgment and sentence for public intoxication because

we find a factual basis to support the plea and the court substantially complied
                                        18


with the requirement the defendant understand the nature of the charge to which

he pled guilty.

       AFFIRMED.

       Danilson, P.J., concurs; Vaitheswaran, J., dissents.
                                         19


VAITHESWARAN, J. (dissenting)

       The majority provides compelling reasons for dispensing with an on-the-

record colloquy in aggravated misdemeanor cases supported by written pleas

that waive the colloquy. I do not disagree with those reasons, but I read State v.

Meron, 675 N.W.2d 537 (Iowa 2004), as requiring something different.

       In Meron, the court stated

       [W]hile the rule embraces the use of written waiver forms, neither
       Kirchoff nor the waiver language of rule 2.8(2)(b) diminishes the
       importance and necessity of the court’s role to ensure each plea is
       voluntary, intelligent, and supported by facts. Instead, they simply
       recognize that the court, in making its required determination in
       misdemeanor        cases,    can   use    a    defendant’s    written
       acknowledgement [and] . . . waive the necessity of a full in-court
       colloquy.

675 N.W.2d at 543 (emphasis added). The court reiterated that the rule “allows

the court, upon examination of a written plea, to waive the necessity of a full in-

court colloquy” but “does not give the defendant the right to waive the means for

the court to determine that the plea is voluntarily and intelligently entered.” Id. at

543 (emphasis added). The only means I can think of that would allow a court to

determine whether a plea is voluntary and intelligent would be an in-court

conversation with the defendant.

       The court said just that in State v. Finney, 834 N.W.2d 46, 58 (Iowa 2013).

There the court stated, “[T]he defendant’s understanding [of the plea matters]

involve[s] a subjective concern, requiring the trial court to delve into the

accused’s state of mind, and . . . such an inquiry is best done on the record

through a thorough personal colloquy between the court and the defendant.”

Finney, 834 N.W.2d at 58.        The court went on to say, “[A]n on-the-record
                                         20


discussion during the plea colloquy between the court and the defendant

enhances the ability of the district court to determine the various due process

voluntariness issues which turn on the state of mind of the defendant at the time

the plea is made.” Id. at 61.

       The district court did not conduct an on-the-record plea colloquy,

apparently relying on Sutton’s written waiver of his “right to have the Court

address [him] personally.” While this waiver is a clear expression of Sutton’s

intent to waive an in-person colloquy, Meron tells me that this language does not

absolve the court of the obligation to engage in a conversation with Sutton to

determine whether the plea was voluntary and intelligent.

       In the absence of a plea colloquy, I would find the record inadequate to

address Sutton’s voluntariness claim. See State v. Tate, 710 N.W.2d 237, 241

(Iowa 2006) (finding the record inadequate to address the defendant’s

ineffective-assistance-of-counsel claim on direct appeal). I would preserve this

issue for postconviction relief to permit the development of a record on whether

Sutton knowingly and intelligently pled guilty to the crime.
