                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1533
                                  Filed April 4, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW MCKIBBON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District

Associate Judge.



      Matthew McKibbon appeals from his guilty plea to assault causing bodily

injury. AFFIRMED.



      Jeremy B.A. Feitelson of Nelsen & Feitelson Law Group, P.L.C., West Des

Moines, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

       Matthew McKibbon appeals from his guilty plea to assault causing bodily

injury. He asserts his trial counsel was ineffective in permitting him to (1) plead

guilty when there was an insufficient factual basis for his guilty plea and (2) waive

a verbatim record of the plea and sentencing proceedings, thus precluding any

potential challenge of his guilty plea. Because the written plea agreement and

minutes of testimony establish a factual basis, and McKibbon waived the right to a

verbatim record, we affirm.

   I. Background Facts and Proceedings

       On August 24, 2017, the State filed a trial information charging McKibbon

with domestic abuse assault causing bodily injury, a serious misdemeanor, in

violation of Iowa Code sections 708.1, 708.2A(2)(b), and 236.2 (2017). The State

also included minutes of evidence, stating a Dallas County Sheriff’s Deputy would

testify that on August 17, 2017, the deputy investigated a complaint of domestic

abuse, McKibbon told the deputy “take me to jail, I hit her,” and McKibbon said the

complaining witness needed an ambulance.          The minutes further stated the

complaining witness and another witness would testify that McKibbon became

angry with the complaining witness, he began to yell at her, and he assaulted her.

       On September 14, McKibbon signed a preprinted “petition to plead guilty to

serious misdemeanor” form as to an amended charge of assault causing bodily

injury under Iowa Code section 708.2(2).        The petition was also signed by

McKibbon’s counsel. The petition stated, “I am knowingly and intelligently pleading

guilty to the charge because I am guilty. I ask the Court to accept my guilty plea.”

The petition also stated, “I waive my right to have a verbatim record of these
                                            3


proceedings.” On the petition, a notation was marked next to this statement and

“verbatim” was underlined. Additionally, the petition stated, “In order to establish

a factual basis I ask the court to accept as true the minutes of [evidence], the date

of the offense is 8/16/17 and I admit I did the following: in Dallas County, Iowa I

slapped [the complaining witness] twice with my hand causing her redness of the

ear.”

         Pursuant to the waiver, the September 14 plea hearing was not reported.

The court accepted the plea and, on September 21, entered judgement and

sentenced McKibbon to one year in jail, with all but twenty days suspended, and

one year of probation plus a fine, costs and surcharges.1

         McKibbon appeals.

      II. Standard of Review

         “Our analysis of an ineffective-assistance claim is de novo. To succeed on

an ineffective-assistance-of-counsel claim, a defendant must show: ‘(1) counsel

failed to perform an essential duty; and (2) prejudice resulted.’” Everett v. State,

789 N.W.2d 151, 158 (Iowa 2010) (citations omitted).

      III. Factual Basis

         McKibbon asserts his trial counsel was ineffective in failing to file a motion

in arrest of judgment, asserting there was an insufficient factual basis for his guilty

plea.     A guilty plea may not be accepted by a court without the court first

determining the plea has a factual basis. Iowa R. Crim. P. 2.8(2)(b). To succeed

on the essential-duty prong, McKibbon must demonstrate the record lacks a factual



1
    McKibbon was given credit for twenty days already served.
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basis to support his guilty plea to assault causing bodily injury. See State v. Ortiz,

789 N.W.2d 761, 765 (Iowa 2010). In order to prove assault causing bodily injury,

the State must show: (1) McKibbon committed an assault; (2) he had the apparent

ability to do the act; (3) he caused bodily injury; and (4) he acted without

justification.   See Iowa Code §§ 708.1(2) (defining the offense of assault

generally), 708.2(2) (stating that a person who commits an assault, as defined in

section 708.1, and who causes bodily injury or mental illness, is guilty of a serious

misdemeanor).

        McKibbon argues the court failed to establish a record that the offense

occurred without justification and that his counsel was ineffective in failing to

challenge the sufficiency of the factual basis and thereby failing to file a motion in

arrest of judgment.

        We note justification is an affirmative defense to assault rather than an

element of the crime.       State v. Delay, 320 N.W.2d 831, 833 (Iowa 1982).

Accordingly, a defendant asserting it has the burden of going forward with sufficient

evidence to show the defense applies. State v. Lawler, 571 N.W.2d 486, 489 (Iowa

1997). At that time, the burden shifts to the State to disprove the justification

defense beyond a reasonable doubt. Delay, 320 N.W.2d at 834. Any guilty plea

taken in conformity with Iowa Rule of Criminal Procedure 2.8 waives all defenses

and objections. State v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000). McKibbon

argues that without a verbatim record there is no way of knowing whether he

asserted a justification.   Yet, we note that the written guilty plea signed by

McKibbon both waived the right to a verbatim record and asked the court to “accept

as true the minutes of [evidence].”
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       In order to determine if a factual basis exists “we consider the entire record

before the district court at the guilty plea hearing, including any statements made

by the defendant, facts related by the prosecutor, the minutes of [evidence], and

the presentence report.” State v. Schminkey, 597 N.W.2d 785, 588 (Iowa 1999).

       Here, the petition to plead guilty, which was signed by McKibbon, included

the handwritten statement: “[I]n Dallas County, Iowa I slapped [the complaining

witness] twice with my hand causing her redness of the ear.” In addition, the

minutes of evidence explicitly provide that a named deputy would testify McKibbon

said to him, “Take me to jail, I hit her,” and two other witnesses would testify that

McKibbon initiated the confrontation after becoming upset with the complaining

witness. The record lacks any evidence or even a suggestion that McKibbon

asserted a justification for the assault. Because the minutes clearly provide a

factual basis for McKibbon’s plea, his trial counsel was not ineffective for permitting

him to plead guilty and, thereby, was not ineffective in failing to file a motion in

arrest of judgment.

   IV. Verbatim Record

       McKibbon asserts the court erred in failing to create a verbatim record of

the guilty plea and sentencing proceedings and his counsel was ineffective in

allowing him to waive such a requirement and failing to file a motion in arrest of

judgment alleging the same.

       The Iowa Rules of Criminal Procedure allow a defendant to knowingly and

voluntarily waive important constitutional rights. See Iowa R. Crim. P. 2.8(2)(b);

State v. Finney, 834 N.W.2d 46, 50 (Iowa 2013). If constitutional rights can be

waived, so too can lesser statutory rights. See State v. Hinners, 471 N.W.2d 841,
                                          6


845 (Iowa 1991) (stating that “if a defendant can waive such important

constitutional rights, the defendant ought to be able to waive a lesser statutory right

such as the right of appeal”).

       Here, McKibbon waived a verbatim record and only faults the absence of a

verbatim record to support his challenge to the factual basis supporting his plea.

See Finney, 834 N.W.2d at 62 (explaining the entire record may be examined in a

lack-of-factual-basis claim while a voluntariness claim requires the court to

examine the defendant’s subjective state of mind at the time of the plea). Because,

as discussed above, the record clearly provides a factual basis for McKibbon’s

plea, his counsel had no duty to object to McKibbon’s waiver of a verbatim record

of the proceedings nor was counsel ineffective in failing to file a motion in arrest of

judgment to assert this claim.

   V. Conclusion

       Because a factual basis for McKibbon’s plea is found in the record,

McKibbon’s claims of ineffective assistance of counsel fail.

       AFFIRMED.
