                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0329
                              Filed January 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DOUGLAS KENT SMITH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Chad A. Kepros,

Judge.



      The defendant asserts his trial counsel provided ineffective assistance by

allowing the defendant to plead guilty to operating while intoxicated, third or

subsequent offense, without a factual basis to support the plea. AFFIRMED.



      Eric D. Tindal of Keegan Farnsworth & Tindal, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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POTTERFIELD, Presiding Judge.

       Douglas Smith asserts his trial counsel provided ineffective assistance by

allowing Smith to plead guilty to operating while intoxicated, third or subsequent

offense, without a factual basis to support the plea.

       We review claims of ineffective assistance de novo. State v. Schminkey,

597 N.W.2d 785, 788 (Iowa 1999). In order to succeed on a claim of ineffective

assistance, “[t]he defendant move prove by a preponderance of the evidence that

his ‘counsel failed to perform an essential duty,’ and that he ‘was prejudiced by

counsel’s error.’” Id. (citation omitted). “Where a factual basis for a charge does

not exist, and trial counsel allows the defendant to plead guilty anyway, counsel

has failed to perform an essential duty.” Id. “Prejudice in such a case is inherent.”

Id. In determining whether a factual basis for the plea exists, “we consider the

entire record before the district court at the guilty plea, including any statements

made by the defendant, facts related by the prosecutor, the minutes of testimony,

and the presentence report.” Id. We will affirm even if the record does not contain

“evidence that the crime was committed beyond a reasonable doubt.” State v.

Finney, 834 N.W.2d 46, 62 (Iowa 2013). “[T]he record does not need to show that

totality of the evidence necessary to support a guilty conviction, . . . it need only

demonstrate facts that support the offense.” State v. Ortiz, 789 N.W.2d 761, 768

(Iowa 2010).

       Smith argues his admission to the court during the plea colloquy that he

was “under the influence of a controlled substance” at the time he was pulled over

is not enough to satisfy the impairment element. See Iowa Code § 321J.2(1)(a)

(2017) (providing that a person commits the offense of operating while intoxicated
                                          3


if they operate a motor vehicle “[w]hile under the influence of an alcoholic beverage

or other drug or combination of such substances”).         “A person is ‘under the

influence’ when one or more of the following is true: (1) the person’s reason or

mental ability has been affected; (2) the person’s judgment is impaired; (3) the

person’s emotions are visibly excited; and (4) the person has, to any extent, lost

control of bodily actions or motions.” In re S.C.S., 454 N.W.2d 810, 814 (Iowa

1990).

         Smith cites no authority for the proposition that his admission to the court

that he was stopped while “under the influence” does not provide a factual basis

for his guilty plea to operating a vehicle while under the influence. Even if we

assume Smith’s proposition has legal support, his argument fails because the

minutes of testimony—which Smith agreed were substantially correct—provide a

factual basis for the plea.

         The minutes provide that Office Cody O’Hare initiated a stop of Smith’s

vehicle. Smith continued to drive for some time before exiting the highway to a

local road and then ultimately stopping. After making contact with Smith, Officer

O’Hare believed him to be under the influence because Smith appeared agitated,

a search of his vehicle uncovered a suspected methamphetamine pipe and a

syringe with a white substance in it, other officers who arrived on the scene

recognized Smith as a known methamphetamine user, and Smith admitted he had

used methamphetamine several days earlier. Field sobriety tests administered at

the scene indicated Smith was impaired; he exhibited six out of six clues for

impairment in the horizontal gaze nystagmus test, six out of eight clues in the walk-

and-turn test, and three out of four clues with the one-leg stand test. Smith’s
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preliminary test for blood alcohol content established there was no alcohol in his

blood—indicating his impairment was caused by something other than alcohol.

Additionally, Deputy Ben Lord, a certified drug recognition expert, concluded Smith

was under the influence of a stimulant “based on [Smith’s] reckless driving, poor

field sobriety test performance, irritability and restlessness, and the combination of

a suspected methamphetamine syringe in [Smith’s] vehicle and a fresh injection

site on [Smith’s] arm.”

       The evidence in the record establishes a factual basis to support Smith’s

guilty plea for operating a vehicle while intoxicated, third or subsequent offense.1

See State v. Adams, No. 02-0523, 2003 WL 22015791, at *1 (Iowa Ct. App. Aug.

27, 2003) (concluding substantial evidence supported the defendant’s conviction

for operating while under the influence based in part upon the defendant’s impaired

balance and failing the field sobriety tests); State v. Heilesen, No. 01-1961, 2002

WL 31312644, at *4 (Iowa Ct. App. Oct. 16, 2002) (finding the defendant’s inability

to perform field sobriety tests is evidence that he or she is under the influence

when there is nothing else in the record to explain the inability to complete them).

We affirm.

       AFFIRMED.




1
 Smith does not challenge his admission to two or more prior convictions for operating
while under the influence.
