                       IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0753
                             Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD JOSEPH MOTZ,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.




       Chad Motz appeals from his conviction of domestic abuse assault with

intent to cause serious injury, claiming ineffective assistance of counsel.

AFFIRMED.




       David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles

City, for appellant.

       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.




       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       Chad Motz appeals from his conviction, based upon an Alford plea,1 of

domestic abuse assault with intent to cause serious injury, in violation of Iowa

Code section 708.2A(2)(c) (2013), an aggravated misdemeanor. Motz contends

his trial counsel was ineffective in allowing him to plead guilty without a factual

basis to support the charge. He also suggests his plea was not knowingly and

voluntarily entered because the trial court failed to ensure he was informed of

and understood the nature of the charges he was facing.

       “Although claims of ineffective assistance of counsel are generally

preserved for postconviction relief hearings, we will consider such claims on

direct appeal where the record is adequate.” State v. Lopez, 872 N.W.2d 159,

169 (Iowa 2015) (citation omitted). The record here is sufficient to reach Motz’s

claim challenging his counsel’s performance. Our review is de novo. State v.

Thacker, 862 N.W.2d 402, 405 (Iowa 2015).            To succeed on an ineffective-

assistance-of-counsel claim, Motz must prove both that (1) his counsel failed to

perform an essential duty, and (2) he suffered prejudice as a result of his

counsel’s failure. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

       Before accepting a guilty plea, the district court must first determine the

plea has a factual basis, and that factual basis must be disclosed in the record.

State v. Finney, 834 N.W.2d 46, 61-62 (Iowa 2013); see also Iowa R. Crim. P.

2.8(2)(b). “This requirement exists even where the plea is an Alford plea.” State

v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). “Where a factual basis for a


1
 An Alford plea allows a defendant to consent to the imposition of a sentence without
admitting participation in the crime. North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                           3


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

anyway, counsel has failed to perform an essential duty.” State v. Gines, 844

N.W.2d 437, 441 (Iowa 2014).         “Prejudice is inherent in such a case.”2         Id.

Accordingly, with regard to this claim, our first and only inquiry is whether the

record shows a factual basis for Motz’s guilty plea to the charge of domestic

abuse assault with intent to cause serious injury. See id.

       In determining whether 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 testimony, and the presentence report.”3 Id. “Absent a written plea of guilty

describing all the matters set forth in the rule, noncompliance with oral

requirements of the rule normally constitutes reversible error.” State v. Meron,

675 N.W.2d 537, 542 (Iowa 2004). However, in cases concerning serious and

aggravated misdemeanor charges, Iowa Rule of Criminal Procedure 2.8(2)(b)

affords the plea-taking court

       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.

See also State v. Sutton, 853 N.W.2d 284, 294 (Iowa Ct. App. 2014) (interpreting

rule 2.8(2)(b) and Meron, 675 N.W.2d at 542). “Because no in-person colloquy is


2
  In other words, when trial counsel permits a defendant to plead guilty and waive the
right to file a motion in arrest of judgment absent a factual basis to support the guilty
plea, counsel violates an essential duty, and prejudice is presumed. See State v.
Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011).
3
  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).
                                             4


required in serious and aggravated misdemeanor cases, . . . 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.” Sutton, 853 N.W.2d at 294 (citation

omitted).

       Here, after a plea negotiations, Motz entered a written plea of guilty to the

domestic-abuse-assault charge. The written plea set forth numerous statements

that Motz placed his initials by, acknowledging that he could read, he received a

copy of and read the trial Information, he discussed the trial information with his

attorney, he fully understood the charge made against him, he “did an act,

without justification, which was intended to be insulting or offensive or to result in

bodily contact which was insulting or offensive to another with the apparent ability

to execute the act,” and the court could rely on the minutes of testimony as a

further factual basis to support his plea.

       The minutes of testimony provided that the responding officer would testify

he spoke with Motz’s wife, the victim, and she told him Motz “held her down with

his left [arm] and strangled [her]” and “that [she] was injured when [Motz]

assaulted her.”     The minutes further state the officer would testify to his

observations of Motz’s wife’s injuries, specifically, that she “had several large

black and purple marks on the left side of her neck and throat area and red

swollen right cheek as well as other marks and bruises.”

       The same day he signed the written plea, Motz went before the court for a

plea colloquy. Motz confirmed he was pleading guilty voluntarily and of his own

free will.   Concerning the crime at issue here, the court asked Motz if he

assaulted his wife by placing his hands around her neck, and Motz told the court
                                         5


he did not do anything and did not assault his wife. The following exchange

occurred:

               THE COURT: [W]hy are you pleading guilty, then, sir?
               [MOTZ]: Because I want to get this done and over with so I
      can carry on with my life.
               THE COURT: Okay. [Motz’s counsel], do you want me to
      accept this as an Alford plea?
               [MOTZ’S COUNSEL]: Yes, Your Honor.
               THE COURT: Mr. Motz, there is a possibility, then, we can
      accept your plea of guilty, if you are pleading guilty—sometimes
      when people can’t admit to the act, they still enter a plea of guilty
      because they believe that the evidence that the State has, if it’s
      presented to a judge or a jury, would be enough to have them
      convicted, and they want to take advantage of the plea agreement
      that has been offered.
               Is that your situation here?
               [MOTZ]: Yes.
               THE COURT: So, you believe that if this evidence was
      presented to a judge or a jury, you would be convicted of these
      offenses?
               [MOTZ]: Yes.
               THE COURT: All right. . . . [Motz’s counsel], can the court
      rely upon the minutes of testimony as a factual basis?
               [MOTZ’S COUNSEL]: Yes, Your Honor. . . .
               THE COURT: And is that acceptable to the State as
      well . . . ?
               [THE STATE]: It is, Your Honor.
               And we would agree that the court can rely on the minutes of
      testimony as a factual basis for the [charge].
               ....
               THE COURT: Okay.
               Mr. Motz, to the charge of—
               And again, I understand that this is an Alford plea to . . . the
      charge of domestic abuse assault as an aggravated misdemeanor;
      assault with the intent to inflict serious injury upon another as an
      Alford plea, how do you plead, sir?
               [MOTZ]: Guilty.
               THE COURT: Sir, I will accept your pleas of guilty, and I find
      that you are doing this freely and voluntarily, that you fully
      understand the rights that you are giving up by entering these
      pleas, and that you fully understand the possible consequences of
      your pleas. I further find that there is a factual basis for the court to
      accept these pleas.
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          Looking at the entire record, we have little difficulty in concluding that Motz

understood the nature of the domestic-abuse-assault charge and that there was

an adequate factual basis to support Motz’s Alford plea to that charge. Motz was

specifically asked by the court if he strangled his wife. The court’s question and

Motz’s subsequent denial evidence Motz understood the charges against him, in

addition to the fact Motz acknowledged such on his written plea of guilty. The

court then specifically asked Motz if he believed the State’s evidence would be

sufficient to convict him, and Motz answered, “Yes.” The minutes clearly serve

as a factual basis to support the charge, and Motz does not allege on appeal that

he harbored any specific misunderstanding concerning his domestic-abuse

charge. Nor does he advance any reason why we cannot rely on his signed and

initialed plea and the court’s order to find substantial compliance with rule

2.8(2)(b). The court’s colloquy in this aggravated-misdemeanor case, along with

Motz’s written plea and the minutes of testimony, evidence Motz understood the

nature of the charge and that there was a factual basis to support that charge.

Consequently, Motz’s trial counsel was not ineffective in allowing him to enter his

Alford plea to aggravated misdemeanor domestic abuse assault. We therefore

affirm Motz’s conviction of domestic abuse assault with intent to cause serious

injury.

          AFFIRMED.
