                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1588
                             Filed October 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRYANT KEPHART,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Gregory D. Brandt

(guilty plea) and Cynthia M. Moisan (sentencing), District Associate Judges.



      Defendant challenges his pleas of guilty to multilple counts of possession

of a controlled substance. AFFIRMED.




      Edward S. Fishman of Nelsen & Feitelson Law Group, PLC, West Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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McDONALD, Judge.

       Bryant    Kephart    pleaded     guilty   to   possession     of   marijuana,

methamphetamine, ecstasy, and hydrocodone, all in violation of Iowa Code section

124.401(5) (2017).    Kephart did not file a motion in arrest of judgment and

proceeded to sentencing. The district court sentenced Kephart to an indeterminate

term of incarceration not to exceed eight years. In this appeal, Kephart challenges

his convictions, contending his plea was not knowing and lacked a factual basis.

Specifically, he contends his guilty pleas were not knowing because his counsel

failed to fully explain the meaning of “possession.” He contends his pleas lacked

a factual basis because the plea record did not establish constructive possession.

       As a general rule, a defendant must file a motion in arrest of judgment to

challenge the validity of his guilty plea. See Iowa R. Crim. P. 2.24(3)(a). A

defendant’s failure to file a motion in arrest of judgment bars any challenge to his

guilty plea. See Iowa R. Crim. P. 2.24(3)(a). However, a defendant can indirectly

challenge his guilty plea by asserting his counsel provided constitutionally deficient

representation in allowing the defendant to enter a defective guilty plea and in

failing to file a motion in arrest of judgment to challenge the same. See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).

       In this case, the defendant failed to file a motion in arrest of judgment, and

he is barred from directly challenging his guilty pleas. He does challenge them

indirectly by asserting his claims as claims of ineffective assistance of counsel.

This court reviews ineffective-assistance-of-counsel claims de novo.             See

Rhoades v. State, 848 N.W.2d 22, 26 (Iowa 2014); Everett v. State, 789 N.W.2d

151, 158 (Iowa 2010). “In order to succeed on a claim of ineffective assistance of
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counsel, a defendant must prove: (1) counsel failed to perform an essential duty;

and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Counsel failed to

perform an essential duty when counsel’s performance fell below that of a

reasonably competent practitioner. See Everett, 789 N.W.2d at 158. In the plea

context, prejudice exists when “the guilty plea would not have been entered but for

the breach of duty by counsel.” Castro v. State, 795 N.W.2d 789, 793 (Iowa 2011).

       The defendant’s claim his plea was not knowing is without merit. First, in

the written plea agreement, the defendant stated he understood “the nature of the

charge against” him. Second, the defendant admitted this was a second offense.

He thus had knowledge from prior cases of the nature of the offense. Third, the

name of the offense—possession of a contolled substance—is “sufficiently

descriptive of its nature to obviate further explanation.” State v. Victor, 310 N.W.2d

201, 204 (Iowa 1981). This court reached the same conclusion in the materially

indistinguishable case of State v. Sanders, No. 16-1281, 2017 WL 4570432, at *1

(Iowa Ct. App. Oct. 11, 2017). In that case, the defendant pleaded guilty to

possession of marijuana in violation of Iowa Code section 124.401(5) (2016). See

id. Sanders claimed his plea was unknowing because he did not understand the

nature of his charge. See id. This court rejected the claim, stating “[t]he name of

the offense is sufficiently descriptive of its nature to obviate further explanation.

The elements of the charge here were not complex, and the nature of the offense

was apparent from its name.” Id. at *2. The same reasoning applies here.

       The defendant’s claim his pleas lacked a factual basis fares no better than

his prior claim. This court reviews the record in its entirety when determining
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whether there was an adequate factual basis supporting a guilty plea. See State

v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). This court may consider the minutes

of testimony and “may consider written statements by the defendant if such

statements are not conclusory and are not expressed in terms lifted directly from

the criminal statute.” State v. Clay, No. 02-0632, 2002 WL 31314635, at *2 (Iowa

Ct. App. Oct. 16, 2002). “Our cases do not require that the district court have

before it evidence that the crime was committed beyond a reasonable doubt, but

only that there be a factual basis to support the charge.” Finney, 834 N.W.2d at

62; accord State v. VonHofsteder, No. 17-1136, 2018 WL 1442692, at *3 (Iowa Ct.

App. Mar. 21, 2018). The minutes of testimony reflect the drugs were found in the

defendant’s residence—a suspected drug house—during the execution of a

search warrant. Kephart told the officers he had collected methamphetamine and

ecstasy from around the house and placed them in a container with the intent to

dispose of them (although he could offer no explanation why he had not disposed

of them). In addition, in the defendant’s written guilty plea he admitted to all of the

elements of the offenses.          The signed plea states, “I had Marijuana,

Methamphetamine, Ecstasy & Hydrocodone in my possession as I knew what all

of the substances were and knew they were illegal substances. I have previously

been convicted of a possession of controlled substance.”            The defendant’s

statement is sufficient to establish a factual basis. See State v. Pirtle, No. 14-1677,

2015 WL 6509101, at *1 (Iowa Ct. App. Oct. 28, 2015) (finding adequate factual

basis for a guilty plea when defendant “admitted possession of methamphetamine,

and he pled guilty”); State v. Rose, No. 11-1335, 2012 WL 1623407, at *4 (Iowa

Ct. App. May 9, 2012) (finding that there was an adequate factual basis that
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defendant possessed precursors when defendant “admitted in the colloquy that he

had intended to manufacture methamphetamine”); Clay, 2002 WL 31314635, at *2

(finding adequate factual basis when defendant’s “statements in his written pleas

of guilty were . . . clearly before the court and were properly considered by the

court in accepting [defendant]’s plea of guilty”).

       The appellate record reflects the defendant’s guilty pleas were knowingly

made and supported by a factual basis. The defendant’s counsel had no duty to

file a meritless motion in arrest of judgment. See State v. Carroll, 767 N.W.2d 638,

645 (Iowa 2009); State v. Freisinger, No. 12-0374, 2012 WL 4099115, at *1 (Iowa

Ct. App. Sept. 19, 2012). The defendant thus failed to establish his claims of

ineffective assistance of counsel. We affirm the defendant’s convictions.

       AFFIRMED.
