                     IN THE COURT OF APPEALS OF IOWA

                              No. 3-1241 / 13-0046
                               Filed April 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH WESLEY PAPPAS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Benton County, Sean W.

McPartland, Judge.



      A defendant challenges his guilty plea as unsupported by a factual basis

and involuntary. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, and David C. Thompson, County Attorney, for appellee.



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

        Kenneth Pappas challenges his guilty plea as unsupported by a factual

basis and as involuntary.

   I.      Background Proceedings

        Pappas pled guilty to second-degree sexual abuse. After the district court

imposed judgment and sentence, Pappas filed a notice of appeal.

        While the appeal was pending, Pappas learned that the court reporter

assigned to the plea proceedings inadvertently deleted the record prior to

transcription.

        In the absence of a transcript, Pappas filed a statement of the evidence as

authorized by Iowa Rule of Appellate Procedure 6.806(1).          He asserted the

district court failed to establish a factual basis for the plea and failed to inform

him of the deadline for filing a motion in arrest of judgment to challenge the plea.

The State disputed both assertions.          The district court approved Pappas’s

statement in part and overruled it in part.         The judge stated he had no

independent recollection of the plea proceeding but his general practice was to

assess the factual basis for pleas and discuss timeframes for motions in arrest of

judgment. The court proceeded to rule as follows:

                The undisputed statements that Defendant acknowledged
        committing the crimes in question and that Defendant was informed
        of his right to file a motion in arrest of judgment is approved. The
        Defendant’s Statement of the Evidence otherwise is overruled, and
        is not accepted as a correct statement of the events in question.

        On appeal, Pappas makes the following argument:

               The district court erred in failing to adopt defendant’s
        statement of evidence as the court admitted having no independent
        recollection or contemporaneous documentation of the guilty plea
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         hearing and defendant’s statutory right to have post-trial
         proceedings recorded has been violated. Additionally, the failure to
         elicit a factual basis during the plea proceedings renders the guilty
         plea involuntary and, therefore, invalid and the failure to file a
         motion in arrest of judgment challenging the plea constitutes
         ineffective assistance of counsel.

   II.      Analysis

         A. Record for Review

         We begin with the first prong of Pappas’s argument, the district court’s

refusal to adopt his entire statement of the evidence. Pappas correctly points out

that the district court is obligated to make a record of the guilty plea proceeding.

See Iowa R. Crim. P. 2.8(3) (“A verbatim record of the proceedings at which the

defendant enters a plea shall be made.”).            But the rules also envision

circumstances when a record will be unavailable. If a record is unavailable, an

appellate rule authorizes the preparation of a statement of the evidence, the filing

of objections, and the court’s settlement and approval of a final statement. Iowa

R. App. P. 6.806. Nothing in the rule requires the district court to adopt the

defendant’s statement of the evidence in its entirety or precludes the court from

considering its own general practice. Because Pappas, the State, and the district

court followed the procedure outlined in rule 6.806, we conclude the district court

did not err in declining to adopt Pappas’s entire statement of the evidence.

         B. Error Preservation

         We turn to the last portion of Pappas’s argument—his attorney’s failure to

file a motion in arrest of judgment challenging the plea. Pappas acknowledges

this omission raises an error preservation concern.         See Iowa R. Crim. P.

2.24(3)(a) (“A defendant's failure to challenge the adequacy of a guilty plea
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proceeding by motion in arrest of judgment shall preclude the defendant’s right to

assert such challenge on appeal.”). Pappas attempts to circumvent the omission

in two ways.

      First, he contends the district court failed to inform him of the deadline for

filing such a motion, absolving him of the obligation to timely file such a motion.

See Iowa R. Crim. P. 2.8(2)(d) (“The court shall inform the defendant that any

challenges to a plea of guilty based on alleged defects in the plea proceedings

must be raised in a motion in arrest of judgment and that failure to so raise such

challenges shall preclude the right to assert them on appeal.”); State v. Loye, 670

N.W.2d 141, 150 (Iowa 2003) (stating defendant’s failure to file a motion in arrest

of judgment did not prevent her from challenging her guilty plea on appeal where

district court failed to properly explain the process for challenging a plea).

Pappas is correct that the court’s written “acceptance of guilty plea and orders”

did not mention the timeframe for filing a motion in arrest of judgment. However,

according to the order, Pappas “was advised that any challenge to the plea of

guilty based upon defects in the plea proceeding must be raised first by Motion in

Arrest of Judgment in order to assert such challenge on appeal.” We conclude

this statement amounted to substantial compliance with rule 2.24(3). See State

v. Straw, 709 N.W.2d 128, 132 (Iowa 2006) (“We employ a substantial

compliance standard in determining whether a trial court has discharged its duty

under rule 2.8(2)(d).   The court must ensure the defendant understands the

necessity of filing a motion to challenge a guilty plea and the consequences of

failing to do so.” (citations omitted)); State v. Howell, No. 07-1179, 2008 WL

783760, at *1 (Iowa Ct. App. Mar. 26, 2008) (“We are aware of no rule that
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requires the defendant to be informed of the time limit for filing a motion in arrest

of judgment.    We find there was substantial compliance with rule 2.8(2)(d).

Because Howell did not file a motion in arrest of judgment, he did not preserve a

challenge to his guilty plea for appeal.”).

       Second, Pappas argues his failure to file a motion in arrest of judgment

does not preclude review, because we may review his challenges to the factual

basis and voluntariness of the plea under an ineffective-assistance-of-counsel

rubric. We agree. See State v. Doggett, 687 N.W.2d 97, 100–02 (Iowa 2004).

       C. Factual Basis

       Pappas contends the district court failed to establish a factual basis for the

plea. We must first decide whether the record is adequate to consider the issue

on direct appeal or whether we must preserve the issue for postconviction relief

to allow the development of the record.           See id. at 100 (noting ineffective-

assistance-of-counsel claims are ordinarily preserved for postconviction relief).

       Pappas acknowledges the record contains the minutes of testimony

outlining the evidence supporting the charge. He contends, however, that “there

is nothing in the record to indicate that the district court consulted the minutes of

testimony, or that defendant acquiesced to any such consultation.”

       The Iowa Supreme Court addressed a virtually identical issue in State v.

Finney, 834 N.W.2d 46, 62 (Iowa 2013). The court stated, “the failure of the

district court . . . to explain on the record the evidence supporting his finding of a

factual basis is . . . an omission unrelated to the substantive claim” that the plea

bargain was invalid because of the lack of accuracy of the factual basis. Finney,

834 N.W.2d at 62. The court concluded it was appropriate to examine the entire
                                        6


record, including the minutes of testimony, to determine the existence of a factual

basis. Id. Because the minutes of testimony are in our record, we conclude the

record is adequate to address the factual basis issue on direct appeal.         To

prevail, Pappas must show that counsel breached a duty and prejudice resulted.

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

      Pappas pled guilty to second-degree sexual abuse.          Sexual abuse is

defined as follows: “Any sex act between persons is sexual abuse by either of the

persons when the act is performed with the other person in any of the following

circumstances . . . [s]uch other person is a child.” Iowa Code § 709.1(3) (2011).

Second-degree sexual abuse can occur in a variety of circumstances, including

where “[t]he other person is under the age of twelve.”       Id. § 709.3(2).   The

minutes of testimony reveal that Pappas performed a sex act with a child who

was under the age of twelve. These minutes provide a factual basis for Pappas’s

plea. Accordingly, Pappas’s attorney breached no essential duty in failing to file

a motion in arrest of judgment challenging the plea on that ground.

      D. Voluntariness of Plea

      Pappas next asserts his plea was involuntary. This claim is distinct from

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

of the plea. See Finney, 834 N.W.2d at 56, 61–62.

      [T]he voluntariness requirement stems from the due process right
      that a waiver of constitutional rights must be made voluntarily,
      which requires that a plea be knowing and intelligently made. . . .
      [T]he defendant’s understanding of these 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.
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          Id. at 58.   This issue, like the factual basis issue, would have to be

reviewed under an ineffective-assistance-of-counsel rubric, given counsel’s

failure to file a motion in arrest of judgment. See State v. Brooks, 555 N.W.2d

446, 448 (Iowa 1996).

          We must determine whether the record is adequate to address the

voluntariness issue on direct appeal.      Because this issue raises a subjective

concern that is best resolved through a personal colloquy with the court, we

conclude the district court’s final statement of the evidence is inadequate to

assess the claim. Accordingly, we preserve this issue for postconviction relief to

further develop the record on what transpired at the plea proceeding.

   III.      Disposition

          We affirm Pappas’s judgment and sentence for second-degree sexual

abuse. We preserve his claim that his attorney was ineffective in failing to file a

motion in arrest of judgment to challenge the voluntariness of his plea.

          AFFIRMED.
