                   IN THE COURT OF APPEALS OF IOWA

                                     No. 18-1031
                                  Filed April 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT ALLEN BROWN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Nancy S. Tabor and

Joel W. Barrows, Judges.



      Defendant appeals his conviction and sentence for operating while

intoxicated. AFFIRMED.



      G. Brian Weiler, Davenport, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.* Tabor, J.,

takes no part.

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

       Robert Brown pled guilty to operating while intoxicated, third offense, in

violation of Iowa Code section 321J.2(2)(c) (2017). He now appeals his conviction

and sentence. On appeal, Brown asserts his counsel was ineffective for allowing

the district court to accept his guilty plea without a factual basis.

       Generally, we review challenges to guilty pleas for correction of errors at

law. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006). “However, when the

challenge arises in the context of an ineffective-assistance claim, our standard of

review is de novo.” Id. For Brown to prevail on his ineffective-assistance claim,

he must show counsel failed to perform an essential duty and such failure resulted

in prejudice. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland

v. Washington, 466 U.S. 668, 687–88 (1984)). A district court “shall not accept a

plea of guilty without first determining that the plea . . . has a factual basis.” Iowa

R. Crim. P. 2.8(2)(b). Therefore, “[w]here 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.” State v. Schminkey, 597 N.W.2d 785, 788

(Iowa 1999).

       “A factual basis can be discerned from four sources: (1) inquiry of the

defendant, (2) inquiry of the prosecutor, (3) examination of the presentence report,

and (4) minutes of evidence.” State v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010).

At the plea hearing, the following colloquy occurred:

               THE COURT: Will you tell me in your own words just what
       caused you to be charged with OWI third or subsequent offense?
               BROWN: Stopped, had a couple drinks, just got off work and
       got a little—got carried away with it and got in a vehicle and drove
       home and made a wrong choice.
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              THE COURT: Well, when you say you had a couple drinks,
       were they alcoholic beverages?
              BROWN: They were mixed drinks, alcohol, hard liquor, yeah.
              THE COURT: And at the time you were driving, were you
       under the influence of an alcoholic beverage so your abilities to drive
       the motor vehicle were impaired?
              BROWN: Yes, your Honor.

Brown now argues this colloquy does not elicit sufficient facts to establish he was

“under the influence” because “he did not mention any effect on his reasoning,

mental ability, judgment, emotions, or bodily control.” Specifically, he claims his

acknowledgement of his impaired abilities to drive is insufficient to prove he was

under the influence because “he did not elaborate on the extent of the impairment.”

       For the crime of operating while intoxicated, the State must prove two

elements: (1) the defendant operated a motor vehicle and (2) the defendant was

“under the influence” of alcohol or some other drug at the time of operation. State

v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (citing Iowa Code § 321J.2). Based

on the colloquy above, Brown admitted to having alcoholic beverages and admitted

he “got carried away.” He also stated he “got in a vehicle and drove home and

made a wrong choice.” The district court then asked Brown if he was under the

influence at the time of driving, and Brown confirmed he was. Furthermore, the

minutes of evidence include the arresting officer’s report that provides the officer

responded to a complaint about an erratic driver, found Brown in the driver’s seat

with vomit on the door, detected an odor of alcohol, saw beer and liquor in the

center console, and observed Brown had slurred speech and impaired balance.

We find there is sufficient evidence to establish a factual basis for the guilty plea

based on Brown’s inquiry as well as the minutes of evidence. See Ortiz, 789

N.W.2d at 768.
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      Because there is a factual basis for Brown’s guilty plea, we find his counsel

did not breach an essential duty. See Schminkey, 597 N.W.2d at 788. Therefore,

Brown has failed to prove counsel was ineffective, and we affirm his conviction and

sentence. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (noting “both

elements do not always need to be addressed,” because an ineffective-assistance

claim will fail if one element is not proven by a preponderance of the evidence).

      AFFIRMED.
