                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0137
                            Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SAUL GONZALEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Becky Goettsch,

District Associate Judge.



      Saul Gonzalez appeals following his plea of guilty to driving while barred as

a habitual offender. AFFIRMED.




      Cami N. Eslick of Eslick Law, Indianola, for appellant.

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

Attorney General, for appellee.




      Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
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DANILSON, Chief Judge.

       Saul Gonzalez appeals the denial of his motion in arrest of judgment

following his plea of guilty to driving while barred as a habitual offender. Because

Gonzalez has not provided clear and convincing evidence that no reasonable fact

finder could convict him of the offense to which he pled guilty, his claim of actual

innocence fails. We affirm.

       On March 15, 2017, Gonzalez, represented by Tim McCarthy, entered a

written plea of guilty to driving while barred. An order accepting the written plea

agreement was entered on the same date.

       On April 19, Gonzalez filed a pro se motion in arrest of judgment,1 asserting:

       After revi[ew]ing the Iowa [department of transportation] DOT official
       driv[]ing record, the [Des Moines Police Department] DMPD incident
       report and Iowa courts online, it has come t[]o my attention that my
       records and that of these three entities are wrong it seems that they
       have me confused for another individual with my same name and I
       should not have even be[e]n barred at the time of incident. If I were
       to be incarcerated it would on false pretence. Will explain at hearing.

       On July 24, Gonzalez, now represented by Katharine Massier, filed a

“withdrawal of motion in arrest of judgment/dismiss charges.”

       On November 13, Gonzalez filed a pro se “motion to dismiss” in which he

asserted a conflict of interest with his attorney and a claim of ineffective assistance

of counsel. He alleged he had not agreed to counsel’s motion to withdraw the

motion in arrest of judgment and that his due process rights had been violated.




1
  The deadline for moving in arrest of judgment is not later than forty-five days after a guilty
plea and, in any case, not later than five days before the date set for pronouncing
judgment. Iowa R. Crim. P. 2.24(3)(b). The pro se motion was filed thirty-five days after
the guilty plea.
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       On December 4, 2017, the court appointed attorney Jonah Dyer to

represent Gonzalez. On January 5, 2018, a hearing was held at which the court

considered pro se motions.

       Attorney Dyer stated:

       Shortly after Mr. Gonzalez entered a plea of guilty to driving while
       barred, he engaged in a review of [DOT] records that relate to his
       license and found some abnormalities that led him to the conclusion
       that he was not barred at the time he was arrested and charged with
       driving while barred, that, in fact, there is another Saul Gonzalez
       whose birth date and other identifying information are close enough
       to this Mr. Gonzalez that it appears as though some sanctions that
       were being levied against this other Saul Gonzalez were being
       instead—actually being applied to our Mr. Gonzalez—excuse me—
       instead of being applied to him were being applied to our Mr.
       Gonzalez and that because of those misapplications, clerical errors
       on the department of—on the part of the [DOT], his license was
       indicating barred on the 29th of November, when in fact it had not
       been barred.

Further, counsel noted, “By way of professional statement, Your Honor, I have—

there are hundreds of pages of DOT records that Mr. Gonzalez in his diligence has

collected that only today I’ve had an opportunity to review. There does appear to

be some irregularities that have put us in this position.” Counsel asked that the

court “put [Gonzalez] back in the position he was in before the plea of guilty to

allow his attorney to review those documents.”

       The prosecutor objected, noting the certified driving abstract (which was

provided to Gonzalez’s former defense counsel and was offered as a proposed

exhibit by Gonzalez earlier in the proceedings) showed Gonzalez was barred as a

habitual offender from March 26, 2015, through March 24, 2017; official notice was

sent to Gonzalez at his last known address; and “the date of birth is identical to the

defendant that we have here.” The prosecutor also noted Gonzalez had hand-
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written on his plea, “I operated my motor vehicle while my license was barred.” He

argued there was a factual basis for the plea.

      In response, defense counsel stated:

              Your Honor, just that, notwithstanding the official notice, it’s
      Mr. Gonzalez’s contention that he has not—that he never did receive
      a copy of this official notice that barred him. We appreciate the legal
      niceties associated with barring. You know, if your privileges to
      operate a motor vehicle are barred erroneously . . . you still can’t
      drive. We understand that. Certainly, in the interest of justice, if
      there’s a—if Mr. Gonzalez can show that he should not have been
      barred and that his barment was to some other Saul Gonzalez,
      certainly, in the interest of justice, he should be allowed to pursue
      that line of inquiry.

      The prosecutor observed that Gonzalez had not presented any evidence

that he had contested his barment within the proper forum, the DOT.

      The district court denied the motion in arrest of judgment, ruling:

      Essentially, Mr. Gonzalez asserts his plea was not knowing and
      voluntary because he was not aware that possibly a different Saul
      Gonzalez should have been barred and not him.
              However, this fact, if true, is not relevant nor is it a defense to
      the crime. The existence of this fact does not eradicate the factual
      basis for the plea. Exhibits demonstrate that a Saul Gonzalez with
      the same identifying characteristics as the defendant (same [date of
      birth] and address) received notice on February 19, 2015, that he
      would be barred from driving as of March 26, 2015. If the defendant
      believed the sanction was erroneous, his remedy is to appeal to the
      DOT and not drive until his license is reinstated. Instead, it is
      undisputed that he did not contest the sanction, and continued to
      drive. Records reflect the notice was sent to the same address the
      defendant provided upon arrest.
              To this date, the defendant has never contested his bar with
      the DOT. A motion in arrest of judgment is not the avenue to contest
      the legitimacy of the license sanction. The record also demonstrates
      that all of these facts existed at the time of the plea and had been
      communicated to and discussed with previous counsel.
              As a result, there is a factual basis for the plea and the
      defendant had knowledge of the relevant facts at the time of the plea.
      He admitted in his written plea that he did in fact drive in Polk County
      on November 29, 2016, while his license was barred. He was
      represented by experienced counsel at this time and admitted he
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       was pleading guilty because he was guilty. As a result, the Court
       finds there is no basis upon which to allow the withdrawal of the guilty
       plea.

       A sentencing hearing was held on January 12, and on January 17, 2018,

judgment was entered. Gonzalez appeals, asserting the district court erred in

denying his motion in arrest of judgment.

       The parties do not agree on our scope of review. Gonzalez contends we

review the district court’s denial of a motion in arrest of judgment for an abuse of

discretion. See State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008), and cases cited

therein. The State notes that an actual-innocence claim recognized in Schmidt v.

State, 909 N.W.2d 778, 795 (Iowa 2018), is based upon the Iowa Constitution and

constitutional errors are reviewed de novo. We agree with the State. See State v.

Shultsev, No. 17-1766, 2018 WL 4923139, at *1 n.1 (Iowa Ct. App. Oct. 10, 2018)

(“Schmidt grounded the right to a free-standing claim of actual innocence in the

Iowa Constitution. [909 N.W.2d at] 795. Given that grounding, if we could reach

the merits of Shultsev’s actual-innocence argument, we would engage in de novo

review. See Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016) (reviewing claims

under article I, section 10).”). We review the actual-innocence claim de novo.

       Gonzalez asserts he “attacked his guilty plea with an actual-innocence

claim.” On March 23, 2018, overruling prior case law, our supreme court held,

“[C]onvicted defendants can attack their pleas when claiming actual innocence

even if the attack is extrinsic to the pleas.” Schmidt, 909 N.W.2d at 789. The

Schmidt majority recognized a right existed to bring “freestanding claims of actual

innocence” even if the claimant had pled guilty. Id. at 795. However, the court

recognized that an actual-innocence claimant “is claiming he or she is factually and
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actually innocent, depite a fair, constitutionally compliant trial or plea colloquy free

of constitutional defects.” Id. at 797. Thus,

       [f]or an applicant to succeed on a freestanding actual-innocence
       claim, the applicant must show by clear and convincing evidence
       that, despite the evidence of guilt supporting the conviction, no
       reasonable fact finder could convict the applicant of the crimes for
       which the sentencing court found the applicant guilty in light of all the
       evidence, including the newly discovered evidence.

Id.

       Presuming Gonzalez’s motion in arrest of judgment was an adequate

vehicle for raising his challenge,2 the district court considered the certified driving

record and found “[e]xhibits demonstrate that a Saul Gonzalez with the same

identifying characteristics as the defendant (same [date of birth] and address)

received notice on February 19, 2015, that he would be barred from driving as of

March 26, 2015.” Gonzalez did not provide clear and convincing evidence that no

reasonable fact finder could convict him of the offense to which he pled guilty. We

therefore affirm.

       AFFIRMED.




2
  See Schmidt, 909 N.W.2d at 798 (“Outside of our current statutory scheme in chapter
822, we need not decide or specify other vehicles applicants may use to bring their
freestanding actual-innocence claims as independent actions. We emphasize sections
822(1)(a) and (d) are not the exclusive vehicles to bring freestanding actual-innocence
claims because applicants may file such claims independently of chapter 822.”).
