                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0892
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHARLES MONTES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Delaware County, Stephanie C.

Rattenborg, District Associate Judge.



      The defendant appeals from his guilty plea and sentence. AFFIRMED.



      Sharon Hallstoos of Hallstoos Law Office, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.

       Charles Montes was charged with third-degree burglary, as a habitual

offender, in violation of Iowa Code sections 713.1, 713.6A, 703.1, and 902.9

(2015). Montes submitted an Alford plea and was convicted. On appeal, Montes

argues his counsel was ineffective for allowing him to plead guilty without a factual

basis. Montes also argues the court improperly applied the habitual offender

enhancement.

       I.     Background Facts and Proceedings.

       Christopher White, Montes’s son-in-law, confessed to burglarizing the Fish

Shack, a pet food store. White told law enforcement that Montes drove him to the

site and was his lookout. White returned to Montes’s vehicle with stolen cash, a

cash box, and bank bags; White was covered in insulation residue after using a

tire iron to gain access to the establishment through a boarded up window. Montes

drove White to a remote location to hide the tire iron and empty cash box.

       Montes was charged in January 2017. In April 2017, he pled guilty to aiding

and abetting a burglary. Later in April, Montes filed a pro se motion in arrest of

judgment, claiming he received inadequate counsel at the plea hearing. He later

filed a pro se motion for new counsel. The court held a hearing on both motions

in May. At the hearing, Montes’s only argument on the motion in arrest of judgment

was that his plea was not voluntarily and intelligently made.

       The district court overruled Montes’s motion in arrest of judgment, finding

Montes failed to allege a defect in the proceeding and his plea was entered

knowingly and voluntarily. At the same hearing, Montes was sentenced to a term
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of imprisonment not to exceed fifteen years, with a mandatory minimum sentence

of three years.

       II.     Discussion.

       Montes argues the district court failed to comply with Iowa Rule of Criminal

Procedure 2.8(2)(b) when it accepted his guilty plea without ensuring that it was

voluntarily and intelligently made and was supported by a factual basis. A factual

basis argument was not raised in the motion in arrest of judgement or at the

hearing on the motion. Montes argues his counsel was ineffective by not raising

that claim in the motion. The State argues Montes has waived any ineffective-

assistance-of-counsel claims for failure to brief the issue.1

        Ineffective-assistance-of-counsel claims are reviewed de novo. State v.

Wills, 696 N.W.2d 20, 22 (Iowa 2005).            To determine whether counsel was

ineffective for allowing Montes to plead guilty, we must determine whether there

was an adequate factual basis for Montes’s guilty plea to aiding and abetting

burglary. “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).

“[T]he record does not need to show the totality of evidence necessary to support

a guilty conviction, but it need only demonstrate facts that support the offense.” Id.

To prove Montes aided and abetted, “presence, companionship, and conduct




1
 Montes mentioned whether his plea was voluntarily and intelligently made in his brief,
but he does not make any specific arguments or cite authority. Failure to cite authority in
support of an issue may be deemed waiver of that issue. Iowa R. App. P. 6.903(2)(g)(3).
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before and after the offense is committed” is enough to infer his participation in the

crime. State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994).

       The record here includes the minutes of testimony that state White told

police Montes was his lookout and that Montes told police White returned to the

vehicle covered in insulation, with cash, a cash box, and bank bags. Montes drove

White away from the scene—after having observed signs that White had

committed burglary—and helped White to dispose of the tire iron used to break in

and the empty cash box. Montes’s plea is supported by a factual basis, and his

counsel was not ineffective for allowing him to plead guilty.

       Next, Montes argues the district court erred in applying the habitual offender

enhancement because the district court did not engage in the proper colloquy with

him as required by Iowa Rule of Criminal Procedure 2.19(9). Montes did not

preserve this argument for appeal because it was not included in his motion in

arrest of judgment.2 See State v. Harrington, 893 N.W.2d 36, 43 (Iowa 2017), as

amended (June 14, 2017) (“[W]e hold that offenders in a habitual offender

proceeding must preserve error in any deficiencies in the proceeding by filing a

motion in arrest of judgment.”). As Montes’s argument regarding the habitual

offender enhancement was not preserved for our review, 3 we do not consider it on

appeal.

       AFFIRMED.



2
  Harrington was filed on April 7, 2017, and Montes’s guilty plea was accepted on April 19,
2017. Harrington was amended on June 14 with no substantive changes.
3
  Montes mentions a claim of ineffective assistance of counsel for failure to challenge the
habitual offender enhancement, but he fails to provide any specific arguments or cite
authority. Failure to cite authority in support of an issue may be deemed waiver of that
issue. Iowa R. App. P. 6.903(2)(g)(3).
