                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0696
                              Filed July 22, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH JOHN EDWARDS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.



      A defendant challenges his felony convictions for second-degree theft and

second-degree burglary, both subject to habitual-offender enhancements.

AFFIRMED.



      Michael J. Jacobsma of Jacobsma Law Firm, P.C., Orange City, for

appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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TABOR, Presiding Judge.

       Facing thirteen charges, including ten felonies, Joseph Edwards struck a

bargain with the State. He agreed to plead guilty to theft in the second degree and

burglary in the second degree, both enhanced because he was a habitual offender.

In return, the State would dismiss the other eleven counts. The court accepted the

guilty pleas and imposed concurrent sentences not to exceed fifteen years.

Edwards now contends his attorney failed to ensure the plea-taking court

explained the nature of the habitual-offender enhancement. Edwards also alleges

his counsel allowed him to plead guilty when the record did not reveal a factual

basis for his prior convictions. After examining what is required of the district court

in the prior-conviction colloquy, we find the court substantially complied in this

case. Thus, counsel did not breach an essential duty. Finding Edwards cannot

show he was denied effective assistance of counsel, we affirm his convictions.

       I.     Facts and Prior Proceedings

       In October 2018, Edwards asked M.A., a former co-worker, to cash two

checks, totaling $1587.68, through M.A.’s bank account.          M.A. deposited the

checks and withdrew cash from the ATM for Edwards. But the checks did not

clear. Later that month, Edwards broke into his cousin’s house and stole her

MacBook computer.

       For these acts, the State charged him with second-degree theft, a class “D”

felony, in violation of Iowa Code section 714.2(2) (2018), and second-degree

burglary, a class “C” felony, in violation of Iowa Code section 713.5(2). The State

added habitual-offender enhancements to both felonies. See Iowa Code § 902.8.

The trial information included eleven other theft and forgery charges, which the
                                         3


State agreed to dismiss as part of the plea bargain. To execute that bargain,

Edwards signed a written plea agreement and acknowledged the minutes of

testimony described his actions. The minutes listed the Woodbury County clerk of

court, who was expected to testify that she is in charge of court records, including

the files showing Edwards’s prior felony convictions.

      At his February 2019 plea hearing, Edwards admitted the factual basis for

the two current offenses. As for the habitual-offender allegation, Edwards had this

exchange with the court:

             THE COURT: And do you have two prior felony convictions?
      THE DEFENDANT: Two? Yes. Yep.
             Q.: Are you the same person as the defendant in Woodbury
      County criminal number FECR055349 on a charge of forgery with a
      conviction date of May 11, 2011? A.: Yes, sir.
             Q.: And are you the same person as the defendant convicted
      in Woodbury County criminal number FECR053054 on a charge of
      forgery and a conviction date of October 18, 2005? A.: Yes, Your
      Honor.

The court accepted Edwards’s guilty pleas as “intelligently, voluntarily, and

knowingly made.” The court then advised Edwards that if he wanted to raise any

“alleged defects or mistakes” in “any appeal to the Iowa Supreme Court” he would

need to first timely move in arrest of judgment. Edwards did not move in arrest of

judgment.

      At sentencing, the court imposed two indeterminate fifteen-year sentences,

to run concurrent to each other, but consecutive to a separate fifteen-year term

Edwards faced for a probation violation. Edwards now appeals. He recognizes

that because he did not move in arrest of judgment in the district court, he must

raise his appellate claims through ineffective assistance of counsel. See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).
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      II.       Scope and Standards of Review

      We review de novo Edwards’s claim of ineffective assistance in the handling

of his guilty pleas. See State v. Kuhse, 937 N.W.2d 622, 627 (Iowa 2020).1 We

generally preserve such claims for postconviction proceedings unless we find a

satisfactory record to review. Rodriguez, 804 N.W.2d at 848. Here, the record

accommodates resolution on direct appeal.

      III.      Analysis

      The “blueprint” for taking guilty pleas appears in Iowa Rule of Criminal

Procedure 2.8(2)(b). State v. Myers, 653 N.W.2d 574, 577 (Iowa 2002). For

felonies, the district court must conduct an in-court colloquy to satisfy that rule.

State v. Moore, 638 N.W.2d 735, 738–39 (Iowa 2002) (requiring “literal

compliance” with the requirement that the court personally address defendant on

the record). Shortcutting that personal exchange may be cause for reversal. Id.

at 739.      But even in felony cases, we measure the information provided for

substantial compliance. Myers, 653 N.W.2d at 577–78.

      The colloquy here, according to Edwards, lacked sufficient information

about the habitual-offender allegations. He contends his attorney was ineffective

in not holding the plea-taking court to the mandates of State v. Harrington, 893

N.W.2d 36, 45–46 (Iowa 2017), which analyzed Iowa Rule of Criminal


1 The legislature amended Iowa Code section 814.6 to prohibit most appeals from
guilty pleas. See 2019 Iowa Acts ch. 140, § 28. That same legislation amended
section 814.7 to bar appellate courts from deciding claims of ineffective assistance
of counsel on direct appeal. See id. § 31. But these provisions do not apply to
judgments entered before July 1, 2019. See State v. Macke, 933 N.W.2d 226, 228
(Iowa 2019). Because the court entered judgment here in April 2019, we may
consider Edwards’s ineffective-assistance claims on direct appeal if the record is
adequate. See Kuhse, 937 N.W.2d at 627.
                                           5


Procedure 2.19(9). In particular, Edwards asserts the court failed to inform him of

the “nature of the habitual offender charge” and failed to ensure a factual basis

supported his admission to the prior felony convictions.

       To succeed on his ineffective-assistance claim, Edwards must show

(1) counsel’s performance fell below prevailing professional norms and (2) the

faulty performance prejudiced his case. See Strickland v. Washington, 466 U.S.

668, 687 (1984). We presume counsel performed competently unless Edwards

proves otherwise by a preponderance of the evidence. See State v. Doolin, 942

N.W.2d 500, 507 (Iowa 2020). Normally, in the guilty-plea context, the prejudice

standard requires defendants to show a reasonable probability exists that, but for

counsel’s omissions, they would not have pleaded guilty and would have insisted

on going to trial. State v. Petty, 925 N.W.2d 190, 196 (Iowa 2019). But if counsel

allows a client to plead guilty to a charge for which no factual basis exists, prejudice

is inherent. State v. Ross, 941 N.W.2d 341, 346 (Iowa 2020).

       Focusing on his claim that counsel allowed him to plead guilty without a

factual basis for the prior offenses, Edwards asserts we can presume prejudice.

See State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996). Thus nowhere in his

appellant’s brief does he claim that but for counsel’s errors he would not have

pleaded guilty and would have insisted on going to trial on all thirteen counts.

       Defending the plea process, the State contends Edwards cannot show

prejudice because he “does not assert that he does not have two felony convictions

or that either of his felony convictions were obtained without the assistance of

counsel or a knowing waiver of counsel. Therefore, it is difficult to establish any

reason why Edwards would reject a generous plea offer.”
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       Before wading into the parties’ dispute over the prejudice standard, we step

back to see if plea counsel’s performance fell below professional norms. Did

counsel have a duty to insist the plea-taking court follow the rule 2.19(9) habitual-

offender inquiry crafted in Harrington? See 893 N.W.2d at 45–47.

       Distinct from the guilty-plea colloquy in rule 2.8(2)(b), rule 2.19(9) governs

the trial of questions involving prior convictions. The latter rule describes the

options for an offender facing increased punishment based on one or more prior

convictions. Iowa R. Crim. P. 2.19(9). The offender exercises those options

“[a]fter conviction of the primary or current offense, but prior to pronouncement of

sentence.” Id. The options include admitting or denying “that the offender is the

person previously convicted, or that the offender was not represented by counsel

and did not waive counsel.” Id. Under that rule, if the offender denies being the

person previously convicted, they are entitled to a jury trial on the question of

identity. Id. But no jury trial is available on the issue of legal representation for the

prior offenses. Id.; see Harrington, 893 N.W.2d at 46. Those objections are heard

and determined by the court.        Iowa R. Crim. P. 2.19(9); see Harrington, 893

N.W.2d at 46. And according to the rule, the offender must assert those objections

“prior to trial of the substantive offense in the manner presented in rule 2.11.” Iowa

R. Crim. P. 2.19(9).

       When offenders take the first option—affirming both identity and

representation or waiver of counsel for the prior convictions—the court must

engage in a colloquy to safeguard the voluntary and intelligent nature of those
                                          7

admissions. Harrington, 893 N.W.2d at 47. The Harrington majority developed

this five-step protocol.2 Id. at 45–46.

    1. The court must inform the offender of “the nature of the habitual offender

       charge” and the resulting sentence under section 902.8.             Id. at 45.

       Harrington required the court to “inform the offender that these prior felony

       convictions are only valid if obtained when the offender was represented by

       counsel or knowingly and voluntarily waived the right to counsel.” Id. The

       court directed that “as part of this process, the court must also make sure a

       factual basis exists to support the admission to the prior convictions.” Id. at

       45–46.

    2. “[T]he court must inform the offender of the maximum possible punishment

       of the habitual offender enhancement, including mandatory minimum

       punishment.” Id. at 46.

    3. The court must inform the offender of the trial rights enumerated in Iowa

       Rule of Criminal Procedure 2.8(2)(b)(4).       Id.   (Harrington clarified that

       offenders have the right to a jury trial on identity but not on the claim they

       were not represented by counsel nor validly waived counsel. Id.)

    4. The court must inform the offender that by admitting the prior convictions,

       they lose the right to a trial. Id. And the court must inform the offender that

       the State need not prove the prior convictions were entered with counsel

       unless the offender raises that claim. Id.


2Two dissenting justices believed any changes to the habitual-offender colloquy
should be accomplished “through amendments to Iowa Rule of Criminal
Procedure 2.19(9), with public notice and opportunity for comment.” Harrington,
893 N.W.2d at 48 (Mansfield, J., dissenting).
                                           8


    5. Finally, the court must inform the offender that any defects in the habitual

       offender proceedings must be raised in a motion in arrest of judgment or

       they are precluded on appeal. Id.

       Edwards cites no case, and we find none, holding counsel has a duty to

guarantee the district court follows the Harrington colloquy when a client is

pleading guilty as a recidivist.3 That said, the plea-taking court largely followed the

above protocol because the Harrington majority borrowed the steps from rule

2.8(2)(b). See 893 N.W.2d at 45–46. For instance, the court informed Edwards

of the maximum and mandatory-minimum punishments under section 902.8.

Likewise, the court detailed the trial rights Edwards was giving up and the

necessity of moving in arrest of judgment.

       Yet Edwards eyes two gaps. He claims (1) counsel should have insisted

the court better inform him about the nature of the habitual-offender enhancement

and (2) counsel mistakenly allowed Edwards to plead guilty when the court did not

tell him the prior felony convictions were invalid if obtained in violation of his right

to legal representation. Without that information, Edwards contends the colloquy

did not satisfy the “literal” compliance standard for felony pleas. See Moore, 638

N.W.2d at 738. But as explained above, the applicable standard is substantial

compliance. See State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). When applying

that standard to the requirement that the accused appreciate the nature of the

charges against him, our supreme court has held that trial courts need not explain


3 Even if a future case did apply Harrington to guilty pleas where the charge is
enhanced based on prior offenses, competent representation does not mean an
attorney must be a “crystal gazer” who can predict changes in established law.
See State v. Schoelerman, 315 N.W.2d 67, 74 (Iowa 1982).
                                         9


every element of a crime if it is “apparent in the circumstances the defendant

understood the nature of the charge.” Id. (citation omitted).

       We start with the nature of the habitual-offender enhancement. The written

plea agreement explained that Edwards was pleading guilty to both offenses as a

habitual offender. By initialing next to the final element of both offenses, he

stipulated to having two prior felony convictions. See Iowa Code § 902.8. The

plea agreement set out the dates and case numbers of those prior forgery

convictions. At the plea hearing, the court asked the prosecutor to present the

“essential terms of the plea agreement.” The State did so, citing the habitual-

offender charges. Edwards told the court he signed and understood the plea

agreement. And Edwards assured the court he was aware of his criminal charges

from the trial information and minutes of evidence. Edwards was in his mid-forties

and had completed a GED. The record also shows Edwards pleaded guilty in 2018

to two other forgery cases, also as a habitual offender facing a fifteen-year

sentence under section 902.9(1)(c).      These facts leave little doubt Edwards

understood the nature of the habitual-offender enhancement. See Loye, 870

N.W.2d at 151.

       Next we turn to Edwards’s claim that counsel allowed him to plead guilty

without the court establishing that a factual basis existed for the habitual-offender

enhancements. This claim lays bare the tricky question whether the “factual basis”

for the prior felony convictions requires an admission by the defendant or some

other source in the record verifying that the offender was represented by counsel,

or knowingly and voluntarily waived the right to counsel, for those predicate

offenses. See Harrington, 893 N.W.2d at 46–47 (mandating court “make sure a
                                         10


factual basis exists to support the admission to the prior convictions” as part of the

rule 2.19(9) process, but not specifying how that should be accomplished).

       To safeguard accuracy, before entering judgment, the district court must

satisfy itself that there is a factual basis for a guilty plea. See State v. Sanders,

309 N.W.2d 144, 145 (Iowa Ct. App. 1981).             Judges generally meet that

requirement by asking defendants themselves what they did. See Ryan v. Iowa

State Penitentiary, Ft. Madison, 218 N.W.2d 616, 618 (Iowa 1974). That is not to

say judges must “wring from defendant a detailed confession satisfying each

element of the offense charged.” See State v. Hansen, 221 N.W.2d 274, 276 (Iowa

1974); see also State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013) (“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.”). For guilty pleas, a factual basis fills the void that would be

satisfied by jury findings at trial. See, e.g., Finney, 834 N.W.2d at 62 (holding

factual-basis satisfied when minutes of testimony provided sufficient evidence from

which a jury could have inferred the elements of the offense).

       From that overarching purpose for requiring a factual basis, we narrow our

focus to Edwards’s admission to the prior convictions. When asked by the court

at the plea hearing, Edwards verified he was the same person as the defendant

convicted of felonies in 2005 and 2011. The court also asked Edwards if the

minutes “accurately reflect[ed]” his involvement in the case. He said they did. The

minutes included the expected testimony of the clerk of court, who maintained the

records documenting those felony convictions. True, the minutes did not state

whether the clerk’s files showed Edwards had counsel or validly waived counsel.
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Even so, “[n]ormally, the records of the prior convictions supply the evidence

needed for the court to decide if the Gideon standard[4] was met.” See Harrington,

893 N.W.2d at 47. And even if those records were silent as to whether Edwards

had counsel, the onus is on him to “first introduce evidence tending to show that

he was not in fact so represented.” See id. at 47–48. Only then does the burden

shift to the State to show “by a fair preponderance of the evidence” that Edwards

was represented for his prior convictions. See id. at 48 (quoting State v. Cameron,

167 N.W.2d 689, 694 (Iowa 1969)).

      After carefully reading Harrington, we conclude any objection that Edwards

was not represented by counsel or did not validly waive counsel for the prior

offenses is not a proper challenge to the factual basis for these guilty pleas. Why?

Because it is not a fact determination for a jury.5 See Finney, 834 N.W.2d at 62.

Rather, it is a legal objection that even under rule 2.19(9) must be asserted in the

form of a pretrial motion to the court. See Iowa R. Crim. P. 2.11.6

      Because the plea record established that Edwards was the same person as

committed the prior felonies, a factual basis existed for the habitual-offender




4 Gideon v. Wainwright, 372 U.S. 335 (1963), guaranteed the right to counsel in
state criminal prosecutions.
5 Even if Edwards had evidence to shift the obligation to the State to prove he was

represented on the prior offenses, the State’s burden on this score is not proof
beyond a reasonable doubt (as with the other elements of a criminal offense), but
a fair preponderance. Harrington, 893 N.W.2d at 48.
6 At the plea hearing, the court asked defense counsel if he knew of any possible

defenses other than a general denial that would affect the outcome of Edwards’s
case. Counsel said he did not. Edwards does not challenge that response by
counsel in this appeal. And for good reason, because “[i]t is well established that
a defendant’s guilty plea waives all defenses and objections which are not intrinsic
to the plea.” See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
                                        12


allegations. Counsel did not breach a duty by allowing Edwards to plead guilty to

the enhanced charges without a factual basis.

      Edwards raises two more complaints about the guilty-plea colloquy, though

they are not well delineated in his brief and get lost in the nature-of-the-offense

and factual-basis issues. He argues counsel was ineffective in letting him plead

because the court did not ask “whether his prior convictions were obtained with the

assistance of counsel or whether the defendant knowingly and voluntarily waived

his right to counsel for those proceedings.” Similarly, the court never told Edwards

that the State did not have to prove he had an attorney or properly waived counsel

for the prior convictions unless he first raised that claim. See Harrington, 893

N.W.2d at 46.

      We recognize it may be better practice for district courts to update their

guilty-plea colloquy to provide these advisories when the offense is enhanced

based on prior convictions. But on this record, Edwards cannot show he was

prejudiced by counsel’s performance.7 In fact, he does not even allege that but for

counsel’s omissions he would have rejected the favorable plea agreement and

insisted on going to trial on all thirteen offenses. See Carroll, 767 N.W.2d at 644.

Because Edwards does not satisfy the Strickland standard, his convictions stand.

      AFFIRMED.




7 We recently reached a similar conclusion in State v. Anderson, No. 19-0900,
2020 WL 3569610, at *3 (Iowa Ct. App. July 1, 2020), which addressed guilty pleas
to aggravated misdemeanors enhanced by prior theft convictions.
