                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2003
                               Filed July 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS PAUL AUGUSTINE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Gary G. Kimes,

Judge.



      Nicolas Augustine appeals the entry of his Alford guilty plea and the denial

of his motion in arrest of judgment and request to withdraw the plea.

AFFIRMED.



      Patrick W. O'Bryan of O’Bryan Law Firm, Des Moines, for appellant.

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

General, Stephanie Koltookian, Student Legal Intern, John Criswell, County

Attorney, and Douglas A. Eichholz, Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.

      Nicholas Augustine appeals following his Alford plea of guilty to

intimidation with a dangerous weapon as a class “D” felony. Iowa Code § 708.6

(2011). He claims the plea was not knowingly and voluntarily made and there

was not a factual basis to support the plea. He asserts the district court erred

twice: first, by accepting such a plea, and second, by refusing the let him

withdraw the plea. He asks us to set the plea aside and allow him to go to trial.

We affirm.

      I. Factual and Procedural History

      On April 27, 2012, Augustine was outside his home when he saw a car

approaching. The car was driven by a department of human services (DHS)

employee visiting Augustine’s home as part of her employment duties.

Augustine, whose home had been robbed a few days prior, believed the car may

have belonged to the robbers. He grabbed a shotgun from his shed and decided

to confront the driver of the car. He was loading the weapon as he approached

the car, and he yelled at the driver to stop. The driver saw Augustine and the

shotgun and drove away. Augustine fired on the car as it departed, and then

used his wife’s van to chase the DHS employee. During the chase, Augustine

called law enforcement ostensibly to report that he was in pursuit of someone he

believed to be a burglar. The police instead apprehended Augustine.

      The State charged Augustine with four offenses by trial information:

attempt to commit murder, intimidation with a dangerous weapon as a class “C”

felony, criminal mischief, and possession of marijuana. Before trial, the State
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amended the trial information by dropping the attempted murder charge and

adding a sentencing enhancement for the use of a dangerous weapon.

        The State offered to drop the criminal mischief charge, the possession

charge, and the sentencing enhancement if Augustine would plead guilty to a

single count of intimidation with a dangerous weapon, amended to a lower “D”

non-forcible felony classification. Augustine agreed to enter an Alford plea on

advice from counsel. The district court accepted the plea on August 28, 2013.

On November 22, Augustine filed a motion in arrest of judgment to withdraw his

plea.   The district court denied the motion on December 18 and sentenced

Augustine to serve an indeterminate five-year term. Augustine now appeals both

the acceptance of the plea and the denial of his motion in arrest of judgment.

        II. Scope and Standard of Review

        Insofar as Augustine’s claim concerns the entry of his guilty plea, our

review is for correction of errors at law. State v. Tate, 710 N.W.2d 237, 239

(Iowa 2006). Insofar as his claim concerns the denial of his request to withdraw

the plea in his motion in arrest of judgment, we review for abuse of discretion.

State v. Speed, 573 N.W.2d 594, 596 (Iowa 1998). “Abuse of discretion exists

only where a defendant shows the trial court’s sound discretion was exercised on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Id.

        III. Discussion

        A. Knowing and Voluntary Plea. Because a guilty plea also constitutes the

waiver of several constitutional rights, the defendant must make the plea

voluntarily and with “a full understanding of the consequences.” State v. Boone,
                                           4

298 N.W.2d 335, 337 (Iowa 1980). In an Alford plea, the defendant asserts his

innocence but pleads guilty in recognition of a likelihood of a less favorable

outcome at trial. See North Carolina v. Alford, 400 U.S. 25, 31–32 (1970); Young

v. Brewer, 190 N.W.2d 434, 438 (Iowa 1971). In the context of an Alford plea,

the standard is “whether the plea represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” Alford, 400 U.S.

at 31.

         Augustine now asks us to find that his plea was not voluntary and

intelligent because “he did not feel there was a great likelihood” that he would be

convicted and that he “gained no real benefit” from the plea. 1 He notes that he

feared his counsel was not prepared for trial and that he was on medication for

depression at the time of the plea.        However, Augustine’s colloquy with the

district court was sufficient to demonstrate that he understood precisely what

rights he was waiving and what the consequences of his guilty plea would be.

There is no evidence of compulsion to plead or of any confusion on Augustine’s

part. The district court did not err in accepting the Alford plea.

         The district court also did not abuse its discretion in rejecting Augustine’s

request to withdraw his plea. Our supreme court has noted that a defendant

cannot render his plea involuntary post facto simply because he has changed his

mind. See Speed, 573 N.W.2d at 597–98. Augustine’s testimony in support of

his motion prior to sentencing failed to demonstrate that there was any confusion

about the material function of the Alford plea, and Augustine admitted that the


1
  On appeal, Augustine does not dispute the adequacy of the colloquy at the plea
hearing, and he raised none of these issues at the time the plea was entered.
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“plea offer was really generous.”     The court’s exercise of its discretion was

reasonable and proper.

      B. Factual Basis. Augustine asserts that the district court should not have

accepted the plea because there was no factual basis to support his guilt of the

offense to which he pleaded. For a district court to accept a guilty plea or an

Alford plea, there must be a determination that there is a factual basis to support

the charge, but the evidence need not establish guilt beyond a reasonable doubt.

See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013); State v. Schminkey, 597

N.W.2d 785, 788 (Iowa 1999).

      The charge of intimidation with a dangerous weapon as a “D” felony

required the State to present a factual basis for two elements: (1) Augustine

threatened to shoot a dangerous weapon at a vehicle occupied by a person; and

(2) the circumstances of the threat gave rise to a reasonable expectation that the

threat would be carried out. See Iowa Code § 708.6; State v. Lane, 743 N.W.2d

178, 184 (Iowa 2007).     It is not contested that Augustine approached a car

occupied by a DHS employee while yelling at the driver and loading a shotgun.

Neither is it contested that he fired upon the car as it drove away. Augustine’s

only affirmative assertion as to the lack of a factual basis is that he “was not

attempting to harm or intimidate” the driver. This claim is not relevant to the

analysis of the statutory elements of the crime.

      There was a sufficient factual basis for the district court to accept

Augustine’s Alford plea, and the court did not abuse its discretion in denying the

motion to allow Augustine to withdraw the plea on that basis.
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       IV. Conclusion

       Augustine’s claim that his plea was not voluntary, knowing, and intelligent

is not supported by the colloquy and sentencing transcripts in the record. His

claim that there was no factual basis for the plea is contradicted by the clear and

uncontroverted evidence. The district court properly accepted the plea and did

not abuse its discretion in rejecting the motion in arrest of judgment to withdraw

the plea.

       AFFIRMED.
