                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1340
                              Filed August 13, 2014

STATE OF IOWA,
     Plaintiff-Appellee

vs.

JOHN T. GALBREATH III,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, James D. Birkenholz,

District Associate Judge.



      A defendant appeals his Alford plea to domestic abuse assault enhanced,

claiming ineffective assistance of counsel. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, John P. Sarcone, County Attorney, and Michael Salvner,

Assistant County Attorney, for appellee.



      Considered by Potterfield, P.J., Tabor, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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TABOR, J.

       John T. Galbreath III filed a petition to enter an Alford plea1 to aggravated

misdemeanor domestic abuse assault, in violation of Iowa Code section

708.2A(3)(b) (2013). Not only did Galbreath sign the form petition, but he added

his initials beside the following underlined language: “I acknowledge that there is

strong evidence of my guilt” and “I understand the nature of the charge against

me.” The district court signed an order accepting Galbreath’s plea, finding he

understood the charge and the rights being waived. The court also found, in the

words of Alford, “strong evidence of Defendant’s guilt which substantially negates

Defendant’s claim of innocence.”

       Now Galbreath argues his counsel was ineffective for not challenging the

plea proceeding. Galbreath contends he was not “fully informed of the elements”

of the offense as required by Iowa Rule of Criminal Procedure 2.8(2)(b).

Galbreath also asserts nothing in the record indicates “the trial judge exercised

his waiver discretion or otherwise discharged his duty” to ensure the plea was

entered voluntarily, intelligently, and had a factual basis. Because the record

belies Galbreath’s claims, we reject his ineffective-assistance claim. Accordingly,

we affirm.

I.     Background Facts and Proceedings

       Galbreath assaulted his wife on July 7, 2013. It was not the first time.

Just a month earlier, he had been convicted of domestic abuse assault. As a



1
  Under the authority of North Carolina v. Alford, 400 U.S. 25, 37 (1970), a defendant
may consent to the imposition of a prison sentence without admitting participation in the
crime.
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result, the State filed a trial information charging Galbreath with domestic abuse

assault, enhanced as a second offense, on July 18, 2013.

       Galbreath signed the written petition to enter an Alford plea to the

aggravated misdemeanor charge on August 6, 2013. The petition proclaimed he

had “nothing to gain by going to trial” and “much to gain by pleading guilty.” The

petition specified, in handwriting, that the substantial benefit for his plea of guilty

was “the State will not file/charge the NUMEROUS counts of VNCO [violation of

no-contact order].”

       Galbreath waived time for sentencing. The next day, August 7, 2013,

Galbreath appeared in person with counsel, waived transcription of the hearing,

and the district court accepted his guilty plea and entered judgment and

sentence.

       The court imposed a prison term of two years with all but two days

suspended, placed Galbreath on probation for two years, and ordered him to

complete a thirty-six week batterers’ education program.                The term of

imprisonment was to be served consecutively to a previously imposed sentence.

The court also imposed and suspended a fine of $625 plus surcharge. Galbreath

did not file a motion in arrest of judgment. He now appeals.

II.    Analysis of Plea Proceeding

       Because Galbreath did not file a motion in arrest of judgment to challenge

the alleged defect in his guilty plea proceeding, we can only review his appellate

claim as ineffective assistance of counsel. See State v. Kress, 636 N.W.2d 12,

19 (Iowa 2001); see also Iowa R. Crim. P. 2.24(3)(a). We review ineffective-
                                         4



assistance-of-counsel claims de novo. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa

2010). Galbreath must prove counsel failed to perform an essential duty and

prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To

satisfy the prejudice requirement in a plea case, Galbreath must show a

reasonable probability that “but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” See State v. Straw, 709 N.W.2d

128, 136 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

       Generally, we do not resolve ineffective-assistance issues on direct

appeal, preferring to leave them for possible postconviction-relief proceedings.

State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). But we will decide such

claims if the record is sufficient to resolve them. State v. Coil, 264 N.W.2d 293,

296 (Iowa 1978).     The record here is sufficient to reach Galbreath’s claims

challenging his counsel’s performance.

       Counsel has a duty to ensure the plea colloquy complies with rule

2.8(2)(b). Under that rule, the district court must determine the defendant’s plea

is voluntary and intelligent and has a factual basis. State v. Sutton, ___ N.W.2d

___, ___, 2014 WL 1999061, at *3, (Iowa Ct. App. 2014). The court also must

determine the defendant understands, among other things, “the nature of the

charge to which the plea is offered.” Iowa R. Crim. P. 2.8(2)(b)(1); see also State

v. Finney, 834 N.W.2d 46, 53 (Iowa 2013) (citing Henderson v. Morgan, 426 U.S.

637, 645–47 (1976), and noting a defendant must subjectively know the

necessary elements of the charge for his plea to be knowing and voluntary).
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Substantial compliance with the rule will avoid a reversal. State v. Hightower,

587 N.W.2d 611, 613–14 (Iowa Ct. App. 1998).

       When the crime at issue is a serious or aggravated misdemeanor, rule

2.8(2)(b) affords the plea-taking court

       discretion to waive an in-person colloquy with a defendant, with
       defendant’s approval, so long as a written guilty plea adequately provides
       the court sufficient information from which the court can make a finding
       that the plea is voluntarily and intelligently tendered, and that the court
       finds there is a factual basis for the plea.

Sutton, ____ N.W.2d at ___ (interpreting State v. Meron, 675 N.W.2d 537, 542

(Iowa 2004)).   The mandate that the accused understand the “nature of the

charge to which the plea is offered” can be satisfied by a written guilty plea in the

case of an indictable misdemeanor. Id.

       Galbreath attacks his written plea on appeal, contending it does not show

he was informed of the elements of the charge. He argues his attorney was

remiss in allowing the plea to go forward without that information. Even where

there is a full in-court colloquy, the district court is not required to discuss each

element of the crime with the defendant to ascertain his understanding of the

nature of the offense. See State v. Yarborough, 536 N.W.2d 493, 496 (Iowa Ct.

App. 1995).     Unexplained elements do not require reversal if, under the

circumstances, the record shows the accused understood the nature of the

charge. Id.

       Galbreath’s written plea stated he understood the “nature of the charge”

against him. Galbreath wrote his initials next to that statement with a red “x” and

yellow highlighting, as well as signing, along with his attorney, at the bottom of
                                            6



the form.2    The court reviewed Galbreath’s signed petition and found the

defendant understood the charge. Galbreath does not allege on appeal that he

harbored any specific misunderstanding concerning his domestic abuse charge.

Nor does he advance any reason why we cannot rely on his signed and initialed

petition and the court’s order to find substantial compliance with rule 2.8(2)(b).

       Moreover, this case falls into the category of crimes where the name given

to the offense by the legislature is sufficiently descriptive to enlighten the

accused as to the nature of the charge. See, e.g., State v. Victor, 310 N.W.2d

201, 204 (Iowa 1981) (holding crime of willful injury sufficiently self explanatory).

The trial information charged Galbreath with domestic abuse assault enhanced

by a previous conviction.        That offense is comprised of essentially three

elements: (1) an act intended to cause pain or injury to the victim or which was

intended to place the victim in fear of immediate physical contact which would

have been painful, injurious, insulting, or offensive to her, coupled with the

defendant’s apparent ability to do the act; (2) the defendant and victim were

family or household members; and (3) the defendant had been previously

convicted of domestic abuse assault.            Iowa Code §§ 708.1, 708.2A(3)(b),

236.2(2). The minutes alleged Galbreath hit the victim in the nose, causing her

to bleed. In his written plea, he acknowledged being married to the victim and to

having a prior conviction—again initialing next to both of these handwritten

admissions.




2
 Galbreath also stated in his written petition: “I am knowingly and voluntarily asking the
Court to accept my plea” and “I acknowledge that there is strong evidence of my guilt.”
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       We are satisfied from reviewing the written record that the district court

was justified in determining Galbreath understood the nature of the offense.

Counsel had no duty to object when the plea proceedings substantially complied

with rule 2.8(2)(b). See State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998)

(counsel cannot be ineffective for failing to pursue meritless issue).

       It is not clear from Galbreath’s brief whether he is raising a separate

ineffective-assistance claim concerning the factual basis for his guilty plea. But if

he is, we find the plea record did not require an objection by counsel on that

basis either.

       The written petition and court’s acceptance both focused on the fact

Galbreath was entering an Alford plea. In that context, 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. Under the

Alford procedure, “the defendant acknowledges the evidence strongly negates

[his] claim of innocence and enters [a guilty] plea to avoid a harsher sentence.”

State v. Knight, 701 N.W.2d 83, 85 (Iowa 2005). The court has discretion to

accept an Alford plea where “‘the record before the judge contains strong

evidence of actual guilt.’” State v. Klawonn, 609 N.W.2d 515, 521 (Iowa 2000)

(quoting Alford, 400 U.S. at 37). The rule 2.8(2)(b) requirement for determining a

factual basis exists even when the defendant is entering an Alford plea. State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).            A court’s finding of “strong

evidence of guilt” when accepting an Alford plea satisfies the factual basis

requirement. See State v. Salinas, 887 P.2d 985, 987 (Ariz. 1994).
                                         8



       Galbreath’s petition includes two references to “strong evidence” of his

actual guilt—both underlined in red marker and initialed by him. In accepting the

Alford plea, the court found strong evidence of Galbreath’s guilt from its review of

the trial information, minutes, police reports, and statements of counsel. The

district court went to some lengths in this case to ensure that the forms reflected

the defendant’s grasp of the Alford plea process.       Accordingly, we have no

trouble concluding this record satisfies the requirements under rule 2.8(2)(b) and

the case law interpreting the guilty plea standards. Counsel was not ineffective

in allowing Galbreath to enter his guilty plea to aggravated misdemeanor

domestic abuse assault.

       AFFIRMED.
