from the Iowa District Court for Plymouth County, Steven J.
Andreasen (plea) and Edward A. Jacobson (sentencing), Judges.
defendant appeals following his pleas of guilty to one count
of lascivious acts with a child and three counts of sexual
exploitation of a minor.
C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
DANILSON, Chief Judge.
November 2, 2015, Wilhelm VonHofsteder was charged in a
twelve-count trial information with third-degree sexual
abuse, indecent contact with a child, assault with intent to
commit sexual abuse, exhibition of obscene material to a
minor, and eight counts of sexual exploitation of a minor
(possession of a visual medium depicting a minor child
engaged in a prohibited sexual act). Pursuant to a plea
agreement, VonHofsteder agreed to plead guilty to an amended
charge of lascivious acts with a child (count 1) and three
counts of sexual exploitation of a minor (counts 5, 6, 7).
The parties agreed that the sentences would be run
consecutively for a period of eleven years but each party
could make its own recommendation on whether the sentences
should be imposed or suspended.
plea hearing, the prosecutor went over the terms of the
written plea agreement and those terms were confirmed by the
defendant and defense counsel, including that written pleas
concerning the three sexual exploitation counts would be
filed. VonHofsteder pled guilty to the charge of lascivious
acts with a child. The court specifically found
VonHofsteder's plea to the amended charge of lascivious
acts with a child was made "voluntarily and
intelligently and has a factual basis." Following that
guilty plea hearing, VonHofsteder submitted his written
guilty pleas to three counts of sexual exploitation of a
minor. A sentencing hearing was held, and the district court
imposed consecutive sentences for a period not to exceed
eleven years in prison. VonHofsteder now appeals.
"[a] defendant's failure to challenge the adequacy
of a guilty plea proceeding by motion in arrest of judgment
shall preclude the defendant's right to assert such
challenge on appeal." Iowa R. Crim. P. 2.24(3)(a);
see also State v. Fisher, 877 N.W.2d 676, 680-81
(Iowa 2016) (noting a written plea or waiver of a motion in
arrest of judgment can foreclose an appeal when it complies
with rule 2.8(2)(d)). However, "he is not precluded from
challenging the validity of his plea under a claim of
ineffective assistance of counsel." State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).
appeal, VonHofsteder contends plea counsel provided
ineffective assistance in failing to ensure the district
court complied with Iowa Rule of Criminal Procedure 2.8(2)(b)
in respect to his written pleas. He contends there is nothing
in the record indicating the district court discharged its
duty to ensure VonHofsteder's written pleas were made
voluntarily and had factual bases.
We review claims of ineffective assistance of counsel de
novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa
2010). To succeed on an ineffective-assistance-of-counsel
claim, a defendant must show by a preponderance of the
evidence that: "(1) counsel failed to perform an
essential duty; and (2) prejudice resulted." State
v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). "We
can affirm on appeal if either element is absent."
State v. McPhillips, 580 N.W.2d 748, 754 (Iowa
Rodriguez, 804 N.W.2d at 848.
asserts counsel should have filed a motion to arrest judgment
because the record lacks an indication the district court
exercised its discretion to waive the plea colloquy or that
the court discharged its duty to ensure his plea was made
voluntarily and intelligently and has a factual basis.
rules of criminal procedure state a district court
"shall not accept a plea of guilty without
first determining that the plea is made voluntarily and
intelligently and has a factual basis." Iowa R. Crim. P.
2.8(2)(b) (emphasis added). "Before accepting a plea of
guilty, the court must address the defendant personally in
open court . . . ." Id. If the offense is an
aggravated or serious misdemeanor, the court, with the
defendant's consent, may waive the personal in-court
colloquy required by the rule. Iowa R. Crim. P. 2.8(2)(b)(5);
State v. Meron, 675 N.W.2d 537, 543 (Iowa 2004).
"The waiver language of rule 2.8(2)(b) only means the