from the Iowa District Court for Delaware County, Stephanie
C. Rattenborg, District Associate Judge.
defendant appeals from his guilty plea and sentence.
Hallstoos of Hallstoos Law Office, Dubuque, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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.
Background Facts and Proceedings.
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.
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.
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 of imprisonment not to exceed fifteen years, with a
mandatory minimum sentence of three years.
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
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