from the Iowa District Court for Polk County, Gregory D.
Brandt (guilty plea) and Cynthia M. Moisan (sentencing),
District Associate Judges.
challenges his pleas of guilty to multilple counts of
possession of a controlled substance.
S. Fishman of Nelsen & Feitelson Law Group, PLC, West Des
Moines, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
Kephart pleaded guilty to possession of marijuana,
methamphetamine, ecstasy, and hydrocodone, all in violation
of Iowa Code section 124.401(5) (2017). Kephart did not file
a motion in arrest of judgment and proceeded to sentencing.
The district court sentenced Kephart to an indeterminate term
of incarceration not to exceed eight years. In this appeal,
Kephart challenges his convictions, contending his plea was
not knowing and lacked a factual basis. Specifically, he
contends his guilty pleas were not knowing because his
counsel failed to fully explain the meaning of
"possession." He contends his pleas lacked a
factual basis because the plea record did not establish
general rule, a defendant must file a motion in arrest of
judgment to challenge the validity of his guilty plea.
See Iowa R. Crim. P. 2.24(3)(a). A defendant's
failure to file a motion in arrest of judgment bars any
challenge to his guilty plea. See Iowa R. Crim. P.
2.24(3)(a). However, a defendant can indirectly challenge his
guilty plea by asserting his counsel provided
constitutionally deficient representation in allowing the
defendant to enter a defective guilty plea and in failing to
file a motion in arrest of judgment to challenge the same.
See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa
case, the defendant failed to file a motion in arrest of
judgment, and he is barred from directly challenging his
guilty pleas. He does challenge them indirectly by asserting
his claims as claims of ineffective assistance of counsel.
This court reviews ineffective-assistance-of-counsel claims
de novo. See Rhoades v. State, 848 N.W.2d 22, 26
(Iowa 2014); Everett v. State, 789 N.W.2d 151, 158
(Iowa 2010). "In order to succeed on a claim of
ineffective assistance of counsel, a defendant must prove:
(1) counsel failed to perform an essential duty; and (2)
prejudice resulted." State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Counsel failed to
perform an essential duty when counsel's performance fell
below that of a reasonably competent practitioner. See
Everett, 789 N.W.2d at 158. In the plea context,
prejudice exists when "the guilty plea would not have
been entered but for the breach of duty by counsel."
Castro v. State, 795 N.W.2d 789, 793 (Iowa 2011).
defendant's claim his plea was not knowing is without
merit. First, in the written plea agreement, the defendant
stated he understood "the nature of the charge
against" him. Second, the defendant admitted this was a
second offense. He thus had knowledge from prior cases of the
nature of the offense. Third, the name of the
offense-possession of a contolled substance-is
"sufficiently descriptive of its nature to obviate
further explanation." State v. Victor, 310
N.W.2d 201, 204 (Iowa 1981). This court reached the same
conclusion in the materially indistinguishable case of
State v. Sanders, No. 16-1281, 2017 WL 4570432, at
*1 (Iowa Ct. App. Oct. 11, 2017). In that case, the defendant
pleaded guilty to possession of marijuana in violation of
Iowa Code section 124.401(5) (2016). See id. Sanders
claimed his plea was unknowing because he did not understand
the nature of his charge. See id. This court
rejected the claim, stating "[t]he name of the offense
is sufficiently descriptive of its nature to obviate further
explanation. The elements of the charge here were not
complex, and the nature of the offense was apparent from its
name." Id. at *2. The same reasoning applies
defendant's claim his pleas lacked a factual basis fares
no better than his prior claim. This court reviews the record
in its entirety when determining whether there was an
adequate factual basis supporting a guilty plea. See
State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). This
court may consider the minutes of testimony and "may
consider written statements by the defendant if such
statements are not conclusory and are not expressed in terms
lifted directly from the criminal statute." State v.
Clay, No. 02-0632, 2002 WL 31314635, at *2 (Iowa Ct.
App. Oct. 16, 2002). "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." Finney,
834 N.W.2d at 62; accord State v. VonHofsteder, No.
17-1136, 2018 WL 1442692, at *3 (Iowa Ct. App. Mar. 21,
2018). The minutes of testimony reflect the drugs were found
in the defendant's residence-a suspected drug
house-during the execution of a search warrant. Kephart told
the officers he had collected methamphetamine and ecstasy
from around the house and placed them in a container with the
intent to dispose of them (although he could offer no
explanation why he had not disposed of them). In addition, in
the defendant's written guilty plea he admitted to all of
the elements of the offenses. The signed plea states, "I
had Marijuana, Methamphetamine, Ecstasy & Hydrocodone in
my possession as I knew what all of the substances were and
knew they were illegal substances. I have previously been
convicted of a possession of controlled substance." The
defendant's statement is sufficient to establish a
factual basis. See State v. Pirtle, No. 14-1677,
2015 WL 6509101, at *1 (Iowa Ct. App. Oct. 28, 2015) (finding
adequate factual basis for a guilty plea when defendant
"admitted possession of methamphetamine, and he pled
guilty"); State v. Rose, No. 11-1335, 2012 WL
1623407, at *4 (Iowa Ct. App. May 9, 2012) (finding that
there was an adequate factual basis that defendant possessed
precursors when defendant "admitted in the colloquy that
he had intended to manufacture methamphetamine");
Clay, 2002 WL 31314635, at *2 (finding adequate
factual basis when defendant's "statements in his
written pleas of guilty were . . . clearly before the court
and were properly considered by the court in accepting
[defendant's plea of guilty").
appellate record reflects the defendant's guilty pleas
were knowingly made and supported by a factual basis. The
defendant's counsel had no duty to file a meritless
motion in arrest of judgment. See State v. Carroll,767 N.W.2d 638, 645 (Iowa 2009); State v.
Freisinger, No. 12-0374, 2012 WL 4099115, at *1 (Iowa
Ct. App. Sept. 19, 2012). The defendant thus failed to