from the Iowa District Court for Warren County, Kevin A.
Parker, District Associate Judge.
defendant appeals his convictions for driving while his
license was revoked. AFFIRMED.
J. Booth of Booth Law Firm, Osceola, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
Shultsev appeals two convictions for driving while license
revoked. Those convictions followed guilty pleas. Before
entering his pleas, Shultsev waived his right to counsel. Now
Shultsev wishes to challenge the factual basis for his pleas.
But he did not timely move in arrest of judgment, a necessary
step to preserve error for a guilty-plea challenge. And
because he represented himself, he cannot bypass the error
preservation rule by claiming ineffective assistance of
counsel. This predicament leads him to a novel argument. He
invites us to expand the reach of Schmidt v. State,
909 N.W.2d 778 (Iowa 2018), by allowing him to raise an
actual-innocence claim on direct appeal from those
unchallenged guilty pleas. We decline the invitation.
State charged Shultsev with two separate violations of Iowa
Code section 321J.21 (2016) for driving while revoked first
in April 2016, and again in May 2016. Rather than seeking
representation in these serious misdemeanor cases, Shultsev
signed a waiver of his right to an attorney. In August, he
reached an agreement with the State and pleaded guilty to
both crimes. On the written plea forms, Shultsev filled in
the following factual basis: "Drove while revoked as
habitual offender." The deal provided for consecutive
terms of sixty days in jail. In writing, Shultsev
acknowledged the need to move in arrest of judgment to
contest the guilty pleas and the consequences of not doing
Shultsev failed to appear for sentencing in November, the
court issued a warrant for his arrest. After that, he
retained counsel. By then it was too late to move in arrest
of judgment to challenge his guilty pleas.
sentencing, the State recommended the court impose the jail
time bargained for in the plea agreement. The State reviewed
Shultsev's prior offenses, noting his convictions for
operating while intoxicated in 2011 and 2014, and his six
driving-while-revoked offenses over ten years. Shultsev
admitted his criminal history, but still asked for probation.
The district court imposed consecutive terms of sixty days in
jail for the two convictions. Shultsev now appeals those
convictions and sentences.
Shultsev's guilty pleas would waive all defenses and
objections not intrinsic to those pleas. See State v.
Carroll, 767 N.W.2d 638, 641 (Iowa 2009). But as our
court said in State v. Kudron, "This principle
is subject to a significant asterisk." No. 17-0614, 2018
WL 2722784, at *1 (Iowa Ct. App. June 6, 2018).
asterisk relates to Schmidt's recent changes to
postconviction practice in Iowa. That case held
"convicted defendants can attack their pleas when
claiming actual innocence even if the attack is extrinsic to
the pleas." Schmidt, 909 N.W.2d at 789-90
(overruling cases to the contrary). The Schmidt
majority recognized a right under the Iowa Constitution for
postconviction applicants to bring "freestanding claims
of actual innocence" even if they have pleaded guilty.
Id. at 795. Although the vehicle for raising the
claim in Schmidt was a postconviction-relief action,
the court did not limit convicted defendants to that route.
Id. at 798 ("We emphasize sections 822(1)(a)
and (d) are not the exclusive vehicles to bring freestanding
actual-innocence claims because applicants may file such
claims independently of chapter 822.").
Shultsev contends "direct appeal is an appropriate
vehicle for bringing a freestanding actual-innocence claim,
particularly where the record below clearly fails to
establish a factual basis for a guilty plea. No action is
required to preserve error for review on direct appeal of a
freestanding actual innocence claim." Shultsev argues no
factual basis exists to support his convictions. He alleges
the State charged him with "the wrong crimes" and
he is actually innocent of the charged offenses. He asks that
we vacate his sentences and remand for dismissal of the
State begs to differ. Distinguishing Schmidt as a
case of preserved error,  the State insists we cannot hear a
challenge to the factual basis for Shultsev's guilty
pleas because he did not timely move in arrest of judgment.
See Iowa Rs. Crim. P. 2.8(2)(d), 2.24(3)(a) (barring
appellate challenges to guilty pleas when defendant fails to
file a proper motion in arrest of judgment); see State v.
Barnes,652 N.W.2d 466, 468 (Iowa 2002) (holding
defendant failed to preserve error by not moving in arrest of
judgment when informed failure to do so would bar any
challenge to his plea on appeal); see also State v.
Worley, 297 N.W.2d 368, 370 ...