from the Iowa District Court for Johnson County, Chad A.
defendant asserts his trial counsel provided ineffective
assistance by allowing the defendant to plead guilty to
operating while intoxicated, third or subsequent offense,
without a factual basis to support the plea.
D. Tindal of Keegan Farnsworth & Tindal, Iowa City, for
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Doyle, J., and Danilson,
POTTERFIELD, PRESIDING JUDGE
Smith asserts his trial counsel provided ineffective
assistance by allowing Smith to plead guilty to operating
while intoxicated, third or subsequent offense, without a
factual basis to support the plea.
review claims of ineffective assistance de novo. State v.
Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In order to
succeed on a claim of ineffective assistance, "[t]he
defendant move prove by a preponderance of the evidence that
his 'counsel failed to perform an essential duty,'
and that he 'was prejudiced by counsel's
error.'" Id. (citation omitted).
"Where a factual basis for a charge does not exist, and
trial counsel allows the defendant to plead guilty anyway,
counsel has failed to perform an essential duty."
Id. "Prejudice in such a case is
inherent." Id. In determining whether a factual
basis for the plea exists, "we consider the entire
record before the district court at the guilty plea,
including any statements made by the defendant, facts related
by the prosecutor, the minutes of testimony, and the
presentence report." Id. We will affirm even if
the record does not contain "evidence that the crime was
committed beyond a reasonable doubt." State v.
Finney, 834 N.W.2d 46, 62 (Iowa 2013). "[T]he
record does not need to show that totality of the evidence
necessary to support a guilty conviction, . . . it need only
demonstrate facts that support the offense." State
v. Ortiz, 789 N.W.2d 761, 768 (Iowa 2010).
argues his admission to the court during the plea colloquy
that he was "under the influence of a controlled
substance" at the time he was pulled over is not enough
to satisfy the impairment element. See Iowa Code
§ 321J.2(1)(a) (2017) (providing that a person commits
the offense of operating while intoxicated if they operate a
motor vehicle "[w]hile under the influence of an
alcoholic beverage or other drug or combination of such
substances"). "A person is 'under the
influence' when one or more of the following is true: (1)
the person's reason or mental ability has been affected;
(2) the person's judgment is impaired; (3) the
person's emotions are visibly excited; and (4) the person
has, to any extent, lost control of bodily actions or
motions." In re S.C.S., 454 N.W.2d 810, 814
cites no authority for the proposition that his admission to
the court that he was stopped while "under the
influence" does not provide a factual basis for his
guilty plea to operating a vehicle while under the influence.
Even if we assume Smith's proposition has legal support,
his argument fails because the minutes of testimony-which
Smith agreed were substantially correct-provide a factual
basis for the plea.
minutes provide that Office Cody O'Hare initiated a stop
of Smith's vehicle. Smith continued to drive for some
time before exiting the highway to a local road and then
ultimately stopping. After making contact with Smith, Officer
O'Hare believed him to be under the influence because
Smith appeared agitated, a search of his vehicle uncovered a
suspected methamphetamine pipe and a syringe with a white
substance in it, other officers who arrived on the scene
recognized Smith as a known methamphetamine user, and Smith
admitted he had used methamphetamine several days earlier.
Field sobriety tests administered at the scene indicated
Smith was impaired; he exhibited six out of six clues for
impairment in the horizontal gaze nystagmus test, six out of
eight clues in the walk-and-turn test, and three out of four
clues with the one-leg stand test. Smith's preliminary
test for blood alcohol content established there was no
alcohol in his blood-indicating his impairment was caused by
something other than alcohol. Additionally, Deputy Ben Lord,
a certified drug recognition expert, concluded Smith was
under the influence of a stimulant "based on
[Smith's] reckless driving, poor field sobriety test
performance, irritability and restlessness, and the
combination of a suspected methamphetamine syringe in
[Smith's] vehicle and a fresh injection site on
evidence in the record establishes a factual basis to support
Smith's guilty plea for operating a vehicle while
intoxicated, third or subsequent offense.See State v.
Adams, No. 02-0523, 2003 WL 22015791, at *1 (Iowa Ct.
App. Aug. 27, 2003) (concluding substantial evidence
supported the defendant's conviction for operating while
under the influence based in part upon the defendant's
impaired balance and failing the field sobriety tests);
State v. Heilesen, No. 01-1961, 2002 WL 31312644, at
*4 (Iowa Ct. App. Oct. 16, 2002) (finding the defendant's
inability to perform field sobriety tests is evidence that he
or she is under the influence when there is nothing else in
the record to explain the inability to complete them). We