Date: 10-21-2018

Case Style:

State of Iowa v. Bryant Kephart

Case Number: 17-1588

Judge: Christopher McDonald

Court: COURT OF APPEALS OF IOWA

Plaintiff's Attorney: Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General

Defendant's Attorney: Edward S. Fishman

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Bryant 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 constructive possession.
As a 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 2011).
In this 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
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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).
The 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 here.
The 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
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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
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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”).
The 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 establish his claims of
ineffective assistance of counsel.

Outcome: We affirm the defendant’s convictions.

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