IN THE COURT OF APPEALS OF IOWA

No. 13-2061

Filed September 10, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JAY BLAND JR.,

Defendant-Appellant.

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Appeal from the Iowa District Court for Scott County, John D. Telleen 

(plea) and Joel W. Barrows (sentencing), Judges.

A defendant appeals from the judgment and sentence entered following 

his plea of guilty to domestic abuse by strangulation. AFFIRMED.

Jack E. Dusthimer, Davenport, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney 

General, Michael J. Walton, County Attorney, and Dion Trowers, Assistant 

County Attorney, for appellee.

Considered by Danilson, C.J., Tabor, J., and Goodhue, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

Jay Bland Jr. appeals from the judgment and sentence entered following 

his plea of guilty to domestic abuse assault by strangulation.

I. Background Facts and Proceedings

Bland was charged with domestic abuse by strangulation causing bodily 

injury, a felony. Bland entered into a plea agreement with the State. The plea 

agreement provided that Bland would plead guilty to the lesser-included offense 

of domestic abuse assault by strangulation without the bodily injury element, an 

aggravated misdemeanor under Iowa Code section 708.2A(2)(d) (2013). Under 

the plea agreement, the State had the right to make any sentencing 

recommendation it desired but agreed not to prosecute Bland on various other 

alleged violations. The plea agreement stated, “Concurrence of the Court to this 

Agreement is not a condition to the acceptance of the plea.” 

Bland executed and filed a written plea of guilty to the aggravated 

misdemeanor, and the court signed an order accepting the plea agreement. At 

sentencing the court stated, “I do accept the written agreement of the parties.” 

There is no record of a colloquy involving the plea, and there is no other mention 

of the plea proceeding in the sentencing transcript. Counsel did not object to the 

plea procedure used, and a motion in arrest of judgment was not filed. Bland 

claims that his counsel was ineffective in failing to do so. 

II. Error Preservation

An ineffective-assistance-of-counsel claim is an exception to the rule that 

a party must preserve error in the district court. State v. Doggett, 687 N.W.2d 97, 

100 (Iowa 2004).
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III. Standard of Review

Ineffective-assistance-of-counsel claims raise constitutional issues and 

are therefore reviewed de novo. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 

2011). Such claims are ordinarily preserved for postconviction-relief 

proceedings. Id. 

IV. Discussion

Bland contends his counsel was ineffective in failing to file a motion in 

arrest of judgment and thus preserving his right to appeal. To establish a claim 

of ineffective assistance of counsel, a claimant must establish by a 

preponderance of the evidence that (1) counsel has failed to perform an essential 

duty and (2) the failure resulted in prejudice. State v. Straw, 709 N.W.2d 128, 

133 (Iowa 2006). An ineffective-assistance-of-counsel claim is not meritorious if 

either element is lacking. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996). 

There are two distinct constitutional analyses related to guilty pleas. State 

v. Finney, 834 N.W.2d 46, 54 (Iowa 2013). The first concerns counsel’s duty to 

ensure a client does not plead guilty to a charge for which there is no objective 

factual basis. Id. The second concerns the trial court’s duty to determine the 

defendant made a voluntary, knowing, and intelligent choice to waive 

constitutional rights. Id. at 55. The grounds of appeal are predicated on the 

district court’s failure to indicate it had exercised its discretion in waiving a formal 

plea colloquy, ensuring that Bland’s plea of guilty was entered voluntarily, 

knowingly, and intelligently, and determining a factual basis for the plea. 

Iowa Rule of Criminal Procedure 2.8(2)(b) sets out the district court’s 

responsibility in accepting a plea of guilty. The rule provides that the court may, 
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in its discretion and with the approval of the defendant, waive the oral colloquy 

and enter a signed written plea if the plea is to an aggravated or serious 

misdemeanor. Iowa R. Crim. P. 2.8(2)(b)(5). The written plea may be 

supplemented by an oral colloquy, but taken together, they must be in substantial 

compliance with the requirements of the rule. State v. Kirchoff, 452 N.W.2d 801, 

804-05 (Iowa 1990). 

Bland contends that the record failed to establish a factual basis existed 

for the charge to which he pled. Otherwise, Bland does not contend his written 

plea was inaccurate or incomplete, or that it failed to comply with the 

requirements of rule 2.8(2)(b). Instead, he contends there must be something in 

the record to show that the court accepting the plea exercised its discretion to 

waive the plea colloquy and discharged its duty to ensure that the plea was made 

voluntarily, knowingly, and intelligently. Bland relies on this court’s unpublished 

decision in State v. Earnest, No. 13-0388, 2014 WL 472036, at *2 (Iowa Ct. App. 

Feb. 5, 2014), wherein we vacated the judgment and sentence entered following 

a guilty plea because the record lacked an indication that “the district court 

exercised its discretion in waiver of the plea colloquy, or discharged its duty to 

ensure [the] plea was made ‘voluntarily and intelligently and has a factual basis,’ 

or accepted [the] plea.” 

The Earnest court relied in part on State v. Meron, 675 N.W.2d 537, 542-

43 (Iowa 2005). Earnest, 2014 WL 472036, at *2. In Meron there was no written 

plea setting out the contents of rule 2.8(2)(b), only an oral waiver by the 

defendant of the need to be advised of the requirements of the rule. 675 N.W.2d

at 542-43. The oral waiver in Meron failed to substantially comply with the 
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requirements of rule 2.8(2)(b). 675 N.W.2d at 542. Without a written waiver to 

supplement it, there was no basis for the court to find the defendant had made a 

voluntary, knowing, and intelligent waiver of rights; the defendant’s agreement to 

waive the plea colloquy did not cure that defect. Id. at 542-43. 

The State asserts that a subsequent case that has been differentiated 

from Earnest is more similar to the one in question, citing State v. Putney, No.14-

0433, 2015 WL 1331837, at *4 (Iowa Ct. App. Mar. 25, 2015). In Putney the 

court, in compliance with rule 2.8(2), informed Putney it was accepting his plea, 

acknowledged Putney’s waiver of the required oral colloquy, and noted the 

written plea stated that Putney understood the consequences of his plea. 2015 

WL 1331837, at *4. The court easily distinguished the plea record in Putney from 

Earnest. Id. 

In Earnest there was no record that the plea had been accepted by the 

court. In this case there is a calendar entry stating that the plea had been 

accepted, and in the court’s colloquy at the time of sentencing, the plea 

agreement was specifically accepted. Our court addressed the issue in the 

earlier, published decision of Patten v. State, 553 N.W.2d 336, 337 (Iowa Ct. 

App. 1996). There, the defendant admitted his written guilty plea constituted his 

approval to waive the guilty plea proceedings but argued “there is no record to 

indicate the court waived the procedural requirements” of what is now rule 

2.8(2)(b). Patten, 553 N.W.2d at 337. The court held:

Once the trial court was in receipt of Patten’s guilty plea, it was 

within the court’s discretion to waive the guilty plea procedures. It 

was not required to address Patten in open court to ascertain the 

validity of his waiver. It is implicit within the court’s decision to 
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proceed to enter judgment and sentence that the court waived the 

guilty plea procedures of rule [2.8(2)(b)].

Contrary to Patten’s arguments, the court was not required 

to make an express, on-the-record finding that Patten approved of 

a waiver and that the court was exercising its discretion to allow a 

waiver. To impose such a requirement would undermine the 

purpose of allowing such waivers.

Id. (emphasis added) (citation omitted). 

Earnest is further distinguishable. In Earnest, “the parties filed a written 

memorandum of plea agreement” with the court wherein the defendant agreed to 

plead guilty to a lesser-included offense, the State agreed to make no sentencing 

recommendation, and court’s acceptance of the agreement was required. 2014 

WL 472036, at *1. There is no indication the defendant executed a written 

waiver of rights or that substantial compliance with rule 2.8(2)(b) was achieved 

by any other means. In contrast with Earnest, Bland executed a written guilty 

plea that substantially complies with the requirements of rule 2.8(2)(b). “A written 

guilty plea containing such a waiver is prima facie evidence the defendant gave 

the waiver voluntarily, knowingly, and intelligently.” State v. Majeres, 722 N.W.2d 

179, 183 (Iowa 2006) (addressing a waiver of the right to counsel); see also 

State v. Liddell, 672 N.W.2d 805, 811 (Iowa 2003) (holding a written waiver of the 

right to a jury trial is prima facie evidence the waiver was voluntary, knowing, and 

intelligent). 

We turn then to Bland’s argument that counsel failed to ensure a factual 

basis existed to support his guilty plea. He claims his written guilty plea 

contained boilerplate language that did not meet the elements of the offense. 

For a factual basis to exist, the record at the time of the guilty plea must 

disclose facts to satisfy all elements of the offense. Rhoades v. State, 848 
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N.W.2d 22, 29 (Iowa 2014). Here, to establish Bland committed domestic abuse 

assault, the record at the time of the plea must have established Bland 

“knowingly imped[ed] the normal breathing or circulation of blood of another by 

applying pressure to the throat or neck of the other person.” Iowa Code 

§ 708.2A(2)(d). On the written plea form, Bland states he grabbed his girlfriend 

by the neck.” The plea form further states, “I accept the minutes of evidence as 

substantially true as to the elements of these charges . . . .” The minutes of 

evidence state the girlfriend “suffered . . . an inability to breathe” during this time 

and that Bland “was obstructing her ability to breath[e].” Therefore, the record at 

the time of the guilty plea sufficiently establishes a factual basis for Bland’s guilty 

plea, and trial counsel was not ineffective on this basis. 

AFFIRMED.