IN THE COURT OF APPEALS OF IOWA

No. 16-0836

Filed March 21, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DAVID JOSEPH JOHNSON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Odell G. McGhee, 

District Associate Judge.

A defendant challenges his conviction for driving while barred. AFFIRMED.

Thomas A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant 

Attorney General, for appellee.

Considered by Tabor, P.J., McDonald, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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TABOR, Presiding Judge

David Johnson appeals his conviction for driving while barred under Iowa 

Code section 321.561 (2016) contending his attorney was constitutionally remiss 

by not ensuring a factual basis for his guilty plea. Specifically, he claims the record 

did not “support the habitual offender status element” and did not indicate whether 

the State honored his right to counsel for the offenses underlying the habitualoffender adjudication by the Iowa Department of Transportation (DOT). See Iowa 

Code §§ 321.555, .556. Because the validity of the administrative decision to bar 

Johnson’s license was not an element of his criminal offense, counsel did not 

breach a duty. Accordingly, we affirm his conviction.

I. Facts and Prior Proceedings

On January 15, 2016 Johnson was involved in a traffic accident. He told 

police he left the scene because his license was barred. The next month the State 

charged Johnson with driving while barred in violation of Iowa Code sections 

321.555 and 321.561. The State extended a plea offer, noting Johnson’s three 

prior convictions for driving while barred and five convictions for driving with a 

suspended license. In March 2016, Johnson entered a written guilty plea. The 

plea form stated as follows:

“In order to establish a factual basis I ask the court to accept as true the minutes 

of testimony, the date of offense is [handwritten] 1-15-2016 [end handwriting] and 

I admit I did the following: [handwritten] I was driving barred and I should not have 

been [end handwriting.]”
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Johnson and his attorney both signed the form. According to the sentencing order 

dated May 12, 2016, Johnson appeared for sentencing “having previously pled 

guilty” to “driving while barred as habitual offender.” The district court sentenced 

Johnson to a one-year prison term and suspended all but thirty days. The court 

also placed Johnson on supervised probation for one year. Johnson now appeals 

his conviction.

II. Scope and Standards of Review

Generally, the defense must challenge a defect in the guilty-plea proceeding 

by filing a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a). When 

counsel fails to file such a motion, a defendant may attack the plea on appeal by 

claiming counsel was ineffective. State v. Perkins, 875 N.W.2d 190, 192 (Iowa Ct. 

App. 2015). Because ineffective-assistance-of-counsel claims are rooted in the 

Sixth Amendment, we review them de novo. State v. Thorndike, 860 N.W.2d 316, 

319 (Iowa 2015). We will resolve ineffective-assistance claims on direct appeal 

only when the record is sufficient to do so; if the record is lacking, we will preserve 

the claim for postconviction proceedings. See id. To prevail, Johnson must show 

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

duty and (2) prejudice resulted. See id. at 320. If Johnson is unable to prove either 

element, then he cannot prevail. See id.

III. Analysis of Ineffective-Assistance-of-Counsel Claim 

A. Habitual-Offender Adjudication 

In assessing a factual-basis claim, we look to the guilty-plea record as a 

whole. State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010). The record need not 

show the totality of evidence necessary to prove Johnson guilty of the crime 
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charged. See id. We require only that the filings demonstrate facts to support the 

offense to which he is pleading guilty. See id. 

Johnson maintains the guilty-plea record did not show a factual basis for 

the predicate crimes which landed him in the category of habitual offender under 

Iowa Code section 321.555. Section 321.561 provides, “It shall be unlawful for 

any person found to be a habitual offender to operate any motor vehicle in this 

state during the period of time specified in section 321.560 . . . .” Section 

321.555(1)(c) defines an “habitual offender” as a person who has accumulated 

three or more separate and distinct convictions for “[d]riving a motor vehicle while 

the person’s license is suspended, denied, revoked, or barred.” But the reason 

the DOT issued a bar to Johnson’s license under the habitual-offender provisions1

is not an element of driving while barred.

Our case law suggests the crime of driving while barred has only two 

elements: (1) defendant’s license has been barred and (2) defendant operated a 

motor vehicle while his license was barred. See State v. Carmer, 465 N.W.2d 303, 

304 (Iowa Ct. App. 1990) (comparing elements of driving while barred to elements 

of driving while revoked); see also State v. Harmon, No. 17-0353, 2018 WL 

739314, at *1 (Iowa Ct. App. Feb. 7, 2018) (discussing State v. Williams, No. 16-

0894, 2017 WL 3524729, at *3 (Iowa Ct. App. Aug. 16, 2017),

2 where the majority 

and dissent agreed the crime had only two elements but disagreed whether the 

 

1 Proceedings to determine whether a person qualifies as an habitual offender are civil 

actions. Iowa Dep't of Transp. v. Iowa Dist. Court for Poweshiek Cty., 530 N.W.2d 725, 

727 (Iowa 1995).

2 Williams is currently pending on further review to our supreme court.
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first element required the State to prove the DOT properly mailed notice of the 

barment to the defendant).

Here, the minutes of evidence allege a DOT official would testify that 

Johnson’s driving privileges were barred on January 15, 2016, the day of the 

accident, and that receipt of service of notice was on file at the DOT. The minutes 

also reflect an officer would testify Johnson was driving a motor vehicle on the day 

in question. Further, Johnson admitted in his written guilty plea that he “was driving 

barred” and “should not have been.” This evidence provides a sufficient factual 

basis for the guilty plea, and defense counsel did not breach an essential duty by 

failing to file a motion in arrest of judgment. See State v. Ross, 845 N.W.2d 692, 

701 (Iowa 2014) (reaffirming counsel has no duty to file meritless motion).

B. Representation During Prior Convictions

Johnson also asserts defense counsel was ineffective in failing to challenge 

the factual basis for the guilty plea on the ground the record does not establish 

Johnson was represented or properly waived counsel in connection with the 

underlying convictions giving rise to his habitual-offender status. Johnson argues 

counsel should have filed a motion in arrest of judgment because “no showing was 

made that he was not entitled to, was provided, or waived counsel for the 

underlying offenses leading to the finding he was a habitual offender.” Johnson 

compares his situation to State v. Young, 863 N.W.2d 249, 281 (Iowa 2015) 

(holding a defendant’s prior uncounseled misdemeanor conviction could not be 

used as a predicate offense to enhance sentence for subsequent third-degree theft 

conviction).
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Johnson’s comparison to Young is inapt. Young involved the district court’s 

direct enhancement of a sentence based on prior criminal offenses. Young, 863 

N.W.2d. Here, any challenge by defense counsel to Johnson’s habitual-offender 

status as part of the criminal proceedings would have constituted a collateral attack 

on the decision of the DOT. See State v. Clark, 608 N.W.2d 5, 8-9 (Iowa 2000). 

If Johnson was not properly represented by counsel when he was convicted of the

offenses underlying the habitual-offender determination, the proper time to raise 

that issue would have been in the administrative proceeding afforded for him to 

challenge the bar of his driver’s license. See Iowa Code § 321.556; Clark, 608 

N.W.2d at 8.

The record establishes a factual basis showing Johnson’s driving privileges 

were barred by the DOT when he operated a motor vehicle in January 2016. 

Johnson admitted knowing his license was barred and driving anyway. Counsel 

did not breach an essential duty by failing to challenge Johnson’s guilty plea.

AFFIRMED.