IN THE COURT OF APPEALS OF IOWA

No. 17-0155

Filed September 27, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

STEVEN WAYNE SIX,

Defendant-Appellant.

________________________________________________________________

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

District Associate Judge.

Steven Six appeals from the judgment and sentence imposed after he 

pled guilty to one charge of operating a vehicle without the owner’s consent. 

AFFIRMED.

Thomas M. McIntee, Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant 

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

Steven Six appeals from the judgment and sentence imposed after he 

pled guilty to one charge of operating a vehicle without the owner’s consent. He 

challenges whether a factual basis exists to support his plea and whether he 

entered the plea knowingly, intelligently, and voluntarily. We affirm his conviction 

and sentence. 

I. Background Facts and Proceedings.

The State filed a trial information alleging Six committed the crime of 

operating a vehicle without the owner’s consent, in violation of Iowa Code section 

714.7 (2016). Six requested the State waive filing of the minutes of evidence, 

agreeing that the grounds for filing the trial information were contained in the 

preliminary complaint, which states:

On 5-1-16 a Ford truck was stolen from 11010 NW 123 St in 

rural Polk County. The truck was later recovered at a Quick Trip 

store at 1451 22 St in West Des Moines. The store provided 

security video that clearly showed a white male with grey hair drive 

the truck to the store, then exit the truck and go into the business. 

The video then showed the subject purchase some items and then 

leave the store, leaving the truck parked at the store.

A latex glove was found in the truck that did not belong to 

the owner of the truck. This latex glove was submitted to the Iowa 

State DCI lab for DNA testing. On 12-16-16 the DCI lab completed 

a report showing a DNA match to Steven Wayne Six. I then 

retrieved a driver’s license photo for Mr. Six and compared it to the 

video from the Quick Trip store. It was clear the suspect in the 

video was Mr. Six.

Six entered a written guilty plea to the charge of operating a vehicle 

without the owner’s consent, waiving his right to a verbatim record of the plea 

proceedings. Six admitted that he “drove a truck without the permission of the 
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owner” and agreed to a suspended sentence and to complete inpatient 

treatment. 

The court accepted Six’s guilty plea. Six waived the time before 

sentencing and the presentence investigation report, asking for immediate 

sentencing. The court sentenced Six to be incarcerated for a period not to 

exceed two years, suspended the sentence, and ordered Six to complete the 

recommendations of the substance abuse evaluation. The court also fined Six 

“$625 plus surcharge[s].” Six appeals.1 

II. Scope and Standard of Review.

Ordinarily, a defendant must file a motion in arrest of judgment to preserve 

error on a challenge to a guilty plea on appeal. See State v. Perkins, 875 

N.W.2d 190, 192 (Iowa Ct. App. 2015). Challenges to a guilty plea based on 

claims of ineffective assistance of counsel are an exception to the rule. See id. 

We review ineffective-assistance claims de novo, and we will decide such a claim 

on direct appeal if the record is adequate. See id. at 192-93. In order to succeed 

on an ineffective-assistance claim, a defendant must show by a preponderance 

of the evidence that trial counsel failed to perform an essential duty and that 

failure resulted in prejudice. See id. at 193. 

 

1 We note that the numerous block quotes in Six’s brief are non-compliant with the rules 

of appellate procedure because the font utilized is too small. The rules require “A 

proportionally spaced typeface must be 14 point or larger for all text, including 

footnotes.” Iowa R. App P. 6.903(1)(e)(1) (emphasis added). Furthermore, numerous 

case citations are non-compliant because they do not cite to a specific page. The rules 

require: “When quoting from authorities or referring to a particular point within an 

authority, the specific page or pages quoted or relied upon must be given in addition to 

the required page references.” Iowa R. App. P. 6.904(2)(a). Lastly, the brief’s citations 

to unpublished cases are non-compliant for failure to include an electronic citation. See

Iowa R. App. P. 6.904(2)(c). 
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III. Factual Basis.

Six alleges his trial counsel was ineffective in allowing him to plead guilty 

without assuring a factual basis supported the charge. Because no minutes of 

evidence had been filed at the time he entered his guilty plea, Six argues his 

counsel could not have performed a meaningful investigation. He also alleges 

that counsel induced his guilty plea by assuring him an immediate release from 

jail. 

If a defendant pleads guilty without a factual basis for the charge, counsel 

has failed to perform an essential duty and prejudice is presumed. See id. In 

determining whether a factual basis exists to support the charge to which a 

defendant has pleaded guilty, we look at the entire record before the district court 

at the time of the plea. See State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). 

The narrative report in the initial complaint and Six’s written guilty plea provide a 

factual basis for the charge.

To the extent Six argues his counsel was ineffective in failing to 

adequately investigate the charges or inducing his plea, the issues are preserved 

for a potential postconviction proceeding to allow the record to be fully 

developed. See id. at 63 (noting that ineffective-assistance claims based on 

counsel’s failure to investigate are “the type of claim that must await development 

of a factual record in a potential postconviction proceeding”).

IV. Voluntariness.

Six also contends his trial counsel was ineffective in allowing him to plead 

guilty when his plea was not knowing, intelligent, and voluntary. In order to 

assure a plea is knowing, intelligent, and voluntary, the court must inform the 
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defendant of and ensure the defendant understands the nature of the charge, the 

mandatory minimum punishment, the effect a conviction may have on the 

defendant’s status under federal immigration laws, the rights the defendant is 

waiving by pleading guilty, and that pleading guilty waives the defendant’s right to 

a trial. See Iowa R. Crim. P. 2.8(2)(b); State v. Everett, 372 N.W.2d 235, 236 

(Iowa 1985). If a defendant’s plea is not knowing, intelligent, and voluntary and 

counsel fails to file a motion in arrest of judgment challenging it, counsel has 

breached of an essential duty. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 

2006). 

Six alleges his plea was not knowing, intelligent, and voluntary because 

the trial court failed to engage in a colloquy concerning the voluntariness of his 

plea on the record. He claims this failure leaves the question of its voluntary 

nature “tainted.” Although rule 2.8(2)(b) requires the court to address a 

defendant “personally in open court,” it allows the court to waive the in-court 

colloquy with the defendant’s approval if the defendant is pleading guilty to a 

serious or aggravated misdemeanor and the written guilty plea provides a 

sufficient basis for the court to find the plea was knowing, intelligent, and 

voluntary. Six pled guilty to an aggravated misdemeanor and waived the in-court 

colloquy, and the court found that Six understood the charge, the penal 

consequences, and the constitutional rights he was waiving. The lack of in-court 

colloquy alone cannot stand as the basis for Six’s claim his plea was not 

knowing, intelligent, and voluntary. 

Six also alleges his plea was not knowing, intelligent, and voluntary 

because the trial court failed to inform him of the 35% surcharge that applied to 
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all fines imposed upon him and, therefore, his trial counsel was ineffective in 

failing to file a motion in arrest of judgment. Although Six claims the trial court 

failed to inform him of the 35% surcharge on each fine imposed, the written guilty 

plea states: “I understand that pursuant to Iowa Code Chapter 911, in addition to 

the above possible sentences, I will be assessed a 35% surcharge on any fine 

imposed . . . .” Because Six knew he would be assessed a 35% surcharge on 

each of his fines, he cannot show the required prejudice necessary to succeed 

on his ineffective-assistance claim—a reasonable probability that he would not 

have pled guilty and would have insisted on going to trial had the trial court 

informed him of the surcharge. See id. at 137-38 (“Under the “reasonable 

probability” test, the defendant, who has already admitted to committing the 

crime, has the burden to prove he or she would not have pled guilty if the judge 

had personally addressed the maximum punishment for his or her crimes.”).

Finally, Six argues his trial counsel was ineffective by allowing him to be 

sentenced immediately. Because the record before us is devoid of evidence of 

how any error prejudiced Six, we must preserve the ineffective-assistance-ofcounsel claim for a potential postconviction proceeding. See State v. Bearse, 

748 N.W.2d 211, 219 (Iowa 2008).

We affirm the judgment and sentence entered on Six’s conviction for 

operating a vehicle without the owner’s consent.

AFFIRMED.