IN THE COURT OF APPEALS OF IOWA

No. 16-1846

Filed May 17, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ADAM B. ARTERBURN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Cheryl Traum, 

District Associate Judge.

Adam Arterburn appeals following his plea of guilty to absence from a 

place he was required to be. CONVICTION AFFIRMED, SENTENCE 

VACATED, AND REMANDED WITH INSTRUCTIONS.

Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellant.

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

General, for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.

Adam Arterburn appeals following judgment and sentence entered upon 

his written plea of guilty to absence from custody, in violation of Iowa Code 

section 719.4(3) (2016).

“We ordinarily review challenges to guilty pleas for correction of errors at 

law.” State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).

On October 5, 2016, Arterburn entered a written guilty plea to one count of 

absence from custody. The written guilty plea indicates, “A plea agreement in 

my case exists as evidenced by a memorandum of plea agreement which I have

signed. I understand the plea agreement is not binding on the court.”

The written guilty plea also contained a discussion of penalties: 

9. On a plea of guilty to: 

. . . .

__√__ A serious misdemeanor, the Court can sentence me to jail 

for up to one year, and fine me between $315.00 and $1875.00, 

plus surcharge and court costs. 

It also explained that to challenge the guilty plea a motion in arrest of judgment 

must be filed and that failing to file a motion in arrest of judgment before 

sentencing would “preclude [his] right to assert any defects in this plea in any 

appeal.” He also signed an additional waiver stating: “I wish to be sentenced 

today.”

Defense counsel’s signature appears below the statement, “I have fully 

advised my client of the consequences of this document. My client’s decision to 

sign this document and waive the rights described above is knowing and 

voluntary.” 
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That same date, October 5, 2016, the district court accepted Arterburn’s

written guilty plea, along with his written waiver of a reported plea hearing. The 

sentencing order provides further:

The court has reviewed the signed plea of guilty form and 

considered the statements of the defendant. The court finds that

the defendant understands the charge, the penal consequences 

and the constitutional rights being waived. Based on the 

statements of the defendant, statements of the prosecutor, and the 

minutes of testimony accepted as true by the defendant and 

considered by the court, the plea has a factual basis and is 

knowing, voluntary and intelligent.

. . . .

. . . The following sentence is based on all of the available 

sentencing considerations set out in Iowa Code section 907.5. The 

court finds the following factors the most significant to determine 

this particular sentence: 

The plea agreement of the parties 

The nature and circumstances of the crime

Maximum opportunity for rehabilitation and treatment in 

the community 

The court sentenced Arterburn to 365 days in jail with all but 330 days 

suspended, to run consecutive to the sentence Arterburn was already serving 

when he committed this absence-from-custody offense.

On appeal, Arterburn contends he was not adequately informed of the 

mandatory penalties for the offense to which he pled, the failure to file the plea 

memorandum negates any ability to find the plea was knowingly and voluntarily 

entered, and the court failed to state adequate reasons for imposing consecutive 

sentences.

Arterburn concedes that his written plea of guilty establishes that he was 

made aware of the time limit for filing a motion in arrest of judgment and did not 

timely file a motion in arrest of judgment. He is thus precluded from challenging 

the adequacy of the plea proceedings on direct appeal. See Iowa R. Crim. P. 
4

2.24(3)(a) (“A defendant’s failure to challenge the adequacy of a guilty plea 

proceeding by motion in arrest of judgment shall preclude the defendant’s right to 

assert such challenge on appeal.”); State v. Straw, 709 N.W.2d 128, 132 (Iowa 

2006) (“Straw’s failure to move in arrest of judgment bars a direct appeal of his 

conviction.”). 

However, Arterburn contends plea counsel was ineffective, which excepts 

him from normal error-preservation rules. See Straw, 709 N.W.2d at 133. To 

establish his claim of ineffective assistance of counsel, Arterburn must 

demonstrate (1) his plea counsel failed to perform an essential duty, and (2) this 

failure resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88 

(1984). Only in “rare cases” will the record be adequate for the court to address 

the ineffectiveness claim on direct appeal. Straw, 709 N.W.2d at 133.

The record before us is not adequate to determine if Arterburn was 

adequately informed of the actual terms contained in the plea memorandum

because the plea memorandum is not in this record. Arterburn asserts that 

because the plea memorandum is not available we cannot presume the district 

court’s recitation of that the sentence was based—at least in part—upon the plea 

agreement. The State argues the proper remedy is to remand. 

Because the plea memorandum is not in the record, we remand to the 

district court for further proceedings consistent with State v. Thacker, 862 N.W.2d 

402, 410-11 (Iowa 2015):

On remand, if the district court determines it merely gave 

effect to the parties’ agreement and exercised no discretion in 

sentencing other than to accept the plea agreement as advanced 

by the parties, it should make the particulars of the plea agreement 

with respect to the sentence a part of the record. See [State v. 
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Matlock, 304 N.W.2d 226, 228 (Iowa 1981)] (“If the court has no 

discretion in sentencing, it should so state.”). If, on the other hand, 

the parties did not come to an agreement with respect to the 

particulars of the sentence or the district court departed from any 

agreement the parties may have had, then the district court 

exercised discretion and, as a result, must make a statement on the 

record as to why it exercised its discretion in the way it did. On 

remand, there is no requirement the district court arrive at a 

different sentence, but only that it satisfy the requirements of Iowa 

Rule of Criminal Procedure 2.23(3)(d).

We do not address any additional ineffectiveness claims here as they may be 

raised in a postconviction-relief action. See Thacker, 862 N.W.2d at 411. 

CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE 

REMANDED WITH INSTRUCTIONS.