IN THE COURT OF APPEALS OF IOWA

No. 16-2122

Filed September 13, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

BRADLEY WILLIAM ARTERBURN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Mahaska County, Lucy J. Gamon, 

Judge.

The defendant challenges his guilty plea to murder in the second degree. 

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney 

General, for appellee.

Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

“Bradley Arterburn killed his mother’s boyfriend, Robert ‘Hank’ Horovitz, by 

striking him with a battle axe and slitting his throat with a knife. At trial, Arterburn 

raised defenses of insanity and diminished responsibility, testifying that before 

and during the attack he experienced flashbacks to being sexual[ly] abused by 

his stepfather as a child. A jury convicted Arterburn of first-degree murder.” 

State v. Arterburn, No. 13-0035, 2014 WL 1715061, at *1 (Iowa Ct. App. Apr. 30, 

2014). On direct appeal, this court affirmed Arterburn’s conviction but preserved 

certain claims for postconviction-relief proceedings. See id. at *9. Arterburn’s 

conviction was subsequently vacated in postconviction-relief proceedings, and 

the matter was scheduled for retrial. Prior to the second trial, Arterburn pleaded 

guilty to murder in the second degree, in violation of Iowa Code section 707.3 

(2011). Arterburn timely filed this appeal, challenging the validity of his guilty 

plea. He asserts his plea was not actually knowing and voluntary and was not 

supported by a factual basis.

Before addressing the merits of Arterburn’s claims, we first address the 

issue of whether the defendant can challenge his plea. As a general rule, “[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.” Iowa R. Crim. P. 2.24(3)(a). An exception to this rule 

exists, however, where the district court failed to adequately advise the 

defendant of the necessity of filing a motion in arrest of judgment and the 

consequences for failing to do so. See Iowa R. Crim. P. 2.8(2)(d) (“The court 

shall inform the defendant that any challenges to a plea of guilty based on 
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alleged defects in the plea proceedings must be raised in a motion in arrest of 

judgment and that failure to so raise such challenges shall preclude the right to 

assert them on appeal.”); State v. Oldham, 515 N.W.2d 44, 46 (Iowa 1994); State 

v. Worley, 297 N.W.2d 368, 370 (Iowa 1980) (holding defendant should not 

“suffer the sanction of rule [2.24(3)(a)] unless the court has complied with rule 

[2.8(2)(d)] during the plea proceedings by telling the defendant that he must raise 

challenges to the plea proceeding in a motion in arrest of judgment and that 

failure to do so precludes challenging the proceeding on appeal”). It is not 

disputed Arterburn failed to file a motion in arrest of judgment. We thus must 

determine whether the district court adequately advised the defendant pursuant 

to Rule 2.8(2)(d). 

“We employ a substantial compliance standard in determining whether a 

trial court has discharged its duty under rule 2.8(2)(d).” State v. Fisher, 877 

N.W.2d 676, 681 (Iowa 2016) (citing State v. Straw, 709 N.W.2d 128, 132 (Iowa 

2006)). The determinative issue is whether the district court conveyed the 

pertinent information to the defendant. Straw, 709 N.W.2d at 132. During the 

plea colloquy, the district court gave the following advisory to Arterburn:

That does allow [fifteen] days between today’s date and the 

sentencing date. It also allows for the possibility of filing what’s 

called a motion in arrest of judgment. And, Mr. Arterburn, you have 

to file that motion no later than [forty-five] days from today’s date 

but in no case later than five days prior to the date and time set for 

sentencing . . . . If you don’t file that motion, then you cannot 

complain about any defects in these plea proceedings on appeal. 

Your attorney can tell you more about that right if you are interested 

in that right.

We conclude the district court substantially complied with Rule 2.8(2)(d) 

and the defendant is thus barred from directly challenging his guilty plea. 
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Substantial compliance does not require recitation of the exact language of the 

rule; conveying the substance is sufficient. See Fisher, 877 N.W.2d at 681. 

Here, the district court advised the defendant of the necessity of filing a motion in 

arrest of judgment to challenge his guilty plea, the time for filing the motion, and 

the consequences for failing to do so. We reject Arterburn’s contention that the 

district court’s use of the word “complain” was insufficient to convey the required 

information. A commonly understood meaning of complain is “to make a formal 

accusation or charge.” Complain, Merriam-Webster Dictionary 

https://www.merriam-webster.com/dictionary/complain. In addition, the district 

court did not use the word “complain” in isolation. Instead, the district court 

informed Arterburn he had to file a motion in arrest of judgment to complain 

“about any defects in these plea proceedings on appeal.” The entirety of the 

district court’s statement was sufficient to alert Arterburn of the need to challenge 

his guilty plea by motion in arrest of judgment and the consequences for failing to 

do so.

Although Arterburn is barred from directly challenging the validity of his 

guilty plea, he may challenge the validity of his guilty plea indirectly within the 

framework of a claim of ineffective assistance of counsel. See Straw, 709 

N.W.2d at 132–33 (holding while failure to file a motion in arrest of judgment to 

challenge a guilty a plea bars a direct appeal of conviction, “this failure does not 

bar a challenge to a guilty plea if the failure to file a motion in arrest of judgment 

resulted from ineffective assistance of counsel”). Arterburn asserts several 

claims of ineffective assistance of counsel. Our review is de novo. See State v. 
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Finney, 834 N.W.2d 46, 49 (Iowa 2013); State v. Schminkey, 597 N.W.2d 785, 

788 (Iowa 1999).

“The person claiming that his trial attorney was ineffective, depriving him 

of his sixth amendment right to counsel, must show that (1) counsel failed to 

perform an essential duty, and (2) prejudice resulted therefrom.” Taylor v. State, 

352 N.W.2d 683, 684–85 (Iowa 1984). A defendant must prove these elements 

by a preponderance of the evidence. Id. at 685. “[B]oth elements do not always 

need to be addressed. If the claim lacks prejudice, it can be decided on that 

ground alone without deciding whether the attorney performed deficiently.” 

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Prejudice generally exists 

if “there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” State v. Leckington, 713 

N.W.2d 208, 217 (Iowa 2006) (citing Strickland v. Washington, 466 U.S. 668, 694

(1984)). In the context of a guilty plea, this means there is a “reasonable 

probability that, but for counsel’s errors, [the defendant] would not have pleaded 

guilty and would have insisted on going to trial.” Irving v. State, 533 N.W.2d 538, 

541 (Iowa 1995) (citing Hill v. Lockhart, 474 U.S. 52, 57–59 (1985)). We reject 

Arterburn’s contention that he should be entitled to relief upon a lesser showing. 

The case law in this area is well-established, and this court is not at liberty to 

overrule controlling precedent. See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. 

App. 2014). 

Arterburn first claims his counsel was ineffective in allowing Arterburn to 

plead guilty where the plea was not actually knowing and voluntary. Specifically, 

Arterburn claims he entered his plea without understanding the meaning of 
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“malice aforethought,” an element of the offense, and without a factual basis for 

the plea. Voluntariness requires an inquiry by the district court as to whether a 

defendant understands the nature of the offense and the legal consequences of 

the plea and was not compelled or otherwise coerced into making an involuntary 

plea. See State v. Sisco, 169 N.W.2d 542, 547 (Iowa 1969). A claim that a guilty 

plea was not actually knowing and voluntary relates to the defendant’s subjective 

understanding of the plea proceeding. See Finney, 834 N.W.2d at 58. This 

requires the “court to delve into the accused’s state of mind.” Id. Because the 

object of the inquiry is the defendant’s state of mind, the claim is particularly 

inappropriate for resolution on direct appeal where there is typically insufficient 

record relating to the claim. We thus preserve these claims for postconvictionrelief proceedings.

Arterburn also asserts an additional challenge to his guilty plea. He 

contends the plea was not supported by a factual basis. Specifically, Arterburn 

contends there was insufficient record showing Arterburn acted with malice 

aforethought. In contrast to Arterburn’s claims his plea was not actually knowing 

and voluntary, a challenge to the adequacy of the record establishing a factual 

basis supporting the guilty plea is an objective inquiry. See id. (explaining the 

difference between a due process challenge to a guilty plea and a challenge to 

the adequacy of the plea proceeding). “Where a factual basis for a charge does 

not exist, and trial counsel allows the defendant to plead guilty anyway, counsel 

has failed to perform an essential duty.” Schminkey, 597 N.W.2d at 788. 

Prejudice is inherent where the guilty plea is not supported by a factual basis. 

See id. (citing State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996)). 
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Arterburn contends the record does not establish a factual basis 

supporting his plea to murder in the second degree because he could not 

remember anything related to the crime and stated as much during the plea 

colloquy. Arterburn relies on State v. Perkins, 875 N.W.2d 190, 194 (Iowa Ct. 

App. 2015), State v. Elphic, No. 14-0600, 2015 WL 408092, at *4 (Iowa Ct. App. 

Jan. 28, 2015), and United States v. Culbertson, 670 F.3d 183, 191–92 (2d Cir. 

2012), in support of his argument that the plea lacks a factual basis where the 

defendant cannot remember the offense conduct. 

We conclude the cases are distinguishable. In Perkins, Elphic, and 

Culbertson, the defendant affirmatively denied one or more elements of the 

offense. See Culbertson, 670 F.3d at 190 (holding no factual basis exists when 

“the defendant actively contests a fact constituting an element of the offense in 

the absence of circumstances warranting the conclusion that the defendant's 

protestations are ‘unworthy of belief’”); Perkins, 875 N.W.2d at 194 (stating “[o]ur 

law will not permit a court to accept a guilty plea when a defendant affirmatively 

maintains a denial of facts necessary to support an element of the crime”); 

Elphic, 2015 WL 408092 at *4 (“Instead, Elphic flatly denied the conduct which 

arguably established a threat to commit a forcible felony, the element which 

enhanced the offense to harassment in the first degree.”). Here, Arterburn did 

not affirmatively deny any of the elements of the offense. Instead, he stated he 

did not remember the events. 

Arterburn’s inability to remember the events on the night in question does 

not mean his guilty plea was not supported by a factual basis. “[T]his jurisdiction 

has no requirement that trial court must in all cases wring from defendant a 
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detailed confession satisfying each element of the offense charged.” State v. 

Hansen, 221 N.W.2d 274, 276 (Iowa 1974). Instead, the court can find a factual 

basis by “(1) inquiring of the defendant, (2) inquiring of the prosecutor, and (3) 

examining the presentence report.” Finney, 834 N.W.2d at 58. In addition, the 

district court may look to the minutes of testimony where the minutes are 

acknowledged during the plea colloquy. See id. In short, the relevant inquiry is 

whether the record before the district court as a whole supports a factual basis 

for each element of the offense. See State v. Amadeo, No. 11-1426, 2012 WL 

2122262, at *3–4 (Iowa Ct. App. June 13, 2012) (collecting cases).

When we examine the entirety of the record, we conclude Arterburn’s 

guilty plea was supported by a factual basis. The elements of murder in the 

second degree are Horovitz died as a result of being struck by Arterburn and 

Arterburn acted with malice aforethought. Malice aforethought is defined as “that 

condition of mind which prompts one to do a wrongful act intentionally, without 

legal justification or excuse.” State v. Green, 896 N.W.2d 770, 779 (Iowa 2017). 

Malice aforethought can be inferred from an attack with a dangerous weapon. Id. 

at 780 (noting “a rational juror could infer that one who uses a dangerous 

weapon intends to cause physical harm, and even to kill.”). Here, Arterburn 

acknowledged the truth of the minutes of evidence. The minutes showed 

Arterburn, without legal justification or excuse, stabbed Horovitz multiple times 

with what was described as a machete, sword, or battle axe and then slit 

Horovitz’s throat with a knife. Horovitz was “pronounced dead at the hospital”

that evening. In addition, counsel stipulated an inference of malice aforethought

could be drawn from the minutes of testimony. Under the circumstances, there 
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was a factual basis for the plea, and counsel was not ineffective in failing to 

challenge the guilty plea proceeding on this ground. 

We preserve for postconviction-relief proceedings Arterburn’s claims that 

his guilty plea was not actually knowing and voluntary. We deny Arterburn’s 

claim that his plea was not supported by a factual basis. We affirm Arterburn’s 

conviction for murder in the second degree.

AFFIRMED.