Opinion
No. 6-104 / 05-1025
Filed April 12, 2006
Appeal from the Iowa District Court for Woodbury County, Patrick C. McCormick, District Associate Judge.
The defendant appeals from the district court's judgment and sentence following his guilty pleas. AFFIRMED.
Robert Tiefenthaler, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Amy L. Ellis, Assistant County Attorney, for appellee-State.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
William Michalcewicz appeals the judgment and sentence entered by the district court on his guilty pleas to four counts of operating while intoxicated (third offense), a class D felony in violation of Iowa Code section 321J.2 (2003). Michalcewicz contends his guilty pleas to three of the four counts lacked a sufficient factual basis on the record as to whether he was intoxicated. The State asserts that error has not been preserved for appeal, as Michalcewicz failed to file a motion in arrest of judgment pursuant to Iowa Rule of Criminal Procedure 2.8. Michalcewicz answers that the district court failed to follow rule 2.8(2)( d), such that he is not precluded from bringing this appeal.
Rule 2.8(2)( d) states:
Challenging pleas of guilty. The court shall inform the defendant that any challenges to a plea of guilty based on 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.
The district court's colloquy included the following admonition to Michalcewicz:
Now Mr. Michalcewicz, I'm sure that Mr. Pals informed you that you have a right to a delay of sentencing for up to fifteen days and if you wish to challenge or appeal the proceedings in this plea taking what you would have to do is file a motion in arrest of judgment at least five days before the sentencing. If you are sentenced today you cannot file that motion and you must therefore give up the right to make a motion in arrest of judgment if you want to be sentenced today.
Had the district court simply inserted " to challenge or appeal the proceedings in this plea taking" into the last sentence before the words, "if you want to be sentenced today," Michalcewicz would have no claim. However, we cannot say that the district court failed in its duty for not repeating the language, as the repetition would only reinforce what the district court had already stated. Given the inference of what was being "given up" from the district court's words in the immediately preceding sentence, we find there was substantial compliance with the rule. See State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006) (holding the district court's plain language colloquy on failure to file a motion in arrest of judgment in whole conveyed the pertinent information and substantially complied with the requirements of rule 2.8(2)( d)). Therefore, we conclude error was not preserved.
Even if it were preserved, there is no merit to Michalcewicz's issue on appeal. Before accepting a guilty plea, it is the responsibility of the district court to establish a sufficient factual basis for the plea on the record. State v. Keene, 629 N.W.2d 360, 366 (Iowa 2001). We find no merit to Michalcewicz's claim that there was no factual basis to support his pleas. The record demonstrates ample evidence that law enforcement and civilian witnesses would testify to Michalcewicz's being intoxicated to the point of impairment on the three occasions challenged here. During the plea colloquy, the district court asked Michalcewicz to describe the circumstances for each count. Michalcewicz admitted as to each count that after consuming an unspecified amount of alcohol, he started his vehicle and remained seated with the vehicle running because he was impaired such that he was not able to drive a vehicle. This along with the other evidence appearing in the record, is sufficient evidence to support the factual basis necessary for Michalcewicz's guilty pleas to operating while intoxicated.
Although the plea and sentencing involved four counts of OWI (third offense), Michalcewicz only challenges on appeal the factual basis for the three instances which he did not submit to chemical testing to determine his blood-alcohol level.