STATE v. GEARY

PER CURIAM.

Defendant, Lori Geary, appeals from the judgments of conviction and sentences imposed following her guilty plea to five separate charges of public intoxication, third offense, in violation of Iowa Code sections 143.46 and 123.91 (1997). She contends her trial counsel was ineffective in allowing her to plead guilty when no factual basis exists.

Defendant urges that, in order for any prior convictions of public intoxication to be used to enhance the present charges, the State needed to show that she was represented by counsel in prior convictions or that a knowing waiver of counsel occurred. This court held in State v. Cooper, 343 N.W.2d 485, 486 (Iowa 1984), that prior uncounseled convictions for theft could not be used to enhance the degree of theft involved in a later conviction. The State contends, however, that the Cooper rationale was based on a fractured decision in Baldasar v. Illinois, 466 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980), which has since been overruled in Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). The Nichols Court held it is constitutionally permissible to consider prior uncounseled misdemeanor convictions to enhance punishment of a subsequent conviction if no prison term was imposed on the prior offenses. Id. at 748-49, 114 S. Ct. at 1928, 128 L. Ed. 2d at 755.

We need not consider whether our Cooper decision remains viable. The record presented on the present appeal is insufficient to allow us to grant defendant any relief, save for her contention that the plea of guilty to the charge growing out of her July 15, 1998 arrest lacks a factual basis for enhancement of that offense. As to that charge, we have reviewed the record and conclude that no factual basis exists with respect to the prior convictions used by the court to enhance the charge from first-offense to third-offense public intoxication. As the State concedes, those convictions were not shown in the minutes of testimony nor were they otherwise identified in the record.

As to the other four charges presented, there has been no factual showing that the prior convictions, which supply the factual basis for enhancing those charges to third-degree public intoxication, were uncounseled or, if they were uncounseled, whether a voluntary waiver of counsel had not occurred. By pleading guilty, the defendant waived all defenses and objections except that the information charges no offense or any irregularities intrinsic in the plea itself. State v. Mattly, 513 N.W.2d 739, 740-41 (Iowa 1994); State v. Garner, 469 N.W.2d 698, 699 (Iowa 1991).

We have recognized that the failure of counsel to assure that there is a factual basis for a defendant's plea of guilty may constitute ineffective assistance of counsel sufficient to warrant relief from the judgment of conviction. State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996). The record in the present case is inadequate to permit a determination of this claim on direct appeal. We preserve the issue for a postconviction relief proceeding in which the facts surrounding the prior convictions may be fully developed.

The judgment of conviction on the plea of guilty to the charge in Black Hawk County No. SMCR 080035 growing out of the July 15, 1998 arrest is vacated on the ground that a proper factual basis for a conviction of third-offense public intoxication has not been demonstrated. The other four convictions are affirmed. The remedy for omission of a factual basis is not to set aside the plea but rather to vacate the judgment of conviction. State v. Burch, 306 N.W.2d 781, 783 (Iowa 1981); State v. Burtlow, 299 N.W.2d 665, 670 (Iowa 1980); Ryan v. Iowa State Penitentiary, 218 N.W.2d 616, 620 (Iowa 1974). On remand, the State shall be given an opportunity to supply a proper factual basis on that charge, which, if successfully done, shall warrant the reentry of the vacated judgment. If the State is unsuccessful in establishing a factual basis for a conviction of third-degree public intoxication, defendant shall be adjudged guilty of first-offense public intoxication with respect to that transaction.

This is not a published opinion.