Dеfendant, Marlys Brooks, prepared a backdated check on her employer’s account in an amount not authorized by her employer. She did so in an effort to conceal an earlier theft of funds. Brooks subsequently pleaded guilty to one count of forgery in violation of Iоwa Code section 715A.2(l)(b) (1993). She now claims her trial counsel was ineffective in allowing her to plead guilty because there was no factual basis for the forgery charge. Brooks asserts she could not be found guilty of forgery based on making “a writing so that it purports to be the act of another who did not authorize that act.” See Iowa Code § 715A.2(l)(b). That is because she was authorized to write checks on her employer’s account, albeit not for the purpose or amount of the backdated check. She also claims the facts do not support her plea to forgеry under the backdating alternative of the forgery statute because her act of backdating was not done “with intent to defraud or injure anyone.” See id. § 715A.2(1). We conclude there was a factual basis for Brooks’ guilty plea to forgery under the act-of-another alternative. Therefore, we affirm.
I. Background Facts and Proceedings.
Brooks was the accounts payable clerk for Benco Corporation in Belle Plaine, Iowa. One of her duties was to issue garnishment checks. Typically, Benco would receive a notice from the Benton County sheriffs office of those Benco employees whоse paychecks were to be garnished. Brooks would then prepare a separate cheek for each employee’s garnished wages in the amount of the garnishment, have it signed by Benco’s general manager, and send it to the sheriffs department. The sheriff would apply the check to satisfy the employee’s garnishment. Brooks was one of the Benco employees whose paycheck was subject to garnishment.
On December 30, 1994, Brooks prepared a garnishment check in the amount of $187.14 representing funds deducted from the wages of another Bеnco employee. The general manager signed the check and Brooks delivered it to the sheriffs office. Rather than having the other employee’s garnishment account credited with this payment, however, Brooks instructed the sheriffs office to credit her garnishment account instead. The other significant event occurring in December 1994 was the failure of three other garnishment checks written on Benco’s account to arrive at the sheriffs office. The record does not reveal the fate of these checks.
On January 11, 1995, Brooks wrote three checks ostеnsibly to replace the three missing checks. 1 Two of the reissued checks were in the same amount as two of the original, missing checks. The third reissued check, however, was written in an amount $187.14 in excess of the original amount. This check would presumably cover the missing cheek as well as the mоnies diverted by Brooks to her garnishment account on December 30. The check was backdated to December 11, 1994. The backdating would make it appear the other Benco employee’s December garnishment had been paid in a timely manner. The effect of this series оf transactions was that Brooks’ Benton County garnishment account was credited with $187.14 taken from her employer rather than from Brooks’ wages. Brooks was not authorized to issue the backdated cheeks.
Based on Brooks’ issuance of the third check, the county attorney charged her with felony forgery in violation of Iowa Code section 715A.2(l)(b):
1. A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following:
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b. Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize the act, or so that it *448 purports to have been executed at a time or place or in a numbered sequence other than was in fact the case....
See Iowa Code § 715A.2(2)(a) (making forgery of a check “which ostensibly evidences an obligation of the person who has purportedly executed it or authorized its execution” a class “D” felony). Brooks pleaded guilty to the forgery charge in return for dismissal of a theft charge and a fraudulent practices charge that had also been filed against her. See Iowa Code §§ 714.1, .12.
During the plea colloquy, the judge asked the attorneys if a factual basis existed for the forgery charge and both attorneys agreed it did. The judge asked whether it was true Brooks had no authority from Benco or anyone else to issue a reрlacement check on her own. Brooks responded, “Correct.” The judge asked Brooks if she had prepared the check “with the intent to facilitate” the fraud; she said, “yes.”
The district judge accepted Brooks’ guilty plea and explained to her how and within what time she needed tо file a motion in arrest of judgment; she did not file such a motion. Brooks was later sentenced to an indeterminate term of incarceration not to exceed five years and was ordered to make restitution. She now appeals, claiming there was no factual basis for her guilty plеa to the offense of forgery.
II. Scope and Standard of Review.
Brooks claims she was denied her sixth amendment right to counsel because her attorney was ineffective.
See Taylor v. State,
III. Ineffective Assistance of Counsel.
Brooks’ failure to move in arrest of judgment bars a direct appeal of her convictiоn. Iowa R.Crim.P. 23(3)(a). Nevertheless, this failure will not bar a challenge to a guilty plea if the failure to file a motion in arrest of judgment resulted from the ineffective assistance of counsel.
State v. Schoelerman,
To succeed with her claim of ineffective assistance of counsel, Brooks must prove two elements.
See State v. Terry,
We will find counsel failed to perform an essential duty if defense counsel allows the defendant to plead guilty to a charge for which no factual basis exists and thereafter fails to file a motion in arrest of judgment challenging the plea.
See State v. Hack,
In determining whether a factual basis for Brooks’ guilty plea exists, we consider the entire record before the district court.
*449
See Hack,
IV. Factual Basis For Act-of-Another Alternative of Forgery.
A person is guilty of forgery under Iowa law
if, with intent to defraud or injure аnyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person ... makes ... a writing so that it purports to be the act of another who did not authorize that act.
Iowa Code § 715A.2(l)(b). Brooks argues that because she was the accounts рayable clerk in charge of writing garnishment cheeks, she was “authorized” to write the check in question. The State responds that Brooks was not authorized to write the check for the purpose or amount she did. Brooks replies that under the State’s construction of the statute, every instаnce of theft involving a check becomes a forgery.
We begin our discussion of this issue with a brief review of the crime of forgery. In general terms, forgery “is the false making or material alteration, with intent to defraud, of a writing which, if genuine, has apparent legal efficacy.” 4 Charles E. Tor-cía,
Wharton’s Criminal Law
§ 493, at 114 (1981) [hereinafter
Wharton’s
];
accord State v. Kendrick,
The act-of-another alternative of the Iowa forgery statute was taken verbatim from the Model Penal Code section 224.1. Although sensitive to the possibility of a dangerous overlap between forgery and white collar theft,
see id.
cmt. 2, at 285, the model statute was spеcifically drafted to reach the unauthorized actions of employees.
Id.
cmts. 2, 4(b), 4(c), at 285, 293, 294. Previous case law held that if an agent overtly represents an authority to do what she is doing (for example, by endorsing a check “Jane Smith, agent”), she is not guilty of forgery.
E.g., Gilbert v. United States,
[t]here is no reason in principle to distinguish this case from others that are properly within the concept of forgery. Such a defect of authority goes to the authenticity of the document as much as an unauthorized signing that does not рurport to be by an agent.
Model Penal Code § 224.1 cmt. 4(b), at 293.
Commentators agree that an agent may commit forgery, if acting in “disobedience of his instructions or in the improper exercise of his authority.” 37 C.J.S.
Forgery
§ 8, at
*450
38 (1943);
accord
36 Am.Jur.2d
Forgery
§ 9, at 686 (1968). According to one treatise, an agent commits forgery when, with intent to defraud, the agent “inserts unauthorized terms in an instrument.”
Wharton’s
§ 497, at 120-21 (citing
State v. Maxwell,
Section 715A.2 was adopted in 1987, well after the model law and the explanatory commentaries were published in 1980.
See
1987 Iowa Acts eh. 150, § 2. Because the Iowa legislature chose to adopt the Model Penal Code language, we presume it intended section 715A.2 to have the meaning explained in the comments to the model forgery provision.
See Adam v. Mount Pleasant Bank & Trust Co.,
Brooks argues that
any
theft is unauthorized and therefore, upholding hеr conviction of forgery unfairly brands her a felon for a mere theft. In
State v. Ross,
Because we construe section 715A.2(l)(b) to encompass the unauthorized actions of Brooks, we concludе there was a factual basis for her guilty plea to the crime of forgery under the act-of-another alternative. This conclusion makes it unnecessary for us to consider whether the record showed a factual basis for Brooks’ guilty plea under the backdating alternative of section 715A.2(l)(b).
Brooks’ trial counsel was not ineffective in allowing her to plead guilty to forgery. Therefore, her conviction must be affirmed.
AFFIRMED.
Notes
. Although the record indicates the general manager did not sign these checks, it is unclear whether Brooks signed these checks in her own name or signed the general manager's name.