This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.
Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge. Defendant appeals his conviction for child endangerment following his guilty plea, arguing counsel rendered ineffective assistance.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Michael J. Walton, County Attorney, and Melisa Zhaeringer, Assistant County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
After Marcus Earnest filed a written plea of guilty to the aggravated misdemeanor of child endangerment, the court entered judgment and imposed sentence. See Iowa Code § 726.6 (2011). On appeal, Earnest argues his counsel rendered ineffective assistance by failing to file a motion in arrest of judgment. Because the record shows: (1) the court failed to exercise its discretion to waive an in-court plea colloquy; (2) the court failed to determine the plea was entered " voluntarily and intelligently and had a factual basis" ; and (3) the court failed to accept the written plea of guilty, counsel's failure to challenge the plea establishes ineffective assistance. We reverse and remand for further proceedings.
I. Background Facts and Proceedings
In May 2012 Earnest was charged by trial information with child endangerment causing bodily injury, a class D felony. He initially pled not guilty. On December 12, 2012, the parties filed a written memorandum of plea agreement. Earnest agreed to enter a guilty plea to the lesser-included offense of child endangerment, an aggravated misdemeanor. The State agreed to make no recommendation at sentencing. The agreement states the court's concurrence " is" a condition to the acceptance of the plea. A second page, headed " ORDER" was attached to the agreement. The blank order contained several options--including an option stating the court " defers its decision as to acceptance or rejection of the Plea Agreement until its receipt of a presentence report." No signed order appears in the record.
In his simultaneously-filed written plea of guilty, Earnest acknowledged a factual basis for the child endangerment offense. Earnest also accepted " the minutes of evidence as substantially true as to the elements" of the charge.
Also on December 12, 2012, the district court filed an " order for pre-sentence investigation and appearance of defendant." The court stated an investigation is ordered on Earnest and checked three items: " plead guilty," " records check," and " request for docket search." The order also set sentencing for February 7, 2013. The February sentencing hearing began with the court stating:
The file reflects that Mr. Earnest appeared on December 12, 2012, and entered a written guilty plea to the lesser-included offense . . . of child endangerment . . . that being an aggravated misdemeanor. At that time the court did order a records check and set this matter for sentencing.
Thereafter, the parties discussed the informal report, the State declined to make a sentencing recommendation, and defense counsel urged the court to order probation. The court addressed Earnest: " Mr. Earnest, it's now your opportunity to tell me anything you wish for me to consider before I impose judgment and sentence." Earnest responded that he grew up in a house where spanking was a form of discipline and he made a mistake. Finding Earnest " didn't just spank your child," the court entered judgment and sentenced Earnest to 360 days ...