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State v. Diallo

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
THIERNO YAYA DIALLO, Defendant-Appellant.

         Appeal from the Iowa District Court for Johnson County, Deborah Farmer Minot, District Associate Judge.

         A defendant appeals following his guilty plea asserting his plea was not knowing and voluntary.

          Anne K. Wilson of Anne K. Wilson Law Office, PLLC, Hiawatha, for appellant.

          Thomas J. Miller, Attorney General, and Thomas A. Bakke, Assistant Attorney General, for appellee.

         En Banc.

          VOGEL, Judge.

         Thierno Yaya Diallo appeals following his written guilty plea to assault causing bodily injury under Iowa Code sections 708.1(2) and 708.2(2) (2015), a serious misdemeanor. He was sentenced to ninety days in jail with all but ten days suspended and one year of supervised probation. He was also ordered to pay a fine of $315.00 plus all applicable surcharges, along with any victim restitution, court costs, and $60.00 in attorney fees. He asserts his guilty plea was not knowing and voluntary because: (1) he was not informed of the immigration consequences of the guilty plea and (2) he was not informed of the applicable surcharges he would be assessed. He also asserts counsel was ineffective for failing to inform him of the immigration consequences of his guilty plea.

         I. Error Preservation.

         It is undisputed Diallo did not file a motion in arrest of judgment challenging his guilty plea in the district court. See Iowa R. Crim. P. 2.24(3)(a) ("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."); State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004) ("[A] defendant must file a motion in arrest of judgment to preserve a challenge to a guilty plea on appeal."). However, the State concedes Diallo may challenge his guilty plea here because the advisory provided to Diallo in the written guilty plea form did not substantially comply with Iowa Rule of Criminal Procedure 2.8(2)(d).[1] See State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980) ("No defendant, however, should 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."). The advisory given to Diallo in the written guilty plea form was identical to the advisory given to the defendant in State v. Fisher, 877 N.W.2d 676, 682 (Iowa 2016)-"Absent from Fisher's form was any statement that by signing it or proceeding to immediate sentencing, Fisher was giving up his ability to contest the plea in the future . . . ." Therefore, consistent with Fisher, we also conclude "[the] written plea was deficient in this respect, [and Diallo] is not precluded from challenging his guilty plea on direct appeal." 877 N.W.2d at 682.

         II. Immigration Consequences.

         Diallo first claims he was not advised of the immigration consequences of his guilty plea as required by rule 2.8(2)(b)(3)-"Before accepting a plea of guilty, the court must . . . inform the defendant of, and determine that the defendant understands . . . [t]hat a criminal conviction, deferred judgment, or deferred sentence may affect a defendant's status under federal immigration laws." He asserts a handwritten addition on the guilty plea form that stated, "Defendant has been advised of any possible immigration consequences" was an inadequate advisory under the rule. Diallo also notes this handwritten addition was not initialed or signed. However, as the State points out, Diallo fails to acknowledge that this statement was not the only statement on the written guilty plea form that pertained to the immigration consequences of the guilty plea. On the fourth page of the form, it states: "I understand that, if I am not a citizen of the United States, I may suffer adverse immigration consequences as a result of this guilty plea, including deportation. I understand that I have the right to contact an immigration attorney and my consulate." Immediately following this statement is Diallo's signature.

         We agree with the State's assertion that this advisory substantially complies with a court's obligation to inform a defendant and ensure he understands that the conviction could result in adverse immigration consequences. See Iowa R. Crim. P. 2.8(2)(b)(3); Meron, 675 N.W.2d at 544 ("Substantial compliance requires that the essence of each requirement of the rule be expressed to allow the court to perform its important role in each case."). Therefore, we find no error in this aspect of Diallo's guilty plea. See Fisher, 877 N.W.2d at 680 ("We ordinarily review challenges to guilty pleas for correction of errors at law.").

         III. Surcharges.

         Diallo also claims his guilty plea was not knowing and voluntary because he was not informed of the applicable surcharges.[2] In support of his claim, Diallo cites the Fisher case, which establishes surcharges are punishment and a defendant should be informed of surcharges as they affect the mandatory minimum and maximum penalties faced by those who plead guilty. Id. at 685-86 ("We conclude that Fisher should have been informed of the mandatory minimum and maximum possible fines, including surcharges."). However, the Fisher decision ...


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