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State v. Weitzel

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JASON GENE WEITZEL, Defendant-Appellant.

         Appeal from the Iowa District Court for Floyd County, Peter B. Newell, District Associate Judge.

         A defendant seeks to vacate his guilty pleas due to the district court's failure to conduct a plea colloquy in compliance with Iowa Rule of Criminal Procedure 2.8(2)(b)(2). CONVICTIONS AND SENTENCES VACATED AND REMANDED.

          David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles City, for appellant.

          Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant Attorney General, for appellee.

         Considered En Banc.

          McDONALD, Judge.

         In State v. Fisher, 877 N.W.2d 676, 686 n.6 (Iowa 2016), the supreme court held actual compliance with Iowa Rule of Criminal Procedure 2.8(2)(b) required the district court to disclose to the defendant during a plea proceeding "all applicable chapter 911 surcharges" related to the offenses to which the defendant pleaded guilty. Fisher left unresolved the question of whether the district court's failure to disclose to the defendant all applicable chapter 911 surcharges, standing alone, would mean the guilty plea proceeding failed to substantially comply with Rule 2.8(2)(b)(2). See 676 N.W.2d at 686 n.6. This appeal directly presents the question left unresolved in Fisher.

         I.

         Jason Weitzel pleaded guilty to and was convicted of domestic-abuse assault, in violation of Iowa Code section 708.2A(5) (2016); possession of methamphetamine, second offense, in violation of section 124.401(5); carrying weapons, in violation of section 724.4(1); and operating while intoxicated (OWI), first offense, in violation of section 321J.2. The underlying offense conduct is immaterial to the question presented, and we need not discuss it. The only material facts relate to the plea colloquy, and on this we focus our attention.

         Weitzel was represented by counsel during the plea proceeding. During the plea proceeding, the district court informed Weitzel of the minimum and maximum fines applicable to each offense. The district court also determined Weitzel understood the minimum and maximum fines applicable to each offense. The district court did not inform Weitzel of the criminal surcharge penalty applicable to each offense. Iowa Code section 911.1(1) provides a "criminal penalty surcharge shall be levied against law violators as provided in this section." The "additional penalty" shall be "in the form of a criminal penalty surcharge equal to thirty-five percent of the fine . . . imposed." Iowa Code § 911.1(1). Where, as here, the defendant is convicted of multiple offenses, "the surcharge shall be based upon the total amount of fines or forfeitures imposed for all offenses." Iowa Code § 911.1(2). The district court also did not determine whether Weitzel understood he would be subject to an "additional penalty" as set forth in code section 911.1.

         II.

         On appeal, Weitzel seeks to vacate his convictions on the ground the plea proceeding was inadequate. Weitzel did not file a motion in arrest of judgment to challenge the adequacy of the plea proceeding. Typically, "[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." Iowa R. Crim. P. 2.24(3)(a). This procedural bar is inapplicable, however, where the district failed to comply with Rule 2.8(2)(d) and inform the defendant of the need to file a motion in arrest of judgment to challenge the adequacy of the plea proceeding and the consequences for failing to file a motion in arrest of judgment. See Iowa R. Crim. P. 2.8(2)(d) ("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."); State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980) (holding defendant should not "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").

         We conclude Weitzel is not barred from challenging the adequacy of his plea proceeding on direct appeal. The State concedes the district court did not advise the defendant as required by Rule 2.8(2)(d). Relying on State v. Oldham, 515 N.W.2d 44, 47 (Iowa 1994), the State contends the district court nonetheless substantially complied with Rule 2.8(2)(d) because the required advisory was contained in a change of plea form filed after the district court accepted the defendant's guilty plea. See 515 N.W.2d at 47 (holding the district court substantially complied with Rule 2.8(2)(d) where the defendant signed a form containing the required advisory and was asked during the plea colloquy whether he read and understood the form). Oldham is inapplicable here. There is nothing in the record to establish Weitzel was given the form, read the form, or understood the form prior to pleading guilty. On this record, we cannot conclude the district court substantially complied with Rule 2.8(2)(d). See Fisher, 877 N.W.2d at 682 (finding because advisory was deficient, defendant was not precluded from directly challenging guilty plea on appeal). Accordingly, Weitzel may directly challenge his guilty plea on appeal.

         III.

         We begin by clarifying the nature of the claim presented. Due process requires a guilty plea be voluntary. See State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003). "To be truly voluntary, the plea must not only be free from compulsion, but must also be knowing and intelligent." Id. at 151. Due process requires the defendant to have an understanding of "the constitutional protections that he gives up by pleading guilty, . . . 'the nature of the crime with which he is charged, ' and the potential penalties." Id. (citation omitted).

         Iowa Rule of Criminal Procedure 2.8(2)(b), like Federal Rule of Civil Procedure 11, is a prophylactic rule designed to protect the constitutional right to due process during plea proceedings. See United States v. Adams, No. 98-2067, 1999 WL 1253080, at *2 (6th Cir. 1999) ("The federal courts have enforced the provisions of Rule 11 as a prophylactic measure against such due process violations."); United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997) ("To this end, Rule 11 has a predominantly prophylactic purpose.").

         In McCarthy v. United States, 394 U.S. 459 (1969), the Supreme Court explained the prophylactic purpose of the parallel federal rule of criminal procedure:

First, although the procedure embodied in Rule 11 has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.
. . . . These two purposes have their genesis in the nature of a guilty plea. A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be "an intentional relinquishment or abandonment of a known right or privilege." Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.
. . . .
To the extent that the district judge thus exposes the defendant's state of mind on the record through personal interrogation, he not only facilitates his own determination of a guilty plea's voluntariness, but he also facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary. Both of these goals are undermined in proportion to the degree the district judge resorts to "assumptions" not based upon recorded responses to his inquiries. For this reason, we reject the Government's contention that Rule 11 can be complied with although the district judge does not personally inquire whether the defendant understood the nature of the charge.

McCarthy, 394 U.S. at 465-67. The same considerations inform our understanding of the purposes of Rule 2.8(2)(b).

         Although due process concepts are protected by the rule, a due process challenge to a guilty plea is separate and distinct from a rule-based challenge to the adequacy of a plea proceeding. A due process claim challenges whether the guilty plea was actually voluntarily, knowingly, and intelligently made. See State v. Finney, 834 N.W.2d 46, 58 (Iowa 2013) (explaining the difference between a due process challenge to a guilty plea and a challenge to the adequacy of the plea proceeding). The object of the inquiry is the defendant's subjective understanding of the plea proceeding. Id. This requires the "court to delve into the accused's state of mind." Id. In contrast, a challenge to the adequacy of the plea proceeding as required by Rule 2.8(2)(b) is an objective inquiry. The claim turns on the conduct of the district court and whether the "record shows that the trial court explained or referred to the [required information] in a manner reasonably intelligible to that defendant." State v. Ballard, 423 N.E.2d 115, 120 (Ohio 1981).

         Because the claims are separate and distinct, it is entirely possible a guilty plea will be voluntarily, knowingly, and intelligently made although not in compliance with Rule 2.8(2)(b). For example, the district court might wholly fail to advise the defendant of the minimum and maximum prison sentences. Undoubtedly, the plea proceeding would not substantially comply with Rule 2.8(2)(b). However, the record might show the defendant's counsel advised the defendant of the sentences off the record prior to the plea proceeding. See, e.g., Loye, 670 N.W.2d at 154 (vacating convictions where defense counsel told the defendant of the penal consequences but the district court failed to comply with Rule 2.8(2)(b)). Similarly, a guilty plea colloquy might fully comply with Rule 2.8(2)(b), but the plea might nonetheless fail to comport with due process. For example, the record might reveal the defendant was under the influence of medications that interfered with the defendant's ability to understand the proceedings or the record might reveal the defendant was given materially bad legal counsel. See, e.g., State v. Holden, No. 16-0322, 2016 WL 7404615, at *3 (Iowa Ct. App. Dec. 21, 2016) ("Ultimately, counsel's failures undermined Holden's ability to understand the potential sentences he faced. While the district court explained the options plainly, Holden's understanding was warped by his counsel's incorrect advice. Based on that incorrect advice and the resulting misinformation provided to Holden, we find Holden's plea was not knowing and intelligent.").

         With that background, the questions material to the resolution of the issue presented in this case are what is the specific claim asserted; and what relief, if any, is the defendant entitled to receive upon establishing the claim. We now turn to these questions.

         IV.

         A. The claim presented in this appeal is a rule-based claim. Specifically, whether the guilty plea proceeding complied with Rule 2.8(2)(b). As relevant here, the rule provides:

The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
. . . . (2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.

         Although actual compliance with the rule is preferred, substantial compliance is acceptable. The substantial compliance standard focuses on the conduct of the district court during the plea proceeding. The objective is fixed, but its application is flexible. We ask whether the record establishes the district court conveyed the required information to the defendant such that it could be said the defendant understood the information. See State v. Meron, 675 N.W.2d 537, 544 (Iowa 2004) ("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."); see also Ballard, 423 N.E.2d at 120 ("Rather, the focus, upon review, is whether the record shows that the trial court explained or referred to the right in a manner reasonably intelligible to that defendant.").

         At least two of our cases have applied some sort of harmless error or material inducement standard to determine whether the plea colloquy was in substantial compliance with the Rule 2.8(2)(b). In State v. Howell, No. 07-1179, 2008 WL 783760, at *1 (Iowa Ct. App. Mar. 26, 2008), this court declined to grant relief on a claimed rule violation. The case was resolved on error preservation grounds. However, in dicta, the court stated the district court's provision of incorrect information regarding the fines substantially complied with the rule because the error was harmless. See Howell, 2008 WL 783760, at *2. In State v. Peterson, No. 11-1409, 2012 WL 3860730, at *1 (Iowa Ct. App. Sept. 6, 2012), we denied a defendant's challenge to his guilty plea where the district court failed to disclose the minimum fine, concluding there was substantial compliance because failure to disclose was not a material inducement to plead guilty. See Peterson, 2012 WL 3860730, at *3.

         To the extent either Howell or Peterson could be interpreted to mean the district court substantially complied with Rule 2.8(2)(b) because the information was not a material inducement to the plea or was otherwise harmless, we disavow them. The cases confuse the rule and the remedy. See McCarthy, 394 U.S. at 468 (separating the issue of whether there was compliance with Federal Rule of Criminal Procedure 11 from the issue of the remedy for the failure to comply with Rule 11). We use a non-criminal case for illustrative purposes. If a home purchaser brought a misrepresentation suit against a home seller for failure to disclose a leaky basement, we would not say the home seller made an adequate disclosure because, after the fact, the evidence showed the condition of the basement was not actually a material inducement in purchasing the home. Instead, we would say there was a failure to disclose but, perhaps, there was no remedy for the purchaser on the facts presented. The same concepts apply here. Substantial compliance focuses on whether the seller (the district court) adequately disclosed the leaky basement (Rule 2.8(2)(b) information). Whether the failure to disclose the required information induced action or was otherwise harmless is a question of remedies.

         To the extent the dissent contends there was substantial compliance because the district court's omission of information was not a material inducement to the plea or was otherwise harmless, the dissent perpetuates the analytical error in Howell and Peterson. The dissent's reliance on federal precedent in support of its argument exposes the error. As noted above, McCarthy drew a distinction between the question of whether the district court complied with the federal rule and whether there should be a remedy for the failure to comply with the federal rule. At the time McCarthy was decided, the Federal Rules of Criminal Procedure already contained a harmless-error provision. See Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."). Post McCarthy, a similar harmless error rule was inserted into Federal Rule 11 to clarify the harmless error rule applied to guilty plea proceedings. The text of the federal rule provides there shall be no remedy for the district court's failure to conduct a compliant plea colloquy if the error "does not affect substantial rights." Fed.R.Civ.P. 11(h) (emphasis added). The dissent interchangeably uses the terms "substantial compliance, " "substantial rights, " and "substantial error." However, the terms do not refer to the same concepts. The federal focus is on the "substantial rights" of the defendant, i.e., whether the error caused harm to the defendant. See United States v. Lane, 474 U.S. 438, 449 (1986) (stating the harmless-error rule focuses on whether the error affected the defendant's substantial rights); United States v. Shacklett, 921 F.2d 580, 582 (5th Cir. 1991) (stating "this court will evaluate such failure to comply with Rule 11 under a harmless error analysis that focuses on whether the defendant's substantive rights were affected"). Our focus, for the purpose of determining "substantial compliance, " is on the conduct of the district court. See State v. Smothers, 309 N.W.2d 506, 508 (Iowa 1981) (stating substantial compliance focuses on whether the district court used language sufficient to inform the defendant of the required information). The federal harmless-error cases do not address the question of "substantial compliance" within the meaning of our law.

         When we turn our focus to the conduct of the district court, in light of the broad, prophylactic nature of the rule, we cannot conclude the district court substantially complied with Rule 2.8(2)(b). The rule requires the district court to perform two separate and distinct tasks "before accepting a plea of guilty." First, the district court must inform the defendant of the information set forth in the rule, which includes punishments. See Loye, 670 N.W.2d at 154 (stating district court did not substantially comply with Rule 2.8(2)(b) because the district court did not inform defendant of maximum possible punishments). As applicable here, Fisher held the criminal penalty surcharge set forth in chapter 911 was a "punishment" within the meaning of Rule 2.8(2)(b). 877 N.W.2d at 685-86. The Fisher court further held that actual compliance with the rule required the additional criminal penalty be disclosed during the guilty plea proceeding. It cannot follow that the district court's failure to communicate any information regarding the "additional penalty" is substantial compliance with the rule. See Meron, 675 N.W.2d at 542 ("In this case, the substantial compliance standard was not satisfied. A number of the requirements of the rule were totally ignored."). Second, the rule also provides the district court "must" determine the defendant understands the information communicated. See ...


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