from the Iowa District Court for Polk County, Odell G. McGhee
II, District Associate Judge.
Jones appeals his consecutive sentences following a guilty
plea to two charges.
P. Vogel of Vogel Law, P.L.L.C., Des Moines, for appellant.
J. Miller, Attorney General, and Kevin Cmelik, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
VAITHESWARAN, Presiding Judge.
Raymond Jones pled guilty to operating a motor vehicle while
intoxicated (third offense) and eluding, both Class D
felonies. The State agreed to dismiss other pending
charges and recommended "two separate five-year
sentences to be run consecutive." The district court
adjudged Jones guilty and sentenced him to prison terms not
exceeding five years on each of the counts, to be served
appeal, Jones contends "the [district] court erred in
sentencing [him] to consecutive sentences pursuant to a plea
agreement as no actual agreement existed pursuant to Iowa
Rule of Criminal Procedure 2.10." He specifically argues
that the State did not "make a record as to whether the
joint agreement was to incarcerate [him], placed him on
probation, or argue the issue, " "no record was
made by either party prior to the actual plea as to the
disposition of fines, surcharges, court costs, attorney fees,
or restitution, " and the district court "missed an
opportunity to defer the acceptance of the plea agreement by
not simply ordering a pre-sentence investigation in this
State responds by noting that, while Jones frames his
argument as a sentencing challenge, it is really "a
challenge to the district court's acceptance of his
guilty pleas." The State asserts "direct
consideration of challenges to his guilty pleas on appeal is
barred" because Jones "was informed of his right to
file a motion in arrest of judgment" to challenge his
plea "and he waived this right, requesting immediate
sentencing." See State v. Fisher, 877 N.W.2d
676, 680 (Iowa 2016) (stating "[g]enerally, '[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'" but noting an exception where the
district court fails to properly inform the defendant of this
right (second alteration in original) (quoting Iowa R. Crim.
P. 2.24(3)(a))). We agree with the State.
district court informed Jones of his right to file a motion
in arrest of judgment to challenge the plea, outlined the
time frames for doing so, explained that if Jones wished to
proceed to immediate sentencing he would not be in a position
to file such a motion, and asked Jones if he wished to waive
his right to file a motion. Jones responded, "I'll
waive it." Because Jones waived his right to file a
motion in arrest of judgment and does not contend counsel was
ineffective in allowing him to waive this right, he cannot
challenge the adequacy of his plea on direct appeal.
extent Jones's appellate argument could be read as a
challenge to the imposition of consecutive sentences, error
preservation would not be an impediment to our review.
State v. Richardson, 890 N.W.2d 609, 615 (Iowa
2017). The challenge fails because Jones agreed to
consecutive sentencing. Specifically, his attorney
"ask[ed] the court [to] run the sentences consecutive,
" and the district court sought confirmation of this
request with Jones, as follows: "It's my
understanding that you are acceptable to . . . the
recommendation of the County Attorney that you be sentenced
consecutively. And you've agreed to that; is that
correct, Mr. Jones?" Jones responded, "Yes."
Having agreed to consecutive sentences, Jones cannot now be
heard to complain about those sentences. See Jasper v.
State, 477 N.W.2d 852, 856 (Iowa 1991) ("Applicant
cannot deliberately act so as to invite error and then object
because the court has accepted the invitation.").
affirm Jones's judgment and sentences for OWI third and