review from the Iowa Court of Appeals.
from the Iowa District Court for Johnson County, Deborah
Farmer Minot, District Associate Judge.
State requests further review of a court of appeals decision
vacating a defendant's guilty plea.
K. Wilson of Anne K. Wilson Law Office, PLLC, Hiawatha, for
J. Miller, Attorney General, Thomas E. Bakke, Assistant
Attorney General, Janet M. Lyness, County Attorney, and Naeda
Elliott, Assistant County Attorney, for appellee.
defendant appealed from the judgment and sentence entered on
his guilty plea to assault causing bodily injury. The
defendant claimed he did not enter his guilty plea
voluntarily because he was uninformed about the potential
immigration consequences of the plea, uninformed about the
thirty-five percent criminal penalty surcharge applicable to
the offense, and uninformed about the victim restitution
transferred the case to our court of appeals. The court of
appeals held the defendant properly brought a direct appeal
because the advisory in the written guilty plea form did not
substantially comply with Iowa Rule of Criminal Procedure
2.8(2)(d). Second, the court of appeals held the
district court substantially complied with its obligation to
advise the defendant of and ascertain his understanding of
the adverse immigration consequences resulting from his
guilty plea. Third, the court of appeals held the district
court did not substantially comply with rule
2.8(2)(b)(2) during the guilty plea colloquy because
it omitted information regarding the statutory thirty-five
percent surcharge provided for in Iowa Code section 911.1
(2015). Based on the district court's noncompliance, the
court of appeals applied a bright-line rule of automatic
State applied for further review, which we granted. On
further review, we find the thirty-five percent surcharge
issue is dispositive. On the merits, we hold the district
court did not substantially comply with rule
2.8(2)(b)(2) because the written guilty plea form
failed to inform the defendant about the mandatory
thirty-five percent criminal penalty surcharge. Because of
the district court's noncompliance, the defendant is
entitled to withdraw his plea. Therefore, we affirm the
decision of the court of appeals and remand the case to the
district court for further proceedings.
Background Facts and Proceedings.
November 6, 2015, the State filed a trial information
charging Thierno Yaya Diallo with assault causing bodily
injury in violation of Iowa Code sections 708.1(2) and
708.2(2), a serious misdemeanor. In a written arraignment,
Diallo pled not guilty and waived his right to a speedy
January 21, 2016, Diallo signed a preprinted guilty plea
form. The box next to the paragraph regarding the penal
consequences of pleading guilty to a serious misdemeanor has
a check mark. Underneath this paragraph, there is a
handwritten sentence reading, "Defendant has been
advised of any possible immigration consequences." The
form has no information whatsoever regarding the statutory
thirty-five percent surcharge and victim restitution.
next day, the district court sentenced Diallo without a
hearing to ninety days in jail with all but ten days
suspended and one year of supervised probation. The court
ordered him to pay a $315 fine plus all applicable surcharges
and any victim restitution, court costs, and attorney fees.
Diallo appealed, arguing his guilty plea was not knowing and
voluntary because the written guilty plea form did not advise
him of the adverse immigration consequences to pleading
guilty, did not inform him of the thirty-five percent
surcharge, and did not inform him of victim restitution.
Diallo also claimed his counsel was ineffective for failing
to inform him of the immigration consequences.
court of appeals first observed Diallo preserved error and
properly brought a direct appeal because the advisory in the
written guilty plea form did not substantially comply with
rule 2.8(2)(d). Second, it held the guilty plea form
substantially complied with a court's duty to inform
Diallo and ascertain he understands that entering a guilty
plea could result in adverse immigration consequences. Third,
the court held the district court did not substantially
comply with rule 2.8(2)(b)(2) because it misinformed
Diallo of the correct minimum and maximum base fines by
omitting the respective increases caused by the mandatory
thirty-five percent surcharge. In a footnote, the court of
appeals held Diallo's challenge to the district
court's failure to inform him about victim restitution