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State v. Diallo

Supreme Court of Iowa

December 22, 2017

STATE OF IOWA, Appellee,
v.
THIERNO YAYA DIALLO, Appellant.

         On review from the Iowa Court of Appeals.

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

         The State requests further review of a court of appeals decision vacating a defendant's guilty plea.

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

          Thomas J. Miller, Attorney General, Thomas E. Bakke, Assistant Attorney General, Janet M. Lyness, County Attorney, and Naeda Elliott, Assistant County Attorney, for appellee.

          WIGGINS, Justice.

         A 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 requirement.

         We 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 reversal.

         The 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.

         I. Background Facts and Proceedings.

         On 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 trial.

         On 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.

         The 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.

         The 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 was ...


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