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State v. Vang

Court of Appeals of Iowa

April 4, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
MASON DAVIS VANG, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

          Mason Vang appeals after pleading guilty to assault with intent to commit sexual abuse.

          Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

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

          Considered by Doyle, P.J., and Tabor and McDonald, JJ.

          DOYLE, Presiding Judge.

         Mason Vang appeals after pleading guilty to assault with intent to commit sexual abuse. See Iowa Code § 709.11(3) (2015). On appeal, he asserts the plea court failed to substantially comply with the Iowa Rule of Criminal Procedure 2.8(2)(b)(4) colloquy requirements regarding his right to confrontation. We find the plea court substantially complied with the rule. Vang also asserts his trial counsel was ineffective in failing to object to the prosecutor's alleged breach of the plea agreement. We find the prosecutor did not breach the plea agreement, and therefore Vang's counsel had no duty to object. We affirm the district court.

         I. Plea Colloquy.

         Vang claims the plea court's rule 2.8(2)(b) colloquy was deficient. Relevant to this appeal, the rule provides that, unless the procedure is waived under certain circumstances, before accepting a guilty plea, the court must address the defendant personally in open court and inform the defendant that the defendant has the right to be tried by a jury and has the right to confront and cross-examine witnesses against the defendant. Iowa R. Crim. P. 2.8(2)(b). "We review challenges to plea proceedings for correction of errors at law." State v. Weitzel, 905 N.W.2d 397, 401 (Iowa 2017).

         During the plea colloquy, the plea court addressed Vang's constitutional rights to a jury trial and explained to him, "At the trial, your lawyer could cross-examine anyone who accuses you. If you wanted witnesses to come to the trial to testify and they would not do so voluntarily, the court would use its power to bring them to the courtroom to testify." Vang indicated he understood.

         On appeal, Vang acknowledges the court advised him of his right to cross-examine witnesses against him and of the compulsory process but argues the court failed to advise him of his right to confront witnesses against him. The crux of Vang's argument is that the right of confrontation and the right to cross-examine are not the same thing-the right to confrontation is more expansive than the right to cross-examine. Although the right to confrontation includes the right to effective cross-examination, Vang notes the right to confrontation also encompasses the right to testimony under oath and the right to have a jury observe a witness's demeanor. See State v. Shearon, 660 N.W.2d 52, 55 (Iowa 2003) ("Three main rights may be claimed under the Confrontation Clause: (1) testimony under oath, (2) cross-examination by his counsel, and (3) the right to have the jury observe the witness's demeanor."); see also State v. Newell, 710 N.W.2d 6, 24 (Iowa 2006) ("Two important policies underlie the Confrontation Clause: 'a preference for face-to-face confrontation at trial and the right of cross-examination.'" (citation omitted)).

         We believe testimony under oath and observation of a witness's demeanor by a jury are implicit in cross-examination by defense counsel at a jury trial, but even if they are not, we conclude there was no violation of rule 2.8(2)(b)(4). Although strict or actual compliance with the rule is preferred, substantial compliance is acceptable. See Weitzel, 905 N.W.2d at 406. So, we ask whether the record establishes the plea court conveyed the required information to Vang such that it could be said he 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."). Although the plea court's statement does not parrot the rule 2.8(2)(b)(4) requirement that a defendant be informed of "the right to confront, " the court's advisory substantially complies with the rule. See State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002) ("Under the substantial-compliance standard, a trial court is not required to advise a defendant of his rights using the precise language of the rule; it is sufficient that the defendant be informed of his rights in such a way that he is made aware of them."); see, e.g., State v. Aherns, No. 13-1026, 2016 WL 351235, at *3 (Iowa Ct. App. Jan. 27, 2016) (holding that telling a defendant he "could cross-examine the State's witness" met the substantial compliance standard concerning rights to cross-examine and confrontation); State v. Taylor, No. 14-1688, 2015 WL 2089711, at *1 (Iowa Ct. App. May 6, 2015) (finding statement that "I have a right to hear the evidence against me from the witnesses and subject them to cross-examination" substantially complied with the rule regarding the right to confront and cross-examine witnesses); State v. Hayes, No. 04-0043, 2004 WL 2002596, at *5 (Iowa Ct. App. Sept. 9, 2004) (holding statement that the defendant was giving up his "right to have the opportunity to ask questions of the State's witnesses" sufficiently informed the defendant of his right to confront witnesses against him and, thus, substantially complied with the rule's requirement).

         We conclude the plea court sufficiently informed Vang of his right to confront witnesses against him.

         II. Ineffective ...


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