from the Iowa District Court for Dubuque County, Mark T.
Hostager, District Associate Judge.
defendant challenges his conviction for second-offense
operating while intoxicated.
D. Hallstoos, Dubuque, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
the jury even convicted Curt Steffen of operating while
intoxicated (OWI), the district court secured his waiver of a
second trial to prove he had been previously convicted of
OWI. Steffen stipulated he had an OWI conviction from 2010.
Now, after judgment on his second offense, Steffen challenges
the adequacy of the court's colloquy, which did not
mention the prior OWI conviction was only valid for
enhancement purposes if Steffen had been represented by
counsel or knowingly waived the right to counsel.
See Iowa R. Crim. P. 2.19(9). Steffen also alleges
the colloquy did not adequately advise him of the applicable
penalties for OWI, second offense.
the colloquy did not comply with the requirements clarified
in State v. Harrington, 893 N.W.2d 36 (Iowa 2017),
State v. Brewster, 907 N.W.2d 489 (Iowa 2018), and
State v. Smith, 924 N.W.2d 846 (Iowa 2019), we
reverse the judgment entered on the OWI, second offense, and
remand for further proceedings.
begin by examining error preservation. Steffen did not file a
motion in arrest of judgment to challenge the stipulation as
required to preserve error. See Harrington, 893
N.W.2d at 42-43. But we excuse that omission because the
district court did not discuss the necessity of filing a
motion in arrest of judgment or the consequences of failing
to do so. See Smith, 924 N.W.2d at 851. Accordingly,
Steffen may raise his objections to the enhancement colloquy
without alleging ineffective assistance of counsel.
review the district court's compliance with rule 2.19(9)
for errors at law. State v. Kukowski, 704 N.W.2d
687, 690-91 (Iowa 2005).
outlined the four-part stipulation colloquy necessary to
ensure an offender's admission to being a recidivist is
knowing and voluntary. 893 N.W.2d at 45-46. First, the court
must inform the offender of the nature of the enhanced charge
and, if admitted, that it will result in heightened
consequences. Id. at 45; see Brewster, 907
N.W.2d at 494 (applying Harrington to
"proceedings in which repeat-OWI-offender enhancements
are at issue"). The court must inform the offender that
the prior conviction is "only valid if obtained when the
offender was represented by counsel or knowingly and
voluntarily waived the right to counsel."
Harrington, 893 N.W.2d at 45 (citing Iowa R. Crim.
P. 2.19(9)). As a part of this process, the court must also
make sure a factual basis exists to support the
offender's admission to the prior conviction.
the court must inform the offender of the maximum possible
punishment, including any mandatory minimum, carried by the
enhanced offense. Id. at 46. For example, in
Brewster, the supreme court found the colloquy
inadequate, in part, because it failed to notify Brewster
that admitting his prior conviction exposed him to a maximum
indeterminate sentence of two years of incarceration and a
mandatory minimum term of seven days in jail. 907 N.W.2d at
the court must inform the offender of the trial rights
enumerated in Iowa Rule of Criminal Procedure 2.8(2)(b)(4).
Harrington, 893 N.W.2d at 46. And fourth, the court
must inform the offender that if he admits to the prior
conviction, no trial will take place on the issue of
identity. Id. "The court must also inform the
offender that the State is not required to prove the prior
convictions were entered with counsel if the offender does
not first raise the claim." Id.
asserts the court did not comply with Harrington
because he was not informed "for the prior conviction to
qualify under Rule 2.19(9) [it] must have been entered with
the assistance of counsel or following a valid waiver of
counsel." We agree the colloquy failed to advise Steffen
"the prior OWI conviction could be a basis for enhancing
the classification of the crime and the sentence only if he
was represented by or ...