Opinion
No. 3-438 / 02-1588
Filed August 27, 2003
Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.
Meron appeals her convictions for aggravated misdemeanors, contending the district court failed to comply with the requirements for taking guilty pleas. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas Ferguson, County Attorney, and Sue Swan, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Kathy Meron pled guilty to two counts of third-degree theft and one count of possession of a prescription drug, all aggravated misdemeanors. On appeal, she contends the district court failed to comply with the requirements for taking guilty pleas. The State counters that 1) Meron failed to preserve error by filing a motion in arrest of judgment attacking her plea; 2) in any event, the district court substantially complied with the guilty plea procedures, and 3) even if the district court did not comply, Meron "affirmatively waived a formal plea colloquy." We affirm.
I. Error Preservation
Generally, a defendant must file a motion in arrest of judgment to preserve an appellate challenge to a guilty plea. Iowa R.Crim.P. 2.23(3)( a); State v. Worley, 297 N.W.2d 368, 368 (Iowa 1980). Our highest court has recognized an exception where a defendant is not advised of this rule. Iowa R.Crim.P. 2.8(2)( d).
This rule requires the court to inform the defendant that "any challenges to a plea of guilty based on alleged defects in the plea proceedings must be raised in a motion in arrest of judgment and that failure to so raise such challenges shall preclude the right to assert them on appeal." Id.
In serious or aggravated misdemeanor cases, this advice need not come in the form of a personal colloquy between the court and the defendant. State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002). A written plea waiving the right to file a motion in arrest of judgment and acknowledging the consequence of doing so will suffice. Id.
Here we have neither. At the beginning of the plea proceeding, defense counsel conceded he had not prepared a written plea. The district court proceeded to conduct an abbreviated oral colloquy, mentioning Meron's right to file a motion in arrest of judgment but failing to mention the consequence of waiving that right. The pertinent dialogue is as follows:
THE COURT: I will accept your pleas of guilty, Ms. Meron. Do you wish to be sentenced today?
THE DEFENDANT: Yes, sir.
THE COURT: And have you been over with your attorney your right to a delay in time for sentencing as well as your right to file what's called a Motion in Arrest of Judgment?
THE DEFENDANT: Yes, sir.
THE COURT: And are you willing to waive both of those rights and proceed immediately with sentencing today?
THE DEFENDANT: Yes, sir.
Because the court did not apprise Meron that, by waiving her right to file a motion in arrest of judgment she was also waiving her right to raise an appellate challenge to the guilty plea, we conclude Meron is not precluded from now attacking the plea. Worley, 297 N.W.2d at 368.
II. Guilty Plea Procedures-Substantial Compliance
Meron contends her guilty plea was involuntary because the district court did not apprise her of the specific rights she would waive by entering the plea. Rule 2.8(2)( b). The State responds that the district court substantially complied with the rule. State v. Myers, 653 N.W.2d 574, 577-78 (Iowa 2002). We disagree with the State.
That rule states in pertinent part:
b. Pleas of guilty. The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
b.(1) The nature of the charge to which the plea is offered.
b.(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.
b.(3) That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant's status under federal immigration laws.
b.(4) That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant's own behalf and to have compulsory process in securing their attendance.
b.(5) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial. The court may, in its discretion and with the approval of the defendant, waive the above procedures in a plea of guilty to a serious or aggravated misdemeanor.
First, as noted, there is no written plea enumerating the rights set forth in Rule 2.8(2)( b) and acknowledging a waiver of those rights. As the pleas here were to aggravated misdemeanors, such a plea document would have ended the matter. Barnes, 652 N.W.2d at 468.
Second, although the district court asked Meron if she and her attorney had reviewed the constitutional rights she would be waiving, the court did not explicate those rights. We recognize that the court need not use the precise language of Rule 2.8 in its dialogue with a defendant. Myers, 653 N.W.2d at 578. However, the court is required to convey the idea embodied in each enumerated right. Id. (noting trial court did not substantially comply with Rule 2.8(2)( b)(4) where the court did not convey the idea that the defendant could force the attendance of witnesses). As this specificity is lacking, we conclude that the court did not substantially comply with Rule 2.8(2)( b).
III. Waiver of Plea Colloquy
Having found no substantial compliance with the Rule 2.8(2)( b) procedures, we address the State's fall-back position that Meron affirmatively waived her right to these procedures. Rule 2.8(2)( b)(5) provides that a district court "may, in its discretion and with the approval of the defendant, waive the above procedures in a plea of guilty to a serious or aggravated misdemeanor." The State contends the following dialogue evinces a waiver:
THE COURT: Ms. Meron, is it your desire to enter a plea of guilty to the charge of Theft in the Third Degree in Case No. AGCR105562?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have a written plea prepared, counsel?
MR: DUBBERT: I'm sorry, your honor, I do not.
THE COURT: Ms. Meron, before I proceed with your guilty plea, there are several things that I must first determine on the record. However, because this is an aggravated misdemeanor and because you are represented by an attorney, I may somewhat abbreviate these proceedings and the questioning that I must go through in order to make my determinations, if I have your permission to do so. May I have your permission to do so.
THE DEFENDANT: Yes.
THE COURT: Ms. Meron, have you been over with your attorney the nature of the charge which has been made against you as well as the maximum and minimum penalties to which you subject yourself by entering this plea of guilty?
THE DEFENDANT: Yes, sir.
THE COURT: And do you understand what you're charged with and what the maximum possible penalties are?
THE DEFENDANT: Yes, sir.
THE COURT: Have you also been over with your attorney the constitutional rights that you waive by entering a plea of guilty?
THE DEFENDANT: Pretty much so, yes.
THE COURT: Well, pretty much isn't good enough.
THE DEFENDANT: Yes, sir.
THE COURT: And do you understand those rights?
THE DEFENDANT: Yes.
THE COURT: And do you have any questions about them at this time?
THE DEFENDANT: No, sir.
THE COURT: Mr. Dubbert, do you believe that you've gone over with your client all of her constitutional rights that she waives by entering a plea of guilty?
MR. DUBBERT: I do, Your Honor.
THE COURT: And do you believe she understands those rights and is making a voluntary and intelligent waiver of those rights?
MR. DUBBERT: Yes, Your Honor.
We agree with the State that, in the course of this dialogue, the district court obtained a valid waiver of the plea procedures set forth in Rule 2.8(2)( b).
IV. Disposition
We affirm Meron's judgment and sentence.