Opinion
No. 3-452 / 02-2077
Filed August 27, 2003
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
The State appeals a district court ruling granting the defendant's postconviction relief application. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Thomas Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellant.
Michael Pedersen, Waterloo, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Bosnian refugee Jasmir Mujkic pled guilty to third-degree sexual abuse and assault by use or display of a dangerous weapon. Iowa Code §§ 708.1, 708.2(3), 709.4(2)(c)(4) (2001). Following imposition of his sentence, Mujkic filed a postconviction relief application, alleging 1) the matter should have been transferred to juvenile court, as he was a minor at the time of the offense, and 2) he should have been afforded the right to consult with a Bosnian consular representative.
The State moved to dismiss the application, contending 1) Mujkic did not preserve error and 2) by virtue of his plea, Mujkic waived his right to raise issues not fundamental to the plea. Mujkic's new attorney responded that his client's plea was not voluntary because he was not properly advised of his rights. In subsequent papers filed with the court, the attorney suggested that plea counsel was ineffective in failing to ensure an understanding of these rights.
At the hearing on the State's motion to dismiss the application, the State pointed out that the voluntariness issue was not raised in Mujkic's postconviction relief application. In response, defense counsel asked that his application be amended to reflect this argument. Although the district court did not expressly rule on the motion to amend, its final ruling found the voluntariness issue dispositive.
The district court denied the State's motion to dismiss and summarily granted Mujkic's postconviction relief application. The court reasoned that the plea was involuntary. The court stated:
In the present case the record reflects that the defendant was 18 years old and required the assistance of an interpreter during the proceedings and at various times during the proceedings had questions and misunderstandings that needed to be explained to him. The Court recognizes that failure to file a motion in arrest of judgment generally precludes procedural attacks on a guilty plea. In the present case, given the seriousness of the charges with substantial consequences to the defendant and the lack of advisements of rights, the Court concludes the defendant could not have knowingly and voluntarily waived those rights and the plea should be set aside.
On appeal, the State reasserts its argument that error was not preserved and also claims that the district court's decision to grant postconviction relief on the merits was erroneous.
I. Error Preservation
To preserve error on his challenge to the guilty plea proceeding, Mujkic first needed to file a motion in arrest of judgment and then a direct appeal. See Iowa R.Crim.P. 2.8(2) (d); Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). As the record is undisputed that Mujkic did neither, the State maintains that he waived his right to pursue a postconviction relief action.
Mujkic responds that he did not take these error preservation steps because his plea attorney told him to waive them. Essentially, he claims that counsel was ineffective and counsel's ineffectiveness amounted to "sufficient reason" for his error preservation omissions. Id. at 245. Without resolving this claim, we conclude plea counsel's claimed ineffectiveness in allowing Mujkic to waive his rights to file a motion in arrest of judgment and notice of appeal constitutes "sufficient reason" for Mujkic's failure to preserve error. See State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001). Accordingly, we proceed to the merits of Mujkic's postconviction relief application.
II. Merits
The State contends the district court erred in finding that Mujkic's plea was involuntary. The State seeks reversal for entry of judgment in its favor or, in the alternative, a remand for an evidentiary hearing.
We believe a remand is necessary. In Manning v. State, 654 N.W.2d 555 (Iowa 2002), our highest court held that the district court erred in disposing of two postconviction relief claims without an evidentiary hearing. Id. at 561. The court stated, "claims bearing on whether Manning's pleas were knowing and voluntary raise genuine issues of material fact precluding summary disposition on those claims." Id. at 561. The court went on to note that "when claims of ineffective assistance of counsel are properly raised in a postconviction relief application, "an evidentiary hearing on the merits is ordinarily required." Id. at 562. Although the court was reviewing the dismissal rather than the grant of a postconviction relief application as is the case here, we believe the cited language is nevertheless controlling.
Mujkic's postconviction relief application as orally amended and argued appears to raise the following issues for resolution: 1) whether Mujkic's plea was rendered involuntary by the district court's conceded failure to comply with all the plea colloquy requirements of Iowa Rule of Criminal Procedure 2.8(2)( b) and 2) whether plea counsel was ineffective in failing to (a) preserve his client's right to file a motion in arrest of judgment and appeal, (b) advise him of the full panoply of rights he would be waiving by entering the plea, c) elucidate the consequences of a guilty plea, and d) contact the Bosnian consular representative. See Ledezma v. State, 626 N.W.2d 134, 152 (Iowa 2001). Cf. State v. Buenaventure, 660 N.W.2d 38, 46-47 (Iowa 2003) (rejecting claim that the denial of consular access rendered his statement to police involuntary). We reverse and remand for an evidentiary hearing to address these issues.
Mujkic is no longer pursuing his contention that the criminal matter should have been in juvenile court.
On our review of the limited record before us which does not include the trial information minutes of testimony, we note that, during the plea colloquy, the district court elicited an admission from Mujkic that the victim was only thirteen years old. Third-degree sexual abuse under Iowa Code section 709.4(2)(c)(4) requires the victim to be fourteen or fifteen years of age and the perpetrator to be four or more years older than the other person. Mujkic does not here challenge the existence of a factual basis, but we point this discrepancy out in light of Mujkic's assertion in his trial court brief that "[t]here is nothing in the record to indicate that he understood the crimes for which he stood accused."