Opinion
No. 1-714 / 01-0548.
Filed January 9, 2002.
Appeal from the Iowa District Court for Black Hawk County, JEFFREY L. HARRIS, District Associate Judge.
Casey Fain appeals from his guilty plea and sentences for assault of a peace officer, possession of marijuana, and fifth-degree theft in violation of Iowa Code sections 708.3A, 124.401(5) and 714.2(5) (1999). Fain contends the court (1) erred in accepting his guilty pleas and (2) abused its discretion when it sentenced him. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Suzanne Swan, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Casey Fain appeals a guilty plea and sentences, contending the court should have informed him that prior sentences on which his probation was revoked would have to be served consecutively with his sentence on pending charges and his attorney's failure to challenge this omission amounted to ineffective assistance of counsel. He also contends the court should have considered mitigating circumstances in sentencing him. Finding no merit to either contention, we affirm.
I. Background Proceedings
Fain entered a written guilty plea to: (1) assaulting a peace officer, serious misdemeanor; (2) possession of marijuana, also a serious misdemeanor; and (3) fifth-degree theft, a simple misdemeanor. See Iowa Code §§ 708.3A(4), 124.401(5), 714.2(5). The plea document stated that the plea was voluntarily and intelligently made and had a factual basis. The document contained a waiver of a number of rights, including Fain's right to have a Rule 8(2)(b) colloquy with the court concerning the plea and its consequences and his right to challenge the plea via a motion in arrest of judgment. The document also contained a request that judgment and sentence be pronounced upon receipt of the plea.
The district court held a sentencing hearing. At the hearing, the court did not engage Fain in a discussion about the plea or Fain's understanding of the rights he was waiving. Following the sentencing hearing, the court entered an order styled "Guilty Plea and Sentencing Order" in which the court found the plea was made intelligently and voluntarily and was supported by a factual basis. The court revoked Fain's probation on two prior, unrelated sentences and stated those previously suspended sentences would run concurrently to each other, but consecutive to the new sentences. The court adopted the prosecutor's recommendations for sentencing. This appeal followed.
II. Advice on Sentences
Fain contends the district court should have informed him that he might have to serve his sentences for the earlier crimes consecutively with the sentences on the pending charges. He maintains his counsel was ineffective in failing to challenge his plea on this basis, either by filing a motion in arrest of judgment or by objecting at sentencing. The State responds that Fain waived his right to a court colloquy on the consequences of his plea. We agree with the State.
In aggravated and serious misdemeanor cases, Rule 8(2)(b) expressly allows the court to waive the in-court colloquy required by that rule, subject to a defendant's approval. That waiver authorization applies to pleas entered in simple misdemeanor cases as well. See Iowa R. Crim. P. 44. Fain affirmatively waived his rights under Rule 8. Therefore, the court was not required to verbally inform him of the nature and consequences of his plea. See State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990); State v. Yarborough, 536 N.W.2d 493, 496 (Iowa Ct.App. 1995); cf. State v. Hook, 623 N.W.2d 865, 867 (Iowa 2001) (requiring in-court colloquy following guilty pleas in felony cases). As Fain waived the rule 8 procedures, it follows that counsel had no obligation to challenge the court's failure to follow those procedures. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (trial counsel need not raise meritless issue). Accordingly, we reject his ineffective-assistance-of-counsel claim.
III. Sentencing Factors
Fain argues the district court failed to give sufficient consideration to his personal circumstances when it sentenced him to prison. Our review of this issue is for abuse of discretion. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). We find no abuse here. The district court expressly weighed the goals of punishment, rehabilitation, and deterrence. The court pointed out the seriousness of the charged crimes and noted a "disturbing pattern of this same type of misconduct." In short, the court exercised its sound discretion in sentencing Fain.
AFFIRMED.