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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
Summary of this case from State v. VangOpinion
No. 4-537 / 04-0043.
September 9, 2004.
Appeal from the Iowa District Court for Scott County, Mary E. Howe, Judge.
Terrance Lee Hayes appeals from the judgments and sentences entered by the district court following his guilty plea and convictions for possession of marijuana and driving while barred as an habitual offender. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, William Davis, County Attorney, and Marc Gellerman and Alan Havercamp, Assistant County Attorneys, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Terrance Lee Hayes appeals from the judgments and sentences entered by the district court following his guilty plea and convictions for possession of marijuana and driving while barred as an habitual offender. He claims the district court erred by failing to substantially comply with the requirements of Iowa Rule of Criminal Procedure 2.8(2)( b). He alternatively claims that his counsel was ineffective for failing to ensure the court complied with this rule or file a motion in arrest of judgment when the court failed to do so. We affirm.
I. PRIOR PROCEEDINGS.
On August 28, 2003 Hayes was charged, by trial information, with possession of marijuana, in violation of Iowa Code section 124.401(5) (Supp. 2003), and driving while barred as a habitual offender, in violation of sections 321.555(1) and 321.561 (2003). On the same date Hayes entered a written guilty plea to both of these charges. The guilty plea was part of an extensive plea agreement under which Hayes also pled guilty to three additional charges of driving while barred and two additional charges of possession of marijuana in separate cases.
On December 5, 2003, the district court sentenced Hayes to fines on each of the possession charges, including a $250 fine in this case; to a term of imprisonment not to exceed two years on each of two of the driving while barred convictions, including the conviction in this case; and to a term of imprisonment not to exceed two years and a fine of $500 on each of the other two driving while barred convictions. The court ordered that three of the two-year sentences, including the sentence in this case, be served concurrently, and that the fourth two-year sentence be served consecutively.
Hayes appeals from his convictions and sentences, contending the district court erred by not substantially complying with the requirements of Iowa Rule of Criminal Procedure 2.8(2)( b). He alternatively claims that if error was not preserved on this issue then his counsel was ineffective for failing to ensure the court substantially complied with this rule or for failing to file a motion in arrest of judgment when the court failed to do so.
It is well established that substantial compliance with rule 2.8(2)( b) is all that is required. State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001); State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990).
II. ERROR PRESERVATION.
"A defendant's failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall preclude the defendant's right to assert such challenge on appeal." Iowa R. Crim. P. 2.24(3)( a). Hayes did not file a motion in arrest of judgment. However, he argues that appellate review is not barred because the district court failed to inform him that a failure to file a motion in arrest of judgment would bar him from challenging the plea on appeal. See State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004).
In his written guilty plea Hayes stated he had been advised and understood, among other things, that if he claimed there were any irregularities or errors in his guilty plea he must file a motion in arrest of judgment within forty-five days and not later than five days before the day of sentencing, and that any failure to do so would preclude his right to assert any defects in the plea in any appeal. In addition, Hayes was informed orally by the court when he entered his guilty plea in this case that if he wanted to challenge his guilty plea he must do so in a motion in arrest of judgment, and he was informed of the time limits within which he must do so. We conclude that Hayes was properly informed of both his right to challenge his guilty plea by a motion in arrest of judgment and of the consequences of not doing so. See Meron, 675 N.W.2d at 541 (stating that in State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002) the Iowa Supreme Court had determined it was unnecessary in misdemeanor cases for the trial court to actually engage in an in-court colloquy with a defendant to personally inform the defendant of motion in arrest of judgment requirements). We therefore further conclude that because Hayes did not file a motion in arrest of judgment he has not preserved for our review his claim of district court error.
However, the rule 2.24(3)( a) bar does not apply here because of Hayes's claim that his counsel's ineffective assistance resulted in his failure to file the motion. State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001). Hayes claims his trial counsel was ineffective for failing to ensure compliance with rule 2.8(2)( b) or file a motion in arrest of judgment based on such lack of compliance. He contends these failures were prejudicial because they precluded the court from determining if his plea was voluntary and intelligent. Accordingly, we will address Hayes's claims as ineffective assistance of counsel claims.
III. SCOPE AND STANDARDS OF REVIEW.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). In order to prove prejudice, the defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
While we often preserve ineffective assistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Neither party here asserts the record is insufficient, we find it to be adequate, and we address the claims.
IV. MERITS.
Iowa Rule of Criminal Procedure 2.8(2)( b) provides in relevant 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. (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 misdemeanor.
In cases involving pleas of guilty to serious or aggravated misdemeanors, as is the case here, the requirements for the court to personally address a defendant to cover the necessary areas of inquiry listed in rule 2.8(2)( b) can be satisfied by supplementing the in-court colloquy with a written plea of guilty. Meron, 675 N.W.2d at 543 (Iowa 2004); State v. Kirchoff, 452 N.W.2d 801, 805 (Iowa 1990). This procedure allows the court, upon examination of a written plea, to waive the necessity of a full in-court colloquy. Meron, 675 N.W.2d at 543. "It does not give the defendant the right to waive the means for the court to determine that the plea is voluntarily and intelligently entered." Id.
See Iowa Code § 124.401(5) (Supp. 2003) (person guilty of possession of marijuana is guilty of a serious misdemeanor) and § 321.561 (2003) (conviction for driving while barred as an habitual offender is an aggravated misdemeanor).
We read Hayes's brief as asserting ineffective assistance of counsel based upon essentially five ways in which the trial court failed to substantially comply with rule 2.8(2)( b), two of which we will discuss together. His claims are as follow: (1) Hayes never expressly waived an in-court colloquy and thus the court was required to conduct a full in-court colloquy and failed to do so; (2) the court failed to make inquiry as to whether the plea was voluntary and intelligent; (3) the court failed to individually discuss the constitutional rights Hayes was waiving and did not discuss the minimum and maximum penalties; and (4) the court failed to inform him of his right to confrontation.
A. Full In-Court Colloquy.
Hayes first asserts counsel rendered ineffective assistance by not requiring an express waiver of an in-court colloquy or not filing a motion in arrest of judgment based on the absence of such a colloquy. However, rule 2.8(2)( b) does not require that the defendant expressly waive an in-court colloquy. Hayes's written guilty plea thoroughly and completely set forth the procedures and rights he was waiving. Hayes's execution of the written guilty plea constituted his approval of a waiver of the rule's requirements. In Patten v. State, 553 N.W.2d 336, 337 (Iowa Ct.App. 1996), we stated:
Once the trial court was in receipt of Patten's guilty plea, it was within the court's discretion to waive the guilty plea procedures. It was not required to address Patten in open court to ascertain the validity of his waiver. It is implicit within the court's decision to proceed to enter judgment and sentence that the court waived the guilty plea procedures of rule 2.8(2)( b).
Contrary to Patten's arguments, the court was not required to make an express, on-the-record finding that Patten approved of a waiver and that the court was exercising its discretion to allow a waiver. To impose such a requirement would undermine the purpose of allowing such waivers.
Id. (citation omitted). We conclude that because rule 2.8(2)( b) does not require Hayes's express waiver of an in-court colloquy in addition to his written guilty plea the court was not required to conduct a full in-court colloquy and did not fail to substantially comply with rule 2.8(2)( b) by not doing so. Because the district court did not err in the manner alleged, this claim of ineffective assistance of counsel is without merit.
B. Voluntary and Intelligent Waiver.
Hayes next contends counsel rendered ineffective assistance by not requiring the district court to inquire whether his plea was voluntary and intelligent or not filing a motion in arrest of judgment based on the absence of a determination his plea was voluntary and intelligent.
The written guilty plea, signed by Hayes and introduced into evidence at the plea proceeding, states in relevant part,
I further state that no one has made any promises or inducements to make me plead guilty, nor has anyone threatened me to cause me to plead guilty. The decision to plead guilty is my own voluntary decision.
. . .
I state to the court I fully understand all my foregoing rights; hereby give up those rights; and, thereupon, enter my plea of guilty to the charges set forth herein.
In addition, the district court made a finding on the record, by reference to the signed guilty plea and a limited in-court colloquy, that the plea was voluntary and intelligent. In accepting the guilty plea the court found that "the defendant understands his rights and voluntarily and intelligently waives those rights, understands the consequences of the guilty plea and the pleas are accepted."
Further, Hayes was represented by counsel throughout. Under these circumstances, the written guilty plea and the in-court colloquy complimented one another and there is no reason to believe Hayes's plea was not fully voluntary and intelligent. See Kirchoff, 452 N.W.2d at 805. We conclude that the language of the written guilty plea, the fact Hayes was represented by counsel throughout, and the trial court's finding that the plea was voluntary and intelligent, demonstrate that the court substantially complied with rule 2.8(2)( b)'s requirement that it determine the guilty plea was made voluntarily and intelligently. The district court did not err in the manner Hayes alleges, and thus there is no merit to this claim of ineffective assistance.
C. Constitutional Rights, and Minimum and Maximum Penalties.
Hayes next claims counsel rendered ineffective assistance by failing to ensure that the district court individually discussed the constitutional rights he was about to waive, and by failing to discuss the minimum and maximum penalties he was facing, or not filing a motion in arrest of judgment on these grounds. We disagree. First, Hayes's written guilty plea fully explained all required, applicable matters. It set forth the constitutional rights Hayes would waive by pleading guilty, the mandatory minimum and maximum fines and maximum term of incarceration for driving while barred, and the maximum fine and maximum term of incarceration for possession of marijuana. In this misdemeanor plea proceeding the written plea, which was signed by Hayes while represented by counsel and was introduced into the plea proceeding by direct reference, would have been sufficient to achieve substantial compliance with rule 2.8(2)( b). See Kirchoff, 452 N.W.2d at 805. However, in addition the trial court not only noted on the record the fact Hayes was giving up his trial and related rights by pleading guilty, but also discussed the maximum and minimum punishment for driving while barred, the fact the prosecutor was recommending some prison time, and the fact that some prison time was likely to occur.
We conclude the trial court more than substantially complied with the requirements of rule 2.8(2)( b) at issue in this claim of ineffective assistance. Therefore, defense counsel did not breach an essential duty by failing to ensure compliance with this part of the rule or not filing a motion in arrest of judgment on these grounds, and Hayes's claim of ineffective assistance on these grounds must also fail.
D. Right to Confrontation.
Hayes also asserts counsel rendered ineffective assistance by not ensuring that the district court informed him of his right to confrontation or not filing a motion in arrest of judgment on this ground. However, in his written guilty plea Hayes acknowledged that by pleading guilty he was giving up his "right to have the opportunity to ask questions of the State's witnesses" (as well as his "right to subpoena or call my own witnesses to testify"). We conclude Hayes was in fact informed of his right to cross-examine witnesses against him and thus his right to confrontation. Although the precise words "confrontation" or "confront witnesses" were not used in the written plea, these concepts are encompassed within the right of cross-examination. "Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation." Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076, 13 L. Ed. 2d 934, 937 (1965).
Furthermore, under the substantial-compliance standard applicable here, "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." State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002). "[T]he rule does not establish a litany that must be followed without variation before a guilty plea may be accepted." Kirchoff, 452 N.W.2d at 804.
Accordingly, we conclude the language in the written plea sufficiently informed Hayes of his right to confront witnesses against him and thus substantially complied with this requirement of rule 2.8(2)( b). Hayes's claim of ineffective assistance of counsel on this ground must also fail.
E. Terms of the Plea Agreement Disclosed on the Record.
Hayes's brief may arguably be read as also claiming counsel rendered ineffective assistance by not ensuring the terms of the parties' plea agreement were disclosed on the record at the time the pleas of guilty were offered. We therefore discuss this possible issue.
In his brief Hayes states only two issues that are presented for review. The first is a claim that "[t]he trial court failed to substantially comply with the requirements of rule 2.8(2)(B)." The second is a claim that if error was not preserved on the first issue, then he was denied effective assistance when counsel "failed to ensure compliance with rule 2.8(2)(B)" or "failed to file a motion in arrest of judgment when the plea court failed to conduct a rule 2.8(2)(B) colloquy." Both of the two issues stated in Hayes's brief thus expressly refer to and rely on the requirements of rule 2.8(2)( b), and neither mentions rule 2.8(2)( c) or rule 2.10(2). However, in discussing the first of his two stated issues Hayes comments (briefly in passing) that the terms of the plea agreement were not revealed on the record at the plea proceeding and that rule 2.8(2)( c) requires that the terms of any plea agreement be disclosed of record, citing rules 2.8(2)( c) and 2.10(2). Rules 2.8(2)( c) and 2.10(2) are not otherwise mentioned in Hayes's brief.
We deem Hayes's failure to state this claim of ineffective assistance as an issue, and failure to argue this claim of ineffective assistance as an issue, constitutes a waiver of the issue. See Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."); Hollingsworth v. Schminkey, 553 N.W.2d 591, 596 (Iowa 1996) ("when a party, in an appellate brief, fails to state, argue, or cite to authority in support of an issue, the issue may be deemed waived."); Soo Line R.R. Co. v. Iowa Dep't of Transp., 521 N.W.2d 685, 691 (Iowa 1994) ("[R]andom mention of [an] issue, without elaboration or supportive authority, is insufficient to raise the issue for our consideration."); Id. at 689 (stating court will not consider issues concerning which an appellant cites no authority nor offers any substantive argument); Osborne v. Iowa Natural Res. Council, 336 N.W.2d 745, 747 (Iowa 1983) (stating court need not address an issue because the appellant failed to state, argue, or cite authority in its brief).
We will nevertheless assume, without so deciding, that Hayes has not waived this possible issue and address its merits or lack thereof. Although the record before us reveals that the terms of the plea agreement were not disclosed on the record at the plea proceeding, it is readily apparent from the transcripts of the plea and sentencing proceedings that both of the parties and the court were aware there was a written plea agreement and knew the terms of such agreement. At the start of the plea proceeding the court stated, "Mr. Hayes, you are going to change plea from not guilty to guilty of Driving While Barred, Possession of Marijuana and the simples, is that true, in the plea agreement that has been talked about?" Hayes responded in the affirmative. Then at the sentencing hearing one of Hayes's defense attorneys stated to the court,
Your Honor, I believe we had a plea agreement that encompassed all of these cases. You took the plea and agreed to two of his two-year sentences being consecutive and everything else concurrent. There's a Driving While Barred and a few other matters, so that, I believe, was the plea agreement that would encompass all of these cases.
In making a sentencing recommendation he went on to state,
Just that I would ask the Court to sentence in accordance with the discussions we had at the time of the plea as far as making the maximum term of this and some other cases of not to exceed a total of four years.
Hayes's other counsel agreed with the sentencing recommendation and stated, "[I] [j]ust ask the Court to follow the agreement Mr. Sothmann laid out that we went through in great length at the time of [Hayes's] pleas." At sentencing the court asked if the State had "[a]ny recommendation other than what's contained in the Rule 2.10," to which the prosecuting attorney replied in the negative.
The record thus appears to show that there was a written plea agreement which was presented to the court at the time of the plea proceeding and that the parties and the court were well aware of the terms of the agreement at the time of the plea. We believe this to be at least partial compliance, if not substantial compliance, with rule 2.8(2)( c).
However, assuming without deciding that Hayes's counsel did breach an essential duty in not ensuring that the court strictly complied with rule 2.8(2)( c) by requiring disclosure of the terms of the plea agreement on the record at the time the plea was offered, or filing a motion in arrest of judgment challenging the plea on this ground, we cannot find that this presumed breach of duty affected the outcome of the plea process.
In the context of challenges to guilty pleas based on ineffective assistance of counsel, "in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Myers, 653 N.W.2d at 578 (quoting Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
Hayes has failed to prove, or even assert, that there is a reasonable probability that but for counsel's error he would not have pleaded guilty and would have insisted on going to trial. His assertion that the court failed to comply with rule 2.8(2)( c) cannot be claimed in a vacuum. See id. at578-79. He is not claiming there is any dispute as to what the terms of the plea agreement were, or that the agreement was not complied with. Therefore, we find Hayes has not established, or even provided any basis for establishing, how he was prejudiced by his attorney's failure to ensure the court more fully complied with this rule, and that he has thus failed to show a reasonable probability that but for this presumed error by counsel he would not have entered his plea of guilty. See id. V. CONCLUSION.
Based on our de novo review, and for all of the reasons set forth above, we conclude Hayes's failure to file a motion in arrest of judgment to challenge his guilty plea precludes him from directly challenging his guilty plea on appeal, but we have addressed his claims as ineffective assistance of counsel claims. We find Hayes failed to meet his burden to prove his counsel was ineffective for failing to ensure the court substantially complied with Iowa Rules of Criminal Procedure 2.8(2)( b) and 2.8(2)( c) and not filing a motion in arrest of judgment based on those grounds.