Opinion
No. 1-925 / 00-0506.
Filed March 27, 2002.
Appeal from the Iowa District Court for Black Hawk County, K.D. BRINER, Judge.
Darrell Lathum appeals from the judgment and sentence entered following his guilty plea to operating while intoxicated, third offense. AFFIRMED.
John Stitely, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Steven Norby, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Darrell Lathum appeals from the judgment and sentence entered following his guilty plea to operating while intoxicated, third offense. Lathum contends the district court erred by failing to inform him of the consequences of his failure to file a motion in arrest of judgment, as required pursuant to Iowa Rule of Criminal Procedure 2.8(2)(d), and in sentencing him prior to completion of the required presentence investigation.
Our review is for the correction of errors at law. Iowa R. App. P. 6.4; State v. Thompson, 494 N.W.2d 239, 240 (Iowa 1992).
The trial court advised Lathum with respect to a motion in arrest of judgment as follows:
THE COURT: After you plead guilty you're entitled . . . for a while to file a motion in arrest of judgment, if you wanted to try to take back your guilty plea and have a trial. If you wanted to file a motion like that, you would have to show that I made a mistake conducting this hearing and have violated your rights in a meaningful way.
You would have to file that motion no later than 45 days after today but at least five days before you are sentenced. For us that's the money end of that rule right now; and what it means, if you are sentenced today, you could not come back any time after this hearing and try to withdraw your guilty plea.
. . .
Do you want to give up your right to file a motion in arrest of judgment?
THE DEFENDANT: Yes, sir.
Lathum contends this colloquy was insufficient to apprise "an individual with an 11th grade education who is doubtless under a fair amount of stress and pressure" that a failure to file a motion in arrest of judgment will waive his right to appeal. We reject this contention and find the trial court's remarks substantially complied with the requirement that the court inform the defendant his right to appeal must be preserved by timely filing a motion in arrest of judgment. See State v. Burden, 445 N.W.2d 395, 397 (Iowa Ct.App. 1989) (substantial compliance standard used to determine whether court complied with rule 2.8(2)(d)); see also State v. Cameron, 440 N.W.2d 616, 617 (Iowa Ct. App. 1989) (finding court's statement that failure to file motion in arrest of judgment waives right to challenge guilty plea substantially complies with rule 2.8(2)(d)). Moreover, because Lathum fails to allege an error affecting the validity of his guilty plea, any failure of the court to inform him of the consequence of his failure to file a motion in arrest of judgment is harmless error. See generally State v. Ludley, 465 N.W.2d 912, 915 (Iowa Ct.App. 1990). The district court is affirmed on this issue.
Lathum also contends that the court erred in sentencing him prior to the presentence investigation (PSI). Contrary to the State's assertion, the defendant has not waived our consideration of this issue. See State v. Mann, 602 N.W.2d 785, 789 (Iowa 1999) (guilty plea only waives challenges that affect the validity of the conviction).
During the plea proceeding, defense counsel advised the court that the defendant wished to be sentenced immediately despite the lack of a PSI report. The district court then engaged in a colloquy with Latham, explaining that he had the right to have a PSI report prepared and considered for purposes of sentencing and that waiver of the report would result in the sentencing decision being made without the benefit of any information that the PSI report might reveal. Following inquiry by the court, Lathum confirmed that he wanted to waive his right to a fifteen-day delay prior to sentencing and the use of a presentence investigation, pursuant to Iowa Rule of Criminal Procedure 2.10(3). We find nothing in the record to suggest Lathum's waiver of the use of the presentence report was other than knowing and voluntary. He will not be permitted to complain of any error on appeal. Thompson, 494 N.W.2d at 241 (citing State v. DeWitt, 286 N.W.2d 379, 383 (Iowa 1979); State v. Bolinger, 460 N.W.2d 877, 880 (Iowa Ct.App. 1990)).
The district court decision is affirmed.
AFFIRMED.