Opinion
No. 2-866 / 02-0250.
Filed December 30, 2002.
Appeal from the Iowa District Court for Muscatine County, MARK J. SMITH and GARY D. McKENRICK, Judge.
Defendant Robert Strong appeals his conviction and sentence, following a guilty plea, for second-degree robbery, in violation of Iowa Code sections 703.1, 711.1 and 711.3 (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Richard R. Phillips, County Attorney, and Kerrie Snyder, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Defendant-appellant Robert Strong appeals his conviction and sentence, following a guilty plea, for second-degree robbery, in violation of Iowa Code sections 703.1, 711.1 and 711.3 (2001). Under Iowa Code sections 902.12 and 903A.2(1)(b), a person serving a sentence for robbery in the second degree must serve 100% of the maximum term of incarceration, subject to a reduction of only up to fifteen percent for good behavior. Defendant claims on appeal that his attorney was ineffective for failing to file a motion in arrest of judgment based upon what he claims was the trial court's failure to inform him of the effect of the eighty-five percent rule on his sentence. We affirm.
In his appeal defendant refers us to sections 902.12 and 903A.2(1)(a). The eighty-five percent rule instead comes from sections 902.12 and 903A.2(1)(b). See State v. Carpenter, 616 N.W.2d 540, 541 (Iowa 2000).
Defendant pled guilty to aiding and abetting second-degree robbery following an incident in Muscatine County where he was initially charged with aiding and abetting first-degree robbery. During the hearing in which the guilty plea to second-degree robbery was entered, the district court stated,
Since [second-degree robbery] is a forcible felony the defendant acknowledges that he will be sentenced to a term not to exceed ten years — or he will be sentenced to a term not to exceed ten years and that 85 percent of that sentence will be served.
Defendant contends he was not informed by the district court of the consequences of the eighty-five percent rule pursuant to Iowa Rule of Criminal Procedure 2.8(2)(b)(2). Rule 2.8(2) provides, in relevant part,
(b) 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:
(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.
As second-degree robbery carries a mandatory sentence under section 902.12, and based upon the authority of State v. Iowa Dist. Ct., 616 N.W.2d 575, 579 (Iowa 2000), where the court found sections 902.12 and 903A.2 operate together to impose a "mandatory minimum sentence," defendant claims the district court was required to apprise him of the consequences of the eighty-five percent rule.
The State responds that the court did mention the eighty-five percent rule and that even if it had not, a court is not required to advise defendant of a statute concerning parole ineligibility or limitation. State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001). In making this argument the State construes the eighty-five percent rule as a 100% mandatory minimum sentence with a possible reduction up to fifteen percent for earned time, rather than a maximum sentence reduced to an eighty-five percent mandatory minimum sentence. As the "mandatory minimum" for second-degree robbery is the full term under section 902.12, the State argues the district court is not required to apprise defendant of possible "earned time" reductions in his sentence beyond that 100% mandatory minimum.
Given the supreme court's holding in State v. Iowa Dist. Ct., 616 N.W.2d at 578, that the eighty-five percent rule is a judicial decision for a sentencing court rather than an administrative decision for the Department of Corrections or Board of Parole, we conclude it is also the court's responsibility to inform defendant of the effects of that rule on his sentence in the plea colloquy.
We further conclude, however, that the district court fulfilled its duty to inform defendant of the eighty-five percent rule. After stating that eighty-five percent of defendant's ten-year sentence would be served, the court asked both defendant and his attorney, in separate inquiries, if that was their understanding of the plea agreement. Each replied that it was. We find no error and decline to preserve this claim for postconviction proceedings.