State v. Barnes, 01-1108.

• Decision Date: 09 October 2002
• Docket Number: No. 01-1108.,01-1108.
• Citation: 652 N.W.2d 466
• Parties: STATE of Iowa, Appellee, v. Theodore Raynard BARNES, Appellant.
• Court: Iowa Supreme Court

652 N.W.2d 466

STATE of Iowa, Appellee, v. Theodore Raynard BARNES, Appellant.

No. 01-1108.

Supreme Court of Iowa.

October 9, 2002.

Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant Attorney General, Allan W. Vander Hart, County Attorney, and Andrea Dryer, Assistant County Attorney, for appellee.

PER CURIAM.

Defendant, Theodore Raynard Barnes, entered a written plea of guilty to the offense of driving while his license was barred, an aggravated misdemeanor, in violation of Iowa Code section 321.561 (1999). He was sentenced to an indeterminate term of imprisonment, not to exceed two years, and to pay a mandatory fine of $500. It is his contention on appeal that his guilty plea was not knowingly made because he was not advised of the mandatory $500 fine and thus was not made aware of "the maximum possible punishment provided by the statute defining the offense to which the plea is offered," as required by Iowa Rule of Criminal Procedure 2.8(2)(b)(2). The court of appeals agreed with that contention and ordered that defendant be allowed to withdraw his plea.

The State urged in the court of appeals and reasserts in this court that defendant waived the right to challenge his guilty plea because he failed to file a motion in arrest of judgment as required by Iowa Rule of Criminal Procedure 2.24(3)(a) (formerly Iowa Rule of Criminal Procedure 23(3)(a)). We agree with that contention and vacate the decision of the court of appeals. The judgment of the district court is affirmed.

As defendant correctly notes, the written guilty plea that he executed reflects his knowledge of the maximum punishment for the offense in the following language: "I understand the maximum punishment to which I can be sentenced is two years in prison." No mention is made of the mandatory $500 fine, which the offense also carries. It was also provided in defendant's written guilty plea that

I further understand that if I wish to challenge this guilty plea, I must file a Motion in Arrest of Judgment not later than forty-five days after entry of my plea and also at least five days before the date set for sentencing and that failure to so file such challenges shall preclude the rights to assert them on appeal. I also understand I have a right to a 15 day delay before being sentenced. I waive these rights and request that judgment and sentence be pronounced upon receipt of this plea.

Iowa Rule of Criminal Procedure 2.8(2)(d) provides:

The court shall inform the defendant that any challenges to a plea of guilty based on alleged defects in the plea proceedings must be raised in a motion in arrest of judgment and that failure to so raise such challenges shall preclude the right to assert them on appeal.

The court of appeals, relying on this court's opinion in State v. Hook, 623 N.W.2d 865, 868 (Iowa 2001), stated that, although rule 2.8(2)(b) provides that the court may waive the personal colloquy required by subpart (b) of 2.8(2), no such provision is made for a waiver of the admonition concerning arrest of judgment required by subpart (d) of that rule. It held that the failure of the court to advise defendant concerning the consequences of failure to file an arrest-of-judgment motion allowed him to assert a defect in the plea proceeding on appeal.

In Hook, as in the present case, the district court had used a written plea procedure as a substitute for an in-court colloquy. It does not appear in the Hook decision that the written...