State v. Fisher

• Decision Date: 08 April 2016
• Docket Number: No. 13–1238.,13–1238.
• Citation: 877 N.W.2d 676
• Parties: STATE of Iowa, Appellee, v. Kevin Duane FISHER II, Appellant.
• Court: Iowa Supreme Court

877 N.W.2d 676

STATE of Iowa, Appellee,

v.Kevin Duane FISHER II, Appellant.

No. 13–1238.

Supreme Court of Iowa.

April 8, 2016.

Philip B. Mears of Mears Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Janet Lyness, County Attorney, and Elizabeth A. Beglin, Assistant County Attorney, for appellee.

MANSFIELD, Justice.

This case requires us to determine whether a defendant pleading guilty to a controlled-substance offense has a right to be informed beforehand that, as a result of the conviction, his driver's license will be revoked for 180 days. We conclude that because revocation is automatic, immediate, punitive, and a part of the sentencing order, the defendant has a right to be informed of this consequence. We further conclude that the defendant has a right to be informed of fine surcharges. Accordingly, we vacate the defendant's conviction and remand for further proceedings consistent herewith.

I. Background Facts and Prior Proceedings.

According to the minutes of testimony, on April 11, 2013, Eric Seckel of the University of Iowa Police Department was performing a bar check in Iowa City. As he walked toward the back of the bar, he could smell the odor of marijuana. He made contact with Kevin Fisher and could smell a strong odor of burnt marijuana on his breath. When Fisher was asked if he had any marijuana on him, he handed Officer Seckel a cigarette box that contained a partially used joint. The joint contained marijuana.

On April 25, Fisher was charged with possession of a controlled substance first offense, a serious misdemeanor, in violation of Iowa Code sections 124.401(5) and 124.204(4)(m ) (2013). Initially, Fisher pled not guilty and demanded a speedy trial. However, on June 17, the scheduled date of his pretrial conference, Fisher's counsel submitted a written guilty plea signed by Fisher. Among other things, the plea set forth the maximum punishment—six months—and the basic range of fines—$315 to $1875—for the offense. Additionally, it disclosed the constitutional rights that Fisher was waiving by pleading and not going to trial.

The actual plea agreement was handwritten into the signed form. It consisted of two days in jail, a $315 fine, substance abuse evaluation and treatment, and urinalysis within ten days.

In the plea form Fisher also acknowledged, in writing, as follows:

I have been advised of my right to challenge this plea of guilty by filing a Motion in Arrest of Judgment at least five (5) days prior to the date that the Court sets for sentencing and within forty-five (45) days after the Court accepts my plea.

Fisher's counsel certified in the plea form that he had "carefully explained to the defendant the procedural steps of filing a Motion in Arrest of Judgment, the definition and grounds thereof and the time within which such Motion should be filed."

On that same day of June 17, the district court entered a written order accepting the plea and entering judgment and sentence. The order stated that the defendant was advised of his right to file a motion in arrest of judgment pursuant to the provisions of Iowa Rule of Criminal Procedure 2.24(3) and that "[t]he Defendant waives the right to have time prior to sentencing, waives the right to be present for sentencing, and requests the Court proceed to immediate entry of judgment and sentencing."

The ensuing judgment and sentence were consistent with the terms of the plea agreement. However, they also provided for several surcharges on top of the fine, including a thirty-five percent surcharge and a $125 law enforcement surcharge. Furthermore, the judgment and sentence stated that "[t]he Department of Transportation shall impose any suspensions or revocations of Defendant's driver's license or motor vehicle operating privilege as required by Iowa Code Chapter 321J, Iowa Code Section 901.5(10), or other applicable statute or rule."

On July 18, Fisher filed a notice of appeal. The district court appointed appellate counsel on October 2. This counsel subsequently filed a motion for leave to withdraw under Iowa Rule of Appellate Procedure 6.1005 on November 15.¹ We denied the motion because it failed to provide sufficient detail regarding the plea and sentencing proceedings. See Iowa R.App. P. 6.1005(2)(a ).² Appellate counsel filed two more rule 6.1005 motions, both of which we denied for similar reasons. In our September 3, 2014 order denying appellate counsel's third and final rule 6.1005 motion, we removed this counsel for his repeated failure to comply with rule 6.1005. The counsel who is handling the present appeal was appointed on October 3.

Following briefing, we transferred the case to the court of appeals. On appeal, Fisher argued his written plea was defective because it failed to disclose the statutory minimum sentence of two days in jail, the mandatory six months' revocation of his driver's license, and the surcharges that were later added to his fine. See Iowa Code § 124.401(5) ; id. § 901.5(10) ; id. §§ 911.1.–.3. In addition, Fisher urged the court to bypass any error preservation concerns despite his failure to file a motion in arrest of judgment because the plea did not adequately inform him that a failure to file a motion in arrest of judgment would foreclose his ability to challenge his guilty plea on direct appeal. Alternatively, Fisher argued that his counsel rendered ineffective assistance for failing file a motion in arrest of judgment.

In a September 23, 2015 decision, the court of appeals concluded "there was substantial compliance with the requirement Fisher be informed of the necessity of filing a motion in arrest of judgment in order to challenge his guilty plea," thus barring Fisher's direct appeal. The court also determined that Fisher's counsel was not ineffective for failing to challenge the alleged defects in the written plea. According to the court of appeals, Fisher "failed to show ... he was unaware of the mandatory minimum sentence of two days in jail"; the surcharge did not "affect the range of Fisher's punishment"; and, "[t]he suspension of Fisher's driver's license was also a collateral consequence of his guilty plea." The court thus affirmed Fisher's plea and sentence.

Fisher applied for further review. We granted his application.

II. Standard of Review.

We ordinarily review challenges to guilty pleas for correction of errors at law. State v. Velez, 829 N.W.2d 572, 575 (Iowa 2013).

III. Analysis.

A. Error Preservation. We must first address whether Fisher can appeal his guilty plea despite not having filed a timely motion in arrest of judgment. Generally, "[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 ). However, this rule does not apply to defendants who were not advised

during the plea proceedings, as required by rule 2.8(2)(d ), that challenges to the plea must be made in a motion in arrest of judgment and that the failure to challenge the plea by filing the motion within the time provided prior to sentencing precludes a right to assert the challenge on appeal.

State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004) (emphasis added). Iowa Rule of Criminal Procedure 2.8(2)(d) states,

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.

Substantial compliance with rule 2.8(2)(d ) is mandatory and "[n]o defendant ... should suffer the sanction of rule [2.24(3)(a ) ] unless the court has complied with rule [2.8(2)(d ) ] during the plea proceedings." State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980).

Fisher pled guilty to a serious misdemeanor, and in such proceedings it is "unnecessary ... for the trial court to actually engage in an in-court colloquy with a defendant so as to personally inform the defendant of the motion in arrest of judgment requirements." Meron, 675 N.W.2d at 541. Instead, a written waiver filed by the defendant can be sufficient. Id. A defendant's written plea or waiver can foreclose an appeal when it complies with rule 2.8(2)(d ). See State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002) (per curiam) (concluding that defendant failed to preserve error because he did not file a motion in arrest of judgment when his written plea clearly stated that a failure to file such a motion would bar any challenge to his plea on appeal). Yet regardless of whether the information is imparted through a colloquy or a written plea, the defendant must be made aware of the substance of rule 2.24(3)(a ).

Fisher argues that the form he signed did not comply with this requirement. It set forth the right to challenge the plea by filing a motion in arrest of judgment and, on a separate page, provided that Fisher was waiving this right, but it did not indicate that all avenues for challenging the plea were being cut off or mention the word "appeal" at all. See State v. Loye, 670 N.W.2d 141, 148 (Iowa 2003) ("The right to appeal is waived only if such a waiver is an express element of the particular agreement made by that defendant."); State v. Hinners, 471 N.W.2d 841, 845 (Iowa 1991) ("[T]he waiver of the right to appeal should be voluntary, knowing, and intelligent. This presupposes the defendant knows about the right of appeal and intentionally relinquishes it." (Citation omitted.)).

We have found sufficient compliance with the rule when the defendant was told that, if he requested immediate sentencing, his right to "question the legality of his plea of guilty" would be "gone." State v. Taylor, 301 N.W.2d 692, 692 (Iowa 1981). And in State v. Oldham, 515 N.W.2d 44, 46–47 (Iowa 1994), we found that a colloquy and a written application to withdraw the not-guilty plea—when considered...