State v. Hanes, 21-1146

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWATERMAN, JUSTICE
PartiesSTATE OF IOWA, Appellee, v. JOHN EDDIE HANES, III, Appellant.
Docket Number21-1146
Decision Date04 November 2022

STATE OF IOWA, Appellee,


No. 21-1146

Supreme Court of Iowa

November 4, 2022

Submitted September 14, 2022

Appeal from the Iowa District Court for Scott County, Jeffrey D. Bert (plea) and Joel W. Barrows (sentencing), Judges.

A defendant who filed no motion in arrest of judgment challenges, for the first time on direct appeal, the validity of his guilty plea to criminal gang participation on grounds that his plea lacked a factual basis. APPEAL DISMISSED.

Jack Bjornstad (argued) of Jack Bjornstad Law Office, Spirit Lake, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester (argued), Assistant Attorney General, for appellee.

Waterman, J., delivered the opinion of the court, in which Christensen, C.J., and Mansfield, McDonald, Oxley, and May, JJ., joined. Oxley, J., filed a concurring opinion. McDermott, J., filed a dissenting opinion.



In this case, the defendant asks us to create a new exception to the error preservation rules for challenging a guilty plea on direct appeal. He was charged with other alleged gang members detained in a car with a loaded rifle and handgun. The defendant pleaded guilty to criminal gang participation in exchange for dismissal of a companion charge of being a felon in possession of a firearm. He was properly advised of the need to file a motion in arrest of judgment to challenge his guilty plea on appeal but filed no such motion. Instead, his new appellate counsel filed this direct appeal asking that his plea and conviction be vacated for lack of a factual basis. The State moved to dismiss the appeal based on State v. Treptow, 960 N.W.2d 98, 109 (Iowa 2021) (holding the defendant's "failure to file a motion in arrest of judgment precludes appellate relief"), and Iowa Rule of Criminal Procedure 2.24(3)(a). The defendant resisted, arguing for a new exception based on the district court's independent obligation to ensure a factual basis for the guilty plea. We ordered the State's motion to be submitted with the appeal and retained the case.

On our review, we dismiss the appeal. District courts have an independent duty to ensure guilty pleas are supported by a factual basis, and the court has discretion to arrest a judgment on its own motion. See Iowa R. Crim. P. 2.24(3)(c). But this defendant admittedly was advised of the requirement to file a motion in arrest of judgment to preserve the issue for appeal and we again hold that his failure to do so precludes relief in this direct appeal. See Treptow, 960 N.W.2d at 109;


see also Iowa R. Crim. P. 2.24(3)(a).[1] Filing the motion alerts the district court to correct any alleged error or issue a ruling for appellate review. A contrary holding would nullify rule 2.24(3)(a) and deprive the State of notice to supplement the record or otherwise address the alleged defect in the plea in district court before any appeal.

I. Background Facts and Proceedings.

On April 28, 2021, Davenport police detectives were conducting surveillance at an apartment on Emerald Drive following a gang-related homicide. The detectives observed a suspect leave the apartment, meet briefly with the occupants of an older model Cadillac sedan at a nearby gas station, and return to the apartment. A detective in an unmarked vehicle tailed the sedan as it drove off and observed the driver make an illegal turn. A marked patrol car then initiated a traffic stop. A man later identified as John Eddie Hanes III exited the passenger front seat door and fled on foot. A backseat passenger also fled on foot. Police arrested both men nearby and detained the driver and another occupant in the sedan. Police found a loaded handgun in a bag on the front seat of the passenger side of the vehicle where Hanes had been seated and a loaded rifle with a pistol grip on the rear seat floor.

Police determined that Hanes and other men in the sedan were affiliated with a local street gang known as the Mad Max Gang (MMG). Hanes had


previously been convicted of third-degree burglary, a class "D" felony, in 2018, and had multiple prior juvenile adjudications for burglary, possession of firearms by a felon, theft, and assault. On June 10, the State charged Hanes by trial information with one count of criminal gang participation in violation of Iowa Code sections 703.1, 706.1, 706.3, and 723A.2 (2021), a class "D" felony, and a second count of possession of a firearm by a felon in violation of section 724.26(1), a class "D" felony.

On July 9, Hanes entered into a plea agreement in which he agreed to plead guilty to criminal gang participation in exchange for dismissal of the felon-in-possession count. The written plea agreement identified an additional sentencing concession: "The State recommends that the Defendant be granted supervised probation conditioned on his successful completion of the RCF [(residential correctional facility)]. If the Defendant is not deemed appropriate for the RCF, then this becomes an open plea and the State may make any recommendation at sentencing." The same day, as permitted by COVID-19 supervisory orders, a written plea of guilty was filed, signed by defense counsel, and signed and initialed by Hanes.[2] He "expressly waive[d] [his] right to be present and participate in an in-court plea colloquy." The written plea stated in part:

7. I understand that in order to establish my guilt[] of the crimes charged, the State would have to prove beyond a reasonable doubt all of the following elements:

1. On or about . . . April 28, 2021 in Scott County[,] Iowa, John Hanes III actively participated in or was a member of a criminal street gang.
2. On that date and place, the defendant willfully aided and abetted a criminal act, that is, felon in possession of a firearm.
3. On that date and place the criminal act was committed . . . [in association with] the criminal street gang.

8. By pleading guilty, I am asking the Court to accept my guilty plea. I waive all the rights set forth herein with the exception of the right to counsel. I am admitting there is a factual basis for the charge(s), and I admit at the time and place charged in the Trial Information:

I was an active participant in a criminal street gang and I possessed a firearm unlawfully as a felon and did so for the benefit and in association with that same criminal street gang on April 28, 2021 in Scott County[,] Iowa.

Hanes placed his initials next to his admission typed in paragraph 8. Paragraph 9 stated, "I accept the minutes of testimony as substantially true as to the elements of these charges." The minutes recounted the facts set forth above.

On July 12, the district court entered a written order accepting Hanes's guilty plea. The order noted Hanes "has filed a signed Consent to Waive Presence. The Court, in its discretion, finds that there is no necessity for a full in-court colloquy and accepts Defendant's waiver of the same." The court expressly advised Hanes of the requirement to file a motion in arrest of judgment in order to appeal his guilty plea. The order stated:


Defendant has a right to contest the adequacy of the guilty plea by filing a motion in arrest of judgment pursuant to Iowa R. Crim. P. 2.24(3). A motion in arrest of judgment must be filed no later than 45 days after the guilty plea but no later than five (5) days


prior to sentencing (whichever occurs first). If Defendant fails to file a motion in arrest of judgment in a timely manner, Defendant will be precluded from challenging the plea, based upon any alleged defects or mistakes in the plea proceeding, in an appeal to the Iowa Supreme Court.

Hanes never filed a motion in arrest of judgment.

On August 20, the court conducted a virtual sentencing hearing by Zoom pursuant to the then-existing COVID-19 supervisory orders. Hanes and his attorney participated remotely by video. The following colloquy ensued:

[DEFENSE COUNSEL]: Your Honor, I -- I spoke with Mr. Hanes prior to us being on the record here. Could I have a brief colloquy with him, if the Court's fine with that?
THE COURT: Go ahead.
[DEFENSE COUNSEL]: Mr. Hanes, in your PSI you -- you made some statements about the events that I just want to clarify with what you said in the plea. Do you agree that in the plea, when you signed off on the factual basis for Criminal Gang Participation, that that was a truthful signature, that you agree to the factual basis in your plea?
[HANES]: Yes.
[DEFENSE COUNSEL]: And you agree that you were participating with a criminal street gang and possessed a firearm for the benefit of -- of the gang on that day?
[HANES]: Yes.
[DEFENSE COUNSEL]: Okay. And you -- do you wish to withdraw your plea, or attempt to withdraw your plea at this time?
[HANES]: No.

The court offered Hanes the option of continuing the hearing so he could attend in person; Hanes elected to proceed remotely by Zoom. The court noted that Hanes was "deemed inappropriate for RCF" due to his assault on a female staffer in RCF, which made it an "open plea." Hanes and his counsel still declined to


withdraw his guilty plea. The prosecutor recommended incarceration. Defense counsel argued for a suspended sentence and probation. The court ultimately imposed a prison sentence of up to five years for criminal gang participation "because of Mr. Hanes['s] disturbing and significant criminal history even at his young age and for purposes of protection of the community." Pursuant to the plea agreement, the court dismissed the felon-in-possession charge, another class "D" felony. Three days later, Hanes filed a notice of appeal.

On appeal, Hanes argues his conviction and guilty plea should be vacated because his plea lacked a factual basis. Specifically, he argues he cannot "aid and abet" his own possession of a firearm and...

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