State v. Hayes, 4-537/04-0043
| Decision Date | 09 September 2004 |
| Docket Number | No. 4-537/04-0043,4-537/04-0043 |
| Citation | 690 NW 2d 700 |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. TERRENCE LEE HAYES, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, William Davis, County Attorney, and Marc Gellerman and Alan Havercamp, Assistant County Attorneys, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Terrance Lee Hayes appeals from the judgments and sentences entered by the district court following his guilty plea and convictions for possession of marijuana and driving while barred as an habitual offender. He claims the district court erred by failing to substantially comply with the requirements of Iowa Rule of Criminal Procedure 2.8(2)(b). He alternatively claims that his counsel was ineffective for failing to ensure the court complied with this rule or file a motion in arrest of judgment when the court failed to do so. We affirm.
On August 28, 2003 Hayes was charged, by trial information, with possession of marijuana, in violation of Iowa Code section 124.401(5) (Supp. 2003), and driving while barred as a habitual offender, in violation of sections 321.555(1) and 321.561 (2003). On the same date Hayes entered a written guilty plea to both of these charges. The guilty plea was part of an extensive plea agreement under which Hayes also pled guilty to three additional charges of driving while barred and two additional charges of possession of marijuana in separate cases.
On December 5, 2003, the district court sentenced Hayes to fines on each of the possession charges, including a $250 fine in this case; to a term of imprisonment not to exceed two years on each of two of the driving while barred convictions, including the conviction in this case; and to a term of imprisonment not to exceed two years and a fine of $500 on each of the other two driving while barred convictions. The court ordered that three of the two-year sentences, including the sentence in this case, be served concurrently, and that the fourth two-year sentence be served consecutively.
Hayes appeals from his convictions and sentences, contending the district court erred by not substantially complying with the requirements of Iowa Rule of Criminal Procedure 2.8(2)(b).1 He alternatively claims that if error was not preserved on this issue then his counsel was ineffective for failing to ensure the court substantially complied with this rule or for failing to file a motion in arrest of judgment when the court failed to do so.
"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). Hayes did not file a motion in arrest of judgment. However, he argues that appellate review is not barred because the district court failed to inform him that a failure to file a motion in arrest of judgment would bar him from challenging the plea on appeal. See State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004).
In his written guilty plea Hayes stated he had been advised and understood, among other things, that if he claimed there were any irregularities or errors in his guilty plea he must file a motion in arrest of judgment within forty-five days and not later than five days before the day of sentencing, and that any failure to do so would preclude his right to assert any defects in the plea in any appeal. In addition, Hayes was informed orally by the court when he entered his guilty plea in this case that if he wanted to challenge his guilty plea he must do so in a motion in arrest of judgment, and he was informed of the time limits within which he must do so. We conclude that Hayes was properly informed of both his right to challenge his guilty plea by a motion in arrest of judgment and of the consequences of not doing so. See Meron, 675 N.W.2d at 541 (). We therefore further conclude that because Hayes did not file a motion in arrest of judgment he has not preserved for our review his claim of district court error.
However, the rule 2.24(3)(a) bar does not apply here because of Hayes's claim that his counsel's ineffective assistance resulted in his failure to file the motion. State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001). Hayes claims his trial counsel was ineffective for failing to ensure compliance with rule 2.8(2)(b) or file a motion in arrest of judgment based on such lack of compliance. He contends these failures were prejudicial because they precluded the court from determining if his plea was voluntary and intelligent. Accordingly, we will address Hayes's claims as ineffective assistance of counsel claims.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). In order to prove prejudice, the defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
While we often preserve ineffective assistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Neither party here asserts the record is insufficient, we find it to be adequate, and we address the claims.
Iowa Rule of Criminal Procedure 2.8(2)(b) provides in relevant part:
In cases involving pleas of guilty to serious or aggravated misdemeanors, as is the case here,2 the requirements for the court to personally address a defendant to cover the necessary areas of inquiry listed in rule 2.8(2)(b) can be satisfied by supplementing the in-court colloquy with a written plea of guilty. Meron, 675 N.W.2d at 543 (Iowa 2004); State v. Kirchoff, 452 N.W.2d 801, 805 (Iowa 1990). This procedure allows the court, upon examination of a written plea, to waive the necessity of a full in-court colloquy. Meron, 675 N.W.2d at 543. "It does not give the defendant the right to waive the means for the court to determine that the plea is voluntarily and intelligently entered." Id.
We read Hayes's brief as asserting ineffective assistance of counsel based upon essentially five ways in which the trial court failed to substantially comply with rule 2.8(2)(b), two of which we will discuss together. His claims are as follow: (1) Hayes never expressly waived an in-court colloquy and thus the court was required to conduct a full in-court colloquy and failed to do so; (2) the court failed to make inquiry as to whether the plea was voluntary and intelligent; (3) the court failed to individually discuss the constitutional rights Hayes was waiving and did not discuss the minimum and maximum penalties; and (4) the court failed to inform him of his right to confrontation.
Hayes first asserts counsel rendered ineffective assistance by not requiring an express waiver of an in-court colloquy or not filing a motion in arrest of judgment based on the absence of such a colloquy. However, rule 2.8(2)(b) does not require that the defendant expressly waive an in-court colloquy. Hayes's written guilty plea thoroughly and completely set forth the procedures and rights he was waiving. Hayes's execution of the written guilty plea constituted his approval of a waiver of the rule's requirements. In Patten v. State, 553 N.W.2d 336, 337 (Iowa Ct. App. 1996), we stated:
Once the trial court was in receipt of Patten's guilty plea, it was within the court's discretion to waive the guilty plea procedures. It was not required to address Patten in open court to ascertain the validity of his waiver. It is implicit...
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