State v. Hook, 99-1340.

• Decision Date: 21 March 2001
• Docket Number: No. 99-1340.,99-1340.
• Citation: 623 N.W.2d 865
• Parties: STATE of Iowa, Appellee, v. Larry Lee HOOK, Appellant.
• Court: Iowa Supreme Court

623 N.W.2d 865

STATE of Iowa, Appellee, v.Larry Lee HOOK, Appellant.

No. 99-1340.

Supreme Court of Iowa.

March 21, 2001.

Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, J. Patrick White, County Attorney, and Linda M. Paulson, Assistant County Attorney, for appellee.

Considered en banc.

SNELL, Justice.

This is a direct appeal from the district court decision accepting the defendant's written guilty plea to a felony.We are asked to consider the procedures required when a defendant enters a guilty plea to a felony.We find the procedures utilized by the court in accepting the guilty plea were inadequate.We hold the plea was invalid and therefore reverse and remand for proceedings consistent with this opinion.

I.Factual Background and Procedure

The defendant, Larry Lee Hook, pled guilty to one count of possession with the intent to deliver, a class "D" felony.SeeIowa Code §§ 124.204(4)(m),124.401(1)(d)(1997).Rather than conduct a full-length, in-court colloquy concerning Hook's plea, the court requested that Hook submit a written plea of guilty to be considered by the court.The court did not use the written plea as a complete substitute for the in-court colloquy.Instead, it shortened its discussion with the defendant and questioned the validity of the defendant's plea in reference to the executed written plea.

The court was satisfied with the answers given by the defendant and determined that together with the written plea information, the guilty plea was legally acceptable.The court then asked Hook's counsel if he"took up Rule 23" with the defendant in the execution of the written plea, to which counsel replied in the affirmative.SeeIowa R.Crim. P. 23(3)(a);see alsoIowa R.Crim. P. 8(2)(d).

Hook received a deferred judgment and was placed on probation.As a result of several probationary violations, his probation was revoked, and he was sentenced to an indeterminate term of five years imprisonment.Following this final judgment, Hook filed a timely appeal to this court.Hook's counsel did not file a motion in arrest of judgment.Hook now raises the present issue for the first time on direct appeal.Specifically, Hook challenges the district court's reliance on the written guilty plea rather than conducting a full in-court colloquy as required by Iowa Rule of Criminal Procedure 8(2)(b) and his attorney's failure to object to the alleged deficiencies in this process.He asks this court to impose a per se rule that when counsel allows his client to submit a written plea for a felony charge he commits automatic ineffective assistance.

II.Scope and Standard of Review

Our court reviews the application of a rule of criminal procedure for correction of errors at law.Iowa R.App. P. 4;accordState v. Schuessler,561 N.W.2d 40, 41(Iowa1997).Because we are interpreting the language and the import of Rule 8(2) in this case, we will reverse only where there exists legal error.SeeState v. White,587 N.W.2d 240, 241-42(Iowa1998).Rule 8(2)"specifies the colloquy in which a court must engage to ensure that a plea is knowingly and voluntarily made."State v. Sayre,566 N.W.2d 193, 195(Iowa1997).Noncompliance with this Rule is reversible error.SeeSaadiq v. State,387 N.W.2d 315, 324-25(Iowa1986).

III.Procedural Impediments

A.Guilty Plea as Waiver

In State v. LaRue,we recognized a guilty plea works as an effective waiver of all constitutional challenges inherent in the conviction.State v. LaRue,619 N.W.2d 395, 397-98(Iowa2000);seeState v. Antenucci,608 N.W.2d 19, 19(Iowa2000).However, "[a] guilty plea does not waive challenges that do not affect the validity of the conviction."State v. Mann,602 N.W.2d 785, 789(Iowa1999).The defendant's Sixth Amendment right to adequate representation has no bearing on the actual validity of Hook's guilt or conviction.U.S. Const. amend. VI.Further, Hook is essentially challenging the validity of the procedures used to arrive at his plea which implicates Iowa Rule of Criminal Procedure 8(2).Accordingly, this issue has not been waived by Hook.

B.Error Preservation

The State contends that the defendant did not preserve error with respect to his guilty plea because he did not file a motion in arrest of judgment prior to sentencing.Iowa Rule of Criminal Procedure 23(3)(a) provides:

3.Arrest of judgment.

a. Motion in Arrest of Judgment; Definition and Grounds.A motion in arrest of judgment is an application by the defendant that no judgment be rendered on a finding, plea, or verdict of guilty.Such motion shall be granted when upon the whole record no legal judgment can be pronounced.A defendant's failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall preclude his or her right to assert such challenge on appeal.

Iowa R.Crim. P. 23(3)(a).Pursuant to this Rule, a defendant may not challenge a guilty plea on appeal unless the defendant has first filed a motion in arrest of judgment.SeeState v. Gant,597 N.W.2d 501, 503(Iowa1999).Hook failed to do so.Nevertheless, we have held that the failure to file a motion in arrest of judgment will not bar a later challenge to a guilty plea if the trial court did not comply with Rule 8(2)(d).SeeState v. Oldham,515 N.W.2d 44, 46(Iowa1994);State v. Worley,297 N.W.2d 368, 370(Iowa1980).Rule 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 a failure to so raise such challenges shall preclude the right to assert them on appeal.

Iowa R.Crim. P. 8(2)(d).

In Worley,we considered the effect of the defendant's failure to file a motion in arrest of judgment and the court's responsibility to advise the defendant under Rule 8(2)(d).Worley,297 N.W.2d at 370.We held that Rule 23(3)(a) must be read in conjunction with Rule 8(2)(d).Worley's counsel, not the court as required by Rule 8(2)(d), told Worley during the plea proceedings that he could file a motion in arrest of judgment.We held that this procedure did not satisfy the requirements of Rule 23(3)(a)andRule 8(2)(d) to properly inform the defendant of the information contained in these Rules.We said:

No defendant ... should suffer the sanction of rule 23(3)(a) unless the court has complied with rule 8(2)(d) during the plea proceedings by telling the defendant that he must raise challenges to the plea proceeding in a motion in arrest of judgment and that failure to do so precludes challenging the proceeding on appeal....[W]here, as in Worley's case, the court fails to personally inform the defendant that he may file a motion in arrest of judgment and the consequences of failing to do so, rule 23(3)(a) does not preclude our review.

Id.Therefore, the court in Worley considered the defendant's challenge to the plea procedure despite his failure to file a motion in arrest of judgment.Id.

Here, the trial court proceeded to take the guilty plea of Hook by combining the admissions contained in the written plea and the answers of Hook to oral questions by the court.The district court was proceeding from the premise that a fairly comprehensive list of questions and answers pertaining to a plea of guilty was contained in the written plea submitted to the court.As such, the oral colloquy in the courtroom with the defendant was supplementary.

After receiving the oral answers, the court accepted the plea and inquired of counsel about a motion in arrest of judgment.The court's inquiry on this point was as follows.Addressing Hook's counsel, the court said: "And you took up Rule 23 in this written portion?... And it was understood by your client?"Hook's attorney assured the court that the defendant had been so advised.The court did not formally address the defendant or state what Rule 23 provided.Nor was it stated that Hook's failure to challenge the adequacy of his guilty plea proceeding by motion in arrest of judgment would preclude his right to challenge his plea on appeal.In the case at bar, as in Worley,the court did not orally advise the defendant of the requirements of Rules 23(3)(a)and8(2)(b) and the consequences of failing to file a motion in arrest of judgment.

Rule 8(2)(b), para. 6, provides that the court may, with the approval of the defendant, waive the procedures required by Rule 8(2)(b) for an oral colloquy in a plea of guilty to a serious or aggravated misdemeanor.But Rule 8(2)(d) does not contain a comparable provision that the required in-court colloquy about the appeal process can be waived by a written plea.This is true as to a guilty plea for serious and aggravated misdemeanors as well as felonies.Thus, the court's failure to personally advise Hook of his right to file a motion in arrest of judgment and the consequences of failing to do so relieves Hook of the requirement that he file a motion in arrest of judgment in order to preserve a challenge to his guilty plea for appeal.

We hold that error was preserved on Hook's claim that his guilty plea was not taken in accordance with the requirements of Rule 8(2)(b).Therefore, we need not consider his claim that his trial counsel was ineffective in failing to file a motion in arrest of judgment.

IV.Issue on Appeal

In State v. Kirchoff,we discussed the subject of written guilty pleas in the context of nonfelonies.State v. Kirchoff,452 N.W.2d 801(Iowa1990).The Kirchoff case involved the acceptance of a guilty plea to two aggravated misdemeanors through the vehicle of written plea statements and some in-court colloquy between the judge and the defendant.Our court held that acceptance of the defendant's guilty plea was valid because the trial court had substantially complied with the requirements of ...