State v. Kirchoff

• Decision Date: 21 March 1990
• Docket Number: No. 89-63,89-63
• Citation: 452 N.W.2d 801
• Parties: STATE of Iowa, Appellee, v. Timothy John KIRCHOFF, Appellant.
• Court: Iowa Supreme Court

Page 801

452 N.W.2d 801

STATE of Iowa, Appellee, v.Timothy John KIRCHOFF, Appellant.

No. 89-63.

Supreme Court of Iowa.

March 21, 1990.

Scott A. Sobel, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Thomas S. Tauber, Asst. Atty. Gen., James A. Smith, County Atty., and Daniel Voogt, Asst. County Atty., for appellee.

Considered en banc.

McGIVERIN, Chief Justice.

Timothy John Kirchoff, the defendant, pleaded guilty to two aggravated misdemeanor charges.The district court accepted the pleas, entered judgments of conviction, and pronounced sentence on the judgments.On appeal, Kirchoff challenges both the convictions and the sentences.Because we find no error in either, we affirm.

I.Background facts and proceedings.Kirchoff was charged by trial information with the offense of carrying weapons, in violation of Iowa Code section 724.4(1987), and the offense of operating a motor vehicle while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2(2)(b)(1987).Both offenses are aggravated misdemeanors.SeeIowa Code § 724.4(a person who goes armed with a dangerous weapon concealed on or about the person commits an aggravated misdemeanor);Iowa Code § 321J.2(2)(b)(a person who operates a motor vehicle while legally intoxicated, second offense, commits an aggravated misdemeanor).

On October 13, 1988, Kirchoff completed and signed a separate written "petition to plead guilty" to each charge.Among other things, the petitions stated the maximum punishment for Kirchoff's offenses and contained detailed recitations of his legal rights.Next to each paragraph was a blank space for Kirchoff to check, presumably after he had read the paragraph.It appears that Kirchoff was represented by counsel when he completed and signed the petitions, although his attorney signed only one of the two forms.Kirchoff's petitions to plead guilty are reproduced in Appendices A and B, attached to this opinion.

The same day, Kirchoff appeared before the district court to enter his pleas.Kirchoff's attorney was present.¹The proceeding was a joint one, in which Kirchoff appeared simultaneously with three other defendants who intended to enter pleas of guilty to OWI charges pending against them.Like Kirchoff, these defendants had completed and signed petitions to plead guilty to their charged offenses.

The transcript of the joint plea proceeding shows that the district court addressed the defendants collectively at times.At these points the transcript attributes responses to "THE DEFENDANTS," without specifying whether Kirchoff joined in the responses.The court did address Kirchoff individually concerning the factual basis for his pleas, and at these points the transcript attributes responses to Kirchoff individually.The court accepted Kirchoff's guilty pleas.

No motion in arrest of judgment was ever filed by Kirchoff.A presentence investigation was prepared.On December 15, Kirchoff was sentenced on both convictions.His notice of appeal was timely and properly filed.

On appeal, Kirchoff argues that his pleas of guilty must be set aside because of defects in the plea proceeding under Iowa Rule of Criminal Procedure 8(2)(b).In the alternative, he seeks resentencing, arguing that the district court failed to comply with Iowa Rule of Criminal Procedure 22(3) when sentencing him.We find no error and, therefore, affirm the convictions and sentences.In doing so, we reconsider and partially overrule our decision in State v. Fluhr, 287 N.W.2d 857(Iowa1980).

II.Preservation of error in the plea proceeding.The threshold question is whether Kirchoff's failure to challenge the plea proceeding by a motion in arrest of judgment precludes his challenge of the plea proceeding on appeal.

Iowa Rule of Criminal Procedure 23(3)(a) provides, in relevant part, that "[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."Such a motion "must be made not later than forty-five days after [the] plea of guilty ... but in any case not later than five days before the date set for pronouncing judgment."Iowa R.Crim.P. 23(3)(b).Rule 23(3)(a) must be read in conjunction with Iowa Rule of Criminal Procedure 8(2)(d) which states that:

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.

SeeState v. Worley, 297 N.W.2d 368, 370(Iowa1980).

In Worley, the defendant learned from his counsel that he could file a motion in arrest of judgment, but no one explained to the defendant the consequences of failing to do so.Id.We wrote:

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....Where the trial court informs the defendant of this procedural requirement, we will not hesitate to preclude challenges to plea proceedings on appeal.But where ... 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.(citations omitted).We held that Worley could challenge the plea proceeding on appeal, despite his failure to do so by a motion in arrest of judgment.Id.

As was true in Worley, in this casethe district court did not adequately explain rule 23(3)(a) to the defendant.Kirchoff's written petitions to plead guilty stated that Kirchoff understood "that [by] seeking immediate sentencing [he was] waiving [his] right to attack this guilty plea by filing a Motion in Arrest of Judgment...."The district court also addressed this issue at the plea proceeding:

THE COURT: All right.You understand by your plea of guilty you're waiving your right to attack this plea in a Motion in Arrest of Judgment?

THE DEFENDANTS: Yes.

In Kirchoff's case, these statements were incorrect.Unlike the other defendants at the joint plea proceeding, Kirchoff's guilty pleas did not effectively waive his rights under rule 23(3)(a) because he was not granted immediate sentencing.A presentence investigation report was prepared, and Kirchoff was not sentenced until over two months after his pleas of guilty.Cf.State v. Taylor, 301 N.W.2d 692(Iowa1981)(court's statement to defendant that immediate sentencing would preclude defendant from challenging legality of guilty plea, and defendant's acknowledgement, worked waiver of defendant's rights under rule 23(3)(a) where defendant was sentenced immediately and later sought to challenge guilty plea on appeal).

We conclude that under these circumstances, rule 23(3)(a) does not preclude our review of Kirchoff's plea proceeding.

III.The adequacy of the plea proceeding under Iowa Rule of Criminal Procedure 8(2)(b).Kirchoff contends that his pleas of guilty must be set aside because of defects in the plea proceeding.His argument is simple: the court failed to inform him of the matters enumerated in Iowa Rule of Criminal Procedure 8(2)(b), in the manner prescribed by that rule.

Iowa Rule of Criminal Procedure 8(2)(b) provides:

b. Pleas of guilty.The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis.

Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) The nature of the charge to which the plea is offered.

(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.

(3) That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant's own behalf and to have compulsory process in securing their attendance.

(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial.

The court may, in its discretion and with the approval of the defendant, waive the above procedures in a plea of guilty to a serious misdemeanor.

The purpose of rule 8(2)(b), as suggested by its first paragraph, is to ensure that guilty pleas are made voluntarily, intelligently, and with a factual basis.Strict compliance with the rule's literal language practically assures that a plea of guilty thereafter accepted is made voluntarily, intelligently, and with a factual basis.Nevertheless, the rule does not establish a litany that must be followed without variation before a guilty plea may be accepted.Substantial compliance with the rule is all that is required.See, e.g., State v. Smothers, 309 N.W.2d 506, 508(Iowa1981).

At the joint plea proceeding, the district court did not discuss the mandatory minimum and maximum punishment for Kirchoff's offenses.The court also did not discuss Kirchoff's constitutional trial rights.Kirchoff's petitions to plead guilty, however, fully explained these matters.The petitions were completed and signed by Kirchoff prior to the plea proceeding, Kirchoff was represented by an attorney throughout, and the district court satisfied itself on the record that Kirchoff and the other defendants at the joint plea proceeding had read, understood, and freely signed their petitions prior to coming into court to enter their pleas.

This court has previously considered whether a written plea form may be used to inform a defendant of the matters enumerated in Iowa Rule of...