IN THE COURT OF APPEALS OF IOWA
No. 16-0869 Filed December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
DOMINICK R. MARCOTT, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Christine Dalton
Ploof, District Associate Judge.
Dominick Marcott appeals from the judgment and sentence entered
following his guilty plea to driving while barred as a habitual offender and driving
while license denied or revoked. CONVICTIONS AFFIRMED, SENTENCE
VACATED, AND REMANDED FOR RESENTENCING.
Sharon D. Hallstoos of Halstoos Law Office, Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Doyle and McDonald, JJ. 2
DOYLE, Judge.
Dominick Marcott appeals from the judgment and sentence entered after
he pled guilty to driving while barred as a habitual offender and driving while
license denied or revoked. We affirm his convictions but vacate his sentence
and remand for resentencing.
I. Background Facts and Proceedings.
On June 21, 2015, Marcott was stopped for speeding. When the officer
asked for Marcott’s driver’s license, Marcott handed him a non-driver
identification card. Marcott was placed under arrest after the officer learned
Marcott was barred from driving and that his driver’s license was revoked.
Marcott was charged with operating a motor vehicle while license is barred
as a habitual offender, in violation of Iowa Code section 321.560 and 321.561
(2015), an aggravated misdemeanor, and driving while license is denied or
revoked, in violation of section 321J.21, a serious misdemeanor. On November
25, 2015, Marcott submitted to the district court a written plea of guilty to both
charges. On the same day, the court accepted Marcott’s plea and set sentencing
for March 23, 2016.
A warrant for Marcott’s arrest was issued after he failed to appear for
sentencing. A sentencing hearing was eventually held on May 13, 2016. The
sentencing order indicates Marcott appeared at the hearing with his counsel.
The court entered judgment accepting Marcott’s guilty plea to the two charges,
sentenced him to a term of incarceration, and imposed fines, costs, and
surcharges. Marcott filed his notice of appeal the same day. 3
II. Standard of Review.
We review a claim of error in a guilty-plea proceeding for correction of
errors at law. See State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004); see also
Iowa R. App. P. 6.907. However, we review sentencing orders for an abuse of
discretion. See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016).
III. Error preservation.
Marcortt asserts his guilty plea was defective because the court did not
inform him of the statutory maximum and minimum punishment for the criminal
charges prior to accepting his plea. See Iowa R. Crim P. 2.8(2)(b). He did not
file a motion in arrest of judgment challenging the plea.
In order to challenge a guilty plea on appeal, a defendant must file a
motion in arrest of judgment. See Meron, 675 N.W.2d at 540 (“Generally, a
defendant must file a motion in arrest of judgment to preserve a challenge to a
guilty plea on appeal.”); see also Iowa R. Crim. P. 2.24(3)(a) (“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.”). However, before we will penalize a defendant for failing to file a
motion in arrest of judgment, the district court must have informed the defendant
of the obligation to file the motion and the consequences of failing to file the
motion. See Meron, 675 N.W.2d at 540; see also Iowa R. Crim. P. 2.8(2)(d)
(“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 4
right to assert them on appeal.”). Substantial compliance with the rule is
mandatory. See State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).
Marcott asserts that despite his failure to move in arrest of judgment, his
challenge to the plea proceeding is properly before this court. He claims the
court failed to personally inform him that he could file a motion in arrest of
judgment and the consequences of failing to do so. Marcott pled guilty to an
aggravated misdemeanor and 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, 877 N.W.2d at 680-81; see also State v. Thacker, 862 N.W.2d 402, 411
(Iowa 2015) (“[T]he district court, with the defendant’s consent, may waive the in-
court colloquy otherwise required by [rule] 2.8(2)(b).”).
Paragraph eleven of Marcott’s written guilty plea states:
If I claim there are any irregularities or errors in this guilty plea, I must file a Motion in Arrest of Judgment not later than 45 days after this plea of guilty or in any case, not later than five days before the day of sentencing. Failure to do so will preclude my rights to assert any defects in this plea in any appeal to the Iowa Supreme Court.
Immediately above Marcott’s signature is the statement, “I STATE TO THE
COURT THAT I FULLY UNDERSTAND ALL OF MY FOREGOING RIGHTS; I 5
GIVE UP THOSE RIGHTS; AND I ENTER MY PLEA OF GUILTY TO THE
CHARGES LISTED ABOVE.” Below his signature is a “Consent to Waive
Presence.” The form states, “I expressly waive my rights to be present and
participate in an in-court plea colloquy.” There is also a waiver of the right to be
present and address the court at the time of sentencing. Marcott’s second
signature appears immediately below these waivers.
Marcott’s guilty-plea form substantially complies with the requirements of
rule 2.8(2)(d). See, e.g., State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006)
(finding court’s colloquy conveying same information to Straw “substantially
complied with the requirements of rule 2.8(2)(d)”); Barnes, 652 N.W.2d at 467-68
(finding nearly identical language in Barnes’s written guilty plea to an aggravated
misdemeanor was “a valid written waiver” of his right to an in-court colloquy “and
thus trigger[ed] the bar that rule 2.24(3)(a) imposes to challenging a guilty plea
on appeal”). Marcott was made aware of the substance of rule 2.24(3)(a), and
we reject his assertion to the contrary. The lack of a motion in arrest of
judgment, coupled with Marcott’s written waiver, would normally prevent him from
contesting his guilty plea on appeal. See State v. Rodriguez, 804 N.W.2d 844,
848 (Iowa 2011).
But Marcott also asserts his failure to file a motion in arrest of judgment
does not preclude him from challenging his plea on appeal because the district
court violated Iowa Rule of Criminal Procedure 2.23(1). That rule requires that a
court fix the date for pronouncing judgment not less than fifteen days after a
guilty plea is entered. See Iowa R. Crim. P. 2.23(1). Marcott claims he was not
given a delayed sentencing hearing. The record belies this claim, and we 6
therefore reject it. Marcott’s guilty plea was accepted by the district court on
November 25, 2015. The order accepting the plea set a sentencing hearing for
March 23, 2016. Obviously, the sentencing hearing was set for more than fifteen
days after the court accepted Marcott’s plea. In fact, the actual sentencing
hearing was not held until May 13, 2016, almost six months after the court
accepted the plea.
In an effort to sidestep the error-preservation issue, Marcott also asserts
his failure to file a motion in arrest of judgment was due to ineffective assistance
of counsel. The failure to file a motion in arrest of judgment will not preclude a
challenge to a guilty plea on appeal if the failure was the result of ineffective
assistance of counsel. See Rodriguez, 804 N.W.2d at 848.
IV. Ineffective Assistance of Counsel.
We review claims of ineffective assistance of counsel de novo. See State
v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). To prevail, Marcott must show (1)
counsel breached an essential duty and (2) prejudice resulted. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). The claim fails if either element is
lacking. See Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).
Generally, we do not resolve claims of ineffective assistance of counsel on
direct appeal. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). If we
determine the claim cannot be addressed on appeal, we must preserve it for a
postconviction-relief proceeding. See State v. Johnson, 784 N.W.2d 192, 198
(Iowa 2010). 7
Marcott claims his plea was not voluntarily and intelligently made because
the court failed to inform him of the statutory penal consequences he faced prior
to accepting his plea.
Due process requires the defendant enter his guilty plea voluntarily and intelligently. If a plea is not intelligently and voluntarily made, the failure by counsel to file a motion in arrest of judgment to challenge the plea constitutes a breach of an essential duty. In order to ensure a guilty plea is voluntarily and intelligently made, the court must articulate the consequences of the plea to the defendant.
Straw, 709 N.W.2d at 133 (internal citations and quotation marks omitted).
Specifically, Marcott contends he was not alerted to the sentencing penalties for
the charge of driving while license denied or revoked. This claim implicates a
failure of the district court to comply with Iowa Rule of Criminal Procedure 2.8(2).
That rule provides, in relevant part:
2.8(2) Pleas to the indictment or information. .... b. Pleas of guilty. . . 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: .... (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.
Iowa R. Crim. P. 2.8(2). Substantial compliance with this rule is required. See
State v. Myers, 653 N.W.2d 574, 577-78 (Iowa 2002).
Driving while a license is denied or revoked, in violation of section
321J.21, is a serious misdemeanor. The mandatory minimum punishment for a
serious misdemeanor is a fine of at least $315. See Iowa Code § 903.1(1)(b).
The fine may not exceed $1875. See id. In addition, the court may order 8
imprisonment not to exceed one year. See id. Section 321J.21(1) also provides:
“In addition to any other penalties, the punishment imposed for a violation of this
subsection shall include assessment of a fine of one thousand dollars.”
Marcott’s guilty-plea form provides in relevant part:
9. On a plea of guilty to: .... √ An aggravated misdemeanor, the Court can sentence me to prison not to exceed two years and fine me between $625.00 and $6250.00, plus surcharge and court costs. .... ___ A serious misdemeanor, the Court can sentence me to jail for up to one year, and fine me between $315.00 and $1875.00, plus surcharge and court costs. ___ Driving While Revoked, the Court can sentence me to jail for up to a year, and fine me between $1000.00 and $1875.00, plus surcharges and court costs.
The line before the penalty for the aggravated misdemeanor was checked by
Marcott, but the lines before the penalties for the serious misdemeanor and
driving while revoked were not checked. Left unchecked, Marcott argues this
shows he did not acknowledge that he was made aware of the penalties for
driving while denied or revoked. The State responds,
The unchecked portion begins with “Driving While Revoked,” which was the name of the charge that [Marcott] wrote down on his written guilty plea when he listed the charged crimes and when he described the factual basis for his pleas. Any reader pleading guilty to that offense would have noticed the provision and realized that it applied.
The State argues it is not apparent that the absence of a check mark means
Marcott did not read or understand the statement. It contends Marcott’s
signature on the form should be treated as an acknowledgment of the
maximum/minimum possible penalties for driving while revoked. 9
While a person could interpret Marcott’s guilty-plea form as having
informed him of the mandatory minimum and maximum punishment for the
charge of driving while denied or revoked, a reasonable person would not be
compelled to do so because of the unchecked lines preceding the penalties for
the offense. The form signed by Marcott does not conclusively establish he was
informed of the mandatory minimum and maximum punishment he faced for the
offense of driving while denied or revoked offense, to which he pled guilty. The
record before us is silent as to whether or not Marcott was informed by the court
or his counsel of the applicable mandatory minimum and maximum punishment
he faced for the driving while denied or revoked, or what Marcott’s understanding
was as to the punishment he faced for the offense.
Marcott also argues he was not informed of the surcharge mandated by
Iowa Code section 911.1(1).1 He should have been informed of the surcharge.
See Fisher, 877 N.W.2d at 686. For the reasons stated above, the guilty-plea
form signed by Marcott does not conclusively establish he was informed of a
surcharge. Furthermore, the guilty-plea form does not mention a mandatory
thirty-five percent surcharge. The record is silent as to whether Marcott was
informed of the mandatory thirty-five percent surcharge by either the court or his
counsel.
1 Iowa Code section 911.1(1) provides: A criminal penalty surcharge shall be levied against law violators as provided in this section. When a court imposes a fine . . . for a violation of state law . . . , the court or clerk of the district court shall assess an additional penalty in the form of a criminal penalty surcharge equal to thirty-five percent of the fine . . . . 10
Marcott also argues he was not informed of the possibility of imposition of
consecutive sentences. See State v. White, 587 N.W.2d 240, 242-43 (Iowa
1998) (“[T]he accused must be fully aware of the direct consequences of a guilty
plea. Sentences to be served consecutively are a direct consequence of a guilty
plea.”). The guilty-plea form is silent on the matter, and the record is silent as to
whether Marcott was informed by the court or his counsel of the possibility of
imposition of consecutive sentences.
Marcott’s attorney did not bring these matters to the court’s attention or file
a motion in arrest of judgment on these grounds. In this situation, Marcott’s
attorney held a duty to correct these omissions of the court—if in fact there were
omissions. See Straw, 709 N.W.2d at 134; see also State v. Hallock, 765
N.W.2d 598, 606 (Iowa Ct. App. 2009) (recognizing counsel’s duty to correct any
omission by the court during plea proceedings so that the defendant may be fully
informed when entering a guilty plea).
Marcott can succeed on his ineffective-assistance claim only by
establishing both that his counsel failed to perform an essential duty and that
prejudice resulted. See Anfinson, 758 N.W.2d at 499; see also Hill v. Lockhart,
474 U.S. 52, 59 (1985) (holding that to show counsel was ineffective in the
context of a guilty plea, “the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial”). As set forth above, there is nothing in the
record before us as to whether the court or Marcott’s trial counsel advised
Marcott of the matters set forth above. Such evidence is significant to any
prejudice analysis, regardless of our view of the potential viability of the 11
underlying claim. See Johnson, 784 N.W.2d at 198; Straw, 709 N.W.2d at 138.
As in Straw, “This case exemplifies why claims of ineffective assistance of
counsel should normally be raised through an application for postconviction
relief. In only rare cases will the defendant be able to muster enough evidence to
prove prejudice without a postconviction relief hearing.” 709 N.W.2d at 138.
Accordingly, we affirm Marcott’s convictions and preserve his claims of
ineffective assistance of counsel relating to alleged deficiencies of his written
plea for a possible postconviction-relief proceeding.
V. Sentencing.
Marcott also argues he was improperly sentenced because the court failed
to give sufficient reasons for his sentence on the record or in the written
sentencing order. “Errors in sentencing, including contentions the trial court
failed to articulate adequate reasons for a particular sentence, ‘may be
challenged on direct appeal even in the absence of an objection in the district
court.’” Thacker, 862 N.W.2d at 405 (citation omitted).
Iowa Rule of Criminal Procedure 2.23(3)(d) requires the court to “state on
the record its reason for selecting the particular sentence.” See also Hill, 878
N.W.2d at 273. This procedure “ensures defendants are well aware of the
consequences of their criminal actions” and “affords our appellate courts the
opportunity to review the discretion of the sentencing court.” Id. (citation
omitted). If the court’s reasons for its sentencing decision “are obvious in light of
the statement and the record before the court,” a “terse and succinct statement”
may be sufficient. Thacker, 862 N.W.2d at 408. Nevertheless, if the defendant
waives the reporting of the sentencing hearing, the court must include in the 12
written order the reasons for the sentence. See State v. Thompson, 856 N.W.2d
915, 920-21 (Iowa 2014). “[B]oilerplate language, standing alone, is insufficient
to satisfy Iowa Rule of Criminal Procedure 2.23(3)(d).” Thacker, 862 N.W.2d at
410.
Here, we cannot conclude the district court adequately stated its reasons
on the record for the sentence it imposed as required under Iowa Rule of
Criminal Procedure 2.23(3)(d). See id. The court’s sentencing order only set
forth boilerplate language—“The following sentence is based on all of the
available sentencing considerations set out in Iowa Code Section 907.5.”—and
stated “The Plea Agreement” was the most significant factor in determining the
sentence. See id. (holding “The Plea Bargain” was not a sufficient reason for a
sentence when the record did not reflect the parties’ agreement). In this case,
there is no record beyond the sentencing order. The plea-agreement
memorandum is not part of our record, nor is there any record of any discussion
of the terms of the plea agreement. Consequently, we cannot determine what
“motivated the district court to enter a particular sentence.” See id. The State
agrees the case requires a remand based on the reasons identified in Thacker.
We therefore vacate the sentence and remand the matter to the district court for
further proceedings.
On remand, there is no requirement the district court arrive at a different
sentence, but only that it satisfy the requirements of Iowa Rule of Criminal
Procedure 2.23(3)(d), as described by the Iowa Supreme Court in Hill, 878
N.W.2d at 275 (“We encourage sentencing courts to give more detailed reasons
for a sentence specific to the individual defendant and crimes and to expressly 13
refer to any applicable statutory presumption or mandate.”), Thacker, 862
N.W.2d at 410 (“On remand, if the district court determines it merely gave effect
to the parties’ agreement and exercised no discretion in sentencing other than to
accept the plea agreement as advanced by the parties, it should make the
particulars of the plea agreement with respect to the sentence a part of the
record.”), and Thompson, 856 N.W.2d at 921 (“In this age of word processing,
judges can use forms . . . to check the boxes indicating the reasons why a judge
is imposing a certain sentence. If the choices in the order need further
explanation, the judge can do so by writing on the order or adding to the order
using a word processing program. If the sentencing order does not have boxes
similar to the ones in this case, the judge can use his or her word processor to
insert the reasons for a particular sentence.”).
CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.