IN THE COURT OF APPEALS OF IOWA
No. 18-1645 Filed March 18, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
PAUL A. GARRITY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
A defendant appeals from a conviction and sentence entered following his
plea of guilty. AFFIRMED.
Thomas M. McIntee, Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ. 2
SCHUMACHER, Judge.
A defendant appeals from a sentencing order that adopted terms of a plea
agreement. On appeal, he argues he received ineffective assistance of counsel
and the court erred in accepting his plea of guilty and including a late-fee provision
in the sentencing order. We preserve his ineffective-assistance-of-counsel claims
for postconviction proceedings with the exception of two of his arguments. We find
no violation of defendant’s due process rights and reject his protest against the
court’s imposition of a late-fee provision in the sentencing order. Accordingly, we
affirm the conviction and sentence.
Facts and Procedural Background
On February 24, 2017, a deputy from the Scott County Sheriff’s Office
responded to a report of a single vehicle accident. The driver was not initially
located at the scene. While the deputy awaited a tow truck, Paul Garrity appeared,
smelling of alcohol. Garrity claimed ownership of the vehicle and admitted driving.
Medics arrived and began treating Garrity for a back injury, subsequently
transporting him to the hospital. At the hospital, the deputy issued Miranda
warnings, and Garrity again acknowledged driving the vehicle. The deputy
requested Garrity consent to a preliminary breath test, and Garrity declined. The
deputy invoked implied consent, and Garrity again refused to provide a sample.
The State filed a trial information in March 2017, charging Garrity with
operating a motor vehicle while intoxicated, second offense. Garrity entered a
written guilty plea on February 28, 2018, which contained waivers of Garrity’s rights
to allocution and an in-court colloquy. The court found Garrity’s plea had a factual
basis and was knowingly, voluntarily, and intelligently made. Acceptance of the 3
plea was conditioned on confirmation of the agreement at the time of sentencing.
In the order setting sentencing the court included the following language:
Defendant has the right to contest the guilty plea. To contest the guilty plea, defendant must file a motion in arrest of judgment. This motion must be filed within 45 days after the guilty plea but no later than 5 days prior to sentencing (whichever occurs first). If defendant fails to timely file the motion in arrest of judgment, defendant forever waives the right to challenge the plea and attack the plea on direct appeal to the Iowa Supreme Court.
Garrity failed to appear at the April 11, 2018 sentencing hearing and a
warrant was issued. Following service of the warrant, a sentencing hearing was
scheduled for April 27, 2018. After a continuance at the request of Garrity to allow
additional time to finish treatment, sentencing was reset for May 25, 2018. Garrity
filed a motion in arrest of judgment on the day of his sentencing hearing.
The court held a combined hearing on August 16, 2018, on the motion in
arrest of judgment and sentencing. At the hearing, Garrity asserted that he had
intended to plead guilty to only one of three matters he had pending on
February 28, 2018. He testified that he understood two of the pending matters to
be one and the same and claimed he did not sign a guilty plea on the charge for
operating while intoxicated. He also claimed he was unaware of the time limits to
file a motion in arrest of judgment. Garrity’s counsel related that she “went through”
the plea with Garrity “slowly together” and that “[h]e appeared to understand it.”
The trial court denied the motion in arrest of judgment because it was not
timely filed in accordance with Iowa Rule of Criminal Procedure 2.24 and because
the court found the defendant “knowingly, voluntarily, and intelligently waived his
rights and entered a valid guilty plea in this matter.” The trial court further found
that the written guilty plea “was signed by [Garrity] on February 28, 2018.” 4
The court then sentenced the defendant to a term of incarceration and
imposed a fine of $1875 plus a thirty-five percent surcharge, along with costs and
applicable surcharges. The court’s order contained the following statement, which
was not present in the guilty plea:
NOTICE: If Defendant fails to pay the total financial obligation the obligation will be transferred for collection and an additional fee up to 25% of the financial obligation owed may be assessed. The State of Iowa may withhold any State income tax refund, vehicle registration and/or driver’s license issuance for unpaid court ordered financial obligations. The State of Iowa may garnish Defendant’s wages or other assets possessed by Defendant.
Garrity appeals.1
Standard of Review
We review ineffective-assistance-of-counsel claims de novo. Rhoades v.
State, 848 N.W.2d 22, 26 (Iowa 2014). We review a court’s actions under Iowa
Rule of Criminal Procedure 2.8(2)(b)(2) for substantial compliance. State v.
Weitzel, 905 N.W.2d 397, 411 (Iowa 2017). “Our review of a claim of error in a
guilty plea proceeding is at law.” State v. Meron, 675 N.W.2d 537, 540 (Iowa
2004).
1 Before July 1, 2019, criminal defendants could raise ineffective-assistance-of- counsel claims on direct appeal if they had “reasonable grounds to believe that the record is adequate to address the claim on direct appeal.” Iowa Code § 814.7(2) (2018); State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Effective July 1, 2019, the legislature prohibited an appellate court from addressing an ineffective- assistance-of-counsel claim on direct appeal. 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code § 814.7 (2019)). The Iowa Supreme Court determined this statutory amendment applies prospectively only. See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019) (“We conclude the absence of retroactivity language in sections 814.6 and 814.7 means those provisions apply only prospectively and do not apply to cases pending on July 1, 2019.”). For that reason, and because this appeal was pending on July 1, 2019, the statutory amendment does not affect this case. 5
Discussion
On appeal, defendant appears to make three arguments.2 First, for a variety
of reasons, he asserts his trial counsel was ineffective. Second, he argues he was
denied due process rights under the United States and Iowa Constitutions by the
court “accepting a plea that was not made intelligently, knowingly, and voluntarily.”
His third argument highlights the trial court’s failure to inform him of late fees that
could result if he became delinquent on payments for court-ordered fines, again
alleging a violation of his due process rights under the United States and Iowa
Constitutions and a violation of Iowa Rule of Criminal Procedure 2.8.
I. Ineffective Assistance of Counsel
Defendant’s ineffective-assistance-of-counsel argument alleges at least five
inadequacies: (1) failure to file a motion or motions to suppress evidence, (2)
failure to preserve error, (3) failure to timely file a motion in arrest of judgment, (4)
allowing the defendant to plead guilty without a colloquy establishing a factual
basis, and (5) allowing the defendant to plead guilty without knowledge of the
consequences of delinquent payments.
To establish a claim of ineffective assistance of counsel, a defendant must
prove: (1) counsel failed to perform an essential duty and (2) prejudice resulted.
Rhoades, 848 N.W.2d at 28. A defendant’s failure to prove either element by a
preponderance of the evidence is fatal to a claim of ineffective assistance. See
State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
2 We discourage appellants from grouping distinct arguments under the same heading and raising arguments under more than one heading. These practices impede our efforts to generate opinions that not only resolve the parties’ dispute but, just as importantly, are readable by the layperson. 6
Claims of ineffective assistance of counsel are “ordinarily reserved for
postconviction proceedings to allow full development of the facts surrounding
counsel’s conduct.” State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However,
“[a] defendant may raise such a claim on direct appeal if they have ‘reasonable
grounds to believe that the record is adequate to address the claim on direct
appeal.’” State v. McNeal, 867 N.W.2d 91, 105 (Iowa 2015) (quoting Iowa Code
§ 814.7(1)). “We prefer to reserve such questions for postconviction proceedings
so the defendant’s trial counsel can defend against the charge.” State v. Tate, 710
N.W.2d 237, 240 (Iowa 2006). “This is especially appropriate when the challenged
actions concern trial strategy or tactics counsel could explain if a record were fully
developed to address those issues.” McNeal, 867 N.W.2d at 105–06. “It is a rare
case in which the trial record alone is sufficient to resolve a claim on direct appeal.”
Id. at 106.
Improvident trial strategy, miscalculated tactics, and mistakes in judgment
do not necessarily amount to ineffective assistance of counsel. State v.
McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Thus, “postconviction proceedings
are often necessary to discern the difference between improvident trial strategy
and ineffective assistance.” State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006);
see State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer is entitled to
his [or her] day in court, especially when his [or her] professional reputation is
impugned.”); see also State v. Smith, 573 N.W.2d 14, 22 (Iowa 1997).
On our de novo review, we find the record adequate to address two of
Garrity’s arguments concerning ineffective assistance of counsel. On this record,
we address whether Garrity received ineffective assistance of counsel when his 7
attorney allowed him to plead guilty without an in-court colloquy establishing a
factual basis and whether Garrity received ineffective assistance when his attorney
allowed him to plead guilty without knowledge of the consequences of delinquent
payments.
With respect to the argument that Garrity received ineffective assistance of
counsel due to the lack of an in-court colloquy concerning his plea of guilty, we
look to Garrity’s written plea of guilty. The record contradicts Garrity’s argument.
His plea of guilty expressly waived the right to be present and participate in an in-
court plea colloquy. Having waived this right, he cannot now allege his counsel
was ineffective due to the absence of an in-court colloquy. We find that Garrity did
not receive ineffective assistance of counsel due to the absence of in an in-court
colloquy on this misdemeanor offense.
In framing his argument concerning the late-fee provision, Garrity does not
posit that his attorney knew the late fee language would be added and neglected
to inform him. Instead, he argues his trial counsel “failed to provide effective
assistance of counsel by encouraging [Garrity] to enter a guilty plea and be
sentenced without compliance by the Court with Rule 2.8(2)(b) and 2.10.”
The late-fee provision was included in the sentencing order. Garrity’s
counsel therefore had no chance to object prior to the issuance of the order.
Because Garrity has not demonstrated his counsel failed to perform an essential
duty, we deny his claim of ineffective assistance of counsel concerning the late fee
provision.
We find the record inadequate to evaluate the remainder of defendant’s
ineffective-assistance-of-counsel arguments. We preserve the defendant’s 8
remaining ineffective-assistance-of-counsel claims for a possible future
postconviction action.
II. Due Process and Abuse of Discretion
Garrity’s due process argument encompasses the following allegations: (1)
the trial court abused its discretion by denying his motion in arrest of judgment,
and (2) Garrity’s due process rights were violated when the court accepted his
guilty plea, as such plea was not intelligently, knowingly, and voluntarily made.
We begin by considering the trial court’s denial of Garrity’s motion in arrest
of judgment. While a defendant must file a motion in arrest of judgment to
challenge the adequacy of a guilty plea in order to assert such a challenge on
appeal, the Iowa Rules of Criminal Procedure limit a defendant’s right to do so.
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.”); Iowa R. Crim. P. 2.24(3)(b)
(“[Motions in arrest of judgment] must be made not later than 45 days after plea of
guilty . . . upon which a judgment of conviction may be rendered, but in any case
not later than five days before the date set for pronouncing judgment.”).
The written plea contained language that Garrity’s plea was voluntarily and
intelligently made. The trial court denied the motion in arrest of judgment because
it was not timely filed and because the court found “that the defendant knowingly,
voluntarily, and intelligently waived his rights and entered a valid guilty plea in this
matter.” We agree with the trial court’s determination that Garrity’s motion was
untimely. We find no abuse of discretion in the court’s denial of the motion in arrest
of judgment. 9
As to Garrity’s due process argument, the trial court found on February 28,
2018—the date Garrity submitted his plea—that the plea was knowingly,
intelligently, and voluntarily made. To challenge this determination, Garrity needed
to comply with the forty-five-day limit set out in rule 2.24(3)(b). He failed to do so.
Garrity attacks both his plea and his sentence on due process grounds but fails to
differentiate those arguments. Because he waived his right to an in-court colloquy
at the time of his plea, his argument that he was denied due process because the
trial court “did not engage in a colloquy with the defendant on the record” was
waived. We find the dictates of due process were met. The trial court substantially
complied with rule 2.8(2)(b), which “codifies” the relevant due process mandate.
State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). Given these circumstances, we
find no due process violation.
III. Late-Fee Provision Contained in Sentencing Order
Garrity also attacks the court’s imposition of a twenty-five percent penalty
to be imposed if Garrity is delinquent on payments of financial obligations
assessed at sentencing. Garrity attacks the addition of this late-fee provision as a
violation of Iowa Rule of Criminal Procedure 2.8(2) and his due process rights.
We begin by considering whether error on this issue is preserved, an inquiry
in which the parties disagree. The State asserts this argument has not been
preserved as Garrity “never raised an argument that the district court failed to
advise him of a 25% penalty should he be delinquent in paying his fines.” While
this was not raised, the State’s argument obscures the fact that no party had record
notice of late-fee penalties in Garrity’s case until the written sentencing order.
Accordingly, we find this issue to be preserved. This determination is supported 10
by a line of cases in which Iowa courts have held error preserved out of fairness
or because the defendant had no opportunity to preserve error. See State v.
Wilson, 294 N.W.2d 824, 826 (Iowa 1980) (“In the case at hand, there is no
procedure under our existing rules for a defendant to raise the issue at the trial
court level. He may not be held to have waived his objection by failing to raise it
at the sentencing because he had no way to know then that the judge would leave
it out of the subsequent judgment.”); State v. Marti, 290 N.W.2d 570, 589 (Iowa
1980) (noting that the defendant “had no way of knowing before the court entered
the judgment” whether a flaw would exist in the judgment); see also State v.
Worley, 297 N.W.2d 368, 370 (Iowa 1980) (explaining that a court’s failure to
inform a defendant of procedural requirements will inoculate a defendant’s failure
to conform with those requirements).
We turn to the substantive issue of whether the late-fee provision contained
in the sentencing order violated either rule 2.8(2)(b)(2) or Garrity’s due process
rights. We analogize defendant’s argument as a defect in sentencing procedure,
and therefore we review for correction of errors at law. Meron, 675 N.W.2d at 540.
Errors in sentencing “may be challenged on direct appeal even in the absence of
an objection in the district court.” State v. Thacker, 862 N.W.2d 402, 405 (Iowa
2015) (quoting State v. Lathrop, 781 N.W.2d 288, 292–93 (Iowa 2010)).
Rule 2.8(2)(b)(2) requires courts to ensure prior to accepting a plea of guilty
that defendants understand “[t]he mandatory minimum punishment, if any, and the
maximum possible punishment provided by the statute defining the offense to
which the plea is offered.” Violations of rule 2.8(2)(b)(2) are evaluated under a
“substantial compliance” standard. State v. Weitzel, 905 N.W.2d 397, 406 (Iowa 11
2017). Iowa courts have said that courts must ensure the defendant understands
the “direct consequences of the plea.” State v. Hallock, 765 N.W.2d 598, 604–05
(Iowa Ct. App. 2009) (quoting State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998)).
“The court does not have a duty, however, to inform a defendant of all
indirect and collateral consequences of a guilty plea.” Id. at 605. “The distinction
between ‘direct’ and ‘collateral’ consequences of a plea . . . turns on whether the
result represents a definite, immediate and largely automatic effect on the range
of the defendant’s punishment.” Saadiq v. State, 387 N.W.2d 315, 325 (Iowa
1986) (quoting Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1365–66 (4th Cir.
1973)). We consider whether the late-fee provision at issue “represents a definite,
immediate and largely automatic effect on the range of the defendant’s
punishment.” Saadiq, 387 N.W.2d at 325.
The Iowa Supreme Court held that a trial court failed to substantially comply
with rule 2.8(2)(b)(2) when it failed to inform a defendant of mandatory thirty-five
percent surcharges under Iowa Code section 911.1. Weitzel, 905 N.W.2d at 399.
In Wietzel, the defendant was not informed of the surcharge mandated by section
911.1, and the Iowa Supreme Court held that “the maximum possible punishment
includes the surcharges.” Id. at 408. The Weitzel court emphasized that, “For rule
2.8 purposes, we see no meaningful difference between a fine and a built-in
surcharge on a fine.” Id. (quoting State v. Fisher, 877 N.W.2d 676, 686 (Iowa
2016)).
Weitzel, however, did not address whether late fees conditioned on a
defendant’s delinquency are direct consequences of a sentence and therefore part
of the defendant’s punishment. Iowa cases have held the omitted mention of 12
collateral consequences will not disturb an otherwise valid guilty plea. State v.
Carney, 584 N.W.2d 907, 908 (Iowa 1998).
The late fees included in the court’s sentencing order were contingent on
Garrity’s failure to pay and thus were not mandatory. The fees were not immediate,
as they would only accrue if Garrity failed to make future payments. Finally, given
that the late fees are explicitly conditioned on a failure to keep current on a
payment schedule, the fees are not properly considered punishment for the
underlying offense. We determine the late-fee provision at issue here is a
collateral consequence of Garrity’s plea. Because we determine that the
prospective late fees mentioned in the court’s sentencing order were collateral
consequences that do not implicate rule 2.8(2)(b)(2), we hold the trial court
substantially complied with the rule.
Conclusion
We find that Garrity did not receive ineffective assistance of counsel
regarding the absence of an in-court colloquy and late-fee penalty. We preserve
the remainder of Garrity’s ineffective-assistance-of-counsel claims for a possible
future postconviction proceeding. We find no violation of Garrity’s due process
rights in the court’s acceptance of the plea of guilty. Lastly, we hold that late-fee
penalties on the financial obligations assessed at sentencing are collateral
consequences of a sentence, and therefore the trial court did not violate rule
2.8(2)(b)(2) or Garrity’s due process rights.
AFFIRMED.