State of Iowa v. Steven Vivas

Opinion

IN THE COURT OF APPEALS OF IOWA

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No. 25-0226

Filed August 19, 2026

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State of Iowa, Plaintiff–Appellee,

v.

Steven Vivas, Defendant–Appellant.

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Appeal from the Iowa District Court for Scott County, The Honorable Stuart P. Werling, Judge.

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SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS

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Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant Appellate Defender, attorneys for appellant.

Brenna Bird, Attorney General, and Martha E. Trout (until withdrawal) and Zachary Miller, Assistant Attorneys General, attorneys for appellee.

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Considered without oral argument by Greer, P.J., and Buller and Langholz, JJ.

Opinion by Langholz, J.

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LANGHOLZ, Judge.

In this unusual criminal appeal, the State and Steven Vivas agree that the district court erred by failing to follow the procedural requirements for accepting a defendant’s admission that he is a habitual offender. See Iowa R. Crim. P. 2.19(8)(a); State v. Harrington, 893 N.W.2d 36, 45–47 (Iowa 2017). But they disagree about the appropriate remedy. The State seeks a remand so that the court can conduct the proper colloquy to accept Vivas’s admission or let the State prove the necessary two prior felony convictions at trial. Vivas contends that the State has lost its chance to prove the habitual-offender sentencing enhancement, so the court must impose sentence on his felon-inpossession -of-a-firearm conviction without the enhancement. Seeing little daylight between this case and Harrington, we agree with the State that we should grant the same relief as there. We thus vacate Vivas’s sentence and remand for the court to accept Vivas’s admission with the proper colloquy or to grant the parties a trial on the habitual-offender enhancement.

A jury convicted Vivas of possessing a firearm as a felon in violation of Iowa Code section 724.26(1) (2024). After the jury returned its verdict, the court explained: “[I]t is now incumbent for the State to prove beyond a reasonable doubt that [Vivas] has been convicted of a felony in Iowa or in any other state, except for if [Vivas] will waive that requirement and admit to being a twice-convicted felon.” And so, the court asked Vivas’s counsel, “[H]ave you had an opportunity to have that conversation with your client?” Vivas’s counsel responded, “We’ve talked about it, Judge. Can we have just one more minute?” And he eventually continued, “Your Honor, my client has indicated he will waive the trial on whether he has the felony record.”

The State then sought to introduce the certified judgments of Vivas’s two convictions as exhibits, “just for purposes of the record, even though the

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State will not be required to prove that.” Vivas did not object. So the court admitted the two exhibits. Vivas’s counsel agreed there was nothing further to be done on the record. And the court adjourned the trial proceeding.

The court opened the sentencing hearing about two months later by sharing its “recollection that, at the close of the trial, [Vivas] stipulated to being a habitual offender.” Vivas’s counsel disagreed, asserting that “Mr. Vivas did, in fact, stipulate that he was a felon,” but he “was never offered a trial on the issue of whether he was a habitual offender and no evidence to that effect was ever submitted to the Court.” He thus contended that because “[h]e did not stipulate to having two felonies and that fact was not proven to the Court,” the court could not impose the sentencing enhancement.

The State argued that the court was correct. It explained that Vivas “did stipulate that he was a felon” for the underlying offense, “but then we were going to proceed to the habitual offender proceeding and he stipulated to being a habitual offender.” The State also reminded the court that “the State had all of those exhibits prepared and marked, and I believe if the Court goes in and looks, they were filed as exhibits.” After the court reporter read back her notes of the trial transcript, the court then ruled:

That transcript indicated that . . . after the verdict was returned, the defense counsel was inquired of in court in the presence of [Vivas] whether or not he wished to have a trial on the issue of whether or not he was an habitual offender and he agreed to waive that trial. The court finds, therefore, that [Vivas] admitted that he was a twice-convicted felon by his waiver of the trial on the issue.

Vivas and the State declined to make any further record about the habitual- offender enhancement. And the court then proceeded with the sentencing hearing, eventually imposing the enhanced fifteen-year prison sentence with a three-year mandatory minimum. See Iowa Code §§ 902.8, 902.9(1)(c).

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On appeal, both parties agree that Vivas’s enhanced sentence as a habitual offender must be vacated.1 The State did not prove Vivas’s habitual- offender status in a bifurcated trial. See Iowa R. Crim. P. 2.19(8). And the district court did not engage in the required colloquy for a defendant to admit that he is a habitual offender. See id. r. 2.19(8)(a); Harrington, 893 N.W.2d at 45–47. So we too agree that the district court erred in imposing the habitual-offender enhancement, and Vivas’s sentence must be vacated.

We thus turn to the fighting issue on appeal—the scope of the court’s authority on remand. On similar facts in Harrington, the supreme court remanded for the district court to conduct a habitual-offender colloquy consistent with its newly established requirements “or, if [the defendant] denies the prior convictions or their validity, for trial on whether he meets the requirements of a habitual offender.”2 893 N.W.2d at 48. We granted that same relief when the district court failed to follow the proper trial procedures for proving the prior convictions needed to impose the habitual-offender enhancement. See State v. Davis, 36 N.W.3d 775, 780 (Iowa Ct. App. 2026). We see no material distinction between this case and those—especially Harrington—that would justify departing from this remedy.

1 The State also concedes that we may consider this claim of error despite Vivas’s failure to file a motion in arrest of judgment—as is ordinarily required to preserve error on any deficiencies in a habitual-offender proceeding—because the district court did not inform Vivas of his need to file such a motion to challenge the proceeding. See State v. Smith, 924 N.W.2d 846, 850–52 (Iowa 2019).

2 The supreme court has repeatedly followed Harrington and granted the same relief when the district court failed to engage in a proper colloquy. See Smith, 924 N.W.2d at 853; State v. Coleman, 907 N.W.2d 124, 148 (Iowa 2018); State v. Steiger, 903 N.W.2d 169, 170 (Iowa 2017) (per curiam); cf. State v. Brewster, 907 N.W.2d 489, 495 (Iowa 2018) (extending Harrington to stipulations of prior OWI convictions and granting the similar relief of remand for proper prior-conviction proceedings).

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Vivas tries to avoid this precedent by arguing that the State’s acquiescence to the district court’s reliance on Vivas’s defective admission rather than asking for a proper colloquy or trial means that “[i]t should not be given another opportunity on remand.” He thus contends that the remand should be limited to a resentencing without the habitual-offender enhancement. See Iowa Code § 902.9(1)(e) (setting a maximum five-year prison sentence for a class “D” felony without the enhancement). But we see nothing in Harrington or the other precedents applying the same remedy that suggests the appropriate remedy turns on whether the State also objected to the defective colloquy. See, e.g., Harrington, 893 N.W.2d at 40–41, 48. Nor is this a case where a different remedy may be appropriate because the defendant did not even purport to admit to the required prior conviction, see State v. Jensen, No. 22-0081, 2022 WL 17828830, at *1–3 (Iowa Ct. App. Dec. 21, 2022), or where the admitted convictions did not qualify under the habitual-offender statute, see State v. Gordon, 732 N.W.2d 41, 43–45 (Iowa 2007).3 Vivas’s arguments for a different remedy are thus unavailing.

And so, we vacate Vivas’s sentence and remand with directions for the district court to conduct further habitual-offender proceedings—either to accept Vivas’s admission that he is a habitual offender with the proper colloquy or to grant the parties a trial on the issue.

SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS.

3 Vivas claims he did not make even a defective admission to being a habitual offender. We do not claim to know what Vivas subjectively thought he was admitting to— after all, one of the purposes of the missing colloquy was to ensure that his admission was intelligent. See Harrington, 893 N.W.2d at 45–46. But objectively, the record shows that Vivas’s counsel initially told the court that he was admitting to being a habitual offender.