State v. Smothers

309 N.W.2d 506, 1981 Iowa Sup. LEXIS 1032
CourtSupreme Court of Iowa
DecidedAugust 26, 1981
Docket64308
StatusPublished
Cited by7 cases

This text of 309 N.W.2d 506 (State v. Smothers) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Smothers, 309 N.W.2d 506, 1981 Iowa Sup. LEXIS 1032 (iowa 1981).

Opinion

LARSON, Justice.

The defendant, David Max Smothers, was charged in a trial information with burglary in the second degree, §§ 713.1, 713.3, Code Supp.1977, and as a result of plea negotiations with the State, he entered a plea of guilty. He now appeals from the judgment entered on his plea, contending the trial court erred in failing to advise him he would thereby waive a jury trial and in failing to determine there was a factual basis for the plea, all as required by Iowa Rule of Criminal Procedure 8(2)(b). The issues presented are (1) whether the appeal may be prosecuted in view of Smother’s failure to file a motion in arrest of judgment, Iowa R.Crim.P. 23(3)(a), and (2) whether the record shows compliance with the guilty-plea requirements of rule 8(2)(b).

I. The requirement of a motion in arrest of judgment. Rule 23(3)(a) provides, in part: “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.” There is a concomitant duty on the trial court, however, to alert the defendant to the requirement:

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.

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

We have held that when a defendant is not advised, pursuant to rule 8(2)(d), of the necessity for filing the motion, it is not a prerequisite to appeal. E. g., State v. Smith, 300 N.W.2d 90, 91 (Iowa 1981); State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980). In this case, the trial court advised Smothers of the necessity of filing a motion in arrest of judgment, but appeared to limit it to a challenge based upon voluntariness, whereas his appeal is on other grounds. He argues this limited warning to him was, in effect, no warning at all, and that this case falls under the rule of Smith and Worley.

In addressing Smothers at the guilty-plea proceeding, the trial court stated:

I have the duty of informing you that if on appeal you should wish to raise some *508 question concerning the voluntariness of your plea, that is, the questions that you have been asked by the court here today in compliance with the requirements of the Brainard [v. State, 222 N.W.2d 711 Iowa] and Sisco standards, if you intend to raise that on appeal, you must within forty-five days from this date or within five days before judgment is pronounced file a motion in arrest of judgment and tell this court what they are, give the court an opportunity to direct further questions to you. If you do not file this motion in arrest of judgment as required by the rules, it’s this court’s understanding that you can no longer raise on appeal any question concerning the vol-untariness of your plea ....

It is true, as Smothers claims, that he was not informed of the necessity of filing an arrest-of-judgment motion as a prerequisite to appealing on grounds other than volun-tariness. While it would have been preferable to couch the admonition in the broader language of rule 8(2)(d), we need not decide whether the trial court’s failure to do so precludes this appeal, because it is without merit in any event.

II. Compliance with rule 8(2)(b). Procedures for accepting guilty pleas are set forth in rule 8(2)(b):

The court may refuse to accept a plea of guilty, and shall not accept such plea without first addressing the defendant personally and 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:
(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.

A. Waiver of right to trial. At the arraignment the trial court asked Smothers:

Do you understand that if you plead not guilty, you would be entitled to a speedy and public trial by jury?
The defendant: Yes sir. Yes sir.

Smothers contends that this question did not specifically advise him that “there will not be a further trial of any kind,” Iowa R.Crim.P. 8(2)(b)(4), if he entered a plea of guilty. He acknowledges, however, that the negative implication of the question “perhaps would constitute substantial compliance” with the rule, and concedes he was not misled by the court’s statement.

We have held that a trial court is not required to advise a defendant of his right to a jury trial in the exact language of rule 8(2)(b)(4) if the record shows he was advised of that right and was actually aware of it. State v. Killpack, 276 N.W.2d 368, 371 (Iowa 1979) Under analogous circumstances we have held that a trial court need not literally comply with statutory requirements relating to criminal procedure, only that it “substantially” or “materially” comply with them. See, e. g., State v. Paschal, 300 N.W.2d 115, 117-19 (Iowa 1981) (search warrant procedure, § 808.3, The Code 1977); State v. Worley, 297 N.W.2d 368, 371-72 (Iowa 1980) (guilty plea procedure, Iowa R.Crim.P. 8(2)(b)(l); State v. Fluhr, 287 N.W.2d 857, 862 (Iowa 1980) (guilty plea procedure, Iowa R.Crim.P. 8(2)(b)). Advising Smothers he would be entitled to a jury trial if he pled not guilty clearly implied the converse: that if he pled guilty he would not have a trial. We believe the trial court substantially complied with rule 8(2)(b)(4).

B. Factual basis. Smothers also complains that there was not a factual basis for the plea, Iowa R.Crim.P. 8(2)(b), since there was insufficient evidence of his intent to commit theft. He was charged with violating section 713.1, which provides: “Any person having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure . . .

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Bluebook (online)
309 N.W.2d 506, 1981 Iowa Sup. LEXIS 1032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smothers-iowa-1981.