IN THE COURT OF APPEALS OF IOWA
No. 15-1630
Filed October 26, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHNNIE RAY STEIGER,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Douglas C.
McDonald (trial and plea) and Christine Dalton Ploof (sentencing), District
Associate Judges.
Johnnie Steiger appeals two judgments for indecent exposure.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.
Johnnie Steiger appeals two judgments for indecent exposure (third or
subsequent offense). The first was entered following a bench trial. At the
conclusion of trial, Steiger stipulated to two prior convictions for sentencing
enhancement purposes. The second judgment was entered in connection with a
guilty plea. At the end of the guilty-plea proceeding, Steiger acknowledged his
stipulation to the prior convictions.
On appeal, Steiger contends the district court (I) “failed to engage in a
sufficient colloquy” about his stipulation to prior convictions in the first case and
(II) failed to engage in a sufficient guilty plea colloquy in the second case.
I. Colloquy on Stipulation to Prior Convictions
Where the State alleges an offender has one or more prior convictions
that may subject the offender to an increased sentence, Iowa Rule of Criminal
Procedure 2.19(9) authorizes a second proceeding, “[a]fter conviction of the
primary or current offense,” in which “the offender shall have the opportunity in
open court to affirm or deny that the offender is the person previously convicted,
or that the offender was not represented by counsel and did not waive counsel.”
“The court has a duty to conduct a further inquiry, similar to the [guilty plea]
colloquy required under rule 2.8(2), prior to sentencing to ensure that the
affirmation is voluntary and intelligent.” State v. Kukowski, 704 N.W.2d 687, 692
(Iowa 2005). Steiger challenges the district court’s compliance with the
obligation to conduct a rule 2.19(9) colloquy but preliminarily addresses the
question of whether he preserved error.
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Steiger concedes he “did not file any motion in arrest of judgment
challenging his stipulation to the prior offenses.” In his view, “such failure does
not preclude a challenge to his stipulation on direct appeal because the district
court failed to advise [him] either (1) of the right to challenge defects in his
stipulation by filing a motion in arrest of judgment, or (2) that the failure to file a
motion in arrest of judgment would preclude him from challenging his stipulation
on appeal as required under rule 2.8(2)(d).” The State responds that “a
stipulation to prior convictions is not a guilty plea” and “the rule governing the
defendant’s admission of prior convictions does not mention a requirement to file
a motion in arrest of judgment” but “recognizes that the defendant must make
some objections prior to or at the time of trial.”
This court recently addressed the identical error preservation issue in
State v. Harrington, No. 15-0308, 2016 WL 3556375, at *3 (Iowa Ct. App. June
29, 2016). There, as here, the defendant stipulated to his prior convictions and
did not object to the sufficiency of the district court’s rule 2.19(9) colloquy. See
Harrington, 2016 WL 3556375, at *1-2. And there, as here, the defendant
argued that this court could nonetheless review the sufficiency of the colloquy
because the district court failed to advise him of his ability to challenge the
colloquy by filing a motion in arrest of judgment. We stated, although
a motion in arrest of judgment would have been an appropriate
vehicle to challenge the enhancement proceedings in this case . . .
the availability of that remedy [did] not mandate the district court
provide a warning . . . that a failure to file a motion in arrest of
judgment precludes the right to assert a challenge on appeal of a
defect.
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Id. at *3. Because the defendant did not alternatively raise the sufficiency of the
rule 2.19(9) colloquy under an ineffective-assistance-of-counsel rubric, we
concluded error was not preserved. See id.; cf. State v. Peterson, 11-1409, 2012
WL 3860730, at *4 (Iowa Ct. App. Sept. 6, 2012) (determining “the court’s notice
for the requirement to file a motion in arrest of judgment was insufficient” and
deciding the issue on direct appeal where “the admissions at issue were made in
conjunction with the guilty plea proceedings”).
We find the reasoning of Harrington persuasive. Steiger had an obligation
to object to the sufficiency of the rule 2.19(9) colloquy either by way of a motion
in arrest of judgment or otherwise in order to preserve the issue for appeal. The
district court’s failure to advise him of the right to challenge the defects via a
motion in arrest of judgment as well as the consequences of failing to file a
motion did not obviate his obligation to object. Because Steiger failed to object
and did not alternatively raise the issue as an ineffective-assistance-of-counsel
claim, we conclude error was not preserved and we decline to address the
sufficiency of the colloquy. We affirm the judgment and sentence for indecent
exposure (third or subsequent offense) in the case involving the bench trial
(SRCR369368).
II. Guilty Plea Colloquy
Steiger next challenges the sufficiency of the guilty plea colloquy in the
second case. See Iowa R. Crim. P. 2.8(2)(b) (requiring the court to inform the
defendant of various matters in a guilty plea proceeding). The State concedes
error was preserved and concedes the guilty plea colloquy was insufficient.
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We conclude the colloquy was inadequate. We reverse the judgment and
sentence in the guilty plea proceeding (SRCR369403) and remand for further
proceedings to allow Steiger to plead anew.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.