IN THE SUPREME COURT OF IOWA
No. 15–0308
Filed April 7, 2017
STATE OF IOWA,
Appellee,
vs.
ANDRE LETROY ANTWAN HARRINGTON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Mary E.
Howes, Judge.
Appellant seeks further review of a court of appeals decision
affirming the district court’s imposition of sentence under an
enhancement for repeat offenders. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT REVERSED IN PART AND
CASE REMANDED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick and Kevin R.
Cmelik, Assistant Attorneys General, Michael J. Walton, County
Attorney, Amy DeVine, Assistant County Attorney, for appellee.
2
CADY, Chief Justice.
In this case, we consider the procedural protections available to a
defendant when the State seeks a sentencing enhancement under Iowa’s
habitual offender statute. The district court in this case did not inform
the defendant of certain constitutional and statutory rights associated
with accepting pleas of guilt before accepting his admission to the prior
convictions to support the habitual offender status. The court of appeals
found the defendant failed to preserve error by filing a motion in arrest of
judgment based on his claims of deficiencies in the proceedings. It also
concluded the district court did not abuse its discretion in refusing to
permit the admission to be withdrawn. Finally, the court of appeals
found that even if there were error, no prejudice resulted. On further
review, we vacate the decision of the court of appeals, reverse the district
court, and remand the case for a trial on the defendant’s habitual
offender status.
I. Factual Background and Proceedings.
Andre Letroy Antwan Harrington was arrested and charged with
the crime of robbery in the second degree. See Iowa Code § 711.1 (2013)
(“A person commits a robbery when, having the intent to commit a theft,
the person. . . [c]ommits an assault upon another.”); id. § 711.3 (“All
robbery which is not robbery in the first degree is robbery in the second
degree. Robbery in the second degree is a class “C” felony.”). 1 The State
also sought a “habitual offender” sentencing enhancement based on his
prior record. See id. § 902.8 (2013) (“An habitual offender is any person
1At the time, the legislature did not provide for robbery in the third degree. See
2016 Iowa Acts ch. 1104, § 4 (codified at Iowa Code § 711.3A(1)–(2) (2017)) (providing
for aggravated misdemeanor robbery if the person perpetrating the robbery commits
simple misdemeanor assault).
3
convicted of a class “C” or a class “D” felony, who has twice before been
convicted of any felony in a court of this or any other state, or of the
United States.”). Under the habitual offender statute, instead of a ten-
year sentence, Harrington faced a fifteen-year sentence. See id. §§ 902.8,
.9(3)–(4).
The minutes of testimony revealed the State planned to call
designees of the Scott County jail and Jasper County clerk of court to
testify Harrington was convicted of the crime of going armed with intent
in 2000 and the crime of possession of a controlled substance with intent
to deliver in 2009. The State also attached a report from the National
Crime Information Center identifying the two prior felony convictions.
The case proceeded to a jury trial on the charge of robbery in the
second degree. Harrington testified in his defense, and evidence of his
prior felony convictions was admitted during his testimony. The jury
returned a verdict of guilty. The district court proceeded to consider the
habitual offender sentencing enhancement.
Outside the presence of the jury, the district court asked
Harrington if he wanted to stipulate to the two prior felony convictions in
support of the habitual offender enhancement or if he wanted the issue
decided by the jury. Harrington acknowledged the two prior felony
convictions, but expressed his desire for the matter to be decided by the
jury. After a spirited colloquy, the district court accepted Harrington’s
admission to the prior felonies and concluded no jury determination was
needed because Harrington admitted to the prior convictions. During the
colloquy, Harrington was informed that his admission meant he was no
longer entitled to a trial.
4
The district court subsequently sentenced Harrington for the crime
of robbery in the second degree as a habitual offender. He was
sentenced to fifteen years in prison, with a mandatory minimum period
of incarceration of seventy percent before eligibility for parole.
Harrington appealed. He claimed the courtroom habitual offender
colloquy was deficient for two reasons. First, he claimed the colloquy
failed to show his admission to the prior offenses was made voluntarily
and intelligently. Second, he asserted the colloquy failed to identify
evidence to show he was represented by counsel or waived counsel in the
cases involving the prior convictions. Harrington also claimed the
district court should have construed his request during the colloquy for a
trial as a request to withdraw his admission, and it abused its discretion
in refusing the request.
We transferred the case to the court of appeals. The court of
appeals affirmed the judgment and sentence of the district court. It
found Harrington failed to preserve error concerning deficiencies in the
habitual offender colloquy by failing to file a motion in arrest of judgment
following the habitual offender hearing and by also failing to object to the
deficiencies at the time of the colloquy. The court of appeals also
concluded the district court did not abuse its discretion by failing to
allow Harrington to withdraw his admission to the prior felony
convictions after he expressed his desire for the jury to decide the matter.
We granted further review.
II. Standard of Review.
“Claims involving the interpretation of a statute or rule are usually
reviewed for errors at law.” State v. Kukowski, 704 N.W.2d 687, 690–91
(Iowa 2005); see also Iowa R. App. P. 6.907. However, to the extent our
5
review extends beyond the habitual offender statute and into claims
having a constitutional basis, our review is de novo. See Kukowski, 704
N.W.2d at 690.
III. Preservation of Error.
We first consider whether Harrington has preserved error for
appeal on his claims of deficiency in the habitual offender colloquy. He
failed to assert an objection to any deficiencies during the habitual
offender colloquy and did not file a motion in arrest of judgment prior to
sentencing.
A motion in arrest of judgment is an application by a defendant in
a criminal case that no judgment should be entered “on a finding, plea,
or verdict of guilty.” Iowa R. Crim. P. 2.24(3)(a). The rule serves as a
vehicle to bring a variety of claims before the court. See State v.
Oldfather, 306 N.W.2d 760, 762 (Iowa 1981). The motion is granted
when the whole record shows no legal judgment can be pronounced.
Iowa R. Crim. P. 2.24(3)(a). One type of claim identified by the rule that
must be raised in the motion is a challenge to the adequacy of a guilty
plea proceeding. Id. It is a claim that no judgment should be entered on
a “plea . . . of guilt[]” because deficiencies in the proceedings rendered
the plea involuntary. Id. The rule states, “A defendant’s failure to
challenge the adequacy of the guilty plea proceeding by a motion in
arrest of judgment shall preclude the defendant’s right to assert such a
challenge on appeal.” Id. Thus, the motion is both a procedural
mechanism to raise claims of error and an error preservation
requirement. The question is whether both components of the motion
are applicable to claims of error in habitual offender admission
proceedings.
6
We have repeatedly said that an admission by an offender to the
prior convictions to support sentencing as a habitual offender is
comparable to a plea of guilty to support sentencing for the crime
identified in the plea. Kukowski, 704 N.W.2d at 692; State v. Brady, 442
N.W.2d 57, 58 (Iowa 1989). An admission is comparable to a guilty plea
because both acknowledge facts that render the person amenable to
punishment by law. Additionally, the rights at stake in a habitual
offender proceeding are significant and “are often of the same magnitude
as in the case of a plea of guilty.” In re Yurko, 519 P.2d 561, 565 (Cal.
1974). If a defendant waives the right to a trial on the prior convictions,
he or she waives all the constitutional protections associated with the
trial, relieves the state of its burden of proof, and forecloses the
opportunity to appeal trial errors. See Wright v. Craven, 325 F. Supp.
1253, 1257 (N.D. Cal. 1971) (“The defendant who admits the priors
charged against him will be deemed to have waived nearly all rights later
to question their validity. But the harshness of this result is mitigated
by one, fragile principle: waiver must be a ‘knowing, intelligent act done
with sufficient awareness of the relevant circumstances and likely
consequences.’ ” (quoting Brady v. United States, 397 U.S. 742, 748, 90
S. Ct. 1463, 1469 (1970))). For these reasons, many other jurisdictions
also compare habitual offender admissions to guilty pleas. See, e.g.,
People v. Cross, 347 P.3d 1130, 1135 (Cal. 2015) (“The same
constitutional standards of voluntariness and intelligence apply when a
defendant forgoes a trial on a prior conviction allegation.”); State v.
Cheatham, 80 P.3d 349, 353–54 (Idaho Ct. App. 2003) (compiling cases
from “[s]everal federal courts of appeal [that] have held . . . where the law
of the prosecuting jurisdiction affords a defendant the right to a trial on
7
recidivist allegations, a trial court may not dispense with such a trial
without taking steps to ensure that the defendant himself is knowingly
and voluntarily admitting the prior convictions with an understanding
that he will thereby be subject to enhanced penalties,” and adopting the
same rule (footnote omitted) (citation omitted)). Consistent with
Kukowski and Brady, we conclude that a motion in arrest of judgment is
a proper vehicle to bring claims of deficiencies in a habitual offender
proceeding. Like claims of deficiencies in guilty plea proceedings, claims
in deficiencies in habitual offender proceedings are assertions that no
judgment and sentence can be pronounced. The remaining question is
whether the motion is also a requirement to preserve error for appellate
review of the claims of deficiencies.
It is not necessary for us to decide if a habitual offender admission
proceeding constitutes a “guilty plea proceeding” within the error-
preservation language of Iowa Rule of Criminal Procedure 2.24(3). Error
preservation is a fundamental principle of law with roots that extend to
the basic constitutional function of appellate courts. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); Thomas A. Mayes &
Anurahda Vaitheswaran, Error Preservation in Civil Appeals in Iowa:
Perspectives on Present Practice, 55 Drake L. Rev. 39, 43–45 (2006)
[hereinafter Mayes]. The doctrine has been developed over time by both
court rules and court decisions. Its purpose is to allow the district court
to correct error without the necessity of an appeal. See State v. Whorley,
297 N.W.2d 368, 370 (Iowa 1980). It also serves to create a record for
appellate review. See DeVoss v. State, 648 N.W.2d 58, 60 (Iowa 2002).
See generally Mayes, 55 Drake L. Rev. at 48–50.
8
We have applied the error preservation rule to a variety of motions
in the past. See DeVoss, 648 N.W.2d at 61. Having determined that
claims of deficiencies in a habitual offender proceeding are properly
raised by filing a motion in arrest of judgment, there is no reason not to
also apply the error preservation requirement. The purposes of the error
preservation rule would be served, just as they are by imposing the
requirement to preserve error for deficiencies in a guilty plea proceeding.
The error preservation requirement would lead to an orderly and prompt
process to dispose of claims of procedural error, just as for guilty-plea
claims. Accordingly, we hold that offenders in a habitual offender
proceeding must preserve error in any deficiencies in the proceeding by
filing a motion in arrest of judgment.
Notwithstanding, we only apply this rule of law prospectively. We
therefore excuse Harrington’s failure to preserve error by filing a motion
in arrest of judgment.
IV. Habitual Offender Colloquy.
We next consider the claims of deficiency in the habitual offender
colloquy. At the outset, we reject the claim by Harrington that the
district court abused its discretion in failing to allow him to withdraw his
admission to the prior convictions after he expressed his desire for a
hearing. The record fails to reveal Harrington requested to withdraw his
admission after the district court informed him that his admission
obviated the need for a hearing. Thus, because no request to withdraw
was made, we also do not address the State’s claim that no prejudice
resulted from any abuse of discretion. 2 We turn, therefore, to consider
2We observe that prejudice is part of an abuse-of-discretion claim. See
Kukowski, 704 N.W.2d at 693–94 (stating error based on an abuse of discretion results
in reversal only when the abuse is prejudicial). The question on appeal is not whether
Harrington suffered no prejudice because evidence existed to establish the prior
9
the claim by Harrington that the district court failed to engage in a
colloquy in the habitual offender proceeding to determine if the
admission to the prior convictions was made voluntarily and intelligently.
A. Background. “[R]ecidivism . . . is a traditional, if not the most
traditional, basis for a sentencing court’s increasing an offender’s
sentence.” Almendarez-Torres v. United States, 523 U.S. 224, 243, 118
S. Ct. 1219, 1230 (1998). In Iowa, the habitual offender process is
governed by statute. After two or more prior convictions of class “D” or
“C” felonies, the offender convicted of a subsequent felony is deemed a
habitual offender and subjected to a fifteen-year sentence with a
mandatory minimum period of incarceration of three years. See Iowa
Code §§ 902.8, .9(3).
While recidivist statutes have deep roots in our law, the procedural
protections observed today grew with time. Under early versions of the
Code, the state charged present and prior offenses in one indictment, a
single trial was held, and the jury entered a special verdict on the prior
offenses. See Iowa Code §§ 4871-a, -d (Supp. 1902). But this singular
procedure immediately informed the jury of the defendant’s prior
criminal record, even though such evidence would ordinarily be
inadmissible. See State v. Fisk, 248 Iowa 970, 973, 83 N.W.2d 581, 582
(1957) (“It may be that such proof tends to convince the jury that the
defendant is not an upright citizen, and so makes his conviction on the
primary charge more likely.”). The defendant could only avoid this result
by admitting the prior convictions ahead of trial. See State v. Griff, 257
________________________
convictions, but whether Harrington knowingly and voluntarily admitted the prior
convictions. See State v. Finney, 834 N.W.2d 46, 61 (Iowa 2013); see also Kukowski,
704 N.W.2d at 692 (noting the court must “ensure that the affirmation is voluntary and
intelligent”).
10
Iowa 852, 854, 135 N.W.2d 77, 78 (1965) (“[W]here the defendant admits
the prior convictions it is not proper or necessary to instruct thereon
. . . .”).
In 1965, the legislature addressed the problem by adopting a two-
stage trial procedure. See generally 1965 Iowa Acts ch. 444. Under the
two-stage procedure, the state files two informations, one that omits any
reference to previous convictions. See Iowa R. Crim. P. 2.6(5). The jury
is only read the information charging the present offense, and the trial is
confined to that offense. If this trial results in a guilty verdict, the court
then gives the offender an opportunity to affirm or deny the prior
convictions. See id. r. 2.19(9). If the offender denies he or she was the
person identified in the prior convictions, there is a second trial by jury
“on the issue of the offender’s identity with the person previously
convicted.” Id.
By 2002, the procedure was amended to reflect our caselaw giving
the offender the opportunity to affirm or deny not only identity, but “that
the offender was not represented by counsel and did not waive counsel”
in the prior convictions. Id. The offender is given this opportunity
because
[t]o permit a conviction obtained in violation of Gideon v.
Wainwright[, 372 U.S. 335, 83 S. Ct. 792 (1963),] to be used
against a person either to support guilt or enhance
punishment for another offense is to erode the principle of
that case.
State v. Cameron, 167 N.W.2d 689, 694 (Iowa 1969) (citation omitted)
(quoting Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 262 (1967)).
Aside from this change and various renumbering, the rules have
remained largely unchanged since 1965. See Iowa Rs. Crim. P. 2.6(5),
.19(9) (2017). The constant feature of these rules has been that the
11
defendant is entitled to a second trial on the prior convictions. See Iowa
Code § 785.16 (1966); Iowa R. Crim. P. 2.19(9). The State bears the
burden to establish the prior convictions beyond a reasonable doubt.
See State v. Long, 814 N.W.2d 572, 576 (Iowa 2012); see also State v.
Smith, 129 Iowa 709, 709, 106 N.W. 187, 189 (1908) (“Every fact
essential to the infliction of legal punishment upon a human being must
be proven beyond a reasonable doubt.”). The current rule reads,
Trial of questions involving prior convictions. After conviction
of the primary or current offense, but prior to
pronouncement of sentence, if the indictment or information
alleges one or more prior convictions which by the Code
subjects the offender to an increased sentence, 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. If the offender denies being the person
previously convicted, sentence shall be postponed for such
time as to permit a trial before a jury on the issue of the
offender’s identity with the person previously convicted.
Other objections shall be heard and determined by the court,
and these other objections shall be asserted prior to trial of
the substantive offense in the manner presented in rule
2.11. On the issue of identity, the court may in its discretion
reconvene the jury which heard the current offense or
dismiss that jury and submit the issue to another jury to be
later impaneled. If the offender is found by the jury to be the
person previously convicted, or if the offender acknowledged
being such person, the offender shall be sentenced as
prescribed in the Code.
Iowa R. Crim. P. 2.19(9).
B. The Colloquy. We that said that “[a]n affirmative response by
the defendant under the rule . . . does not necessarily serve as an
admission to support the imposition of an enhanced penalty as a
multiple offender.” Kukowski, 704 N.W.2d at 692. Instead, “[t]he court
has a duty to conduct a further inquiry, similar to the colloquy required
under rule 2.8(2), prior to sentencing to ensure that the affirmation is
12
voluntary and intelligent.” Id. Today, we take the opportunity to define
the scope of this inquiry further.
In Brady, we found “a defendant’s admission of prior felony
convictions which provide the predicate for sentencing as an habitual
offender [was] so closely analogous to a plea of guilty that it is
appropriate to refer to our rules governing guilty pleas,” at least to decide
the issue in that case. 442 N.W.2d at 58. In State v. Oetken, we found
“[t]he trial court discharged its duty to inform the defendant as to the
ramifications of an habitual offender adjudication,” when the defendant
was “fully cognizant of his rights, including those delineated under
[now-]rule [2.19(9)],” and “the possible implications with regard to the
sentencing of an habitual offender were discussed at length.” 613
N.W.2d 679, 688 (Iowa 2000). In Kukowski, we noted the court must
ensure “the affirmation is voluntary and intelligent.” 704 N.W.2d at 692.
Overall, our precedent reveals a broad, dual command in accepting
an admission or stipulation to the prior convictions: courts must ensure
that the admission is “voluntary and intelligent,” id., and that the
defendant understands “the ramifications of an habitual offender
adjudication,” Oetken, 613 N.W.2d at 688. Because our guilty plea rules
embrace these constitutional requirements, see State v. Loye, 670
N.W.2d 141, 150–51 (Iowa 2003), “it is appropriate to refer to our rules
governing guilty pleas” to give this command substance, Brady, 442
N.W.2d at 58. Thus, we rely on those rules to now identify the specific
areas that must be a part of a habitual offender colloquy to support an
admission. See Iowa R. Crim. P. 2.8(2)(b).
Courts may not accept a guilty plea without first determining it is
made voluntarily and intelligently and has a factual basis. Id. This
13
standard directs the court to provide information to the defendant and to
determine the information is understood. Id. The information and
understanding pertains to the nature of the charge, the mandatory
minimum or maximum punishment, the impact of federal immigration
laws, the rights associated with the trial, and the waiver of the right to
trial by pleading guilty. Id. The court must also inquire into any
promises or agreements that are a part of the plea and inform the
defendant that any challenge to the plea must be raised in a motion in
arrest of judgment. Id.
Generally, the voluntary-and-intelligent standard for admitting to
prior convictions in a habitual offender proceeding should follow the
same protocol. First, the court must inform the offender of the nature of
the habitual offender charge and, if admitted, that it will result in
sentencing as a habitual offender for having “twice before been convicted
of a felony.” See Iowa Code § 902.8 (2017). The court must inform the
offender that these prior felony convictions are only valid if obtained
when the offender was represented by counsel or knowingly and
voluntarily waived the right to counsel. See Iowa R. Crim. P. 2.19(9). As
a part of this process, the court must also make sure a factual basis
exists to support the admission to the prior convictions. See Iowa R.
Crim. P. 2.8(2)(b).
Second, the court must inform the offender of the maximum
possible punishment of the habitual offender enhancement, including
mandatory minimum punishment. Id. In the typical case, the court
must ensure the offender understands he or she will be sentenced to a
maximum sentence of fifteen years and that he or she must serve three
years of the sentence before being eligible for parole. See Iowa Code
14
§§ 902.8, .9(1)(c). If the offender faces a greater mandatory minimum
punishment or maximum possible punishment due to the present
offense charged, the court must inform the offender of the specific
sentence he or she will face by admitting the prior offenses. See In re
Yurko, 519 P.2d at 565 (noting an offender must be informed “of the
precise increase in the term or terms which might be imposed”); State v.
Ross, 729 N.W.2d 806, 812 (Iowa 2007) (“[T]he mandatory minimum
sentences prescribed in section 902.12 apply to habitual offenders.”).
Third, the court must inform the offender of the trial rights
enumerated in Iowa Rule of Criminal Procedure 2.8(2)(b)(4). For the
reasons discussed below, the right to a jury in the second trial only
pertains to the issue of identity. Any claim by the offender that he or she
was not represented by counsel and did not waive counsel in the prior
convictions is heard and decided by the district court. Although the
offender has no right to a jury trial on these issues, the other rights
associated with a trial are applicable at the hearing before the court.
Fourth, the court must inform the offender that no trial will take
place by admitting to the prior convictions. The court must also inform
the offender that the State is not required to prove the prior convictions
were entered with counsel if the offender does not first raise the claim.
Finally, we reiterate that the district court must inform the
offender that challenges to an admission based on defects in the habitual
offender proceedings must be raised in a motion in arrest of judgment.
The district court must further instruct that the failure to do so will
preclude the right to assert them on appeal. See Iowa R. Crim. P.
2.8(2)(d).
15
We find no constitutional necessity for the district court to inform
the offender of the effect of the admission on the offender’s status under
federal immigration law as required in a guilty plea proceeding. Cf. Iowa
R. Crim. P. 2.8(2)(b)(3). Habitual offender status is not an offense, but a
sentencing enhancement. State v. Woody, 613 N.W.2d 215, 217 (Iowa
2000). Generally, immigration consequences result from conviction of
the primary offense, not the length of the sentence. See generally
8 U.S.C. § 1227(a)(2)(A)–(F) (2012) (identifying “deportable aliens” based
on criminal conviction). In certain circumstances, immigration
consequences may follow criminal convictions only if the length of the
sentence is at least one year. See, e.g., 8 U.S.C. § 1101(a)(43)(F), (G), (J),
(P), (R) (defining aggravated felonies based on conviction of certain
offenses when accompanied by sentence of at least one year); id.
§ 1227(a)(2)(A)(i)(II) (requiring removal if sentence of one year
accompanies conviction of crime of moral turpitude). Yet the offender at
the habitual offender stage of trial has already been convicted in the first
stage of trial of an offense with a sentence of incarceration greater than
one year. See Iowa Code § 902.9(1)(a)–(e). Thus, any immigration
consequences would inevitably result from the primary offense, not the
sentencing enhancement. Therefore, an advisement from the court on
this point would be unnecessary in the habitual offender context.
In this case, the colloquy engaged in by the court failed to satisfy
the requirements we now establish for an offender to affirm or admit the
allegations the state is obligated to prove at the habitual offender
proceeding. First, the district court failed to advise Harrington that the
prior convictions needed to have been obtained when he was represented
by, or waived the right to, counsel. Second, the court failed to advise
16
Harrington during the colloquy that the habitual offender enhancement
would subject him to a seventy percent mandatory minimum on a
fifteen-year sentence. See Iowa Code §§ 902.9(1)(c), .12 (2013); State v.
Ross, 729 N.W.2d 806, 812 (Iowa 2007) (“[T]he mandatory minimum
sentences prescribed in section 902.12 apply to habitual offenders.”).
Second, the court did not fully advise Harrington of the right to a trial by
jury, the right to the assistance of counsel, the right to confront and
cross-examine witnesses, or the right against self-incrimination. See
Kukowski, 704 N.W.2d at 693 (declining to interpret rule 2.19(9) “in a
manner that could interfere” with a constitutional right). Third, the court
failed to fully advise Harrington that a trial would not be held by
admitting to the prior convictions. Collectively, these failures leave us
unable to conclude Harrington’s admission was knowingly and
voluntarily made.
C. The Second Trial. We have never fully explained the process
of this second trial to determine the habitual offender status. We do so
at this time to give context to the required colloquy.
Rule 2.19(9) provides that offenders must be given an “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.” Iowa R. Crim. P. 2.19(9). This initial step in the
proceeding is akin to an arraignment and plea. See id. r. 2.8(b). It alerts
the court to the course of proceedings to follow. Three paths may be
taken.
If the offender affirms that he or she is the person identified in the
prior conviction records and does not object on the basis that he or she
was not represented by counsel and did not waive counsel, the court
17
must engage in the colloquy to ensure the affirmation is voluntary and
intelligent, including an understanding of the rights associated with the
trial. If the offender denies being the person previously convicted, the
case proceeds to trial on the issue of the offender’s identity with the
person previously convicted. The second trial, therefore, only decides the
issue of identity, and the court decides “[o]ther objections” prior to that
trial “in the manner presented in rule 2.11.” Id. r. 2.19(9). The “[o]ther
objections” would include any objection that the prior convictions cannot
be used because the offender was not represented by counsel and did not
waive counsel. Id. Thus, if the offender admits he or she is the person
identified in the prior conviction records, but claims he or she was not
represented by counsel and did not waive counsel, then the assistance-
of-counsel issue is presented to the district court to resolve without a
jury.
This procedure is compatible with the burden-shifting approach we
adopted in Cameron, 167 N.W.2d at 694. In Cameron, we recognized the
state must establish the prior convictions were obtained in compliance
with Gideon, 372 U.S. at 344, 83 S. Ct. at 796. Id. Normally, the records
of the prior convictions supply the evidence needed for the court to
decide if the Gideon standard was met. But, “where the record is silent
as to whether an accused was furnished counsel at a critical stage,” the
accused must first “introduce[] evidence tending to show that he was not
in fact so represented,” and only then does the burden “shift[] to the state
to prove, by a fair preponderance of the evidence, that the accused was
represented.” Id. (quoting Losieau v. Sigler, 406 F.2d 795, 803 (8th Cir.
1969)); see also Parke v. Raley, 506 U.S. 20, 31, 113 S. Ct. 517, 524
(1992). Thus, if the prior conviction records state the defendant was not
represented by counsel and did not waive counsel, the State has the
18
burden to prove the offender was in fact represented by counsel or
waived counsel. If the records do not disclose if the defendant was
represented by counsel or waived counsel, or show the defendant was
represented or waived counsel, then the offender has the burden to
introduce some evidence to support the claim. The burden then shifts to
the State to show the offender was represented by counsel or
representation was waived. If the State fails to meet its burden of proof,
the prior convictions cannot be used to support the habitual offender
status.
V. Conclusion.
The procedural requirements imposed by this ruling today have
constitutional underpinnings, but they will also promote general fairness
in our trial process, help eliminate appeals by giving trial courts an
opportunity to correct error, and give greater understanding to offenders
faced with habitual offender claims.
We conclude Harrington did not knowingly and voluntarily admit
his prior convictions because he was not informed of his constitutional
rights and the consequences of his admission. We vacate the decision of
the court of appeals, reverse the judgment and sentence of the district
court, and remand the case to the district court for further proceedings
consistent with this opinion or, if Harrington denies the prior convictions
or their validity, for trial on whether he meets the requirements of a
habitual offender as defined in Iowa Code section 902.8. We affirm the
uncontested judgment of guilt on the present offense, second-degree
robbery.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED IN PART AND CASE REMANDED.
All justices concur except Mansfield and Waterman, JJ., who
dissent.
19
#15–0308, State v. Harrington
MANSFIELD, Justice (dissenting).
Although the court’s opinion offers a reasonable way to approach
the habitual offender enhancement colloquy in the future, it differs from
the approach required by our current rules and precedent. In addition,
the facts of this particular case do not warrant relief. Therefore, I would
affirm Harrington’s conviction under the enhancement. Any changes
should occur through amendments to Iowa Rule of Criminal
Procedure 2.19(9), with public notice and opportunity for comment.
Two points about the record should be noted. First, Harrington
was informed at the beginning of trial of the consequences of the
enhancement. A record was made then of the State’s plea offer: i.e., a
guilty plea to first-degree theft without an enhancement. The district
court thoroughly explained, and Harrington well understood, that if
convicted of second-degree robbery with the enhancement he would
receive fifteen years with a 70 percent minimum. As the court told him,
“70 percent of 15 years is a long time.” Harrington showed familiarity
with the workings of the enhancement as he participated in this
discussion and turned down the State’s proposed deal.
Second, Harrington took the stand at trial and admitted he had
two prior felonies, both on direct and on cross-examination. Thus, his
prior felony convictions were a matter of record before this case even got
to the rule 2.19(9) enhancement phase.
Rule 2.19(9) states that “[i]f the offender denies being the person
previously convicted,” there shall be a jury trial “on the issue of the
offender’s identity with the person previously convicted.” Iowa R. Crim.
P. 2.19(9). In the enhancement phase, Harrington did not deny being the
person previously convicted. Rather, he said he wanted the jury to
20
decide whether he was a habitual offender, something that rule 2.19(9)
does not provide:
THE COURT: All right. So you admit those are your
two felonies? THE DEFENDANT: Right.
MR. KELLY: You have given up your right to have a
hearing? THE DEFENDANT: No. I’m not giving up that
right.
THE COURT: Well, if you’re admitting those are your
two previous felonies -- What is the purpose of bringing the
jury back in for that? -- because you’re just admitting to
them. THE DEFENDANT: Because I want the jury to make
a decision whether or not --
THE COURT: You want the jury to make a decision,
but you’re not denying those are your convictions? This
doesn’t make any sense. THE DEFENDANT: I would rather
have the jury make a decision whether or not they find me
an habitual offender.
MS. DEVINE: Because one of the things -- I’ve only
actually proceeded with this one other time, but the Court
will ask the defendant in the presence of the jury, “Are you
the defendant that was convicted of this?” And he -- I mean,
he has to answer yes or no, and then, you would ask him,
“Are you the defendant who was convicted of this on” -- and
then, he would have to answer yes or no, and then, it
becomes a trial if he says no to both of them.
THE COURT: I see what you are saying. Yes, there’s
no -- Why would we have a trial because he is stipulating
those are his two offenses?, is what you are saying, Ms.
Devine? Right?
MS. DEVINE: Well, I mean, I guess, just for the
record, he would have to either say yes or no to both, and
then, we would proceed with the trial.
MR. KELLY: Your Honor, it’s been a long time since
I’ve done this. I don’t remember that the State can put Mr.
Harrington on the stand.
THE COURT: No. She is not saying in front of the
jury. She is just saying in terms of -- purposes of whether or
not we have to have a trial, which is like it’s an OWI III. You
say, “Do you have two previous convictions of OWI?”, and if
the guy says, “Yes,” that’s it. If he admits those are his two
felony convictions, we are not having a trial.
MS. DEVINE: He already admitted under oath he has
two previous felony convictions, and under 902.8 and 902.9,
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a person who has two felony convictions is an habitual
offender.
MR. KELLY: I understand my client has admitted the
accuracy of these two convictions.
THE COURT: Then we won’t have a trial on it.
MR. KELLY: What I am saying --
THE COURT: It’s a waste of time.
MR. KELLY: I don’t remember the actual procedure as
to whether we can avoid having the --
THE COURT: It’s only when he denies these are his
convictions. So, Mr. Harrington, do you admit that you were
convicted on March 5th, 2009, to the offense of Possession
with Intent to Deliver a Schedule I Controlled Substance, in
violation 124.401(1)(c) in FECR315494? I’ve got a certified
copy of it. So you admit that’s your conviction; yes or no? (A
discussion was held off the record with the defendant and
his attorney.)
THE COURT: Look. I don’t want to play games here,
you know. THE DEFENDANT: Yes.
THE COURT: Then, I have a certified copy in the Iowa
District Court for Jasper County, FECR006790, where you
were -- a certified copy of the Trial Information -- where you
entered a plea of guilty to Going Armed with Intent, in
violation of Section 708.8 and got a five-year prison
sentence, and so, it looks like, on June 12, 2000, in Jasper
County, and I think I already read the number, so is that
your conviction; yes or no? THE DEFENDANT: Yes.
THE COURT: It says, “Andre Letroy Antwan
Harrington.” Did you say yes? THE DEFENDANT: Yes.
That was my conviction. It was ran concurrent with my
time.
THE COURT: All right. Then there’s no reason to have
the habitual offender trial; right, Ms. Devine? There’s no
point in it because he is stipulating it.
MS. DEVINE: Right. I just wanted to pull up the case,
just to make sure of any case law on Westlaw, but that’s my
understanding, it’s only if he answers no to the Court’s
colloquy.
THE COURT: Yes, if he denies that it’s him.
MS. DEVINE: Right.
THE COURT: So he admits it, that these are both his
felony convictions, and he also admitted to the jury that he
had two felony convictions, so the purpose of having an
habitual offender trial doesn’t exist because the issue is
moot, so we are not going to have one, so go ahead and
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excuse the jury. Thank you. Okay. The jury is going to be
excused. (The jury was excused at this time.)
THE COURT: It would be a complete and total waste
of time to do anything else since he’s admitted his previous
criminal record. Sentencing will be January 22nd, 2015, at
2:30 p.m.
I find no fault with what the trial judge did here. The only issue to
be tried to a jury would be whether Harrington was the person previously
convicted of the two felonies, and Harrington admitted he was.
Rule 2.19(9) does not have the same bells and whistles as rule
2.8(2). For example, it does not mandate that the defendant be informed
of the mandatory minimum punishment, maximum possible
punishment, the right of trial by jury, or the necessity to file a timely
motion in arrest of judgment in order to challenge the plea. See id.
r. 2.8(2)(b)(2), (2)(b)(4), (2)(d).
There is good reason for these differences. A defendant often
pleads guilty as part of a risk–reward calculus to avoid the possibility of
more severe consequences if he or she goes to trial and is convicted. In
such cases, there is an open question whether the defendant is actually
guilty of the charge or charges to which he or she is pleading guilty, but
the defendant is concerned that things would end up worse if a jury finds
him or her guilty of all the charged offenses following a trial. There, it is
imperative that the defendant be fully informed of the adverse
consequences of pleading guilty and the rights he or she is giving up by
not going to trial.
But stipulating to the prior convictions in the enhancement phase
rarely if ever involves such a strategic choice. Usually, a defendant
admits the prior convictions because a trial would be a waste of time.
Thus, while the defendant should certainly be cognizant of what he or
23
she is doing, I question whether the colloquy needs to include all the
items identified by the majority in this case.
Rule 2.19(9) reflects the differences between the two proceedings.
Therefore, it does not require the defendant to be told of the right to a
jury trial on the prior convictions. After all, the defendant has just been
through a jury trial and should have a good understanding of what that
entails.
Nor does rule 2.19(9) require the defendant to be told of the right
to file a motion in arrest of judgment to challenge his stipulation to the
convictions. A timely motion in arrest of judgment is a way to challenge
a guilty plea after the fact, but proceedings to determine prior convictions
are subject to the normal rules of error preservation. In fact, objections
other than identity are supposed to be asserted before trial. See id.
r. 2.19(9) (“Other objections shall be heard and determined by the court,
and these other objections shall be asserted prior to trial of the
substantive offense in the manner presented in rule 2.11.”); see also
State v. Long, 814 N.W.2d 572, 574 (Iowa 2012) (“The rule also requires
that if the defendant has any other objections to the prior conviction
evidence, he must assert those objections prior to trial.”).
There is some logic to this as well. If a guilty plea is taken but
later set aside based upon a motion in arrest of judgment, no jury has
been dismissed because none was ever summoned. But if the defendant
is permitted to withdraw at a later date from a stipulation to prior
convictions, then it is necessary to start over with a new jury. This
should be avoided, so long as the process is fair to the defendant.
In State v. Kukowski, we held that a defendant’s admission of prior
convictions in the enhancement phase must be “voluntary and
intelligent,” and I have no quarrel with that proposition. See 704 N.W.2d
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687, 693 (Iowa 2005). Also, State v. Brady can be read as indicating that
the court has an obligation to inform the defendant of the punishment
resulting from the enhancements. See 442 N.W.2d 57, 58–59 (Iowa
1989).
My review of the record convinces me that Harrington made a
voluntary and intelligent admission of his prior felony convictions, not
just at the enhancement phase but when he testified at trial. Harrington
had considerable understanding of the criminal justice system and
actively participated with counsel and the court in various discussions
that took place outside the presence of the jury. The district court also
advised Harrington, albeit at the beginning of trial, of the effects of the
enhancement. See State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000)
(finding no error when “[t]he trial court discharged its duty to inform the
defendant as to the ramifications of an habitual offender adjudication”).
Furthermore, Kukowski held that an abuse of discretion standard
applied to a defendant’s attempt to withdraw an admission of prior
convictions. See 704 N.W.2d at 693. We said that reversal was required
only when the abuse of discretion was prejudicial. See id. at 693–94. In
finding prejudice in that case, we observed, “If the court had accepted
defense counsel’s earlier denial of the prior convictions, then there would
have been no other evidence before the court to support the prior
conviction at issue.” Id. at 694. The present case is different, because
Harrington had already admitted his convictions during the principal
trial. If Kukowski remains the law, then I think affirmance is required
here.
Again, I do not dispute that the majority’s approach may have
merit going forward. But given the current state of the law and the
record in this case, I would affirm the proceedings below including the
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thoughtful decision of the court of appeals. We should look to
rulemaking for any needed amendments to rule 2.19(9).
Waterman, J., joins this dissent.