IN THE COURT OF APPEALS OF IOWA
No. 16-1112
Filed May 3, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JASON GENE WEITZEL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Peter B. Newell,
District Associate Judge.
A defendant seeks to vacate his guilty pleas due to the district court’s
failure to conduct a plea colloquy in compliance with Iowa Rule of Criminal
Procedure 2.8(2)(b)(2). CONVICTIONS AND SENTENCES VACATED AND
REMANDED.
David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles
City, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee.
Considered En Banc.
2
MCDONALD, Judge.
In State v. Fisher, 877 N.W.2d 676, 686 n.6 (Iowa 2016), the supreme
court held actual compliance with Iowa Rule of Criminal Procedure 2.8(2)(b)
required the district court to disclose to the defendant during a plea proceeding
“all applicable chapter 911 surcharges” related to the offenses to which the
defendant pleaded guilty. Fisher left unresolved the question of whether the
district court’s failure to disclose to the defendant all applicable chapter 911
surcharges, standing alone, would mean the guilty plea proceeding failed to
substantially comply with Rule 2.8(2)(b)(2). See 676 N.W.2d at 686 n.6. This
appeal directly presents the question left unresolved in Fisher.
I.
Jason Weitzel pleaded guilty to and was convicted of domestic-abuse
assault, in violation of Iowa Code section 708.2A(5) (2016); possession of
methamphetamine, second offense, in violation of section 124.401(5); carrying
weapons, in violation of section 724.4(1); and operating while intoxicated (OWI),
first offense, in violation of section 321J.2. The underlying offense conduct is
immaterial to the question presented, and we need not discuss it. The only
material facts relate to the plea colloquy, and on this we focus our attention.
Weitzel was represented by counsel during the plea proceeding. During
the plea proceeding, the district court informed Weitzel of the minimum and
maximum fines applicable to each offense. The district court also determined
Weitzel understood the minimum and maximum fines applicable to each offense.
The district court did not inform Weitzel of the criminal surcharge penalty
applicable to each offense. Iowa Code section 911.1(1) provides a “criminal
3
penalty surcharge shall be levied against law violators as provided in this
section.” The “additional penalty” shall be “in the form of a criminal penalty
surcharge equal to thirty-five percent of the fine . . . imposed.” Iowa Code
§ 911.1(1). Where, as here, the defendant is convicted of multiple offenses, “the
surcharge shall be based upon the total amount of fines or forfeitures imposed
for all offenses.” Iowa Code § 911.1(2). The district court also did not determine
whether Weitzel understood he would be subject to an “additional penalty” as set
forth in code section 911.1.
II.
On appeal, Weitzel seeks to vacate his convictions on the ground the plea
proceeding was inadequate. Weitzel did not file a motion in arrest of judgment to
challenge the adequacy of the plea proceeding. Typically, “[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)(a). This procedural bar is inapplicable,
however, where the district failed to comply with Rule 2.8(2)(d) and inform the
defendant of the need to file a motion in arrest of judgment to challenge the
adequacy of the plea proceeding and the consequences for failing to file a motion
in arrest of judgment. See Iowa R. Crim. P. 2.8(2)(d) (“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.”);
State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980) (holding defendant should not
“suffer the sanction of rule [2.24(3)(a)] unless the court has complied with rule
4
[2.8(2)(d)] during the plea proceedings by telling the defendant that he must raise
challenges to the plea proceeding in a motion in arrest of judgment and that
failure to do so precludes challenging the proceeding on appeal”).
We conclude Weitzel is not barred from challenging the adequacy of his
plea proceeding on direct appeal. The State concedes the district court did not
advise the defendant as required by Rule 2.8(2)(d). Relying on State v. Oldham,
515 N.W.2d 44, 47 (Iowa 1994), the State contends the district court nonetheless
substantially complied with Rule 2.8(2)(d) because the required advisory was
contained in a change of plea form filed after the district court accepted the
defendant’s guilty plea. See 515 N.W.2d at 47 (holding the district court
substantially complied with Rule 2.8(2)(d) where the defendant signed a form
containing the required advisory and was asked during the plea colloquy whether
he read and understood the form). Oldham is inapplicable here. There is
nothing in the record to establish Weitzel was given the form, read the form, or
understood the form prior to pleading guilty. On this record, we cannot conclude
the district court substantially complied with Rule 2.8(2)(d). See Fisher, 877
N.W.2d at 682 (finding because advisory was deficient, defendant was not
precluded from directly challenging guilty plea on appeal). Accordingly, Weitzel
may directly challenge his guilty plea on appeal.
III.
We begin by clarifying the nature of the claim presented. Due process
requires a guilty plea be voluntary. See State v. Loye, 670 N.W.2d 141, 150
(Iowa 2003). “To be truly voluntary, the plea must not only be free from
compulsion, but must also be knowing and intelligent.” Id. at 151. Due process
5
requires the defendant to have an understanding of “the constitutional protections
that he gives up by pleading guilty, . . . ‘the nature of the crime with which he is
charged,’ and the potential penalties.” Id. (citation omitted).
Iowa Rule of Criminal Procedure 2.8(2)(b), like Federal Rule of Civil
Procedure 11, is a prophylactic rule designed to protect the constitutional right to
due process during plea proceedings. See United States v. Adams, No. 98-
2067, 1999 WL 1253080, at *2 (6th Cir. 1999) (“The federal courts have enforced
the provisions of Rule 11 as a prophylactic measure against such due process
violations.”); United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997) (“To this
end, Rule 11 has a predominantly prophylactic purpose.”).
In McCarthy v. United States, 394 U.S. 459 (1969), the Supreme Court
explained the prophylactic purpose of the parallel federal rule of criminal
procedure:
First, although the procedure embodied in Rule 11 has not been
held to be constitutionally mandated, it is designed to assist the
district judge in making the constitutionally required determination
that a defendant’s guilty plea is truly voluntary. Second, the Rule
is intended to produce a complete record at the time the plea is
entered of the factors relevant to this voluntariness determination.
Thus, the more meticulously the Rule is adhered to, the more it
tends to discourage, or at least to enable more expeditious
disposition of, the numerous and often frivolous post-conviction
attacks on the constitutional validity of guilty pleas.
....
These two purposes have their genesis in the nature of a
guilty plea. A defendant who enters such a plea simultaneously
waives several constitutional rights, including his privilege against
compulsory self-incrimination, his right to trial by jury, and his right
to confront his accusers. For this waiver to be valid under the Due
Process Clause, it must be “an intentional relinquishment or
abandonment of a known right or privilege.” Consequently, if a
defendant’s guilty plea is not equally voluntary and knowing, it has
been obtained in violation of due process and is therefore void.
....
6
To the extent that the district judge thus exposes the
defendant’s state of mind on the record through personal
interrogation, he not only facilitates his own determination of a
guilty plea’s voluntariness, but he also facilitates that determination
in any subsequent post-conviction proceeding based upon a claim
that the plea was involuntary. Both of these goals are undermined
in proportion to the degree the district judge resorts to
“assumptions” not based upon recorded responses to his inquiries.
For this reason, we reject the Government’s contention that Rule
11 can be complied with although the district judge does not
personally inquire whether the defendant understood the nature of
the charge.
McCarthy, 394 U.S. at 465–67. The same considerations inform our
understanding of the purposes of Rule 2.8(2)(b).
Although due process concepts are protected by the rule, a due process
challenge to a guilty plea is separate and distinct from a rule-based challenge to
the adequacy of a plea proceeding. A due process claim challenges whether the
guilty plea was actually voluntarily, knowingly, and intelligently made. See State
v. Finney, 834 N.W.2d 46, 58 (Iowa 2013) (explaining the difference between a
due process challenge to a guilty plea and a challenge to the adequacy of the
plea proceeding). The object of the inquiry is the defendant’s subjective
understanding of the plea proceeding. Id. This requires the “court to delve into
the accused’s state of mind.” Id. In contrast, a challenge to the adequacy of the
plea proceeding as required by Rule 2.8(2)(b) is an objective inquiry. The claim
turns on the conduct of the district court and whether the “record shows that the
trial court explained or referred to the [required information] in a manner
reasonably intelligible to that defendant.” State v. Ballard, 423 N.E.2d 115, 120
(Ohio 1981).
7
Because the claims are separate and distinct, it is entirely possible a guilty
plea will be voluntarily, knowingly, and intelligently made although not in
compliance with Rule 2.8(2)(b). For example, the district court might wholly fail
to advise the defendant of the minimum and maximum prison sentences.
Undoubtedly, the plea proceeding would not substantially comply with Rule
2.8(2)(b). However, the record might show the defendant’s counsel advised the
defendant of the sentences off the record prior to the plea proceeding. See, e.g.,
Loye, 670 N.W.2d at 154 (vacating convictions where defense counsel told the
defendant of the penal consequences but the district court failed to comply with
Rule 2.8(2)(b)). Similarly, a guilty plea colloquy might fully comply with Rule
2.8(2)(b), but the plea might nonetheless fail to comport with due process. For
example, the record might reveal the defendant was under the influence of
medications that interfered with the defendant’s ability to understand the
proceedings or the record might reveal the defendant was given materially bad
legal counsel. See, e.g., State v. Holden, No. 16-0322, 2016 WL 7404615, at *3
(Iowa Ct. App. Dec. 21, 2016) (“Ultimately, counsel's failures undermined
Holden’s ability to understand the potential sentences he faced. While the district
court explained the options plainly, Holden's understanding was warped by his
counsel's incorrect advice. Based on that incorrect advice and the resulting
misinformation provided to Holden, we find Holden’s plea was not knowing and
intelligent.”).
With that background, the questions material to the resolution of the issue
presented in this case are what is the specific claim asserted; and what relief, if
8
any, is the defendant entitled to receive upon establishing the claim. We now
turn to these questions.
IV.
A.
The claim presented in this appeal is a rule-based claim. Specifically,
whether the guilty plea proceeding complied with Rule 2.8(2)(b). As relevant
here, the rule provides:
The court may refuse to accept a plea of guilty, and shall not
accept a plea of guilty without first 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:
....
(2) The mandatory minimum punishment, if any, and the maximum
possible punishment provided by the statute defining the offense to
which the plea is offered.
Although actual compliance with the rule is preferred, substantial
compliance is acceptable. The substantial compliance standard focuses on the
conduct of the district court during the plea proceeding. The objective is fixed,
but its application is flexible. We ask whether the record establishes the district
court conveyed the required information to the defendant such that it could be
said the defendant understood the information. See State v. Meron, 675 N.W.2d
537, 544 (Iowa 2004) (“Substantial compliance requires that the essence of each
requirement of the rule be expressed to allow the court to perform its important
role in each case.”); see also Ballard, 423 N.E.2d at 120 (“Rather, the focus,
upon review, is whether the record shows that the trial court explained or referred
to the right in a manner reasonably intelligible to that defendant.”).
9
At least two of our cases have applied some sort of harmless error or
material inducement standard to determine whether the plea colloquy was in
substantial compliance with the Rule 2.8(2)(b). In State v. Howell, No. 07-1179,
2008 WL 783760, at *1 (Iowa Ct. App. Mar. 26, 2008), this court declined to grant
relief on a claimed rule violation. The case was resolved on error preservation
grounds. However, in dicta, the court stated the district court’s provision of
incorrect information regarding the fines substantially complied with the rule
because the error was harmless. See Howell, 2008 WL 783760, at *2. In State
v. Peterson, No. 11-1409, 2012 WL 3860730, at *1 (Iowa Ct. App. Sept. 6, 2012),
we denied a defendant’s challenge to his guilty plea where the district court failed
to disclose the minimum fine, concluding there was substantial compliance
because failure to disclose was not a material inducement to plead guilty. See
Peterson, 2012 WL 3860730, at *3.
To the extent either Howell or Peterson could be interpreted to mean the
district court substantially complied with Rule 2.8(2)(b) because the information
was not a material inducement to the plea or was otherwise harmless, we
disavow them. The cases confuse the rule and the remedy. See McCarthy, 394
U.S. at 468 (separating the issue of whether there was compliance with Federal
Rule of Criminal Procedure 11 from the issue of the remedy for the failure to
comply with Rule 11). We use a non-criminal case for illustrative purposes. If a
home purchaser brought a misrepresentation suit against a home seller for
failure to disclose a leaky basement, we would not say the home seller made an
adequate disclosure because, after the fact, the evidence showed the condition
of the basement was not actually a material inducement in purchasing the home.
10
Instead, we would say there was a failure to disclose but, perhaps, there was no
remedy for the purchaser on the facts presented. The same concepts apply
here. Substantial compliance focuses on whether the seller (the district court)
adequately disclosed the leaky basement (Rule 2.8(2)(b) information). Whether
the failure to disclose the required information induced action or was otherwise
harmless is a question of remedies.
To the extent the dissent contends there was substantial compliance
because the district court’s omission of information was not a material
inducement to the plea or was otherwise harmless, the dissent perpetuates the
analytical error in Howell and Peterson. The dissent’s reliance on federal
precedent in support of its argument exposes the error. As noted above,
McCarthy drew a distinction between the question of whether the district court
complied with the federal rule and whether there should be a remedy for the
failure to comply with the federal rule. At the time McCarthy was decided, the
Federal Rules of Criminal Procedure already contained a harmless-error
provision. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.”). Post McCarthy, a
similar harmless error rule was inserted into Federal Rule 11 to clarify the
harmless error rule applied to guilty plea proceedings. The text of the federal
rule provides there shall be no remedy for the district court’s failure to conduct a
compliant plea colloquy if the error “does not affect substantial rights.” Fed. R.
Civ. P. 11(h) (emphasis added). The dissent interchangeably uses the terms
“substantial compliance,” “substantial rights,” and “substantial error.” However,
the terms do not refer to the same concepts. The federal focus is on the
11
“substantial rights” of the defendant, i.e., whether the error caused harm to the
defendant. See United States v. Lane, 474 U.S. 438, 449 (1986) (stating the
harmless-error rule focuses on whether the error affected the defendant’s
substantial rights); United States v. Shacklett, 921 F.2d 580, 582 (5th Cir. 1991)
(stating “this court will evaluate such failure to comply with Rule 11 under a
harmless error analysis that focuses on whether the defendant’s substantive
rights were affected”). Our focus, for the purpose of determining “substantial
compliance,” is on the conduct of the district court. See State v. Smothers, 309
N.W.2d 506, 508 (Iowa 1981) (stating substantial compliance focuses on whether
the district court used language sufficient to inform the defendant of the required
information). The federal harmless-error cases do not address the question of
“substantial compliance” within the meaning of our law.
When we turn our focus to the conduct of the district court, in light of the
broad, prophylactic nature of the rule, we cannot conclude the district court
substantially complied with Rule 2.8(2)(b). The rule requires the district court to
perform two separate and distinct tasks “before accepting a plea of guilty.” First,
the district court must inform the defendant of the information set forth in the rule,
which includes punishments. See Loye, 670 N.W.2d at 154 (stating district court
did not substantially comply with Rule 2.8(2)(b) because the district court did not
inform defendant of maximum possible punishments). As applicable here, Fisher
held the criminal penalty surcharge set forth in chapter 911 was a “punishment”
within the meaning of Rule 2.8(2)(b). 877 N.W.2d at 685–86. The Fisher court
further held that actual compliance with the rule required the additional criminal
penalty be disclosed during the guilty plea proceeding. It cannot follow that the
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district court’s failure to communicate any information regarding the “additional
penalty” is substantial compliance with the rule. See Meron, 675 N.W.2d at 542
(“In this case, the substantial compliance standard was not satisfied. A number
of the requirements of the rule were totally ignored.”). Second, the rule also
provides the district court “must” determine the defendant understands the
information communicated. See Loye, 670 N.W.2d at 154. In this case, because
the district court failed to mention the applicable additional criminal penalty
imposed by chapter 911, it necessarily follows the district court could not and did
not make an independent determination the defendant understood there would
be an additional penalty.
The dissent seems to contend the district court’s disclosure of information
regarding the fines associated with each offense provided enough information to
the defendant regarding the financial consequences of the plea, generally, to
satisfy the substantial compliance standard. The dissent states, “What needs to
be communicated is how much money the defendant may owe to the
government as a result of pleading guilty.” The contention fails for several
reasons. First, Fisher specifically required disclosure of the applicable chapter
911 surcharges independent of information regarding the fines. 877 N.W.2d at
685. To the extent one could conclude the wholesale failure to mention the
additional criminal penalty could constitute substantial compliance with the Rule
2.8(2)(b), one would necessarily have to ask why we would require the district
court to disclose the additional penalty at all. Second, treating the fines and
surcharges as a single penalty is inappropriate. The surcharge is a separate and
distinct “additional penalty.” Iowa Code § 911.1. Our cases require substantial
13
compliance in identifying each piece of information required to be relayed by the
rule. See Meron, 675 N.W.2d at 542. Third, even assuming the information
regarding the fines and penalties should be considered a single financial penalty,
the district court still did not substantially comply with the rule. The failure to
disclose the surcharge means the district court did not tell Weitzel, in the
dissent’s terms, “how much money the defendant may owe to the government as
a result of pleading guilty.” See Fisher, 877 N.W.2d at 686 (noting the failure to
disclose the surcharge means the minimum financial punishment was
undisclosed). Indeed, the district court understated the maximum and minimum
financial penalty by thirty-five percent. To the extent our cases continue to hold
financial penalties are material to a guilty plea proceeding and must be disclosed
pursuant to Rule 2.8(2)(b), the failure to disclose thirty-five percent more in
additional financial penalties is a material consequence. Fourth, this court has
previously rejected the argument that disclosure of information regarding fines
only is equivalent to providing information regarding the additional criminal
penalty surcharge:
The State concedes “Hoxsey was not specifically informed
the surcharge amount could be thirty-five percent of the fine
imposed” but asks the court to “find substantial compliance based
on the plea form’s general reference to costs and surcharge.” We
are not persuaded the general reference to surcharges amounted
to substantial compliance. The court was obligated to inform
Hoxsey of the minimum fine. The plea form identified the number
as $625. This was not the minimum fine. With the thirty-five-
percent surcharge, the minimum fine would have been $843.75.
State v. Hoxsey, No. 16-1043, 2017 WL 510983, at *1 (Iowa Ct. App. Feb. 8,
2017) (citations omitted).
14
In sum, we conclude the district court failed to substantially comply with
Iowa Rule of Criminal Procedure 2.8(2)(b) by failing to inform the defendant of
the applicable additional criminal penalties to be imposed pursuant to chapter
911 and by failing to determine the defendant understood the same.
B.
Our conclusion the plea proceeding in this case failed to substantially
comply with Rule 2.8(2)(b) does not end our inquiry. As noted above, we must
also address the issue of remedy. The most persuasive discussion of what
remedy should be adopted for a violation of Rule 2.8(2)(b) is set forth in
McCarthy:
Having decided that the Rule has not been complied with,
we must also determine the effect of that noncompliance an issue
that has engendered a sharp difference of opinion among the
courts of appeals. In Heiden v. United States, 353 F.2d 53 (1965),
the Court of Appeals for the Ninth Circuit held that when the district
court does not comply fully with Rule 11 the defendant’s guilty plea
must be set aside and his case remanded for another hearing at
which he may plead anew. Other courts of appeals, however,
have consistently rejected this holding, either expressly or tacitly.
We are persuaded that the Court of Appeals for the Ninth
Circuit has adopted the better rule. From the defendant’s
perspective, the efficacy of shifting the burden of proof to the
Government at a later voluntariness hearing is questionable. In
meeting its burden, the Government will undoubtedly rely upon the
defendant’s statement that he desired to plead guilty and
frequently a statement that the plea was not induced by any
threats or promises. This prima facie case for voluntariness is
likely to be treated as irrebuttable in cases such as this one, where
the defendant’s reply is limited to his own plaintive allegations that
he did not understand the nature of the charge and therefore failed
to assert a valid defense or to limit his guilty plea only to a lesser
included offense. No matter how true these allegations may be,
rarely, if ever, can a defendant corroborate them in a post-plea
voluntariness hearing.
Rule 11 is designed to eliminate any need to resort to a later
fact-finding proceeding “in this highly subjective area.” The Rule
contemplates that disputes as to the understanding of the
15
defendant and the voluntariness of his action are to be eliminated
at the outset. As the Court of Appeals for the Sixth Circuit
explained in discussing what it termed the “persuasive rationale” of
Heiden: “When the ascertainment is subsequently made, greater
uncertainty is bound to exist since in the resolution of disputed
contentions problems of credibility and of reliability of memory
cannot be avoided. There is no adequate substitute for
demonstrating in the record at the time the plea is entered the
defendant’s understanding of the nature of the charge against him.”
....
On the other hand, had the District Court scrupulously
complied with Rule 11, there would be no need for such
speculation. At the time the plea was entered, petitioner’s own
replies to the court’s inquiries might well have attested to his
understanding of the essential elements of the crime charged,
including the requirement of specific intent, and to his knowledge
of the acts which formed the basis for the charge. Otherwise, it
would be apparent to the court that the plea could not be
accepted. Similarly, it follows that, if the record had been
developed properly, and if it demonstrated that petitioner entered
his plea freely and intelligently, his subsequent references to
neglect and inadvertence could have been summarily dismissed
as nothing more than overzealous supplications for leniency.
We thus conclude that prejudice inheres in a failure to
comply with Rule 11, for noncompliance deprives the defendant of
the Rule’s procedural safeguards that are designed to facilitate a
more accurate determination of the voluntariness of his plea. Our
holding that a defendant whose plea has been accepted in
violation of Rule 11 should be afforded the opportunity to plead
anew not only will insure that every accused is afforded those
procedural safeguards, but also will help reduce the great waste of
judicial resources required to process the frivolous attacks on
guilty plea convictions that are encouraged, and are more difficult
to dispose of, when the original record is inadequate. It is,
therefore, not too much to require that, before sentencing
defendants to years of imprisonment, district judges take the few
minutes necessary to inform them of their rights and to determine
whether they understand the action they are taking.
McCarthy, 394 U.S. at 468–72. McCarthy is not controlling for two reasons.
First, it was an interpretation of the Federal Rule 11. Second, McCarthy was
superseded by the adoption of the harmless-error rule. See Fed. R. Crim. P.
11(h). We thus explore the issue of remedy further.
16
Peterson and Howell could be interpreted to adopt a material-inducement
or harmless-error standard with respect to the question of remedy. However,
Peterson and Howell fail to distinguish between a due process claim—which
focuses on the defendant’s subjective understanding and whether the plea was
actually voluntarily, knowingly, and intelligently made—and a rule-based claim—
which focuses on the adequacy of the plea colloquy. In blurring that line, the
cases rely on Stovall v. State, 340 N.W.2d 265, 267 (Iowa 1983), and State v.
West, 326 N.W.2d 316, 317 (Iowa 1982). In Stovall, the district court provided
incorrect information to the defendant regarding parole eligibility. This was
information the district court was not required to provide pursuant to Rule
2.8(2)(b). In resolving the issue of whether the plea was voluntarily and
intelligently made where the district court provided misinformation regarding
matters not covered by the rule, the court applied a material-inducement
standard. Similarly, in State v. West, the court again addressed the due process
standard when the district court provided incorrect information the district court
was not required by rule to provide to the defendant. See West, 326 N.W.2d at
317 (“It was not necessary for the court to inform him he was ineligible for
deferred judgment or probation, but the voluntary and intelligent nature of the
plea would be affected by any misstatement of the court placing in defendant’s
mind ‘the flickering hope of a disposition on sentencing that was not possible.’”
(citation omitted)). Because the claims were due process claims rather than rule-
based claims, the defendant was required to prove material inducement or actual
involuntariness. Peterson and Howell fail to recognize this distinction. Stovall
17
and West cannot provide guidance on the remedy for a violation of Rule 2.8(2)(b)
because the rule was not at issue in either case.
To the extent either Peterson or Howell could be interpreted to adopt a
material-inducement or harmless-error rule with respect to violations of Rule
2.8(2)(b), we disavow them. First, whatever the merits (or demerits) of the
harmless-error rule, our state has chosen not to adopt the rule. Such a
significant change in our mode of criminal practice and procedure should be
accomplished, if at all, by the supreme court or by amendment to the Iowa Rules
of Criminal Procedure after the time for notice and comment. See Spencer v.
Philipp, No. 13-1887, 2014 WL 4230223, at *2 (Iowa App. Ct. App. Aug. 27,
2014) (“As a general rule, the task of materially altering substantive or procedural
rights is best left to the General Assembly or the Supreme Court of Iowa.”).
Second, controlling cases dictate that the required remedy for the district
court’s failure to substantially comply with Rule 2.8(2)(b) is to vacate the
defendant’s convictions and pleas and allow the defendant to plead anew. In
State v. White, 587 N.W.2d 240 (Iowa 1998), the supreme court held a guilty plea
is void where the plea was not taken in compliance with Rule 2.8(2)(b):
Iowa Rule of Criminal Procedure 8(2)(b) requires the judge,
before accepting a plea of guilty, to determine that the plea was
made voluntarily and intelligently. The United States Constitution
requires that to be truly voluntary the plea must be made knowingly
and intelligently. The position urged by the State for our adoption
violates these principles and requirements. It leaves the defendant
informed of statutory words, thus partially informed, but uninformed
of the true maximum possible punishment of twenty years
imprisonment coming from consecutive sentences. In essence,
defendant is uninformed and unenlightened. The letter of the law
and the spirit of the law requiring that the guilty plea be made
voluntarily and intelligently, mandated by Rule 8 and the Due
18
Process Clause of the United States Constitution have not been
satisfied.
A trial court could satisfy the Rule 8 and constitutional
requirements on this issue with a few words explaining the
difference between consecutive and concurrent sentences. This
colloquy between the judge and the defendant could take less than
one minute. It would comply with the requirements of our laws, in
spirit and in truth. And, it would not unduly burden our courts.
White, 587 N.W.2d at 246 (citation omitted).
Similarly, in Loye, the district court failed to inform the defendant of the
potential punishments, including fines. The State contended the guilty pleas and
convictions need not be vacated because the defendant had actual knowledge of
the punishments based on defense counsel’s discussion of the same with the
defendant. In addition, the defendant had actual knowledge of all material
information because of the extensive proceedings related to the defendant’s
admission into drug court. The Loye court rejected the conclusion that the
defendant’s actual knowledge of the punishments was relevant, stating:
it does not relieve the [district] court of its obligation to ensure the
defendant’s knowledge and understanding of the nature of the
charges and the potential punishments. Nor is the court’s
obligation lessened because the defendant’s attorney has
discussed the same matters with the accused in preparation for the
plea hearing.
Loye, 670 N.W.2d at 153. The Loye court focused on the district court’s conduct,
and not the harm to the defendant.
The dissent attempts to distinguish White and Loye on the ground those
cases involved misinformation regarding “lengthy prison sentences.” Nothing in
Fisher makes a distinction between the remedies available to a defendant based
on the nature of the penal consequences at issue. Nothing in the plain language
of the rule makes a distinction between the remedies available to a defendant
19
based on the nature of the penal consequences at issue. More important, the
dissent’s distinction is immaterial. The material fact in Loye was not the nature of
the penal consequences not addressed during the plea colloquy; the material fact
was the defendant had actual knowledge of the penal consequences of the guilty
plea based on discussions with counsel. See Loye, 670 N.W.2d at 153. Loye
thus stands for the proposition that even when the defendant has actual
knowledge of the penal consequences—i.e., the omissions were harmless, as a
matter of law, because the defendant actually knew the omitted information—the
district court’s failure to substantially comply with Rule 2.8(2)(b) still required the
defendant’s convictions be vacated.
Finally, Fisher also set forth the required remedy upon a finding the district
court failed to substantially comply with Rule 2.8(2)(b). The surcharge issue left
open in Fisher and resolved in this case actually was not the primary issue in
Fisher. The primary question presented in Fisher was “whether a defendant
pleading guilty to a controlled-substance offense has a right to be informed
beforehand that, as a result of the conviction, his driver's license will be revoked
for 180 days.” Fisher, 877 N.W.2d at 678. The court held that “[b]ecause
revocation of the driver's license of a person convicted of a drug possession
offense is mandatory, immediate, and part of the punishment for that offense, the
court must inform the defendant of this consequence before accepting his or her
plea.” Id. at 684. The supreme court further held the failure of the district court
to advise the defendant of this penal consequence in contravention of Rule
2.8(2)(b) required the defendant’s “conviction and sentence [ ] be set aside.” Id.
at 684-85. The Fisher court did not analyze whether the omission of information
20
regarding revocation of the defendant’s license was a material inducement to the
plea or whether the defendant otherwise suffered some prejudice as a result of
the non-compliant plea colloquy. As in McCarthy, White, and Loye, the Fisher
court applied a bright line rule with respect to the remedy—if the district court
failed to conduct a plea colloquy in substantial compliance with Rule 2.8(2)(b),
then the conviction and sentence must be vacated and the matter must be
remanded for further proceedings. Fisher left open only the question of whether
the failure to advise the defendant of the chapter 911 criminal penalty, alone,
would constitute substantial compliance with the rule. Fisher definitively
answered the question of the required remedy upon a finding the district court
failed to substantially comply with the rule. Fisher is controlling precedent, which
we are not at liberty to ignore.
Third, the remedy required by White, Loye, and Fisher is dictated by the
text of the rule. Rule 2.8(2)(b) provides the district court “shall not accept a plea
of guilty without first determining that the plea is made voluntarily and intelligently
and has a factual basis.” Generally, “shall” is considered mandatory. Rule
2.8(2)(b) also provides, “[b]efore accepting a plea of guilty, the court must . . .
determine that the defendant understands . . . [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.” (Emphasis added.)
Nothing in the language of the rule indicates the rule is satisfied if the defendant
does not rely on an omission or the omission is harmless. To the contrary, the
plain language of the rule provides the district court cannot accept a plea without
a prior determination the defendant understands the minimum and maximum
21
financial penalty. The failure to disclose the surcharge means the defendant was
not informed of the mandatory minimum financial penalty or the maximum
possible financial penalty. See Fisher, 877 N.W.2d at 686 (noting the failure to
disclose the surcharge means the minimum financial punishment was
undisclosed); Hoxsey, 2017 WL 510983, at *1 (same). The failure to disclose the
surcharge, by necessity, also means the district court could not and did not make
the required determinations prior to accepting the plea.
Finally, we note the material-inducement standard is inconsistent with
fundamental rule-of-law principles. See State v. Gaskins, 866 N.W.2d 1, 40
(Iowa 2015) (stating rule-of-law values include “consistency and equal treatment,
stability, and predictability at any one time and over time”); State v. Campbell,
No. 15-1772, 2017 WL 706208, at *8–9 (Iowa Ct. App. Feb. 22, 2017) (explaining
we should prefer legal rules capable of consistent application). A material-
inducement standard seems incapable of consistent application on appeal. The
result of any particular case would be largely dependent upon the appellate panel
drawn. Without a record regarding the defendant’s subjective motivations for
entering into a guilty plea, it is unclear how this court on direct appeal would be
able to determine, the defendant was not at all motivated by the financial
consequences of the plea. It would be utter speculation to conclude one
defendant could not have cared as a matter of law because he received charging
concessions but another defendant might have cared as a matter of law because
he received a lesser charging concession. Where is the line to be drawn? How
is the line to be drawn with no record regarding the defendant’s subjective intent?
McCarthy, White, Loye, and Fisher resolve this problem by adopting a bright-line
22
rule—if the district court failed to substantially comply with Rule 2.8(2)(b), then
the case must be remanded to the district court to allow the defendant the
opportunity to plead anew.
The dissent’s attempt to distinguish Fisher on the question of remedy
highlights the speculative nature of the endeavor. The dissent concedes the
Fisher court did not discuss or even mention materiality, which would seem to
indicate the Fisher court rejected the harmless-error approach and applied the
bright line rule required by White and Loye. The dissent goes on to argue,
however, the Fisher court must have considered materiality because losing one’s
driving privileges was a “significant consideration” for the defendant. However,
the dissent also concludes it would not be a significant consideration if the case
involved other offenses that required incarceration. It is unclear on what basis
the dissent makes this distinction. Would the punishment be material if the
charging concession was from a class D felony to an aggravated misdemeanor?
From an aggravated misdemeanor to a serious misdemeanor? From two class D
felonies to a single class D felony and an aggravated misdemeanor? From two
class D felonies to a single misdemeanor? Would it matter if the plea agreement
called for suspended sentences? The permutations are endless. Perhaps there
are easy cases on either end of the curve, but there are substantially more in the
mushy middle incapable of consistent resolution. Unless, of course, the dissent
simply means that the financial penalties associated with a guilty plea are always
immaterial as a matter of law. Again, that merely begs the question of why
interpret Rule 2.8(2)(b) to require the disclosure of immaterial penal
consequences. We are not at liberty to question that determination. Our
23
supreme court has concluded the financial penalties are sufficiently material to
require disclosure under the rule. Those cases are controlling.
We note the district court’s failure to substantially comply with Rule
2.8(2)(b) would not necessarily mean the defendant would prevail if the claim
were presented as an ineffective-assistance-of-counsel claim on direct appeal or
in postconviction-relief proceedings. In those cases, the defendant would still
have to establish Strickland prejudice. See Strickland v. Washington, 466 U.S.
668, 687 (1984). In the typical case, any such claim presented on direct appeal
would be preserved for postconviction-relief proceedings. See State v. Straw,
709 N.W.2d 128, 138 (Iowa 2006) (“Under the ‘reasonable probability’ standard,
it is abundantly clear that most claims of ineffective assistance of counsel in the
context of a guilty plea will require a record more substantial than the one now
before us.”); see also State v. Feregrino, 756 N.W.2d 700, 707–08 (Iowa 2008)
(explaining a violation of required colloquy (jury trial waiver) does not necessarily
prove the defendant failed to actually understand the issue and concluding
Strickland prejudice would have to be established when such a claim was
presented as an ineffective-assistance-of-counsel claim). In postconviction-relief
proceedings, the defendant would bear the burden of establishing both that
counsel was ineffective and that the defendant would not have pleaded guilty but
for the alleged error. That is a significant barrier to overcome.
For the foregoing reasons, we hold the required remedy for the district
court’s failure to substantially comply with Rule 2.8(2)(b) when presented on
direct appeal as a rule-based claim is to vacate the defendant’s pleas and
convictions and allow the defendant to plead anew.
24
V.
We hold the defendant was not barred from directly contesting the
adequacy of the guilty-plea proceeding on direct appeal because he was not
informed of the need to file a motion in arrest of judgment. We hold the district
court failed to substantially comply with Rule 2.8(2)(b) when it wholly failed to
disclose to the defendant any information regarding the additional penalties to be
imposed pursuant to Iowa Code chapter 911 and failed to determine the
defendant understood the same. We hold the required remedy for the failure to
conduct a rule-compliant plea colloquy when the rule-based claim is directly
presented is to vacate the defendant’s guilty plea and convictions and remand
the matter for further proceedings.
CONVICTIONS AND SENTENCES VACATED AND REMANDED.
All Judges concur except Mullins, J. who concurs specially and Tabor and
Doyle, JJ. who dissents.
25
MULLINS, Judge. (concurring specially)
I concur in the majority opinion but write separately to emphasize
philosophical and practical implications of this case. It goes without saying that
our judicial system is an important component in the fabric of our democratic
form of government premised on the rule of law. Our courts interpret the law and
apply the interpretation to the cases before us. We are governed by
constitutions, statutes, rules, and legal precedents. At every jurisdictional level,
courts make tough decisions every day that seem harsh to some but are
necessary if our society is to be governed by the rule of law. We dismiss cases
that are filed a day after a statute of limitations has expired. We dismiss criminal
cases that are not tried within speedy-trial deadlines. We find persons guilty of
crimes if their actions satisfy the elements of the offense. We revoke probation
and send defendants to prison for seemingly minor rule violations. All are
premised on the rule of law.
In addition to applying the law, our supreme court writes rules to govern
conduct. We sanction parties and lawyers for failing to follow rules. Sometimes
we forgive failure to comply if there was substantial compliance or if justice
requires a balancing of prejudice to the parties. The point is, we—the courts—
decide. That is our job and is required by our oaths of office.
The public expects us to follow the law. They expect us to follow the
rules, especially the rules we—the courts—write. Persons charged with crimes
expect us to follow the rules. After all, we not only expect them to do so, we are
obligated to act responsively if they do not. Those accused of wrongdoing often
seem especially aware of violations of rules, even minor ones, by those seeking
26
to enforce the rules. One sees it at home (“But Daddy, you did . . . .”), at school
(“But the teacher says . . . .”), at work (”But my supervisor told me . . . .”), on the
streets (“But the police officer did . . . .”), and in politics (“But he said he
would . . . .”).
Most often, court rules are adopted to address ongoing or recurrent
issues; Iowa Rule of Criminal Procedure 2.8(2)(b) is such a rule. Rules are
intended to bring continuity and predictability, to take the guess work out of what
is required. When we fail to follow our rules, we are inviting criticism: Why does
a party to a case have to follow the rules when the court does not? We should
limit variances from the rules. I certainly agree there are appropriate applications
of a “substantial compliance” approach to rule enforcement. But the present
case does not fit. The problem with failure to inform criminal defendants of the
specific surcharges that will be imposed is not an isolated problem. Our court is
planning to publish the opinions in this case and two other cases in response to
approximately twenty such cases that have flooded our court over the last
several months. The criminal penalty surcharge required by Iowa Code section
911.1 has been in effect since 1982. The amount of the surcharge has been
thirty-five percent since 2009. This surcharge is no surprise; it is well known by
the courts and the lawyers. The requirement that criminal defendants must be
informed of the maximum and minimum penalties, not just terms of incarceration,
has long been in place. This is exactly the type of situation for which we
should—and do—have a rule; so we can avoid the uncertainties of ad hoc
decision-making, and so those who appear in court can know what to expect.
27
I am not unmindful of the pressures faced by our trial courts. Heavy
caseloads, shortage of support, judicial vacancies, limited resources, ever-
present uncertainty of adequate funding, and public scrutiny all take a toll on the
courts and pressure us to do more with less. Notwithstanding these realities, the
public—one case, every case, at a time—expects us to play by the rules.
We should follow the rules. It is not too much to ask, and it is the right
thing to do.
28
TABOR, Judge. (dissenting)
I respectfully dissent. Before accepting Weitzel’s guilty pleas, the district
court substantially complied with the penal-consequences requirement under
Iowa Rule of Criminal Procedure 2.8(2)(b)(2) by informing him and determining
he understood that he faced up to ten years in prison and more than $20,000 in
financial obligations to the State.1 The majority vacates Weitzel’s four
convictions because the court failed to mention that his fines, if imposed, would
carry 35% surcharges.2 See Iowa Code § 911.1. In doing so, the majority shifts
from a substantial-compliance standard to a strict-compliance measure
inconsistent with Iowa case law. See State v. Myers, 653 N.W.2d 574, 578 (Iowa
2002) (“[W]here the defect in the plea proceeding concerns the content of the
information conveyed to [the defendant], . . . only substantial compliance with
rule 2.8(2)(b) is required.”).
Forty years ago, our general assembly enacted what is now rule 2.8(2)(b).
See State v. Finney, 834 N.W.2d 46, 58 (Iowa 2013). When first interpreting the
legislation’s effect, our supreme court held that a plea-taking court must inform a
defendant of and determine he understands “the nature of the charge, its
possible penal consequences and the particular constitutional rights he waives
by pleading guilty” and determine that a factual basis for the plea exists. State v.
Fluhr, 287 N.W.2d 857, 869 (Iowa 1980), overruled on other grounds by State v.
1
The district court also informed Weitzel that he would be responsible for a domestic-
abuse surcharge of $100. Iowa Code § 911.2B (2016). The court further discussed the
law enforcement initiative surcharge of $125 and the DARE surcharge of $10 on the
methamphetamine-possession count. See id. §§ 911.2, .3.
2
As a result of a plea bargain, Weitzel pleaded guilty to one felony and three indictable
misdemeanors; the State dismissed another felony count. At sentencing, Weitzel
received an indeterminate nine-year prison term, as well as a fine and surcharges
totaling $1922.50. Three of the four fines were suspended.
29
Kirchoff, 452 N.W.2d 801 (Iowa 1990). In Fluhr, the supreme court discovered
an “extensive disregard of the rule’s requirements, thus raising doubts as to the
voluntariness of the plea.”3 Id. at 864.
But the Fluhr court could not have imagined today’s majority decision
when announcing its holding. In fact, the Fluhr majority warned against such a
result:
This holding should not be construed to mean that every minor
omission from the oral colloquy in a guilty plea proceedings should
be fatal. As [State v.] Sisco announced, “meaningful compliance,”
169 N.W.2d [542,] 548 [(Iowa 1969)], or “substantial compliance,”
Id. at 551, with procedural guidelines for taking guilty pleas is
sufficient. Certainly a plea-taking error which raises no doubt as to
the voluntariness or factual accuracy of the plea may be properly
disregarded, provided the defendant is unable to prove prejudice.
Id. (cautioning against an “exalt [of] formalism at the expense of the societal
interest in finality of judgments”).
I. Substantial Compliance Means Plea-Taking Court Must Have
Informed Defendant Regarding Essential Penal Consequences.
Because rule 2.8(2)(b) lists five general categories of required
information,4 our case law has defined “substantial compliance” as expressing
“the essence of each requirement of the rule.” See State v. Meron, 675 N.W.2d
3
In Fluhr, the court’s majority vacated the conviction because, among other deficiencies:
“The subject of penal consequences was not broached during the colloquy, except for
the judge’s comment that sentencing would be determined by a judge at a later time.”
287 N.W.2d at 861.
4
Those categories are (1) the nature of the charges to which the pleas are being
offered; (2) mandatory minimum punishment, if any, and maximum possible punishment
provided by the statute defining the offenses to which the pleas are offered; (3) how a
conviction may affect the defendant’s immigration status; (4) trial rights, including trial by
jury, assistance of counsel, confrontation, cross-examination, against self-incrimination,
presentation of witnesses, and compulsory process; and (5) that a guilty plea waives the
right to a trial. See Iowa R. Crim. P. 2.8(2)(b). In Weitzel’s case, the district court
provided detailed information concerning each of these categories, as well as assuring a
factual basis for each of his four offenses.
30
537, 544 (Iowa 2004); see also State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003)
(“‘Substantial compliance’ requires at a minimum that the defendant be informed
of [the items listed in the rule] and understand them.”). More recently, the
supreme court reiterated the substantial-compliance standard in a case involving
the factual basis for a guilty plea by saying “insubstantial errors should not entitle
a defendant to relief.” Finney, 834 N.W.2d at 62; see also State v. Fisher, 877
N.W.2d 676, 682 (using “a substantial compliance standard to determine whether
a plea crosses the rule 2.8(2)(b)(2) threshold”5 ).
The question today is whether understating Weitzel’s potential financial
obligation by not factoring in the surcharges mandated by section 911.1
constituted a substantial error entitling him to relief. The majority misreads
Fisher in holding the district court’s failure to communicate “any information
regarding the surcharges” could not be substantial compliance with rule
2.8(2)(b)(2).6 But the potential imposition of “surcharges” is not a separate and
distinct category of information that needs to be communicated under the rule;
the category of information at issue is “the mandatory minimum punishment, if
any, and the maximum possible punishment provided by the statute defining the
offense to which the plea is offered.” See Iowa R. Crim. P. 2.8(2)(b)(2). The
district court does not need to talismanically utter the word “surcharge” to satisfy
Fisher. What needs to be communicated is how much money the defendant may
owe to the government as a result of pleading guilty. See Fisher, 877 N.W.2d at
5
When reviewing the plea-taking court’s admonitions, we must take a “common sense
approach” to determine whether the court has substantially complied with the provisions
of the rule. See People v. Walker, 316 N.E.2d 138, 139 (Ill. App. Ct. 1974).
6
The district court did provide Weitzel with information about some applicable
surcharges, just not the 35% surcharges mandated by section 911.1.
31
686 (seeing “no meaningful difference between a fine and a built-in surcharge on
a fine”). And we must not overlook that the more important aspect of informing
the defendant about “the maximum possible punishment” is providing an
accurate picture of the potential loss of liberty resulting from the plea bargain. In
this case, the court accurately described for Weitzel and secured his appreciation
that his guilty pleas could result in prison sentences as lengthy as ten years. As
the State argues in its brief, under the totality of circumstances in this plea
bargain, information about the 35% surcharges added to the fines—three of
which the plea-taking court advised could be suspended—was of far less
consequence than the potential decade of incarceration. See State v.
Richardson, 890 N.W.2d 609, 622–23 (Iowa 2017) (noting “imprisonment is
qualitatively different” from fines or restitution and stating “[o]ne is a matter of
liberty, the other a financial obligation”).
The majority cites no case where an Iowa appellate court has vacated a
defendant’s convictions based solely on misinformation provided by the district
court concerning the financial implications of a plea bargain. The majority
contends State v. Hoxsey, No. 16-1043, 2017 WL 510983 (Iowa Ct. App. Feb. 8,
2017), supports its conclusion because a panel of this court was “not persuaded”
that a general reference to surcharges on a guilty plea form amounted to
substantial compliance with rule 2.8(2)(b)(2). But that statement was dicta.
Hoxsey “assumed without deciding” that counsel breached a material duty by not
ensuring the defendant was advised of the surcharges but found no prejudice
32
because the fines and surcharges were suspended and affirmed Hoxsey’s
conviction.7 2017 WL 510983 at *1–2.
The majority also focuses on White and Loye; in both of those cases, the
district court failed to accurately inform a defendant about the penalties resulting
from a guilty plea, prompting our supreme court to vacate the convictions and
allow the defendants to plead anew. But in both White and Loye, the plea-taking
court failed to provide accurate information about lengthy prison sentences. See,
e.g., White, 587 N.W.2d 240, 246 (Iowa 1998) (finding defendant was
“uninformed and unenlightened” about the maximum possible punishment of
twenty years imprisonment coming from consecutive sentences); see also Loye,
670 N.W.2d at 152 (chronicling numerous deficiencies in the plea colloquy
arising out of a drug-court case, including no information about the penalty for
marijuana possession, plus the court’s mistatement that penalty for third-degree
burglary was “five years in the penitentiary or as much as a $7500 fine” when
“[i]n fact, the possible penalty was five years imprisonment and a fine of at least
$750 and not more than $7500”). White and Loye do not stand for the
proposition that all misinformation about penalties—however insignificant—
requires a reviewing court to vacate the defendant’s convictions. If they did,
Fisher would not have left unresolved the question “whether failure to disclose
the surcharges alone would have meant the plea did not substantially comply
with rule 2.8(2)(b)(2).” 877 N.W.2d at 686 n.6.
7
Under the majority’s formulation today, in cases where a plea claim is analyzed directly
rather than through the lens of ineffective assistance of counsel, the ultimate suspension
of fines at sentencing would make no difference. If the plea-taking court failed to inform
the defendant about the surcharges, even if those obligations were never borne by the
defendant, the conviction must be vacated.
33
En route to vacating Weitzel’s convictions, the majority disavows two
unpublished cases of our court—a move seemingly both pointless and rash. In
those two cases—Peterson and Howell—panels of our court decided that plea
colloquies had substantially complied with rule 2.8(2)(b)(2) despite the district
court making inaccurate statements about the amount of the fines. See State v.
Peterson, No. 11-1409, 2012 WL 3860730, at *3 (Iowa Ct. App. Sept. 6, 2012);
State v. Howell, No. 07-117, 2008 WL 783760, at *2 (Iowa Ct. App. Mar. 26,
2008). By disavowing those cases, we are now saying any minor variance in the
information provided by the district court concerning the financial obligations
owed by a defendant as a result of pleading guilty is cause for vacating the
convictions. If a plea-taking court forgets to tell a defendant about the $10 DARE
surcharge mandated by Iowa Code section 911.2(1), that is grounds for vacating
a drunk-driving conviction. If a plea-taking court misstates the amount of any
maximum or minimum fine, even slightly, that is grounds for vacating the
conviction. Such eventualities mark a radical departure from the substantial-
compliance standard.
II. Rule 2.8(2)(b) Codifies Due-Process Requirements; If
Misinformation Given by Plea-Taking Court Is Not Material
Inducement for Plea, No Due Process Violation Occurs.
The majority tries to draw a bright line between due-process cases and
rule-based cases, relegating Weitzel’s appeal to the rule-based side of the line.
It is true that “the entry of a plea by a defendant has both constitutional and
procedural elements that must be addressed to ensure that a plea is entered
voluntarily and intelligently.” See State v. Thomas, 659 N.W.2d 217, 220 (Iowa
2003). But our case law defies a clean bifurcation between due-process and
34
rule-based claims. The supreme court has announced that rule 2.8(2)(b)
“codifies” the due-process mandate. See Loye, 670 N.W.2d at 151; see also
Finney, 834 N.W.2d at 60–62 (explaining that a challenge to the sufficiency of the
plea colloquy would raise a due-process voluntariness issue).
Moreover, Weitzel’s own brief alleges that because the colloquy failed to
disclose the surcharges,8 “the pleas violated due process and are void.” Weitzel
relies on State v. Boone, where the supreme court vacated a conviction because
the plea-taking court “placed in the defendant’s mind the flickering hope of a
disposition on sentencing that was not possible.” 298 N.W.2d 335, 338 (Iowa
1980). Boone is controlling authority for the holding in State v. West, 326 N.W.2d
316, 318 (Iowa 1982) (remanding to determine whether court’s statement
suggesting it had discretion to impose other than maximum prison sentence
induced defendant’s guilty plea). Boone and West apply when a defendant has
received misinformation concerning the consequences of a guilty plea, “whether
those statements are or are not required of the court under [now rule 2.8] of the
rules of criminal procedure.” See Stovall v. State, 340 N.W.2d 265, 267 (Iowa
1983) (holding plea is not voluntarily made if court makes a misstatement that is
material “in the sense that it is part of the inducement for the defendant’s
decision to plead guilty”); see also State v. Null, 836 N.W.2d 41, 49 (Iowa 2013)
(citing Boone for proposition a district court must “adequately explain the
penalties” as part of plea colloquy and finding court’s explanation adequate
despite lack of statement that consecutive sentences meant mandatory
8
Weitzel also contends the plea court erred by telling him the maximum fine for OWI
was $1500, rather than $1250, and by failing to explain the fines could be cumulative.
35
minimums would total 52.5 years); State v. Philo, 697 N.W.2d 481, 489 (Iowa
2005); State v. McCray, No. 11-0731, 2011 WL 6674712, at *2 (Iowa Ct. App.
Dec. 21, 2011).
Weitzel received misinformation from the plea-taking court about the
financial implications of his guilty pleas. Boone, West, and Stovall dictate that
under these circumstances, the reviewing court must decide whether that
misinformation was a material inducement for Weitzel’s decision to plead guilty—
or, in other words, whether it rendered his guilty pleas unintelligent or involuntary.
Making that decision is not, as the majority suggests, “utter speculation” about a
defendant’s subjective motivations. Rather, it is an objective assessment of
materiality. See Material, Black’s Law Dictionary (7th ed. 1999) (defining as “[o]f
such a nature that knowledge of the item would affect a person’s decision-
making process; significant; essential”).
In Fisher, the court found the guilty plea was “involuntary” because the
defendant was not told that revocation of his driver’s license for 180 days was a
mandatory and immediate punishment resulting from his guilty plea to
possession of marijuana. 877 N.W.2d at 684–85. Although Fisher did not
include an analysis of materiality, it is reasonable to conclude that losing one’s
driving privileges for six months would be a significant consideration in a guilty
plea to a misdemeanor drug-possession offense.9 In contrast, absence of
9
In some situations, though, the failure to advise of the license revocation may have no
consequence. For instance, if Fisher’s plea had involved other offenses that required
incarceration, the six-month suspension of his driving privileges would not have affected
his decision to plead guilty. See Blackwell v. State, 736 A.2d 971, 973 (Del. 1999)
(holding trial court’s failure to advise defendant he would not have been able to drive for
more than two years was harmless when he was informed that he faced a fifteen-year
mandatory-minimum term of incarceration).
36
information about the 35% surcharges was not material in the context Weitzel’s
felony plea bargain. First, Weitzel was advised that he faced a range of fines on
the four offenses to which he was pleading guilty and was advised that three of
the four fines could be suspended. So the surcharges were not an automatic
result of the plea bargain in the same way Fisher’s license suspension was.
Second, Weitzel was told he faced up to ten years in prison, which loomed larger
than the additional surcharge penalties.
Weitzel told the court he decided to enter Alford pleas to four counts in
return for the State’s agreement to dismiss another felony charge because he
believed the evidence set out in the minutes of evidence was sufficient for a jury
to find him guilty on all charges beyond a reasonable doubt. When viewed in
context, Weitzel’s plea bargain was not “involuntary” and should not be vacated.
III. Iowa Has Not Followed the Automatic-Reversal Rule Adopted
by the Majority
Finally, the majority endorses an automatic-reversal rule derived from the
discussion in McCarthy v. United States, concerning an early version of Rule 11,
which governs guilty pleas in federal court. 394 U.S. 459, 471 (1969)
(concluding “prejudice inheres in a failure to comply with Rule 11”). But even the
federal courts moved quickly away from such an exacting approach. “In 1975, a
few years after McCarthy came down, Congress transformed Rule 11 into a
detailed formula for testing a defendant’s readiness to proceed to enter a plea of
guilty, obliging the judge to give specified advice about the charge, the applicable
criminal statute, and even collateral law.” United States v. Vonn, 535 U.S. 55, 69
(2002).
37
[A]lthough a rule of per se reversal might have been justified at the
time McCarthy was decided, “[a]n inevitable consequence of the
1975 amendments was some increase in the risk that a trial judge,
in a particular case, might inadvertently deviate to some degree
from the procedure which a very literal reading of Rule 11 would
appear to require.” After the amendments, “it became more
apparent than ever that Rule 11 should not be given such a
crabbed interpretation that ceremony was exalted over substance.”
Id. at 70 (quoting Advisory Committee’s Notes on federal rule). In 1983, a
harmless-error provision10 was added to the federal rule because “the practice of
automatic reversal for error threatening little prejudice to a defendant or disgrace
to the legal system” imposed “a cost on Rule 11 mistakes that McCarthy neither
required nor justified.” Id.
Even before the addition of the harmless-error provision, some federal
circuits declined to automatically reverse when the trial court’s admonitions
strayed from the strict constructs of the guilty-plea rule. See, e.g., United States
v. Dayton, 604 F.2d 931, 940 (5th Cir. 1979) (upholding plea despite narration of
the nature of the charges being given by the prosecutor rather than the court);
United States v. Conrad, 598 F.2d 506, 510 (9th Cir. 1979) (rejecting claim that
plea court did not adequately inform defendant of the penalties “provided by law”
when it discussed only the bargained-for sentence because “[m]atters of reality,
and not mere ritual, should be controlling” (alteration in original) (quoting
McCarthy, 394 U.S. at 468 n.20)). This line of reasoning was ultimately
embraced by the Advisory Committee on the federal rules, and the federal courts
have moved “almost full circle” from “the inflexible remedial approach” of
10
“A variance from the requirements of this rule is harmless error if it does not affect
substantial rights.” Fed. R. Crim. P. 11(h).
38
McCarthy. See Finney, 834 N.W.2d at 54 (citation omitted) (detailing history of
plea-bargain jurisprudence).
Iowa has never purported to follow the McCarthy automatic-reversal rule
as a means to enforce the guilty-plea admonitions delivered by its trial judges. In
the same year McCarthy was decided, our court adopted the plea-colloquy
standards promulgated by the American Bar Association (ABA) Minimum
Standards for Criminal Justice, Pleas of Guilty, sections 1.4 through 1.7. See
Sisco, 169 N.W.2d at 547–48 (including the requirement that plea courts advise
defendants of “the maximum possible sentence” and the “mandatory minimum
sentence, if any”11). The Sisco court did not take the same firm stand as
McCarthy regarding mandatory compliance with the procedural requirements,
stating: “This does not mean a determination by trial courts of the matters here
involved requires any ritualistic or rigid formula be fixed upon or followed. There
must, however, be meaningful compliance with these guideline standards.” Id.
After Sisco, but before enactment of what is now rule 2.8(2)(b), our
supreme court twice held that a defect in the plea colloquy did not require
reversal. See State v. Reaves, 254 N.W.2d 488, 491 (Iowa 1977) (noting plea-
taking court omitted description of element of the crime), superseded by rule as
stated in Fluhr, 287 N.W.2d at 859; State v. Ceaser, 245 N.W.2d 510, 511 (Iowa
1976) (holding judge’s misstatement in plea hearing was “without prejudice and
. . . harmless beyond a reasonable doubt”). More recently in State v. Straw, a
11
By use of the word “sentence” rather than “punishment,” the ABA Standards did not
specifically require defendants be told about fines or other financial penalties. See
generally 5 Wayne R. LaFave et al., Criminal Procedure § 21.4(d) (4th ed. 2016) (noting
emphasis has been on requirement that the judge inform the defendant of the maximum
possible punishment).
39
majority of our supreme court rejected a dissenting view that reversal should be
automatic if the plea colloquy was flawed. 709 N.W.2d 128, 137–39 (Iowa 2006);
see also Finney, 834 N.W.2d at 53–54, 60 (discussing harmless-error standard
under federal rule and noting Iowa’s approach under Straw is “in many ways
similar to developments in federal case law after the 1983 amendment to Rule
11”).
Given that parallel noted by our supreme court, I believe federal caselaw
provides a useful analogy here. Before entry of a guilty plea in federal court,
Rule 11 requires a full recitation of the potential penalties, including the possibility
that restitution may be imposed as part of the ultimate sentence. See Fed. R.
Crim. P. 11(b)(1)(K). Although Rule 11(b)(1)(K) requires the court to explain a
defendant’s liability for both fines and restitution, federal circuits, including the
Eighth Circuit, have held a defendant is not prejudiced if his liability does not
exceed the maximum amount that the court informed him could be imposed as a
fine. United States v. Miell, 711 F. Supp. 2d 967, 982 (N.D. Iowa 2010)
(collecting cases). As Judge Bennett explained: “The simple logic underlying this
line of authorities is that ‘[i]t is the amount of liability, rather than the label
“restitution,” that affects [a defendant’s] substantial rights.’” Id. (citation omitted).
Similarly here, any prejudice to Weitzel would not stem from unexplained
costs labeled as “surcharges” but from a bottom-line liability at sentencing that
was not foreshadowed at the plea hearing. At sentencing, Weitzel was ordered
to pay $1922.50, in the form of a fine and surcharges; because Weitzel had been
warned at the plea hearing he could face fines and surcharges totaling
$21,735—and decided to plead guilty anyway—his rights were not impaired by
40
the court’s failure to specifically inform him of the 35% surcharges mandated by
section 911.1. See Fluhr, 287 N.W.2d at 864 (discussing propriety of
disregarding inconsequential errors in plea colloquy unless defendant can show
prejudice).
The majority’s “bright-line rule”—reversing for any error in the information
delivered by the plea-taking court concerning the potential penalties—
undermines the ability of crime victims and members of the public to have
confidence that valid convictions will not be vacated merely to remind plea-taking
courts of the importance of “conducting a rule-compliant plea colloquy.” The
majority’s refusal to consider whether a minor omission may, in context, be
insubstantial, which is “directed at technical and literal compliance by our
brothers [and sisters] on the district bench with [Fisher’s elaborations on rule
2.8(2)(b)], somewhat in the spirit of the exclusionary rule’s attempt to deter police
misconduct, seems to [me] inappropriate.” Dayton, 604 F.2d at 940 (bemoaning
“iron rule of review” for “post-McCarthy elaborations on Rule 11”). Fisher
directed that district courts must reveal all applicable chapter 911 surcharges
when advising defendants about the penal consequences of their guilty pleas.
See 877 N.W.2d at 685–86. Rule 2.8(2)(b) “must be fully and faithfully followed,
and [I] do not doubt that the district courts of this [state] will make all efforts to
follow [Fisher’s] mandate. The question here is not whether such efforts should
be made but how we should appraise them when they are.” Dayton, 604 F.2d at
940 (declining to follow “automatic reversal” rule of McCarthy). Under the
41
circumstances of Weitzel’s plea bargain, omission of the surcharge information
was not a substantial error entitling him to relief..
Doyle, J., joins this dissent.
State of Iowa v. Jason Gene Weitzel
Combined Opinion