IN THE SUPREME COURT OF IOWA
No. 18–0184
Filed March 8, 2019
STATE OF IOWA,
Appellee,
vs.
BERNARD ANTHONY SMITH,
Appellant.
Appeal from the Iowa District Court for Story County, Timothy J.
Finn, Judge.
A defendant challenges his sentence as a habitual offender and the
imposition of restitution and a fine. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Jessica Reynolds, County Attorney, and Timothy C. Meals and
Shawna Johnson, Assistant County Attorneys, for appellee.
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WIGGINS, Justice.
The defendant was convicted of second-degree burglary and
stipulated to being a habitual offender. The court sentenced the defendant
as a habitual offender, ordered restitution, and imposed a fine. On appeal,
we conclude the stipulation was not knowingly and voluntarily made
because the stipulation proceedings did not comply with the requirements
of State v. Harrington, 893 N.W.2d 36 (Iowa 2017). Accordingly, we must
reverse the habitual offender judgment, the defendant’s sentence, and
remand the case for further proceedings consistent with Harrington. See
id. at 45–46. We affirm the uncontested judgment of guilt on second-
degree burglary.
I. Facts and Proceedings.
On September 27, 2017, the State charged Smith with burglary in
the second degree in violation of Iowa Code sections 713.1 and 713.5
(2017), a class “C” felony, and being a habitual offender in violation of
section 902.8. Following Smith’s not-guilty plea, a bifurcated trial on the
burglary charge began on November 28.
While the jury was in deliberations, Smith’s counsel informed the
court that Smith would stipulate to the predicate priors for the habitual
offender charge. The following exchange occurred:
[DEFENSE COUNSEL]: Your Honor, I just discussed
with my client about the sentencing enhancement charge on
the Trial Information of offense of habitual offender and my
client has decided that he will withdraw his request for a
bifurcated trial and will stipulate to the priors for that
particular section should the jury return a guilty verdict that
it would be applicable to.
THE COURT: Okay. Very well. Mr. Smith, is that
correct?
THE DEFENDANT: Yes, sir.
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THE COURT: I told you earlier about the ramifications
of doing that. It’s your decision and you voluntarily decided
that you will stipulate to the habitual offender element of the
trial?
THE DEFENDANT: Yes.
THE COURT: Okay. All right. Thank you. Anything
further on behalf of the State?
[PROSECUTOR]: No, Your Honor.
THE COURT: Thank you.
[DEFENSE COUNSEL]: Thank you, Your Honor.
Subsequently, the jury returned a verdict finding Smith guilty of
burglary in the second degree. After the court scheduled sentencing,
further discussion regarding Smith’s stipulation occurred:
[DEFENSE COUNSEL]: Your Honor, [the prosecutor]
brought to my attention a case State v. Harrington, 893
N.W.2d 36. It concerns a Defendant making admissions to
the habitual offender without the State having to prove it up
and the issue of bringing it up in a motion in arrest of
judgment or making an adequate record.
I believe we probably have an adequate record but just
to be safe, it probably would be best to maybe supplement the
record a little bit at this time, that the Defendant did freely
voluntarily stipulate to the priors of the habitual offender.
THE COURT: All right. I think we did that. But you’re
in agreement on that; aren’t you?
THE DEFENDANT: Yes.
THE COURT: All right. Thank you. I appreciate that.
You understand that’s voluntary on your part and you elected
to go along with that?
THE DEFENDANT: Correct.
THE COURT: Okay. I have one last thing I need to tell
you about. You have the right to file what’s called a motion in
arrest of judgment. The motion has to be filed at least I think
it’s five days or three days?
[THE PROSECUTOR]: Five days, Your Honor.
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THE COURT: Five days before the date of sentencing. I
set your sentencing on January 16th. So if you want the
Court to consider that, it has to be filed at least five days
before January 16th. Do you understand that?
(At this time there is an off-the-record discussion
between [defense counsel] and the Defendant.)
(We are now back on the record.)
[THE PROSECUTOR]: Your Honor, I think it’s forty-five
days but no less than five days before sentencing.
THE COURT: Okay.
[DEFENSE COUNSEL]: That is correct.
THE COURT: All right. Got that?
THE DEFENDANT: Yes.
THE COURT: Okay. All right. That will conclude the
hearing.
Thank you.
The court gave no other information on the motion and had no further
conversation about Smith’s stipulation to the prior convictions. Smith did
not file a motion in arrest of judgment challenging the habitual offender
stipulation proceedings.
On January 16, 2018, the district court sentenced Smith as a
habitual offender to incarceration not to exceed fifteen years. The court
also imposed a fine of $1000, ordering, “The Defendant should be and is
hereby fined in the sum of $1,000 plus a 35 percent surcharge. This fine
and surcharge are hereby SUSPENDED.” Regarding restitution, the order
said,
[T]he Defendant shall be required to pay the costs of this
action, the $125 law enforcement initiative surcharge, and
that he reimburse the state for the reasonable fees of his
court-appointed attorney. The Defendant’s attorney is given
10 days within which to file a statement of the legal services
he has provided for the Defendant. All costs, surcharges, and
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fees are due immediately and shall be considered delinquent
if not paid within 30 days of today’s date.
On January 25, Smith appealed the court’s final order. The district court
filed a restitution plan on March 20, ordering Smith to pay a total of
$1434.60.
II. Issues.
On appeal, Smith raises three issues. First, he claims the district
court failed to comply with the Harrington requirements in accepting his
habitual offender stipulation. Second, he claims the district court erred
in ordering him to pay restitution in the form of attorney fees. Third, he
claims the district court erred in imposing a fine.
We need not reach Smith’s second or third claim because our
resolution of the first issue will require resentencing.
III. Standard of Review.
“Claims involving the interpretation of a statute or rule are usually
reviewed for errors at law.” Harrington, 893 N.W.2d at 41 (quoting State v.
Kukowski, 704 N.W.2d 687, 690–91 (Iowa 2005)); see Iowa R. App. P.
6.907.
IV. Compliance with the Harrington Requirements.
On appeal, Smith first claims the district court failed to comply with
the habitual offender stipulation requirements from Harrington and,
therefore, his stipulation could not have been voluntarily and intelligently
given. See 893 N.W.2d at 45–46. Alternatively, he contends that if he
failed to preserve error on his Harrington challenge, his trial counsel
provided ineffective assistance.
A. Error Preservation. In Harrington we held that “offenders in a
habitual offender proceeding must preserve error in any deficiencies in the
proceeding by filing a motion in arrest of judgment.” Id. at 43. However,
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we elected to apply that rule of law prospectively such that it did not apply
in Harrington and in other cases that preceded our Harrington decision.
Id.; see, e.g., State v. Brewster, 907 N.W.2d 489, 493 n.3 (Iowa 2018)
(excusing failure to comply with error preservation rule because the case
was already on appeal at the time of the Harrington decision); State v.
Steiger, 903 N.W.2d 169, 170 (Iowa 2017) (per curiam) (excusing failure to
comply with error preservation rule because the rule was not in existence
at the time).
Smith’s habitual offender proceedings occurred several months after
our Harrington decision, but he failed to file a motion in arrest of judgment
to challenge those proceedings. Accordingly, this case presents the first
opportunity, post-Harrington, for us to consider the consequences of
failing to file a motion in arrest of judgment to challenge the habitual
offender proceedings.
Smith claims the Harrington error preservation requirement does
not apply here because the district court failed to adequately advise him,
as required by Iowa Rule of Criminal Procedure 2.8(2)(d) for guilty plea
proceedings, of his right to file a motion in arrest of judgment and of the
consequences of failing to do so. See, e.g., State v. Meron, 675 N.W.2d 537,
541 (Iowa 2004) (noting court’s failure to inform the defendant entering
guilty plea of those two pieces of information as required by rule 2.8(2)(d)
excuses the defendant’s failure to challenge the guilty plea proceedings by
filing a motion in arrest of judgment). Smith contends the requirement in
rule 2.8(2)(d) and the error preservation exception noted in Meron should
apply to habitual offender proceedings. See id. We agree.
We have consistently acknowledged that stipulating to prior offenses
for purposes of sentencing enhancement is “comparable to a plea of guilty
to support sentencing for the crime identified in the plea.” Harrington, 893
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N.W.2d at 42; accord, e.g., Kukowski, 704 N.W.2d at 692; State v. Brady,
442 N.W.2d 57, 58 (Iowa 1989). We have relied on this similarity to
conclude it is appropriate to refer to our guilty plea rules when resolving
challenges to stipulation proceedings. E.g., Harrington, 893 N.W.2d at 45
(referring to guilty plea rules to identify the specific topics that must be
part of the stipulation colloquy for the stipulation to be voluntary and
intelligent); Brady, 442 N.W.2d at 58. We also relied on that similarity in
holding that a motion in arrest of judgment must be filed to preserve those
challenges for appeal. See Harrington, 893 N.W.2d at 42–43. Thus, we
find it logical for us to consider the instant error preservation issue in light
of our jurisprudence regarding error preservation in the guilty plea
context.
Moreover, we find the rationale for the error preservation exception
in the guilty plea context equally applicable to the prior-offenses
stipulation context. In State v. Worley, we first recognized the error
preservation exception when a defendant failed to file a motion in arrest of
judgment to challenge his guilty plea proceedings. 297 N.W.2d 368, 370
(Iowa 1980). We noted then-rule 23(3)(a)—now rule 2.24(3)(a)—precluded
appellate challenges to guilty plea proceedings if the defendant did not first
challenge that proceeding in a motion in arrest of judgment. Id. But we
also explained that now-rule 2.24(3)(a) “must be read in conjunction with”
then-rule 8(2)(d)—now rule 2.8(2)(d)—which requires the court inform the
defendant that challenges to the guilty 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.” Id. (quoting Iowa R.
Crim. P. 8(2)(d) (1979)). We held,
No defendant, however, should suffer the sanction of rule
[2.24(3)(a)] unless the court has complied with rule [2.8(2)(d)]
during the plea proceedings by telling the defendant that he
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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.
Id.
As in the guilty plea context, the offender challenging the habitual
offender stipulation proceeding must do so in a motion in arrest of
judgment in order to preserve error on that challenge. Harrington, 893
N.W.2d at 43. Also like in the guilty plea context, the district court is
required to “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” and “that the failure to do so will preclude the right to
assert them on appeal.” Id. at 46. As in Worley, we must read these two
requirements in conjunction. See 297 N.W.2d at 370. Accordingly, no
offender in a habitual offender stipulation proceeding should suffer
Harrington’s error preservation sanction unless the court has complied
with its duty under Harrington to inform the offender that challenges to
the stipulation proceedings must be raised in a motion in arrest of
judgment and the failure to do so precludes raising those challenges on
appeal. See Harrington, 893 N.W.2d at 45–46.
In assessing whether the district court complied with this Harrington
duty, we adopt the substantial compliance standard we use “in
determining whether a trial court has discharged its duty under rule
2.8(2)(d)” in the guilty plea context. State v. Straw, 709 N.W.2d 128, 132
(Iowa 2006); see also State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).
“The court must ensure the [offender] understands the necessity of filing
a motion to challenge a [prior-offenses stipulation] and the consequences
of failing to do so.” Straw, 709 N.W.2d at 132.
The court’s statement that Smith had a right to file a motion in
arrest of judgment was insufficient to comply with its duty under
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Harrington. The court’s statement did not tie that right to the method of
challenging the stipulation proceedings, nor did it ensure Smith
understood that the failure to file such a motion would preclude him from
challenging the proceedings on appeal. Cf. Straw, 709 N.W.2d at 132
(finding substantial compliance when the court informed the defendant
that if he wished to appeal or challenge any of the guilty plea proceedings,
he was required to file a motion in arrest of judgment). Moreover, there
was no written and signed stipulation to the prior offenses that otherwise
informed Smith of this information. Cf. Fisher, 877 N.W.2d at 682 (finding
written and signed guilty plea form failed to substantially comply with rule
2.8(2)(d)’s requirements when it did not indicate failing to challenge the
guilty plea proceedings in a motion in arrest of judgment waived such a
challenge on appeal); State v. Oldham, 515 N.W.2d 44, 46–47 (Iowa 1994)
(finding substantial compliance when the court’s otherwise insufficient
oral colloquy was considered together with the defendant’s written and
signed application to withdraw his not-guilty plea). Therefore, Smith is
not precluded from challenging his prior-offenses stipulation on appeal.
B. The Sentencing Court Failed to Comply with Harrington.
The district court failed to comply with Harrington’s requirements to
ensure Smith’s prior-offenses stipulation in the habitual offender
proceeding was voluntary and intelligent. Although Smith affirmatively
responded to the court’s inquiry that Smith’s decision to stipulate to the
habitual offender charge was voluntary, “[a]n affirmative response by the
defendant . . . does not necessarily serve as an admission to support the
imposition of an enhanced penalty as a multiple offender.” Harrington,
893 N.W.2d at 45 (alteration in original) (quoting Kukowski, 704 N.W.2d
at 692). Rather, before sentencing, the court must engage in a colloquy
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with the offender “to ensure that the affirmation is voluntary and
intelligent.” Id. (quoting Kukowski, 704 N.W.2d at 692).
In Harrington, we clarified the scope of this stipulation colloquy. Our
clarification in Harrington specifically addressed prior-offenses
stipulations for habitual offender enhancement purposes, but we have
subsequently extended the Harrington colloquy requirements to other
sentence-enhancement, prior-offenses stipulations that occur pursuant to
Iowa Rule of Criminal Procedure 2.19(9). E.g., Brewster, 907 N.W.2d at
494 (applying Harrington to rule 2.19(9) “proceedings in which repeat-OWI-
offender enhancements are at issue”); State v. Coleman, 907 N.W.2d 124,
147 (Iowa 2018) (applying Harrington to rule 2.19(9) proceedings involving
“a second offense enhancement under Iowa Code section 692A.111”). The
stipulation colloquy here fell short of the Harrington standard.
First, the court failed to inform Smith “of the nature of the habitual
offender charge,” “if admitted, that it will result in sentencing as a habitual
offender for having ‘twice before been convicted of a[ny] felony,’ ” and that
the “prior felony convictions are only valid if obtained when [Smith] was
represented by counsel or knowingly and voluntarily waived the right to
counsel.” 893 N.W.2d at 45 (quoting Iowa Code § 902.8 (2017)). The
record is silent as to any determination by the court that “a factual basis
exists to support the admission to the prior convictions.” Id. at 45–46.
Second, the court failed to inform Smith “of the maximum possible
punishment of the habitual offender enhancement, including mandatory
minimum punishment.” Id. at 46. Specifically, in this case, that he would
“be sentenced to a maximum sentence of fifteen years” and that he “must
serve three years . . . before being eligible for parole.” Id.
Third, the court did not inform Smith of the applicable trial rights
enumerated in rule 2.8(2)(b)(4) and that no trial on the habitual offender
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charge would take place if he admitted to the prior convictions. 1 Id. Nor
did it indicate “that the state is not required to prove the prior convictions
were entered with counsel if [Smith] does not first raise the claim.” Id.
Finally, the court did not adequately inform Smith that “challenges
to an admission based on defects in the habitual offender proceedings
must be raised in a motion in arrest of judgment” and that the “failure to
do so will preclude the right to assert them on appeal.” Id. It is undisputed
that the court advised Smith he had the right to file a motion in arrest of
judgment. Nonetheless, the court did not tie the filing of such a motion
with challenging the stipulation proceedings, and it made no indication
that such a motion is a prerequisite to challenging the proceedings on
appeal.
As in Harrington, the habitual offender colloquy here leaves us
“unable to conclude [Smith’s] admission was knowingly and voluntarily
made.” Id. at 47. Accordingly, we affirm Smith’s uncontested judgment of
guilt for second-degree burglary, but we reverse the judgment and
sentence of the district court and remand for further proceedings
consistent with the stipulation requirements of Harrington, or if Smith
denies the prior convictions or their validity, for trial on whether he
qualifies as a habitual offender. See id. at 48.
V. Conclusion.
Smith did not file a motion in arrest of judgment to challenge his
habitual offender stipulation proceedings as required by Harrington.
However, the district court failed to substantially comply with its duty
under Harrington to ensure that Smith understood the necessity of filing
1When Smith initially indicated he would stipulate to the prior offenses, the court
responded by noting it had told Smith “earlier about the ramifications of doing that.” Yet,
the record does not contain or otherwise reveal the substance and scope of that earlier
advisement.
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such a motion and that the failure to so file would preclude challenging
the proceedings on appeal. Therefore, we excuse Smith’s failure to
preserve error.
On the merits of Smith’s challenge to the stipulation proceedings,
we find that his prior-offenses stipulation was not knowingly and
voluntarily made because the stipulation proceedings fell short of
Harrington’s requirements. Thus, we reverse the habitual offender
judgment and Smith’s sentence and remand the case for further
proceedings consistent with Harrington. We affirm the uncontested
judgment of guilt on second-degree burglary.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
All justices concur except McDonald, J., who takes no part.