IN THE COURT OF APPEALS OF IOWA
No. 17-1959
Filed June 5, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CURT DOUGLAS STEFFEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Mark T. Hostager,
District Associate Judge.
A defendant challenges his conviction for second-offense operating while
intoxicated. DISTRICT COURT JUDGMENT REVERSED IN PART AND CASE
REMANDED.
Sharon D. Hallstoos, Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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TABOR, Judge.
Before the jury even convicted Curt Steffen of operating while intoxicated
(OWI), the district court secured his waiver of a second trial to prove he had been
previously convicted of OWI. Steffen stipulated he had an OWI conviction from
2010. Now, after judgment on his second offense, Steffen challenges the
adequacy of the court’s colloquy, which did not mention the prior OWI conviction
was only valid for enhancement purposes if Steffen had been represented by
counsel or knowingly waived the right to counsel. See Iowa R. Crim. P. 2.19(9).
Steffen also alleges the colloquy did not adequately advise him of the applicable
penalties for OWI, second offense.
Because the colloquy did not comply with the requirements clarified in State
v. Harrington, 893 N.W.2d 36 (Iowa 2017), State v. Brewster, 907 N.W.2d 489
(Iowa 2018), and State v. Smith, 924 N.W.2d 846 (Iowa 2019), we reverse the
judgment entered on the OWI, second offense, and remand for further
proceedings.
We begin by examining error preservation. Steffen did not file a motion in
arrest of judgment to challenge the stipulation as required to preserve error. See
Harrington, 893 N.W.2d at 42–43. But we excuse that omission because the
district court did not discuss the necessity of filing a motion in arrest of judgment
or the consequences of failing to do so. See Smith, 924 N.W.2d at 851.
Accordingly, Steffen may raise his objections to the enhancement colloquy without
alleging ineffective assistance of counsel.
We review the district court’s compliance with rule 2.19(9) for errors at law.
State v. Kukowski, 704 N.W.2d 687, 690–91 (Iowa 2005).
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Harrington outlined the four-part stipulation colloquy necessary to ensure
an offender’s admission to being a recidivist is knowing and voluntary. 893 N.W.2d
at 45–46. First, the court must inform the offender of the nature of the enhanced
charge and, if admitted, that it will result in heightened consequences. Id. at 45;
see Brewster, 907 N.W.2d at 494 (applying Harrington to “proceedings in which
repeat-OWI-offender enhancements are at issue”). The court must inform the
offender that the prior conviction is “only valid if obtained when the offender was
represented by counsel or knowingly and voluntarily waived the right to counsel.”
Harrington, 893 N.W.2d at 45 (citing Iowa R. Crim. P. 2.19(9)). As a part of this
process, the court must also make sure a factual basis exists to support the
offender’s admission to the prior conviction. Id.
Second, the court must inform the offender of the maximum possible
punishment, including any mandatory minimum, carried by the enhanced offense.
Id. at 46. For example, in Brewster, the supreme court found the colloquy
inadequate, in part, because it failed to notify Brewster that admitting his prior
conviction exposed him to a maximum indeterminate sentence of two years of
incarceration and a mandatory minimum term of seven days in jail. 907 N.W.2d at
494.
Third, the court must inform the offender of the trial rights enumerated in
Iowa Rule of Criminal Procedure 2.8(2)(b)(4). Harrington, 893 N.W.2d at 46. And
fourth, the court must inform the offender that if he admits to the prior conviction,
no trial will take place on the issue of identity. Id. “The court must also inform the
offender that the State is not required to prove the prior convictions were entered
with counsel if the offender does not first raise the claim.” Id.
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Steffen asserts the court did not comply with Harrington because he was
not informed “for the prior conviction to qualify under Rule 2.19(9) [it] must have
been entered with the assistance of counsel or following a valid waiver of counsel.”
We agree the colloquy failed to advise Steffen “the prior OWI conviction could be
a basis for enhancing the classification of the crime and the sentence only if he
was represented by or had properly waived counsel in connection with that prior
offense.” Brewster, 907 N.W.2d at 494.
“The prior conviction colloquy was also lacking in this case because it failed
to establish [Steffen] was informed that an admission of a prior conviction exposed
him to a maximum sentence” under Iowa Code section 321J.2(4)(a) (2018) of up
to two years of incarceration and a mandatory minimum sentence of seven days
in jail. Id.
Focusing on a different exposure, Steffen complains particularly that the
court should have told him about the mandatory two-year driver’s license
revocation triggered by a test refusal in an OWI second prosecution. See Iowa
Code § 321J.2(4)(c). Citing State v. Carney, 584 N.W.2d 907 (Iowa 1998), the
State maintains the driver’s license revocation was not a direct consequence of
the OWI second-offense conviction and did not need to be explained in the
stipulation colloquy. Carney held license revocation under section 321J.4(2) was
a collateral consequence of a guilty plea to OWI and the district court had no duty
to inform the defendant of the revocation before taking the plea. 584 N.W.2d at
909 (acknowledging license revocation under section 321J.4(3) was “definite,
immediate, and largely automatic” but concluded it was not “punishment” because
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the revocation was aimed at protecting the public from drivers who demonstrated
a pattern of driving while intoxicated).
For two reasons, we question the continued viability of the conclusion
reached in Carney. First, in 2010, the legislature reorganized section 321J.2 and
expressly stated a second OWI offense is “punishable” by imprisonment, fines, and
license revocation. Iowa Code § 321J.2(4)(a)–(c). An amendment to statutory text
after a judicial interpretation raises a presumption the legislature intended to alter
the rights explained in the case. See Iowa Farm Bureau Fed’n. v. Envtl. Prot.
Comm’n, 850 N.W.2d 403, 434 (Iowa 2014). The plain language of section
321J.2(4) now includes license revocation in the category of punishment.
Second, Carney was undermined by State v. Fisher, 877 N.W.2d 676 (Iowa
2016). See State v. Tompkins, 18-0304, 2019 WL 478507, at *3 (Iowa Ct. App.
Feb. 6, 2019) (McDonald, J., specially concurring). Fisher held “[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.” 877 N.W.2d at 683 (distinguishing Carney based on difference between
OWI offenses and drug-possession convictions). As the Tompkins special
concurrence suggested, it is difficult to reconcile Fisher and Carney. 2019 WL
478507, at *3. But we cannot overrule Carney. See Kersten Co. v. Dep’t of Soc.
Servs., 207 N.W.2d 117, 121–22 (Iowa 1973) (explaining it is generally the role of
the supreme court to decide if case precedent should no longer be followed).
Even assuming the colloquy was not required to provide information on the
mandatory license revocation, we find its other omissions to be grounds for
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reversal. The prior-conviction colloquy leaves us unable to conclude Steffen’s
admission to the prior OWI was knowing and voluntary. Accordingly, we affirm the
uncontested guilty verdict on the current OWI conviction, but reverse the judgment
and sentence for OWI second offense. We remand for further prior-conviction
proceedings under rule 2.19(9).
DISTRICT COURT JUDGMENT REVERSED IN PART AND CASE
REMANDED.