State of Iowa v. David J. Treptow

IN THE SUPREME COURT OF IOWA
No. 19–1276

Submitted October 14, 2020—Filed May 28, 2021
Amended August 3, 2021

STATE OF IOWA,

Appellee,

vs.

DAVID J. TREPTOW,

Appellant.

Appeal from the Iowa District Court for Buchanan County,

Kellyann M. Lekar, Judge.

A defendant challenges the factual basis supporting his guilty plea

to a drug offense. APPEAL DISMISSED.

McDonald, J., delivered the opinion of the court, in which

Christensen, C.J., and Waterman, Mansfield, Oxley, and McDermott, JJ.,
joined. Appel, J., filed a dissenting opinion.

Martha J. Lucey (argued), State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Zachary Miller (argued),

Assistant Attorney General, and Shawn M. Harden, County Attorney, for

appellee.
 2

McDONALD, Justice.

David Treptow pleaded guilty to three drug-related offenses and was

sentenced to an indeterminate term of incarceration not to exceed twelve

years. In this direct appeal, Treptow contends there was not a factual

basis supporting one of the convictions and his counsel provided

constitutionally ineffective assistance in allowing Treptow to plead guilty

in the absence of a factual basis. In addition to those issues, Treptow

challenges the constitutionality of Iowa Code section 814.6 (2020), which

limits the ability of a defendant to appeal as a matter of right from a
conviction following a guilty plea, and Iowa Code section 814.7, which

requires that claims of ineffective assistance of counsel be presented and

resolved in the first instance in postconviction-relief proceedings rather

than on direct appeal.

I.

Police were dispatched to Treptow’s residence on report of a

domestic disturbance. Upon entering the residence, officers immediately

smelled marijuana and observed what appeared to be marijuana in an

ashtray on the coffee table. The officers asked a cotenant of the residence

if she would grant consent to search the residence, and she granted

consent. The officers searched the residence with the assistance of a

canine unit. They discovered and seized controlled substances and

paraphernalia in various locations inside and outside the residence. A

subsequent lab report from the Division of Criminal Investigation showed

the officers seized approximately .17 grams of methamphetamine, 885.33

grams of marijuana, and 81.62 grams of marijuana concentrate.

Treptow was charged with six controlled substances offenses, and
he ultimately pleaded guilty to three of them: (1) possession with the intent

to deliver marijuana, in violation of Iowa Code section 124.401(1)(d)
 3

(2018); (2) failure to affix a drug tax stamp, in violation of Iowa Code

section 453B.12; and (3) gathering where controlled substances are used

(marijuana), enhanced as a second offense, in violation of Iowa Code

sections 124.407 and 124.411. As part of the plea agreement, the State

agreed to drop the habitual offender enhancements applicable to counts 1

and 2, to dismiss the remaining counts, and to dismiss a companion case

against Treptow.

At the time he entered his guilty pleas, Treptow expressed his desire

to proceed to immediate sentencing. The district court informed Treptow
he had the right to delay sentencing, and Treptow stated he understood

the right and waived the same. The district court informed Treptow he

had the right to have a presentence investigation report prepared prior to

sentencing, and Treptow stated he understood the right and waived the

same. Finally, the district court informed Treptow that he had the right to

file a motion in arrest of judgment and that if he did not file a motion in

arrest of judgment he “would have to forever give up [his] right to challenge

the validity of [his] guilty plea either before [the district court] or before an

Appellate Court.” Treptow stated he understood the right and waived the

same. Treptow asked his counsel to make a statement on his behalf.

Counsel informed the court Treptow desired “the paperwork be done as

soon as possible so he can be sent to prison on the next available group.”

The district court accepted Treptow’s guilty pleas and request for

immediate sentencing and entered sentence that day, July 16, 2019.

II.

In 2019, the general assembly passed and the governor signed an

omnibus crime bill effective July 1, 2019. See 2019 Iowa Acts ch. 140.
We have interpreted and applied several provisions of the omnibus crime

bill in recent decisions. See generally Hrbek v. State, 958 N.W.2d 779
 4

(Iowa 2021); State v. Tucker, 959 N.W.2d 140 (Iowa 2021); State v.

Thompson, 954 N.W.2d 402 (Iowa 2021); State v. Boldon, 954 N.W.2d 62

(Iowa 2021); State v. Draine, 936 N.W.2d 205 (Iowa 2019); State v. Macke,

933 N.W.2d 226 (Iowa 2019). These recent decisions provide guidance in

resolving the challenges raised in this appeal.

This appeal addresses two provisions of the omnibus crime bill.

First, Treptow challenges Iowa Code section 814.6. That provision now

provides:

1. Right of appeal is granted the defendant from:

a. A final judgment of sentence, except in the following
cases:

(1) A simple misdemeanor conviction.

(2) An ordinance violation.

(3) A conviction where the defendant has pled guilty.
This subparagraph does not apply to a guilty plea for a class
“A” felony or in a case where the defendant establishes good
cause.

Iowa Code § 814.6 (2020). In State v. Tucker, we examined the effect of

this new law. See 959 N.W.2d at 145–51. We explained section 814.6

“restricts only a narrow class of defendants from pursuing a direct appeal

as a matter of right: those who plead guilty to non-class A offenses and

cannot articulate a legally sufficient reason to pursue a direct appeal.” Id.

at 149. In other words, section 814.6 “prohibits those who plead guilty to

non-class A offenses from pursuing frivolous appeals as a matter of right.”

Id.

Second, Treptow challenges Iowa Code section 814.7. That

statutory provision now provides:

An ineffective assistance of counsel claim in a criminal
case shall be determined by filing an application for
postconviction relief pursuant to chapter 822. The claim need
 5
not be raised on direct appeal from the criminal proceedings
in order to preserve the claim for postconviction relief
purposes, and the claim shall not be decided on direct appeal
from the criminal proceedings.

Iowa Code § 814.7. In Tucker, we explained this statute “merely diverts all

claims of ineffective assistance of counsel to postconviction-relief

proceedings and requires they be resolved there in the first instance.” 959

N.W.2d at 152. We explained claims of ineffective assistance of counsel

rarely can be resolved on direct appeal. See id. (collecting cases); see also

Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694 (2003)

(“In light of the way our system has developed, in most cases a motion

brought under § 2255 is preferable to direct appeal for deciding claims of

ineffective assistance.”). Section 814.7 worked no significant change in

appellate practice; the new law simply codified more strongly our “judicial

practice stretching back for almost a half-century.” Tucker, 959 N.W.2d

at 152.

III.

Treptow contends sections 814.6(1)(a)(3) and 814.7 violate the

separation-of-powers doctrine as unconstitutional restrictions on the

judicial power. We recently addressed the identical challenge in Tucker
and concluded these two provisions did not violate the separation-of-

powers doctrine. See 959 N.W.2d at 148–53. Tucker is dispositive on this

issue:

[S]ections 814.6(1)(a)(3) and 814.7, whether considered in
isolation or in tandem, do not violate the separation-of-powers
doctrine. The Iowa Constitution provides this court’s
appellate jurisdiction is subject to such restrictions as the
legislature may prescribe. Iowa Const. art. V, § 4. The Iowa
Constitution also tasks the legislature with the primary duty
to provide for a system of practice in all Iowa Courts. See id.
§ 14. Here, the legislative department determined that
defendants who plead guilty to non-class A offenses should
not have the right to pursue an appeal without a showing of
good cause. See Iowa Code § 814.6(1)(a)(3). The legislature
 6
also determined all claims of ineffective assistance of counsel
must be resolved in the first instance in postconviction-relief
proceedings rather than on direct appeal. See id. § 814.7.
These decisions were within the legislative department’s
prerogative and not in derogation of the judicial power.

Id. at 152–53.

IV.

Treptow contends the omnibus crime bill violates his constitutional

right to equal protection of the laws. He argues section 814.6(1)(a)(3)

makes an arbitrary distinction (1) between those convicted after trial and

those convicted after a guilty plea and (2) between those convicted of a

class “A” felony and those convicted of a non-class “A” felony. With respect

to section 814.7, Treptow contends the statute makes an arbitrary

distinction between those who were provided effective assistance of

counsel in pleading guilty and those who were not provided effective

assistance of counsel in pleading guilty. Our review is de novo. See State

v. Mitchell, 757 N.W.2d 431, 434 (Iowa 2008) (applying de novo review to

equal protection claims).

The United States and Iowa Constitutions guarantee the equal

protection of the law to all persons. The Fourteenth Amendment to the

United States Constitution provides, “No State shall . . . deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The Iowa Constitution provides, “All laws of a general

nature shall have a uniform operation; the general assembly shall not

grant to any citizen, or class of citizens, privileges or immunities, which,

upon the same terms shall not equally belong to all citizens.” Iowa Const.

art. I, § 6. We have interpreted this provision of the Iowa Constitution to

mean “similarly situated persons [should] be treated alike under the law.”
In re Det. of Williams, 628 N.W.2d 447, 452 (Iowa 2001) (en banc). At its

core, the federal and state “equal protection guarantee requires that laws
 7

treat all those who are similarly situated with respect to the purposes of

the law alike.” Varnum v. Brien, 763 N.W.2d 862, 883 (Iowa 2009)

(emphasis omitted).

The first step in our equal protection analysis is to determine

whether the challenged law makes a distinction between similarly situated

individuals with respect to the purposes of the law. See id. at 882. This

is a threshold test. See id. If the defendant “cannot show as a preliminary

matter that [he is] similarly situated, [we] do not further consider

whether . . . different treatment under a statute is permitted.” Id.
We have already rejected the contention that section 814.6(1)(a)(3)

draws unconstitutional distinctions between those convicted after trial

and those convicted pursuant to a guilty plea. In Tucker, we concluded

“those convicted after trial and those convicted pursuant to a guilty plea

are not similarly situated for the purposes of appellate review.” 959

N.W.2d at 146. We explained that those who plead guilty have

acknowledged their guilt and waived their constitutional rights so the need

for appellate review is not necessary in the same way as it is after trial.

See id. at 146–47. Because those convicted after a guilty plea are not

similarly situated to those convicted following trial, “[r]equiring those who

plead guilty to establish good cause to pursue a direct appeal as a matter

of right does not violate federal or state guarantees of equal protection of

the laws.” Id. at 147.

Treptow’s next contention fares no better. Treptow contends section

814.6(1)(a)(3) makes an arbitrary distinction between those convicted of a

class “A” felony and those convicted of other offenses. A class “A” felony

is one punishable by a life sentence. See Iowa Code § 902.1(1). It is the
maximum punishment authorized by Iowa law. Those convicted of an

offense subject to the maximum punishment authorized by Iowa law are
 8

not similarly situated to those convicted of an offense subject to a lesser

punishment. Persons committing different offenses or different levels of

offenses are not similarly situated for equal protection purposes. See State

v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998) (“In other words, if the

elements of the offenses are not the same, persons committing the crimes

are not similarly situated and, therefore, may be treated differently for

purposes of the Equal Protection Clause.”), overruled on other grounds by

State v. Bruegger, 773 N.W.2d 862 (Iowa 2009); People v. Jones, 350

N.E.2d 913, 915 (N.Y. 1976) (per curiam) (stating for the purposes of equal
protection, “[T]he circumstances were not the same since defendant was

convicted of a crime different than that of her codefendants”).

Thus, our law draws numerous distinctions in the procedures

afforded to defendants based on offense levels. For example, indigent

defendants charged with a class “A” felony are appointed two lawyers while

all other indigent defendants are appointed only one. See Iowa Code

§ 815.10(1)(b). Defendants charged with a class “A” felony are entitled to

ten peremptory strikes, but defendants charged with anything other than

a class “A” felony are entitled to only six peremptory strikes. See Iowa R.

Crim. P. 2.18(9). Non-class “A” felons are entitled to have a presentence

investigation report prepared prior to sentencing and misdemeanants are

not. See Iowa Code § 901.2(2). The Iowa Rules of Criminal Procedure draw

a distinction between felons and misdemeanants with respect to required

procedures during plea proceedings. See Iowa R. Crim. P. 2.8(2)(b). And

those convicted of a simple misdemeanor cannot invoke the jurisdiction of

this court as a matter of right. See Iowa Code § 814.6(1)(a). There is no

suggestion these classifications distinguish between similarly situated
persons or violate principles of equal protection. The constitutional
 9

entitlement to equal protection does not prevent the state from affording

those facing greater punishment additional procedural protections.

Finally, Treptow contends section 814.7 makes an unlawful

distinction between those who received effective assistance of counsel

during plea proceedings and those who did not. We are not sure what to

make of this argument. The statute makes no distinction between classes

of persons in this regard. The statute prohibits any defendant—those

convicted following trial and those convicted following a guilty plea—from

presenting a claim of ineffective assistance of counsel on direct appeal.
In any event, those asserting claims other than a claim of ineffective

assistance of counsel are not similarly situated to those asserting claims

of ineffective assistance of counsel. A claim of ineffective assistance of

counsel is more than an error preservation device; it is a substantive legal

claim with its own elements. See Kimmelman v. Morrison, 477 U.S. 365,

374, 106 S. Ct. 2574, 2582–83 (1986) (distinguishing between ineffective-

assistance-of-counsel claim and underlying constitutional claim); Rose v.

Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“While [the ineffective-

assistance claim and underlying constitutional claim are] admittedly

related, they are distinct claims with separate elements of proof, and each

claim should have been separately and specifically presented to the state

courts.”); Wright v. State, No. 16–0275, 2017 WL 1401475, at *2 (Iowa Ct.

App. Apr. 19, 2017) (noting a direct legal claim and indirect legal claim

presented within an ineffective-assistance framework are substantively

different). A defendant asserting a claim of ineffective assistance of

counsel must always show his “trial counsel failed to perform an essential

duty and that this failure resulted in prejudice.” State v. Kress, 636
N.W.2d 12, 20 (Iowa 2001).
 10

“It is not unconstitutional or even unreasonable to treat as similarly

situated only those parties whose cases are ‘factually and legally similar’

and ‘share similar procedural histories.’ ” Wright, 2017 WL 1401475, at *3

(quoting State ex rel. Brown v. Bradley, 658 N.W.2d 427, 433 n.7 (Wis.

2003)). Thus, in Hunt v. Nuth, the United States Court of Appeals for the

Fourth Circuit rejected a similar challenge to a Maryland law. See 57 F.3d

1327, 1336–37 (4th Cir. 1995). In Maryland, the appellate courts typically

require defendants to raise claims of ineffective assistance of counsel in

postconviction-relief proceedings. See Mosley v. State, 836 A.2d 678, 686
(Md. 2003). However, in Maryland, appellate review of postconviction-

relief proceedings is discretionary. See Hunt, 57 F.3d at 1336 n.10. In

Hunt, the postconviction applicant challenged this system, contending his

equal protection rights were violated because he did not have the

opportunity to present his claims of ineffective assistance of counsel to an

appellate court as a matter of right. See id. at 1336–37. The Fourth Circuit

rejected the contention:

Hunt also raises an equal protection challenge to
Maryland’s system of post-conviction review. He contends
that Maryland improperly distinguishes between defendants
with constitutional claims cognizable on direct review, and
those with claims that are only cognizable on post-conviction
review. He claims that this unequal access to appellate review
lacks a rational basis and violates equal protection
guarantees. Thus, Hunt creates two classes of claims, rather
than two classes of persons, and argues that these types of
claims must be treated equally by Maryland. The State,
however, has a legitimate interest in conserving judicial
resources and need not provide the same review for each type
of claim, particularly when Maryland already provides
defendants with more than the constitutional minimum of
opportunities for review. Therefore, we reject Hunt’s claim
that Maryland’s discretionary post-conviction review system
violates the Equal Protection Clause.

Id.
 11

Because Treptow has not established he is similarly situated to a

relevant comparator, we need not determine whether there is

constitutionally sufficient justification for the distinctions drawn in the

challenged statutes. See State v. Dudley, 766 N.W.2d 606, 616 (Iowa 2009)

(“If a plaintiff cannot show preliminarily that persons in the two classes

are similarly situated, we have concluded the court need not determine

whether there is a constitutionally adequate basis for the persons’ different

treatment.”); Varnum, 763 N.W.2d at 882. Requiring those who plead

guilty to establish good cause to pursue a direct appeal as a matter of right
and requiring all defendants to present claims of ineffective assistance of

counsel in postconviction-relief proceedings rather than on direct appeal

does not violate federal or state guarantees of equal protection of the laws.

See In re Morrow, 616 N.W.2d 544, 548 (Iowa 2000) (en banc) (“If people

are not similarly situated, their dissimilar treatment does not violate equal

protection.”); see also People v. Ivester, 286 Cal. Rptr. 540, 542–43 (Ct.

App. 1991) (rejecting equal protection challenge to statute denying appeal

from a judgment of conviction upon a plea of guilty unless the defendant

filed a written statement of reasonable grounds that challenge the legality

of the plea).

V.

Treptow argues the omnibus crime bill violates his constitutional

right to due process. More specifically, Treptow argues section 814.7

interferes with the ability of appellate counsel to present claims of

ineffective assistance on direct appeal and thus violates Treptow’s right to

due process. Stated differently, Treptow contends he has an absolute due

process right to present claims of ineffective assistance on direct appeal.
We review challenges to the constitutionality of a statute de novo. See

Mitchell, 757 N.W.2d at 434.
 12

Treptow’s initial premise—that section 814.7 interferes with the

right to effective assistance of counsel on direct appeal—is not sound. A

criminal defendant is entitled to effective assistance of counsel on appeal.

See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (en banc). The

right to the effective assistance of appellate counsel is the right to have

counsel in an appeal and to have counsel perform competently in that

appeal. See id. at 141–42. The right to the effective assistance of appellate

counsel where direct appeal is available does not create an entitlement to

direct appeal as a matter of right and a further entitlement to present any
and all claims on direct appeal as a matter of right. Treptow does not cite

any authority in support of such a claim, and we find none.

Further, the defendant’s due process concerns are simply

overstated. Requiring claims of ineffective assistance of counsel to be

presented in the first instance in postconviction-relief proceedings is not

uncommon. See, e.g., Martinez v. Ryan, 566 U.S. 1, 4, 132 S. Ct. 1309,

1313 (2012) (“The State of Arizona does not permit a convicted person

alleging ineffective assistance of trial counsel to raise that claim on direct

review.”); State v. Spreitz, 39 P.3d 525, 527 (Ariz. 2002) (en banc); Wrenn

v. State, 121 So. 3d 913, 914–15 (Miss. 2013) (holding that defendant’s

conviction following a guilty plea could only be challenged under the

postconviction statute rather than on direct appeal); State v. Dell, 967 P.2d

507, 509 (Or. Ct. App. 1998); State v. Brouillard, 745 A.2d 759, 768 (R.I.

2000) (“This Court repeatedly has held that it will not consider a claim of

ineffectiveness of counsel that is raised for the first time on a direct

appeal.”); Turner v. Commonwealth, 528 S.E.2d 112, 115 (Va. 2000)

(explaining claims of ineffective assistance must be brought in collateral
proceedings); State v. Rettig, 416 P.3d 520, 521 (Utah 2017) (rejecting

claim that “the legislature lacks the constitutional power to require that
 13

[the defendant] pursue his claim through the Post-Conviction Remedies

Act”).

In addition to states that disallow the presentation of claims of

ineffective assistance on direct appeal, most state courts do not review

claims of ineffective assistance on direct appeal even when allowed

because “[a] claim of ineffective assistance of counsel is generally not a

basis for direct appeal and instead should be raised in a postconviction

proceeding.” 24 C.J.S. Criminal Procedure and Rights of the Accused

§ 2119 & n.1, at 85 (2016) (collecting cases). In the vast majority of states,
the defendant must wait to develop and present his claim of ineffective

assistance of counsel in postconviction-relief proceedings. See Eve

Brensike Primus, Effective Trial Counsel After Martinez v. Ryan: Focusing

on the Adequacy of State Procedures, 122 Yale L.J. 2604, 2613 n.39 (2013)

(collecting cases and stating “[i]n the vast majority of states, however,

defendants must wait until state collateral review to raise ineffective

assistance of trial counsel claims”). This was true in Iowa prior to the

passage of the omnibus crime bill. As we explained in Tucker, Iowa’s

appellate courts have been preserving most claims of ineffective assistance

of counsel for development in postconviction-relief proceedings for half of

a century. See Tucker, 959 N.W.2d at 152. The new law merely codified

that practice in stronger form.

The practice of requiring claims of ineffective assistance of counsel

to be resolved in the first instance in postconviction-relief proceedings is

supported by a variety of legitimate interests. Among others:

Considering a claim of ineffective assistance of counsel on
direct appeal (1) deprives the State, in responding to the
defendant’s arguments, of the benefit of an evidentiary
hearing, including trial counsel’s testimony; (2) places [the
appellate courts] in the role of factfinder with respect to
evaluating counsel’s performance; . . . and (4) constitutes a
 14
significant drain on [appellate court] resources in responding
to such claims.

State v. Nichols, 698 A.2d 521, 522 (Me. 1997), holding modified by

Petgrave v. State, 208 A.3d 371 (Me. 2019).

There is no due process right to present claims of ineffective

assistance of counsel on direct appeal. Due process merely requires an

opportunity to present those claims in some forum. For half of a century,

Iowa, like most states, has resolved claims of ineffective assistance in

postconviction-relief proceedings and not direct appeal. Iowa Code section

814.7 is consistent with that practice and does not violate due process.

VI.

Having concluded section 814.6(1)(a)(3) is constitutional and

governs this appeal, we turn to the question of whether Treptow has

established good cause to pursue this appeal as a matter of right. Treptow

“bears the burden of establishing good cause to pursue an appeal of [his]

conviction based on a guilty plea.” State v. Damme, 944 N.W.2d 98, 104

(Iowa 2020); see also Iowa Code § 814.6(1)(a)(3) (stating that the provision

prohibiting an appeal from a conviction where the defendant pleaded guilty

does not apply “in a case where the defendant establishes good cause”

(emphasis added)).
The statute does not define “good cause.” See id. The parties

propose very different interpretations of the statute. Treptow claims “good

cause” should be defined broadly to allow for direct appeal as a matter of

right whenever a defendant has presented “some colorable claim” on

appeal. The State argues this is a low bar. It counters “good cause” should

be defined narrowly to allow for an appeal only where the defendant’s claim

is “likely meritorious” and cannot be addressed elsewhere in the criminal
justice system.
 15

We need not resolve the parties’ disagreement to resolve the question

presented in this appeal. In State v. Damme and State v. Boldon, we stated

that “good cause” in section 814.6 means a “legally sufficient reason.”

Boldon, 954 N.W.2d at 69 (quoting Damme, 944 N.W.2d at 104). What

constitutes a legally sufficient reason is context specific. See Boldon, 954

N.W.2d at 69; Damme, 944 N.W.2d at 104. In those cases, we concluded

“that good cause exists to appeal from a conviction following a guilty plea

when the defendant challenges his or her sentence rather than the guilty

plea.” Boldon, 954 N.W.2d at 69 (quoting Damme, 944 N.W.2d at 105).
We explained that “[a] sentencing error invariably arises after the court

has accepted the guilty plea. This timing provides a legally sufficient

reason to appeal notwithstanding the guilty plea.” Id. (alteration in

original) (quoting Damme, 944 N.W.2d at 105).

Here, Treptow has not established a legally sufficient reason to

appeal as a matter of right. By definition, a legally sufficient reason is a

reason that would allow a court to provide some relief. Here, there is no

such possibility. When Treptow pleaded guilty and requested immediate

sentencing, he waived his right to file a motion in arrest of judgment. His

failure to file a motion in arrest of judgment precludes appellate relief. See

Iowa R. Crim. P. 2.24(3)(a) (“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.”). We

thus cannot provide relief.

We have recognized two exceptions to this bar, but neither exception

would allow for the possibility of relief on the facts of this case. First, we

have recognized a defendant may challenge his guilty plea on appeal
despite not filing a motion in arrest of judgment where the district court

failed to adequately advise the defendant of the consequences of not filing
 16

a motion in arrest of judgment. See State v. Loye, 670 N.W.2d 141, 149–

50 (Iowa 2003) (explaining court’s failure to advise of the consequences of

the failure to file a motion in arrest of judgment reinstates the defendant’s

right to appeal the legality of his plea). Here, Treptow was adequately

advised of and waived the right.

Second, we have allowed a defendant to indirectly challenge his

guilty plea on appeal despite not filing a motion in arrest of judgment “if

the failure to file a motion in arrest of judgment resulted from ineffective

assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
Because we have just upheld the constitutionality of section 814.7, this

court is without authority to decide ineffective-assistance-of-counsel

claims on direct appeal. Thus, the second exception no longer provides an

avenue for relief on direct appeal.

Treptow argues this court need not decide his claim under the

familiar ineffective-assistance-of-counsel framework. Instead, he argues,

this court should adopt plain error review. We are disinclined to do so.

We have repeatedly rejected plain error review and will not adopt it now.

See State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016); State v. Rutledge,

600 N.W.2d 324, 325 (Iowa 1999).

The defendant has not advanced a legally sufficient reason to pursue

an appeal as a matter of right. The defendant was adequately advised of

the necessity of filing in a motion in arrest of judgment to challenge his

guilty plea and the consequences of failing to do so. Upon being properly

advised of his right and the consequences of waiving that right, the

defendant waived the right and proceeded to immediate sentencing. The

defendant has no right to assert a claim of ineffective assistance of counsel
on direct appeal, and this court has no authority to decide a claim of

ineffective assistance of counsel on direct appeal. Under the
 17

circumstances, the appellate courts cannot provide the defendant with

relief. The defendant has thus not established good cause to pursue his

appeal as a matter of right under section 814.6.

VII.

Because Treptow has not established good cause to pursue a direct

appeal as a matter of right, this court is without jurisdiction to hear the

appeal.1

APPEAL DISMISSED.

All justices concur except Appel, J., who dissents.

1Treptow also challenges the constitutionality of Iowa Code section 814.29, which

provides,
If a defendant challenges a guilty plea based on an alleged defect in the
plea proceedings, the plea shall not be vacated unless the defendant
demonstrates that the defendant more likely than not would not have pled
guilty if the defect had not occurred.
Treptow contends this provision violates the separation-of-powers doctrine. We decline
to pass on the constitutionality of the statute given our conclusion that the court lacks
jurisdiction in this matter. Judicial self-restraint imposes a duty upon this court to avoid
constitutional questions where possible. See State v. Trucke, 410 N.W.2d 242, 243 (Iowa
1987) (en banc). “[W]e normally avoid constitutional claims when an appeal can be
decided on other grounds.” State v. Kukowski, 704 N.W.2d 687, 690 (Iowa 2005).
Treptow’s separation-of-powers challenge to section 814.29 will have to be developed, if
at all, in postconviction-relief proceedings.
 18

#19–1276, State v. Treptow

APPEL, Justice (dissenting).

I respectfully dissent. In my view, under either prior law or S.F. 589,

the strictly legal issue posed in this case—whether there was substantial

evidence in the record to support a conviction of the crime of gathering for

drug purposes—may be considered on direct appeal through statutory

interpretation.

With respect to constitutional issues that are raised by David

Treptow in this case, I incorporate my discussion in my special
concurrence in State v. Tucker, 959 N.W.2d 140, 154–68 (Iowa 2021), as if

fully set out here.

I. Consideration of Legal Question of Whether Guilty Plea is
Supported by Substantial Evidence on Direct Appeal.

A. Introduction. For many years, plea bargaining was forbidden,

but now, criminal justice today “is for the most part a system of pleas, not

a system of trials.” Missouri v. Frye, 566 U.S. 134, 143, 132 S. Ct. 1399,

1407 (2012) (quoting Lafler v. Cooper, 566 U.S. 156, 170, 132 S. Ct. 1376,

1388 (2012)). In recent decades, disposition of criminal cases by plea

bargaining has approached or exceeded ninety percent. Lindsey Devers,

Bureau of Just. Assistance, Plea and Charge Bargaining 1 (2011); see also
McCarthy v. United States, 394 U.S. 459, 463 n.7, 89 S. Ct. 1166, 1169

n.7 (1969) (stating 86% of convictions in federal district courts in 1968

were pleas). As noted by two prominent scholars, plea bargaining “is not

some adjunct to the criminal justice system; it is the criminal justice

system.” Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract,

101 Yale L.J. 1909, 1912 (1992).
The decision to enter into a “plea is a grave and solemn act to be

accepted only with care and discernment.” Brady v. United States, 397
 19

U.S. 742, 748, 90 S. Ct. 1463, 1468 (1970). As noted years ago in Boykin

v. Alabama, the process of plea bargaining “demands the utmost solicitude

of which courts are capable in canvassing the matter with the accused to

make sure he has a full understanding of what the plea connotes and of

its consequence.” 395 U.S. 238, 243–44, 89 S. Ct. 1709, 1712 (1969).

More recently, Justice Scalia observed that plea bargaining

“presents grave risks of prosecutorial overcharging that effectively compels

an innocent defendant to avoid massive risk by pleading guilty to a lesser

offense.” Lafler, 566 U.S. at 185, 132 S. Ct. at 1397 (Scalia, J., dissenting).
See generally Boaz Sangero, Safety from Plea-Bargains’ Hazards, 38 Pace

L. Rev. 301, 306–21 (2018) (summarizing risks of false confession and

subsequent pleas). Justice Scalia’s observation has support in innocence

cases uncovered through DNA analysis that were originally the product of

plea bargaining. See Brandon Garrett, Convicting the Innocent: Where

Criminal Prosecutions Go Wrong 150–53 (2011) (noting that of the first 330

DNA exonerations, eight percent, or twenty-seven, had pled guilty).

As a matter of due process, in order to enter into a plea bargain, the

defendant must be competent. Godinez v. Moran, 509 U.S. 389, 396, 113

S. Ct. 2680, 2685 (1993). The plea bargain must be made knowingly and

voluntarily. Brady, 397 U.S. at 748, 90 S. Ct. at 1469. In order to be

knowing and voluntary, the defendant must be aware of the consequences

of the plea and comprehend the constitutional rights waived by the

agreement. Boykin, 395 U.S. at 243–44, 89 S. Ct. at 1712.

In order to insure that plea bargains are entered into by defendants

with “care and discernment,” the United States Supreme Court

promulgated Federal Rule of Criminal Procedure 11. Fed. R. Crim. P. 11
Advisory Committee’s Note to 1983 Amendments. Under the rule as

originally enacted in 1944, the court was required to make inquiries into
 20

voluntariness, but later amendment specifically required the court to

determine the underlying factual basis for the plea and personally address

the defendant to ensure understanding of the consequences associated

with the plea. McCarthy, 394 U.S. at 465–66, 89 S. Ct. at 1170. As noted

in McCarthy v. United States, the rule was promulgated by the United

States Supreme Court pursuant to its constitutional authority to supervise

lower federal courts. Id. at 464, 89 S. Ct. at 1169.

The rule has two goals. Id. at 465, 89 S. Ct. at 1170. First, “it is

designed to assist” district court judges “in making the constitutionally
required determination that a defendant’s guilty plea is truly voluntary.”

Id. Second, it “is intended to produce a complete record at the time the

plea is entered of the factors relevant to [the] voluntariness determination.”

Id. Meticulous compliance with the rule thus discourages or at least

provides for more expeditious disposition of the “often frivolous post-

conviction attacks on the constitutional validity of guilty pleas.” Id. The

effect of noncompliance is that the defendant’s guilty plea is set aside and

the case remanded for another hearing at which he may plead anew. Id.

at 471–72, 89 S. Ct. at 1173–74.

The Supreme Court concluded that prejudice to the defendant

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 [the] plea.”

Id. An amendment to rule 11 and subsequent caselaw has, however,

adjusted the prejudice requirements a certain extent. See generally State

v. Finney, 834 N.W.2d 46, 51–55 (Iowa 2013) (discussing the amendment

and caselaw which adopted a harmless error rule if the failure of complying
with rule 11 does not affect substantial rights).
 21

The requirement that a plea be supported by a factual basis

advances several purposes. As noted by one commentator, the factual

basis requirement “may (1) assist a judge in the voluntariness

determination, (2) make appellate review of a plea less complex, (3)

facilitate the rehabilitation of a defendant, and (4) provide protection for

an innocent defendant.” John L. Barkai, Accuracy Inquiries for All Felony

and Misdemeanor Pleas: Voluntary Pleas but Innocent Defendants?, 126 U.

Pa. L. Rev. 88, 95 (1977) (footnotes omitted).

Iowa caselaw generally followed the permutations of federal law.
See, e.g., Finney, 834 N.W.2d at 55–60. In 1977, after legislative action,

we promulgated a rule of our own related to plea bargaining. Iowa R. Crim.

P. 2.8(2)(b). Rule 2.8(2)(b) requires the court to determine before accepting

a plea that there is substantial evidence supporting the crimes for which

the defendant has agreed to plead guilty. In addition, the rule requires the

court to personally address the defendant, inform the defendant of, and

personally make sure the defendant understands, (1) the nature of the

charge, (2) the minimum and maximum punishment, (3) a conviction

might impact the defendant’s immigration status, (4) the defendant has a

right to a jury trial, “the right to assistance of counsel, the right to confront

and cross-examine witnesses . . . , the right not to be compelled to

incriminate oneself, and the right to present witnesses” and have a

compulsory process to secure them at trial, and (5) that by pleading guilty,

there will be no further trial and that by pleading guilty, the defendant

waives the right to a jury trial. Id.

Under our established approach to guilty pleas, this court on direct

appeal considered attacks on the legal validity of guilty pleas in certain
circumstances. For example, a guilty plea not supported by substantial

evidence could be reviewed on direct appeal through a claim that counsel
 22

was ineffective for failure to object. State v. Gines, 844 N.W.2d 437, 441

(Iowa 2014). Deficiencies in the plea colloquy required by rule 2.8(2)(b)

could also be raised on direct appeal in certain circumstances. State v.

Weitzel, 905 N.W.2d 397, 401–02 (Iowa 2017) (allowing direct appeal for

failure to advise adequately about consequences of the plea). Such an

approach is consistent with efficient disposition of the challenges. Where

a strictly legal question is posed challenging the validity of a guilty plea

and no fact finding is required, there is simply no point in referring such a

claim to a postconviction-relief proceeding in district court.
Under our prior caselaw, Treptow would be entitled to relief as, in

my view, the record does not establish a factual basis for his conviction of

the crime of gathering under Iowa Code section 124.407 (2018). See, e.g.,

State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (en banc) (“The

district court may not accept a guilty plea without first determining that

the plea has a factual basis.”); see also Gines, 844 N.W.2d at 441 (same,

quoting Schminkey). While there was sufficient evidence to support

various other drug offenses to which Treptow pled guilty, there was no

evidence in the record to support conviction of the marijuana gathering

offense.2

2Treptow of course pled guilty to the various offenses. Thus, under federal law,
he forfeits constitutional claims that arose prior to the plea bargaining process. Tollett v.
Henderson, 411 U.S. 258, 266–67, 93 S. Ct. 1602, 1607–08 (1973). But see State v.
Ethington, 592 P.2d 768, 769–70 (Ariz. 1979) (in banc) (holding state public policy
prevents negotiation of waiver of right to appeal in context of plea bargaining); People v.
Butler, 204 N.W.2d 325, 330 (Mich. Ct. App. 1972) (holding under the Michigan
Constitution’s due process clause the right to appeal may not be bargained away while
pleading guilty). Under the best, but not universal, view of federal law, Treptow does not
forfeit claims related to the formation of the plea bargaining itself. Specifically, a plea
bargain does not prevent a defendant from attacking the plea itself as not supported by
a factual basis. See, e.g., United States v. Culbertson, 670 F.3d 183, 190 (2d Cir. 2012);
United States v. Lacey, 569 F.3d 319, 323–24 (7th Cir. 2009); United States v. Adams,
448 F.3d 492, 502 (2d Cir. 2006); United States v. Baymon 312 F.3d 725, 727 (5th Cir.
2002); United States v. McKelvey, 203 F.3d 66, 69–70 (1st Cir. 2000). But see United
States v. Beck, 250 F.3d 1163, 1166–67 (8th Cir. 2001); United States v. Johnson, 89 F.3d
 23

The State claims, however, that we must follow the approach in

S.F. 589, which took effect on July 1, 2019. 2019 Iowa Acts ch. 140, § 33

(codified at Iowa Code § 814.29 (2020)). Under the new approach

established by S.F. 589, a defendant seeking to challenge a guilty plea on

direct appeal must establish “good cause.” Id. § 28(a)(3) (codified at Iowa

Code § 814.6(1)(a)(3) (2020)). The State maintains that Treptow has not

shown good cause and that, as a result, this court should not decide the

straightforward legal issue raised by Treptow but should instead send the

case off to a district court for an action in postconviction relief.
In my view, we should find that there is good cause to consider

Treptow’s claim on direct appeal. First, I would hold that good cause is

categorically present to consider a challenge to a guilty plea on direct

appeal where a defendant claims that the guilty plea is not supported by

substantial evidence on the record or where the defendant raises any other

legal challenge to the guilty plea for failure of the district court to comply

with Iowa Rule of Criminal Procedure 2.8(2)(b). In the alternative, I would

accept Treptow’s invitation and adopt a version of the plain error doctrine

sufficiently broad to permit consideration of his legal challenge to his guilty

plea on direct appeal. Such an approach smoothly harmonizes a nearly

778, 784 (11th Cir. 1996), abrogation on other grounds recognized by United States v.
Davila, 749 F.3d 982 (11th Cir. 2014). Further, an explicit waiver of appeal rights
pursuant to a plea bargain does not prevent a defendant from attacking the resulting
conviction on the grounds that it was not knowing and voluntary, was not taken in
compliance with Federal Rule of Criminal Procedure 11, or was the product of ineffective
assistance. See, e.g., United States v. Atkinson, 354 F. App’x 250, 252 (6th Cir. 2009);
United States v. Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001); United States v.
Hernandez, 242 F.3d 110, 113–14 (2d Cir. 2001) (per curiam); Jones v. United States, 167
F.3d 1142, 1144–46 (7th Cir. 1999); see also Robert K. Calhoun, Waiver of the Right to
Appeal, 23 Hastings Const. L. Q. 127, 140 (1995) (“[D]efendants remain free to raise on
appeal any issue which goes to the validity of the plea or the waiver itself[;] . . . there
appears to be general consensus that an accused may raise the question of adequate
assistance of counsel in making the waiver.”).
 24

universally accepted judicial doctrine with the good cause requirement of

the new legislation.3

B. Meaning of “Good Cause.”

1. Introduction. At the outset, the legislature has declined to provide

a definition of “good cause.” The interpretation of the term has thus been

delegated by the legislature to the courts. In one of our first cases

construing S.F. 589, we noted that good cause means “a legally sufficient

reason.” State v. Damme, 944 N.W.2d 98, 104–05 (Iowa 2020). In State v.

Damme, we held that a challenge to the sentence imposed pursuant to a
guilty plea was not an attack on the plea itself and was therefore subject

to direct appeal. Id. at 105.

Objectively, the term “good cause” is not a brittle and narrow

expression but is an elastic term that permits application as required by

the facts and circumstances. See, e.g., Wilder v. Prokop, 846 F.2d 613,

622 (10th Cir. 1988); Dinko v. Wall, 531 F.2d 68, 73–75 (2d Cir. 1976);

Jones v. Westinghouse Elec. Supply Co., 128 A.2d 808, 809 (Del. Super.

Ct. 1957). Yet, while the term is elastic and usually not susceptible to a

precise formula, it is “not so elastic as to be devoid of substance.”

Compania Interamericana Exp.-Imp., SA v. Compania Dominicana de

Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (quoting Coon v. Grenier, 867

F.2d 73, 76 (1st Cir. 1989)).

In its ordinary usage, the term “good cause” is a flexible catchall

term designed to apply in a wide variety of facts and circumstances. The

term ordinarily implies rationality and judgment, but not mathematical

3See Morton Gitelman, The Plain Error Rule in Arkansas—Plainly Time for a
Change, 53 Ark. L. Rev. 205, 217 (2000) (noting that forty-seven states had adopted some
version of the plain error rule). After publication of the Gitelman article, New Hampshire
adopted plain error. See Jon M. Woodruff, note, Plain Error By Another Name: Are
Ineffective Assistance of Counsel Claims a Suitable Alternative to Plain Error Review in
Iowa, 102 Iowa L. Rev. 1811, 1816 n.19 (2017).
 25

precision. See, e.g., Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932,

933–34 (7th Cir. 2002) (stating that good cause for failure to timely serve

must be supported by some reasonable basis for noncompliance); State v.

Pedockie, 95 P.3d 1182, 1188 (Utah Ct. App. 2004) (stating good cause for

purposes of speedy trial must have reasonable basis).

Where the legislature has not defined “good cause,” we have noted

that the term is capable of contraction and expansion by construction and

that reducing it to a fixed meaning is nearly impossible. Wiese v. Iowa

Dep’t of Job Serv., 389 N.W.2d 676, 680 (Iowa 1986). The term implies
“adequate excuses that will bear the test of reason, just grounds for the

action, and always the element of good faith.” Id. (quoting Mee’s Bakery,

Inc. v. Unemp. Comp. Bd. of Rev., 56 A.2d 386, 387 (Pa. Super. Ct. 1948)).

The State suggests that good cause means “extraordinary”

circumstances. This would amount to a remarkable reworking of the

statutory language. Surely that cannot be correct. In our evaluation of

the elastic term used by the legislature, “good cause,” we cannot substitute

narrow and strict constructs that the legislature did not include in the

statutory language.

C. Good Cause as Measured by Judicial Economy. One approach

to good cause in the statute is to interpret the elastic term in a fashion

that promotes its underlying purpose. The purpose of the statute, it

seems, is to promote judicial efficiency. If so, good cause to consider

challenges to guilty pleas would be present where a claim categorically

involves only straightforward legal issues that can be handled by the

appellate courts.

A challenge to a guilty plea for insufficient evidence would fall into
that category. If challenges to a guilty plea for insufficient evidence were

considered on direct appeal, there would be no need for expenditure of
 26

appellate resources for some kind of triage. A challenge to a guilty plea for

lack of sufficient evidence is always a legal determination and is always

based on the existing record developed below. Unlike a claim of lack of

voluntariness, there is no requirement of fact-finding that an appellate

court would be ill equipped to make. In cases involving challenges to plea

bargains for insufficient evidence, there is no point in sending such a case

off to a trial court for a postconviction-relief proceeding. Such a move

would waste judicial resources, not conserve them, and likely inject

needless delay into the criminal justice system. We should not lightly
assume that the legislature intended to inject a burdensome and

completely unnecessary and time-consuming review of sufficiency of the

evidence challenges to guilty pleas by a postconviction-relief trial court;

indeed, a good cause escape valve from such a pointless referral seems a

workable and very reasonable interpretation. See State v. Iowa Dist. Ct.,

889 N.W.2d 467, 473 (Iowa 2017) (holding statutes should be interpreted

in a manner that are reasonable and workable).

It is true that challenges to plea bargains based on insufficiency of

the evidence have sometimes been couched in terms of ineffective

assistance. Under S.F. 589, ineffective-assistance claims may not be

considered in direct appeal but must instead be filed in a postconviction

action in district court. The majority believes that because of the

prohibition of consideration of ineffective-assistance claims on direct

appeal, Treptow’s attack on his guilty plea for lack of evidence must also

be barred.

There are three responses. First, as indicated above, the interplay

between the unqualified bar of ineffective-assistance claims on direct
appeal and the provision permitting direct appeal of certain guilty pleas

upon a showing of good cause is not at all clear but rather gives rise to
 27

ambiguity. State v. Nall, 894 N.W.2d 514, 518 (Iowa 2017) (holding that

where a statute is ambiguous, the court may utilize tools of statutory

construction). The good cause exception can certainly be read as a specific

standalone provision for guilty pleas that is not overridden by the general

bar against claims based on ineffective assistance of counsel, particularly

if efficiency is seen as the overriding purpose of the statute.

Secondly, however, a challenge to a guilty plea based upon

insufficient evidence, though often based on a claim of ineffective

assistance of counsel, is also based upon our supervisory powers over
inferior courts implemented through Iowa Rule of Criminal Procedure

2.8(2)(b). See Hutchins v. City of Des Moines, 176 Iowa 189, 213, 157 N.W.

881, 889 (1916) (noting that our supervisory authority of inferior tribunals

“is hampered by no specific rules or means for its exercise. It is so general

and comprehensive that its complete and full extent and use have

practically hitherto not been fully and completely known and exemplified”

(citing State v. Johnson, 79 N.W. 1081 (Wis. 1899))). Notably, a number of

cases dealing with consideration of unpreserved sufficiency-of-the-

evidence claims do not mention ineffective assistance but focus solely on

the violation of the underlying rule related to the taking of plea bargains.

See, e.g., United States v. Vonn, 535 U.S. 55, 74–76, 122 S. Ct. 1043,

1054–55 (2002) (applying plain error in context of unpreserved claim of

insufficient evidence to support plea bargain without mention of ineffective

assistance of counsel); United States v. Garcia-Paulin, 627 F.3d 127, 131

(5th Cir. 2010) (same); Kiet Hoang Nguyen v. State, 299 P.3d 683, 686

(Wyo. 2013) (same). As a matter of upholding the integrity of our judicial

system, we simply do not tolerate convictions where there is no substantial
evidence on the record to support them, regardless of whether a

constitutional violation is present. Thus, good cause may be shown when
 28

we engage in review of a guilty plea pursuant to our supervisory powers

without offending the provision of S.F. 589 that seeks to prohibit direct

appeals based upon ineffective assistance of counsel.

Third, by diverting the challenge to the sufficiency of the evidence to

postconviction relief, the defendant will be deprived of the assistance of

counsel in his first appeal as a matter of right. Most persons seeking to

challenge the sufficiency of the evidence on a guilty plea will be

incarcerated. From within the prison walls, unskilled defendants are

required to prepare a postconviction-relief petition. They have no right to
the assistance of counsel. In my view, where the postconviction-relief

petition amounts to a first appeal as a matter of right, the defendant is

entitled to counsel. My reasoning on the right to counsel issue is laid out

in Tucker, 959 N.W.2d at 155–57, and is not repeated here. But it is clear

that Treptow will be required to prepare a petition without the assistance

of counsel even though the filing will be his first appeal. By finding good

cause in this case, the constitutional infirmity would be avoided.

Based on the above, I would conclude that there is good cause to

handle this claim on direct appeal rather than delay matters by sending

the case off for a completely unnecessary postconviction-relief action.

D. Incorporation of “Plain Error” in “Good Cause.”

1. Introduction. A second, relatively clean, straightforward answer

to good cause is to incorporate under the statutory rubric of good cause a

version of plain error doctrine that has been adopted by the vast majority

of courts throughout the country. As will be demonstrated below, the plain

error doctrine is broad enough to permit this court to consider on direct

appeal the strictly legal claim including challenges to guilty pleas based
upon insufficient evidence. By utilizing our supervisory powers to adopt

plain error and incorporating it within the good cause requirement of
 29

S.F. 589, we would achieve a desirable degree of harmony between the

legislative directive and the power of the judicial branch to supervise

inferior tribunals. Because the court has the power to create a plain error

exception, and has the duty to confirm that guilty pleas have a factual

basis, Treptow argues the court must now adopt a plain error exception to

effectuate that duty in the wake of S.F. 589.4

The State urges us not to adopt a plain error approach. The State

claims that Iowa courts “have been persistent and resolute in rejecting

[plain error], and are not at all inclined to yield on the point.” State v.
Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (citing State v. McCright, 569

N.W.2d 605, 607 (Iowa 1997)). The State also argues that Treptow has not

satisfied the requirements of “highest possible showing” to overcome court

precedent. See State v. Brown, 930 N.W.2d 840, 854 (Iowa 2019).

2. Development of plain error safety valve in federal courts. The

general rule is that legal error must be preserved below in order to be

raised on appeal. Beginning over a hundred years ago and continuing into

the twentieth century, however, federal and state court caselaw developed

what has been called the plain error rule. The notion was that while

ordinarily error should be preserved, there should be some safety valve to

allow substantial justice to be done even where error was not preserved.

4Plain error doctrine is not based upon the theory of ineffective assistance of

counsel but is instead based upon the proposition that a jurisdiction’s highest court may
exercise supervisory power over inferior tribunals and that they may waive preservation
requirements in order to ensure fundamental fairness and preserve the integrity of the
judicial system. See, e.g., State v. Thomas, 427 So. 2d 428, 433 (La. 1983) (citing
supervisory, rulemaking, and inherent judicial power supporting plain error). And, as
mentioned above, the leading cases dealing with consideration of unpreserved insufficient
evidence claims in the plea bargaining context do not mention ineffective assistance but
focus solely on the violation of the underlying rules related to plea bargaining. Therefore,
there can be no argument that the provision of S.F. 589 that seeks to prevent unpreserved
claims of ineffective assistance of counsel from being presented on direct appeal is an
obstacle to adoption of plain error.
 30

For instance, in Wiborg v. United States, the Supreme Court declared

that “if a plain error was committed in a matter so absolutely vital to

defendants, we feel ourselves at liberty to correct it.” 163 U.S. 632, 658–

59, 16 S. Ct. 1127, 1137 (1896). A few years later, the Supreme Court

reviewed the qualification of a juror even though review exceeded the scope

of the objection. Crawford v. United States, 212 U.S. 183, 192–97, 29

S. Ct. 260, 264–65 (1909). The following year, in Weems v. United States,

the Supreme Court emphasized the right of the court to review

unpreserved errors involving constitutional issues. 217 U.S. 349, 362, 30
S. Ct. 544, 547 (1910). Throughout the 1920s, the Court further expanded

the exception to include error involving a judge’s inappropriate questioning

of the jury’s numerical division and passion and emotion from jury

members. See N.Y. Cent. R. v. Johnson, 279 U.S. 310, 318–19, 49 S. Ct.

300, 303–04 (1929) (holding that the failure of counsel to particularize an

exception will not preclude the court, on its own motion, from protecting

suitors in their right to verdict uninfluenced by opposing counsel’s appeal

to passion and prejudice); Brasfield v. United States, 272 U.S. 448, 450,

47 S. Ct. 135, 135–36 (1926) (reviewing unpreserved error involving

relationship of court to jury). By the mid-twentieth century, the plain error

doctrine had a firm footing in federal caselaw. See generally Jon M.

Woodruff, note, Plain Error By Another Name: Are Ineffective Assistance of

Counsel Claims a Suitable Alternative to Plain Error Review in Iowa, 102

Iowa L. Rev. 1811, 1815–16 (2017) (describing the development of the

Supreme Court’s plain error jurisprudence) [hereinafter Woodruff, Plain

Error].

The federal doctrine was summarized in United States v. Atkinson.
297 U.S. 157, 159–60, 56 S. Ct. 391, 392 (1936). In Atkinson, the court

emphasized the availability of plain error in criminal cases where “errors
 31

are obvious, or if they otherwise seriously affect the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 160, 56 S. Ct. at 392.

When the federal rules of criminal procedure were adopted in 1944,

Federal Rule of Criminal Procedure 52(b) incorporated the prior plain error

caselaw by providing that “a plain error that affects substantial rights may

be considered even though it was not brought to the court’s attention.”

According to the commentary, the rule “was drafted as a restatement of

the common law.” Jeffrey L. Lowry, Plain Error Rule—Clarifying Plain Error

Analysis Under Rule 52(b) of the Federal Rules of Criminal Procedure, 84 J.
Crim. L. & Criminology 1065, 1066 (1994).

In United States v. Olano, the Supreme Court elaborated on the plain

error concept. 507 U.S. 725, 731–35, 113 S. Ct. 1770, 1776–78 (1993).

In Olano, the Court stated that in order to qualify for plain error, the error

must occur at the trial level, the error must be plain, and the plain error

must “affect substantial rights.” Id. Similarly, in Henderson v. United

States, the Supreme Court emphasized that plain error may not be plain

to the trial court but may become clear when a case is pending on appeal.

568 U.S. 266, 273, 133 S. Ct. 1121, 1127 (2013).

3. Development of plain error safety valve in state courts. In addition

to adoption in caselaw and subsequent rule by the federal courts, the plain

error doctrine in one form or another has been adopted in forty-eight

states.5 Iowa and Pennsylvania appear to be the two outliers.6

The development of plain error in the state courts is not unlike the

federal path. For example, the Wisconsin Supreme Court early in the

twentieth century declared that “[a]ny rule the enforcement of which

5See Woodruff, Plain Error, 102 Iowa L. Rev. at 1816 n.19.
6See, e.g., Rutledge, 600 N.W.2d at 325; Commonwealth v. Clair, 326 A.2d 272,
273–74 (Pa. 1974).
 32

results in a failure of justice should be carefully scrutinized and not blindly

adhered to unless the abandonment of it will work more injustice than will

follow if it be adhered to.” Cappon v. O’Day, 162 N.W. 655, 657 (Wis.

1917).

Although the vast majority of states have adopted plain error, the

precise test for determining whether to invoke the doctrine shows

variation. In order to be within the scope of the doctrine, it has been said

that the error must: be “fundamental error,” Davis v. State, 661 So. 2d

1193, 1196–97 (Fla. 1995), disapproved of on other grounds by Mack v.
State, 823 So. 2d 746 (Fla. 2002); be “affecting fundamental constitutional

rights,” Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995) (quoting Luckett

v. State, 582 So. 2d 428, 430 (Miss. 1991), overruled on other grounds by

Bester v. State, 188 So. 3d 526 (Miss. 2016)); State v. Hanson, 940 P.2d

1166, 1169 (Mont. 1997); involve “substantial rights,” Hasty v. United

States, 669 A.2d 127, 134 (D.C. 1995) (quoting Olano, 507 U.S. at 732,

113 S. Ct. at 1776); be “of law” and be apparent “on the face of the record,”

State v. Blasingame, 341 P.3d 182, 187 (Or. Ct. App. 2014) (quoting State

v. Brown, 800 P.2d 259, 355 (Or. 1990) (en banc)); or involve a claim

concerning only a question of law “or admitted facts [that] is determinative

of the case” or “is necessary to serve the ends of justice or to prevent the

denial of fundamental rights.” State v. Spotts, 206 P.3d 510, 512 (Kan.

2009). In one case, it was suggested that plain error could be invoked “if

good cause exists or if the ends of justice require consideration of the

issue.” Johnson v. Commonwealth, 458 S.E.2d 599, 602 (Va. Ct. App.

1995). That sounds a lot like S.F. 589’s good cause provision. Other states

have rather narrow formulations.
4. Safety valve of direct appeal of ineffective-assistance claims in lieu

of plain error in Iowa. In Iowa, we have rejected in conclusory fashion the
 33

plain error doctrine. Rutledge, 600 N.W.2d at 325. Yet, our caselaw

rejecting plain error cannot be evaluated in a vacuum but must be

considered in its larger legal context. If one looks at the broader legal

landscape, Iowa has not been inhospitable to considerations of

unpreserved error on appeal. Specifically, although we have rejected what

has been labeled as plain error in the past, we have permitted a defendant

to raise on direct appeal unpreserved claims under the rubric of ineffective

assistance of counsel. See, e.g., State v. Lucas, 323 N.W.2d 228, 232 (Iowa

1982) (en banc). The access to direct appeal afforded by claims of
ineffective assistance of counsel in Iowa has generally been broader than

plain error in most jurisdictions.

As observed in a note in the Iowa Law Review, the relationship

between plain error and ineffective assistance of counsel may be seen by

comparing caselaw in the area of prosecutorial misconduct in closing

arguments at a criminal jury trial. Woodruff, Plain Error, 102 Iowa L. Rev.

at 1830–31. In State v. Rutledge, the court concluded that the prosecutor’s

closing was “plainly out of bonds” but held that the claim was not

preserved because counsel did not object. 600 N.W.2d at 325. No

ineffective-assistance-of-counsel claim was made in that case. No relief

was provided. Id. at 327.

Four years later, this court decided State v. Graves. 668 N.W.2d

860, 867–68 (Iowa 2003). In this case, very similar prosecutorial

misconduct occurred. Id. In Graves, however, the defendant brought his

challenge as a claim of ineffective assistance for failure to object. Id. at

868. The Graves court reached the unpreserved error and provided the

defendant with relief. Id. at 884. Graves shows that an unpreserved “plain
error” can be reached on direct appeal if couched as a claim based on
 34

ineffective assistance of counsel and if further factual development is not

necessary to address the claim.

Under S.F. 589, however, claims of ineffective assistance of counsel

can no longer be considered on direct appeal. If so, the need for a plain

error rule is greater than it has been in the past. Plain error would no

longer be redundant. With the enactment of S.F. 589, the Iowa legal

landscape for direct appeal of unpreserved error has fundamentally shifted

from prior years when ineffective-assistance claims provided the needed

safety valve for review of fundamental errors on direct appeal.
5. Application of plain error doctrine to attacks on convictions for

insufficient evidence. I now turn to the question of whether the plain error

rule applies to unpreserved claims that a criminal conviction is not

supported by sufficient evidence. According to a catalogue of cases

compiled in 1990, at least twenty-five state jurisdictions had expressly

held that appellate courts could consider sufficiency of evidence claims for

the first time on appeal. See State v. McAdams, 594 A.2d 1273, 1275–76

(N.H. 1991) (Batchelder and Johnson, JJ., concurring specially) (listing

cases); see also Horton v. State, 758 P.2d 628, 632 (Alaska Ct. App. 1988);

State v. Govan, 744 P.2d 712, 717 (Ariz. Ct. App. 1987); State v. Payne,

530 A.2d 1110, 1111–12 (Conn. App. Ct. 1987); Fields v. United States,

484 A.2d 570, 576 (D.C. 1984); People v. Foster, 547 N.E.2d 478, 483 (Ill.

App. Ct. 1989); Mftari v. State, 537 N.E.2d 469, 474 (Ind. 1989); Knox v.

Commonwealth, 735 S.W.2d 711, 712 (Ky. 1987), overruled on other

grounds by Lane v. Commonwealth, 956 S.W.2d 874 (Ky. 1997); State v.

Lubrano, 563 So. 2d 847, 849 (La. 1990) (per curiam); State v. Hanson,

331 A.2d 375, 378 (Me. 1975); People v. Patterson, 410 N.W.2d 733, 738
(Mich. 1987); Walker v. State, 394 N.W.2d 192, 196 (Minn. Ct. App. 1986);

Medious v. State, 375 So. 2d 405, 406 (Miss. 1979); State v. Fosdick, 776
 35

S.W.2d 54, 56 (Mo. Ct. App. 1989); State v. Doe, 583 P.2d 464, 466 (N.M.

1978); People v. White, 561 N.Y.S.2d 756, 757–58 (N.Y. App. Div. 1990);

State v. Kopp, 419 N.W.2d 169, 172–73 (N.D. 1988); State v. Gardner, 536

N.E.2d 1187, 1187–88 (Ohio Ct. App. 1987); State v. Hitz, 766 P.2d 373,

375–76 (Or. 1988); State v. Larocco, 665 P.2d 1272, 1273 n.4 (Utah 1983)

(per curiam); State v. Bressette, 388 A.2d 395, 396 (Vt. 1978); Jimenez v.

Commonwealth, 402 S.E.2d 678, 680–81 (Va. 1991); City of Seattle v.

Slack, 784 P.2d 494, 499 (Wash. 1989) (en banc); Beamon v. State, 286

N.W.2d 592, 594 (Wis. 1980); Marshall v. State, 646 P.2d 795, 797 (Wyo.
1982).

There are many cases applying plain error analysis to claims that

convictions were not supported by substantial evidence after a trial. The

fountainhead federal plain error case, Wiborg v. United States, involved an

unpreserved claim of insufficient evidence at trial. 163 U.S. at 658, 16

S. Ct. at 1137. The principle was reaffirmed in Clyatt v. United States, 197

U.S. 207, 222, 25 S. Ct. 429, 432 (1905), and in a number of subsequent

federal cases. See, e.g., United States v. McKinney, 120 F.3d 132, 134 (8th

Cir. 1997). Many state courts have followed suit. See, e.g., Herrington v.

United States, 6 A.3d 1237, 1242 (D.C. 2010); State v. Guay, 33 A.3d 1166,

1171–72 (N.H. 2011); City of Campbell v. Rosario, 101 N.E.3d 681, 686

(Ohio Ct. App. 2018).

The question arises whether plain error can also be applied where

the question is whether there was sufficient evidence to support a

conviction after a plea bargain. In other words, in the application of the

plain error rule to unpreserved substantial evidence questions, does it

matter whether the underlying conviction was based on a plea bargain
rather than a trial?
 36

The answer to the question, according to the caselaw, is a

resounding no. In United States v. Vonn, the United States Supreme court

made it clear that plain error could be applied to cases involving

unpreserved insufficient evidence claims in the context of a plea bargain

where the error is “plain, prejudicial, and disreputable to the judicial

system.” 535 U.S. at 65, 122 S. Ct. at 1050. Other federal and state

authorities consistently support the proposition that unpreserved claims

of insufficient evidence supporting convictions based on guilty pleas may

be considered under the plain error rubric even where the defendant did
not move to withdraw the guilty plea or otherwise object below. See, e.g.,

Garcia-Paulin, 627 F.3d at 131; United States v. Taylor, 627 F.3d 1012,

1016–18 (6th Cir. 2010); United States v. Orozco-Osbaldo, 615 F.3d 955,

958 (8th Cir. 2010); Kiet Hoang Nguyen, 299 P.3d at 686.

In sufficiency-of-the-evidence cases, it is sometimes suggested by

the state that the availability of postconviction relief is adequate and that

direct review based on plain error is unnecessary. But as noted by the

concurring opinion in State v. McAdams: “[T]his argument ignores the

tremendous burden placed on a defendant seeking collateral review. An

indigent defendant . . . has no statutory or constitutional right to counsel

beyond a first, direct appeal.” 594 A.2d at 1279 (Batchelder and Johnson,

JJ., concurring specially). Further, the concurrence noted that

[a] defendant whose conviction was plainly based on
insufficient evidence should not be forced to spend several
months or years imprisoned while he or she attempts to
collaterally attack the conviction, whether pro se or with the
aid of counsel.

Id.

6. Inadequacy of postconviction relief. Under the majority approach,
a claim for insufficiency of the evidence to support a plea may be raised in
 37

an action for postconviction relief. For the reasons expressed in Tucker,

959 N.W.2d at 155–57, I regard this alternative an unconstitutional

impairment of the right to counsel on the first appeal as a matter of right.

7. Discussion. So, the vast majority of states and federal courts all

embrace plain error and many cases apply plain error in contexts very

similar to this case. The legal environment has shifted if the ineffective-

assistance-of-counsel provisions of S.F. 589 are enforced. Many

jurisdictions apply plain error in the context of guilty pleas not supported

by substantial evidence because it is the most efficient approach and
avoids unnecessary delay. We should do the same.

As to the suggestion that we should engage in rulemaking before

adopting plain error, I have two responses. First, plain error originally was

not based on rules; the rules followed the caselaw. This is not unusual;

we develop doctrines through the caselaw method all the time. Further,

we can narrowly declare that whatever the confines of plain error, it is

broad enough to include challenges to sufficiency of the evidence and

reserve further elaboration to rulemaking or case-by-case development.

Second, it is our obligation, in this case, to interpret the term “good

cause.” We cannot decline to fill in the blank of what the statute contains

pending rulemaking. Treptow is entitled to a determination of whether his

case amounts to good cause. We must address the issue, now, in his case.

If desirable, rulemaking can come later, but a decision for Treptow cannot

wait.

Applying plain error, based on my review of the record, there was

not substantial evidence to support Treptow’s plea of guilty to the crime of

gathering. As a result, I would reverse and remand to the district court.
Gines, 844 N.W.2d at 442. On remand, the parties may seek to establish
 38

a factual basis for the plea, engage in further plea bargaining, or bring the

matter to trial.

II. Conclusion.

For all of the above reasons, I would reverse and remand the case to

the district court.