IN THE COURT OF APPEALS OF IOWA
No. 16-1850
Filed July 19, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENNIS McKINNEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Thomas L. Koehler
(plea), Ian K. Thornhill (motion to set aside plea), and Lars G. Anderson
(sentencing), Judges.
Dennis McKinney appeals from the judgement and sentence entered
following his plea of guilty to extortion. CONVICTION VACATED AND
REMANDED.
Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2
DANILSON, Chief Judge.
Dennis McKinney appeals from the judgement and sentence entered
following his plea of guilty to extortion, a class “D” felony, in violation of Iowa
Code section 711.4 (2016). We vacate the conviction and sentence, and remand
for further proceedings on the ground that McKinney’s plea was not voluntarily
and knowingly entered.
On May 26, 2016, Dennis McKinney entered a guilty plea to the offense of
extortion, acknowledging that on March 9, 2016, he threatened to inflict serious
injury on a person with the intent to obtain money and did not reasonably believe
he had a right to make the threats against the person. McKinney agreed the
minutes of evidence were accurate. Pursuant to a plea agreement, the State
agreed to dismiss a charge of second-degree robbery1 and allow McKinney to be
released pending sentencing; however, the release was subject to the condition
that if McKinney had any pretrial release violations, arrests for other offenses, or
confirmed reports of harassment of the victim or family members pending
sentencing, the State would be free to request any legal sentence that might be
imposed. The court found a factual basis existed for the plea and the plea was
voluntarily and intelligently entered. The court ordered a presentence
investigation (PSI) and set sentencing for July 26, 2016. The court also informed
McKinney,
[I]f you intend to contest or challenge the proceedings which just
occurred here this morning, you would have to do so by what we
call a motion in arrest of judgment.
1
The sentence for robbery, a class “C” forcible felony, is ten years in prison with a
seven-year minimum.
3
A motion in arrest of judgment must be filed within [forty-five]
days of this date and no less than five days prior to sentencing.
Therefore, you would have to comply with those time limitations to
be successful with reference.
McKinney moved to continue sentencing, which the court granted and
rescheduled for September 13, 2016.2
On August 15, a warrant was issued for McKinney’s arrest for violating the
terms of his release. On August 27, McKinney was in custody and his release
was revoked.
On September 6, McKinney filed a motion for arrest of judgment,
asserting he “took advantage of a plea offer,” that “upon reconsideration . . . he
now reasserts his innocence,” and he “believes his guilty plea was not voluntarily
or intelligently entered.” The State resisted the motion as untimely and without
merit. After an October 3 hearing, the district court denied the motion, writing in
part:
[McKinney] alleges no defects in the plea hearing, has
presented no evidence that his plea of guilty was involuntary, and
does not allege the State violated the terms of the plea agreement.
[McKinney] appears to have simply changed his mind after
receiving at least part of the benefit for which he bargained, that is,
being released from custody once he had entered his guilty plea.
[McKinney’s] motion in arrest of judgment is untimely[3] and
meritless and should be denied on both grounds. The court also
declines to use its discretion to otherwise allow [McKinney] to
withdraw his guilty plea.
2
The sentencing date was again moved to September 26 due to flooding concerns, and
again to October 3. On October 3, the district court considered McKinney’s motion in
arrest of judgment.
3
See State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008) (“[W]e find if the date of
sentencing is set for more than fifty days after the plea, the maximum time a defendant
has to file the motion in arrest of judgment is forty-five days from the plea.”).
4
After the sentencing hearing on October 11, the district court imposed a
five-year term of imprisonment, a $750 fine, and statutory surcharges, but
suspended payment.
McKinney now appeals, asserting his plea was not knowingly and
voluntarily entered—because the court did not advise him of the applicable thirty-
five-percent surcharge4 or that a plea had potential immigration consequences,
both as required by Iowa Rule of Criminal Procedure 2.8(2)(b). He also asserts
the sentencing court erred in considering unproven offenses.
The State concedes the district court failed to advise McKinney of the
applicable thirty-five-percent surcharge and that a plea may have an impact on
his immigration status but notes McKinney cannot directly challenge the alleged
shortcomings in his plea because his motion in arrest of judgment did not
challenge the plea on either ground.5 We disagree. Although McKinney filed a
motion in arrest of judgment, the motion did not raise the issues he now raises on
appeal. If he had been properly informed that any challenges to any defects in
the guilty plea proceeding would be forfeited on appeal unless included in his
motion, we would have no hesitation to conclude his claimed error was not
preserved.
The exception to the error-preservation rule pertaining to a defendant who
is not properly informed of his or her right to file a motion in arrest of judgment is
4
See State v. Fisher, 877 N.W.2d 676, 686 (Iowa 2016) (holding the court must inform
the defendant of applicable surcharges).
5
In his reply brief, McKinney argues he was not adequately advised by the district court
that failure to challenge any defects in his plea by a motion in arrest of judgment would
forever forfeit those challenges on appeal. But, in fact, he filed a motion in arrest of
judgment and although it was determined to be untimely, the court also determined it
was meritless.
5
premised upon fairness. See State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980)
(citing State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980) (finding where a
defendant had no opportunity to preserve error, it was not fair to hold error was
waived); Manley v. State, 278 N.W.2d 1, 3 (Iowa 1979) (allowing appeal on
fairness basis despite failure to comply with judicially-imposed requirement of a
motion in arrest of judgment)). We conclude the exception to the error-
preservation rule should apply equally to McKinney as a matter of fairness.
Here, McKinney claims his plea was involuntarily and unknowingly entered
because he was not apprised of the maximum penalty (the maximum fine plus
the thirty-five-percent surcharge). We conclude our decision in State v. Diallo,
No. 16-0279, 2017 WL 1735628, at *3 (Iowa Ct. App. May 3, 2017), is persuasive
authority to support the conclusion McKinney’s plea was not voluntarily and
knowingly entered. Accordingly, we vacate McKinney’s conviction, and the case
is remanded for further proceedings consistent with this opinion. In light of
McKinney’s plea being vacated, we need not address his second issue.
CONVICTION VACATED AND REMANDED.
State of Iowa v. Dennis McKinney
Combined Opinion