State v. Straw

LAVORATO, Chief Justice

(dissenting).

This case involves a claim of ineffective assistance of counsel arising out of a guilty plea. Pursuant to a plea agreement, the defendant pleaded guilty to two offenses: possession of a controlled substance and driving while barred. In return for the plea, the State agreed to drop several oth *139 er charges. The record is clear that before the district court accepted the plea, it failed to advise the defendant that it could impose consecutive sentences.

On appeal, the defendant contended that the district court erred when it did not inform him that it could impose consecutive sentences and for that reason the plea was not knowingly and voluntarily entered. The defendant also contended that his counsel was ineffective for failing to ensure that the defendant was fully informed at the plea proceeding regarding the potential for consecutive sentences and for failing to file a motion in arrest of judgment challenging the plea on this basis.

I agree with the majority that when the defendant’s counsel did not bring this matter to the district court’s attention or failed to file a motion in arrest of judgment, counsel failed to perform an essential duty. I disagree with the majority’s holding on the prejudice prong of the claim for ineffective assistance of counsel. My reasons for disagreeing follow.

As we noted in State v. Loye,

The Due Process Clause [of the Fourteenth Amendment to the Federal Constitution] requires that a guilty plea be voluntary. “To be truly voluntary, the plea must not only be free from compulsion, but must also be knowing and intelligent.” Consequently, a defendant must be aware not only of the constitutional protections that he gives up by pleading guilty, but he must also be conscious of “the nature of the crime with which he is charged” and the potential penalties.

670 N.W.2d 141, 150-51 (Iowa 2003) (emphasis added) (citations omitted); see also State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005) (“ ‘A guilty plea results in a waiver of several constitutional rights. For the waiver to be valid, there must be an intentional relinquishment of known rights. Due process therefore requires that a defendant enter a guilty plea voluntarily and intelligently.’ ” (Citation omitted.)).

Iowa Rule of Criminal Procedure 2.8(2)(6) was passed to ensure that pleas are voluntary, State v. Fluhr, 287 N.W.2d 857, 863 (Iowa 1980), overruled on other grounds by State v. Kirchoff, 452 N.W.2d 801, 804-05 (Iowa 1990), and “codifies this due process mandate,” Loye, 670 N.W.2d at 151 . Rule 2.8(2)(6) provides in part:

The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) The nature of the charge to which the plea is offered.

(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.

(3) That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant’s status under federal immigration laws.

(4) That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant’s own behalf and to have compulsory process in securing their attendance.

(5) That if the defendant pleads guilty there will not be a further trial of any *140 kind, so that by pleading guilty the defendant waives the right to a trial.

Iowa R.Crim. P. 2.8(2)(b )(l)-(5) (emphasis added).

As the majority notes, we apply a substantial compliance standard in assessing whether the trial court has adequately informed the defendant of the matters listed in the rule. Loye, 670 N.W.2d at 151 . “ ‘Substantial compliance’ requires at a minimum that the defendant be informed of these matters and understand them.” Id.

A failure to challenge the plea in a motion in arrest of judgment precludes a defendant from asserting such a challenge on appeal. Iowa R.Crim. P. 2.24(3)(a). One exception occurs when during the plea the court fails to advise the defendant, as required by rule 2.8(2)(d!), of the necessity to file the motion within the time set out in rule 2.24(3)(6 ). Loye, 670 N.W.2d at 149-50 . Another exception occurs when the failure to file the motion results from ineffective assistance of counsel, State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996), which is the case here.

On direct appeal, the remedy for a successful challenge to a guilty plea is to vacate the plea, reverse the judgment of conviction, and remand the case to allow the defendant to plead anew. Loye, 670 N.W.2d at 153-54 (because the district court did not substantially comply with rule 2.8(2)(6 )(l)-(2) when it did not confirm that the defendant understood the nature of the charges to which she intended to plead guilty or the maximum possible punishments that might result from the plea, the plea violated the Due Process Clause and for that reason had to be set aside); State v. White, 587 N.W.2d 240 , 246^7 (Iowa 1998) (plea was successfully challenged on appeal based on ground that defendant was not informed that the maximum punishment that could be imposed included consecutive sentences). The remedy is applied even if counsel has discussed the same matters with the defendant in preparation for the plea hearing. Loye, 670 N.W.2d at 153 . Thus reversal is automatic if the court taking the plea does not substantially comply with the requirements of the rule. In these circumstances, we are strictly enforcing the rule.

When the appeal occurs in the context of a claim of ineffective assistance of counsel, we have applied essentially the same remedy with some modification if the plea lacks a factual basis. See, e.g., State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996). When the claim is lack of a factual basis, two possible remedies exist. State v. Mitchell, 650 N.W.2d 619, 621 (Iowa 2002) (per curiam). If the record establishes that the defendant was charged with the wrong crime, we have vacated the judgment of conviction and sentence and remanded for dismissal of the charge. Id.; Hack, 545 N.W.2d at 263 . In those circumstances, we allow the State to reinstate a charge dismissed in contemplation of a valid plea or re-indict the defendant under a code section supportable by the available evidence. Hack, 545 N.W.2d at 263 . But if it is possible that a factual basis could be shown, the more appropriate remedy is to vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis. Mitchell, 650 N.W.2d at 621 .

The net result of Mitchell and Hack is that we presume prejudice, that is, we apply a prejudice per se rule, which is contrary to the prejudice prong of a claim for ineffective assistance of counsel. Ordinarily, under the prejudice prong of a claim for ineffective assistance of counsel, we apply the prejudice requirement in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) when a defendant is claiming a violation of his *141 rights under the Sixth Amendment to the Federal Constitution. Under the Strickland requirement, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694 , 104 S.Ct. at 2068 , 80 L.Ed.2d at 698 . The prejudice requirement was based on the Court’s conclusion that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691 , 104 S.Ct. at 2066 , 80 L.Ed.2d at 696 .

In Hack , we expressed our reasons for refusing to apply the Strickland prejudice requirement in a claim of ineffective of assistance of counsel arising out of a guilty plea that lacks a factual basis:

The court of appeals affirmed Hack’s conviction, preserving the allegation of ineffective assistance of counsel for post-conviction review. Its decision rested on the belief that counsel may have had strategic reasons for permitting his client to plead guilty notwithstanding the lack of a factual basis. Endorsing such strategies, however, would erode the integrity of all pleas and the public’s confidence in our criminal justice system. For this reason, they cannot be permitted.

545 N.W.2d at 263 (emphasis added) (citations omitted).

I submit the same reasons support a refusal to apply the Strickland prejudice requirement when defendants plead guilty without being informed of the maximum possible punishment they face. White involved a direct appeal in which we concluded that a failure to inform the defendant of the possibility of consecutive sentences rendered his guilty plea involuntary. 587 N.W.2d at 241 . We said in White :

“Duration of incarceration unquestionably goes to the very heart of voluntariness required for a valid waiver of a defendant’s right to trial on the charge alleged.... ”

“It is virtually self-evident that a defendant’s decision to plead guilty ... to a criminal charge is a grave and personal judgment, which a defendant should not be allowed to enter without full comprehension of possible consequences of conviction by such plea. Whether it be the maximum term of imprisonment authorized by the statute prescribing a penalty for conviction of a crime or whether it be a combination of terms of imprisonment imposed as penalties for convictions of separate crimes, duration of possible imprisonment is an important factor affecting any defendant’s intelligent choice between the alternatives confronting a defendant — going to trial or entering a plea of guilty.... Anyone unaware that the term or duration of incarceration acutely affects a defendant’s decision regarding a guilty ... plea in a criminal case is oblivious to one of the realities in our system for efficient criminal justice.”

Id. at 246 (citation omitted).

In terms of deprivation of due process, I equate a failure to inform defendants of the maximum possible punishment with a failure to establish a factual basis. As the above quote so eloquently suggests, nothing is more important to defendants contemplating a plea than knowing the maximum possible punishment they face. Rule 2.8(2)(6) requires a factual basis for a plea as well as requiring the court to inform the defendant of the maximum possible punishment. Both requirements go to the heart of voluntariness. Moreover, contrary to the majority’s view, a failure to abide by either requirement violates the spirit and purpose of rule 2.8(2)(&) and *142 erodes the integrity of the plea process along with the public’s confidence in the criminal justice system.

In State v. Stallings, we held that trial counsel was ineffective for failing to comply with a rule to ensure that the defendant’s waiver of a jury trial was knowing, voluntary, and intelligent. 658 N.W.2d 106, 111-12 (Iowa 2003). In coming to that conclusion, we did not apply the Strickland prejudice requirement but instead we presumed prejudice; In doing so, we said: “Because the right to a jury trial is so fundamental to our justice system, we conclude this is one of those rare cases of a ‘structural’ defect in which prejudice is presumed.” Id. at 112. It goes without saying that a failure to inform the defendant of the maximum possible punishment renders the plea defective. Because liberty is such a fundamental aspect of the Due Process Clause, I would similarly consider such a plea a structural defect in which prejudice should be presumed. Moreover, the prejudice resulting from such a plea is the relinquishment of a constitutional right to a trial by jury, Meier v. State, 337 N.W.2d 204, 208 (Iowa 1983), which is fundamental to our justice system, Stallings, 658 N.W.2d at 112 . Athough the majority mentions Stallings, it neglects to answer the question why the failure to advise a defendant of the maximum possible punishment in a plea is not a structural defect. As in Stallings, Straw waived his right to a jury trial in a plea process that was constitutionally defective.

What I am suggesting is not novel. In Commonwealth v. Persinger, a case we cited with approval in White,- the trial court imposed consecutive sentences following a plea that was devoid of any mention of potential consecutive sentences. 532 Pa. 317 , 615 A.2d 1305, 1307 (1992). The superior court affirmed. Id. at 1306. The sole issue on appeal to the supreme court of Pennsylvania was whether trial counsel was ineffective for failing to file a motion to withdraw defendant’s guilty plea. Id. Although the defendant was informed of the maximum sentence possible on each count, the defendant was not informed that the sentences could be imposed consecutively. Id. at 1307. Reversing and remanding the case for trial, the supreme court of Pennsylvania stated:

Requiring the trial court to tell the defendant that the sentences may be imposed consecutively and what the total aggregate sentence could be will not significantly lengthen the colloquy or place any undue burden on the court. Accordingly, we find that the absence of this inquiry from the transcript renders the colloquy defective. As a result, appellant has suffered a manifest injustice. We find therefore, that appellant’s claim has merit. We also find that because there were adequate grounds for withdrawal of appellant’s plea, counsel’s failure to seek withdrawal of appellant’s plea was prejudicial to appellant.

Id. at 1308 (emphasis added); accord Pennsylvania v. Jones, 433 Pa.Super. 421 , 640 A.2d 1330, 1335 (1994). A later superi- or court decision characterized this holding as a per se prejudice rule. Pennsylvania v. Stanley, 830 A.2d 1021, 1026 (2003); see also North Dakota v. Schumacher, 452 N.W.2d 345, 347-48 (N.D.1990) (on appeal per se prejudice rule was applied in the context of a claim for ineffective assistance of counsel because the trial court failed to abide by the statutory rule requiring the court to. advise the defendant of the mandatory minimum punishment, if any, and the maximum possible punishment; defendant was not informed at the plea of the mandatory minimum sentence required by the charge to which he pleaded guilty); Hinton v. Hill, 197 Or.App. 238 , 105 P.3d 923, 926 (2005) (court applied per se prejudice rule in the context of a claim for *143 ineffective assistance of counsel because the trial court failed to advise the defendant of the maximum punishment required by the charges to which she pleaded guilty).

In the course of its opinion, the court in Persinger quoted with approval this passage from one of its earlier cases:

“[T]he decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.”

615 A.2d at 1307 (citation omitted); see also Henry v. Alabama, 639 So.2d 583, 584 (Ala.Crim.App.1994) (holding that defendant’s right to know the possible sentence he faces is absolute and the fact he was misinformed about the minimum and maximum sentence rendered his plea involuntary and the error was not harmless); cf. Kleppinger v. Florida, 884 So.2d 146, 148 (Fla.Dist.Ct.App.2004) (“A defendant is inherently prejudiced by his inability, due to his counsel’s neglect, to make an informed decision whether to plea bargain.”). This passage from Persinger suggests the Pennsylvania Supreme Court considers the failure to advise the defendant of the maximum possible punishment that might be imposed a structural defect in the plea process.

That brings me to Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985), a decision upon which the majority heavily relies. In Hill, the defendant filed a federal habeas corpus action alleging that his guilty plea was involuntary because he was misinformed as to his parole eligibility. 474 U.S. at 54-55 , 106 S.Ct. at 368 , 88 L.Ed.2d at 207 . He claimed he was told that if he pleaded guilty he would become eligible for parole after serving one-third of his sentence when in fact to become eligible for parole he was required to serve one-half of his sentence. Id. at 55 , 106 S.Ct. at 368 , 88 L.Ed.2d at 207 . The question was whether the defendant was entitled to a hearing on his habeas corpus action. The majority concluded that the defendant failed to allege the type of prejudice necessary to satisfy the Strickland test. To satisfy that test, the court reasoned that the defendant had to allege in his habeas corpus action that had counsel correctly informed him about his parole eligibility date, he would not have pleaded guilty and would have insisted on going to trial. Because the defendant did not make, such allegations, the Court concluded that his claim of ineffective assistance of counsel failed as a matter of law. As a result, he was not entitled to a hearing. Id. at 60, 106 S.Ct. at 371 , 88 L.Ed.2d at 211 .

It is interesting to note that the concurring opinion found no professional error— the first prong of the Strickland test. In support of this finding, the concurring opinion noted'the record was clear that the defendant did not advise his attorney of a previous felony conviction which required defendant under state law to serve one-half rather than one-third of his sentence. Id. at 61-62, 106 S.Ct. at 371-72 , 88 L.Ed.2d at 212 (White, J., concurring). Additionally, the concurring opinion found that the record supported sufficient facts to show there was a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and *144 would have insisted on going to trial. In sum, because the defendant did not allege facts showing professional error, the concurring opinion concluded the Court should deny the hearing for that reason. Id. at 62-63 , 106 S.Ct. at 372-73 , 88 L.Ed.2d at 212-13 .

In any event, I think Hill is distinguishable. ' In Hill, the misinformation by the defendant’s attorney was about parole eligibility rather than on the maximum possible punishment a defendant faces in pleading guilty. Parole eligibility is a collateral consequence of a plea. Kinnersley v. State, 494 N.W.2d 698, 700 (Iowa 1993), overruled on other grounds by State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001). The maximum possible punishment a defendant faces in pleading guilty is a direct consequence of a plea. Id. A court need not inform the defendant of collateral consequences of a plea while it must inform the defendant of the direct consequences of a plea. Id. The majority fails to mention and explain away this distinction.

There is a vast difference between a court’s failure to advise a defendant about a maximum possible punishment and an attorney’s misinformation about parole eligibility. Hill and Kress are good examples. The. defendant in Hill was facing a possible life sentence on charges of first-degree murder and theft. 474 U.S. at 53-54 , 106 S.Ct. at 368 , 88 L.Ed.2d at-207. His counsel negotiated a plea bargain under which the State would recommend concurrent prison sentences of thirty-five years for the murder charge and ten years for the theft charge. Id. at 54 , 106 S.Ct. at 368 , 88 L.Ed.2d at 207 . The trial judge sentenced the defendant in accordance with the plea, agreement. Id. Therefore, notwithstanding the attorney’s alleged misinformation about parole eligibility,- the defendant by pleading guilty at least had the. chance to avoid a life sentence. So the defendant indeed had an incentive to plead guilty.

Contrast that situation with one in which the court misinforms or does not inform the defendant about the maximum possible punishment in violation of our rule and thereafter the defendant pleads- guilty. That was exactly the - situation in Kress . In Kress , the State charged the defendant with procurement of a prescription drug by forgery, which carried a ten-year sentence. 636 N.W.2d at 15, 17 . There was no plea agreement, id. at 16 , and therefore Kress had no incentive to plead guilty. In fact, the State also alleged that Kress had been previously convicted of a drug offense that enhanced the penalty. Id. at 16-18 . Because of a previous drug conviction, Kress would have to serve one-third of the indeterminate sentence. Id. at 17-18 . The court incorrectly informed Kress that the sentencing judge could waive the one-third mandatory minimum sentence requirement. Id. at 16 . Kress then pleaded guilty. Id. Later, the district court imposed a ten-year indeterminate sentence and required Kress to serve at least one-third of her sentence. Id.

By pleading guilty, Kress gave up her constitutional right to a jury trial based on the incorrect information given at the plea. Id. at 22 . Had Kress known the true facts, she had nothing to lose and everything to gain by going-to trial because a jury may have found her not guilty. What possible reason would there have been to preserve Kress’s claim of ineffective assistance of counsel on the prejudice prong of the Strickland test rather than just setting aside the plea and judgment of conviction and allowing her to plead anew? The result would have been the same in either case. It all boils down to this: “A guilty plea must represent the informed, self-determined choice of the defendant among practicable alternatives; a guilty plea can *145 not be a conscious, informed choice if the accused” does not know of or is misinformed about the maximum punishment he or she faces by pleading guilty. Hawkman v. Parrott, 661 F.2d 1161, 1170 (8th Cir.1981).

The majority faults Kress because it fails to consider the Hill analysis. At the time we decided Kress , the State apparently did not believe Hill was applicable because it did not even mention Hill in its brief.

The other distinguishing factor is the structural defect aspect surrounding a failure to inform a defendant of the maximum possible punishment, which I mentioned earlier. In Hack , which was decided eleven years after Hill, we applied a per se prejudice rule in the context of an ineffective assistance of counsel claim arising out of a plea in which there was a lack of factual basis. In that case we did not even consider Hill. The Pennsylvania Supreme Court likewise decided Persinger after Hill and applied a per se prejudice rule in the context of an ineffective assistance of counsel claim arising out of a plea in which the maximum possible punishment was not mentioned. It too did not consider Hill.

Under the per se prejudice approach, I suggest the following. I would, as we did in Kress, 636 N.W.2d at 22 , presume prejudice, vacate the judgment of sentence and conviction, and remand the case to allow the defendant to plead anew. This disposition, of course, would, in cases like the one before us, invalidate a plea bargain involving the dismissal of other charges. I would therefore on remand allow the State to reinstate the charges, if it so desired, and to file any additional charges supportable by the available evidence. In answer to the majority’s second-bite-at-the-apple claim, allowing the State to reinstate charges and file additional charges should eliminate any incentive on the part of defendants to claim they were not advised of the maximum possible punishment when in fact they were so advised. These remedies are analogous to the remedies we apply in claims of ineffective assistance of counsel based on a lack of factual basis. Moreover, contrary to the majority’s conclusion, these remedies preserve the integrity of the process while at the same time they serve the purpose and spirit of rule 2.8(2 )(&).

Finally, the approach I suggest would conserve judicial resources by eliminating a postconviction hearing and an appeal in the event the defendant lost in the post-conviction process. This makes far more sense than the approach the majority takes.

For all of these reasons, I would vacate the court of appeals decision; I would also vacate Straw’s judgment of sentence and conviction and remand to allow him to plead anew. In addition, I would also allow the State on remand to reinstate the charges it dismissed as part of the plea bargain and to file any additional charges supportable by the available evidence.

WIGGINS, J., joins this dissent.