Summary
holding the defendant “gave up his right ‘to discuss with the judge each of the rights and legal concept set out’ in the guilty plea document, including the right to counsel” and therefore the district court had no obligation to conduct an in-court colloquy regarding defendant's waiver of right to counsel
Summary of this case from State v. SuttonOpinion
No. 2-276 / 01-1283.
Filed June 19, 2002.
Appeal from the Iowa District Court for Polk County, GREGORY D. BRANDT, District Associate Judge, and JOEL D. NOVAK, Judge.
The defendant appeals from a domestic abuse assault conviction, contending he was entitled to a live colloquy regarding his waiver of the right to counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
The State charged Phillip Carmona with domestic abuse assault causing injury, a serious misdemeanor. Iowa Code § 708.2A(2)(b) (2001). Carmona waived his right to counsel and pled guilty to the charge. An attorney later filed a motion in arrest of judgment on his behalf, contending the plea was entered without the benefit of counsel. At sentencing, however, the attorney withdrew the motion and notified the district court of a sentencing agreement. The court adjudged Carmona guilty and imposed sentence.
On appeal, Carmona contends the court should have engaged him in a colloquy concerning the waiver of his right to counsel. He further claims his sentencing attorney was ineffective in failing to pursue this issue. We disagree with Carmona on both counts.
As a preliminary matter, the State contends Carmona did not preserve error on his challenge because his attorney withdrew the motion in arrest of judgment that raised the issue. We disagree. Our highest court has stated that, in serious and aggravated misdemeanor cases as well as felonies, a court's failure to personally advise a defendant of the right to file a motion in arrest of judgment and the consequences of failing to do so relieves the defendant of the requirement that he file a motion in arrest of judgment to preserve a challenge to the plea. State v. Hook, 623 N.W.2d 865, 868 (Iowa 2001).
Our criminal rules require a district court to "address the defendant personally in open court and inform the defendant of, and determine that the defendant understands" certain rights, including "the right to assistance of counsel." Iowa R. Crim. P. 2.8(2)(b)(4). However, the rule permits a court to forgo an in-court colloquy in serious or aggravated misdemeanor cases, "with the approval of the defendant". Iowa R. Crim. P. 2.8 (2)(b)(5).
Carmona furnished this approval with his written waiver. He gave up his right "to discuss with the judge each of the rights and legal concepts set out" in the guilty plea document, including the right to counsel. Accordingly, the district court was not obligated to conduct an in-court colloquy concerning Carmona's waiver of his right to counsel.
It follows that if the court had no obligation to conduct an in-court colloquy, sentencing counsel did not breach an essential duty by failing to pursue the issue. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (trial counsel need not raise a meritless issue). Additionally, Carmona suffered no prejudice from the court's failure to advise him of the pitfalls of self-representation, as he had the benefit of counsel despite his earlier waiver. See State v. Moore, 638 N.W.2d 735, 739 (Iowa 2002) (prejudice ordinarily prerequisite to relief in ineffective assistance claims arising from guilty pleas).
We affirm Carmona's judgment and sentence.
AFFIRMED.