Opinion
No. 1-835 / 01-0071.
Filed May 31, 2002.
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Defendant, who pled guilty to murder in the second degree, contends on appeal that the district court did not follow Iowa Rule of Criminal Procedure 2.8(2)( b) in accepting her plea. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat and Teresa Vens, Assistant County Attorneys, for appellee-State.
Heard by Sackett, C.J., and Hecht and Vaitheswaran, JJ.
Defendant-appellant Tifany Myers entered a plea of guilty to murder in the second degree. She now contends that she had ineffective assistance of counsel in that her attorney (1) did not object to the district court's alleged failure to advise her of her constitutional rights; (2) failed to challenge the fact that no factual basis for the charge existed; (3) did not challenge the fact that requiring her to pay restitution of $150,000 to the victim's estate violated her constitutional rights; and (4) did not challenge the fact that the provisions of Iowa Code section 910.3B(1) (1999) precluding her from discharging the restitution debt in federal bankruptcy are in violation of the supremacy clause of the constitution. We reverse and remand.
The State charged defendant with first-degree murder on February 18, 2000, contending that on January 20 of that year she shook twenty-one-month-old Joel Vasquez, who was in her care, and threw him to the floor. The State further contended that the child died a day later from injuries suffered as a result of defendant's actions. Defendant, who was eighteen years old at the time of her arrest, initially suggested the child's injuries were caused by a fall.
According to the minutes of evidence, during a police interview defendant said she had not wanted to baby-sit for the child anymore, that she shook the child, and that he fell hard to the floor. Defendant further said she had never touched a child like that before. She also said, on scale of "one to ten," she tossed the child with a "nine" force. Also according to the minutes, the child's mother said that on previous occasions she had noticed bruises on the child following defendant's care.
On March 3, 1998 defendant waived speedy trial. On July 6, 2000 she filed a notice of a defense of diminished responsibility. Her trial began on October 18, 2000. On October 23, after two days of testimony, the State filed an amended trial information charging defendant with second-degree murder, a class "B" felony, in violation of sections 707.1 and 707.3. The same day defendant pled guilty to the amended charge.
On November 29, 2000 defendant filed a motion in arrest of judgment. She alleged, among other things, that (1) the guilty plea proceedings were not adequate, (2) she did not understand the legal consequences of her guilty plea, (3) the district court failed to advise her of her mandatory obligation to pay $150,000 in restitution, (4) she did not understand her constitutional rights, (5) she suffered from a diminished capacity at the time she pled guilty, (6) she suffered from a major depressive disorder exacerbated by her having an abortion two days prior to Joel's death which adversely affected her mental function, (7) she suffered from an adjustment disorder with depressed moods, (8) she received no treatment while incarcerated, (9) she had been told by the deputy transporting her to the courtroom on the day of her plea that the testimony of a State witness would seriously damage her case, and (10) her mental state rendered her guilty plea and waiver of her constitutional rights involuntary and in violation of her rights under the constitutions of both the United States and the State of Iowa.
A hearing on the motion in arrest of judgment was held on December 7, 1998, at the time set for sentencing. The district court orally denied the motion in arrest of judgment without making specific findings. Defendant was then sentenced to fifty years in prison and ordered to pay restitution of $150,000 to the victim's estate.
Defendant raises her claim that the district court failed to adequately advise her of her constitutional rights as an ineffective assistance of counsel claim. When claims are raised as ineffective assistance of counsel we review them de novo. See State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001). To prevail on an ineffective assistance of counsel claim, defendant is required to show both that her attorney failed to perform an essential duty and that she was prejudiced by her attorney's error. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).
Defendant contends her attorney was ineffective in not objecting to the district court's failure to include in the personal colloquy the fact that the defendant had the right to compel the testimony of her own witnesses. She basically contends the district court failed to inform her of the matters enumerated in Iowa Rule of Criminal Procedure 2.8(2)( b) in the manner prescribed by that rule. Rule 2.8(2)( b) provides:
Formerly Iowa Rule of Criminal Procedure 8(2)(b).
b. Pleas of guilty. 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.
. . .
(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 kind, so that by pleading guilty the defendant waives the right to a trial. . . . (emphasis supplied).
The purpose of rule 2.8(2)( b) is to ensure that guilty pleas are made voluntarily, intelligently, and with a factual basis. Strict compliance with the rule's literal language practically assures that a plea of guilty thereafter accepted is made voluntarily, intelligently, and with a factual basis. The right procedure for a felony guilty plea is a full, oral colloquy. State v. Hook, 623 N.W.2d 865, 871 (Iowa 2001).
The State contends the plea colloquy substantially complied with the rule. Defendant pled guilty to a felony. In a felony case, the court must literally, not just substantially, comply with rule 2.8(2)( b). State v. Moore, 638 N.W.2d 735, 738 (Iowa 2002); see also Hook, 623 N.W.2d at 871. In that the district court failed to apprise defendant of her right to have compulsory process in securing the attendance of witnesses on her behalf, the requirements of rule 2.8(2)( b) for the court's acceptance of a guilty plea were not met. Defendant should have been fully advised of all her constitutional rights in accordance with rule 2.8(2)( b). The failure of the district court to do so was error.
The defendant filed a motion in arrest of judgment, as the court had personally advised her to do during the plea colloquy if she wished to retract her guilty plea. In arguing the motion in arrest of judgment, defendant's attorney appeared to concede that the plea colloquy satisfied the requirements of 2.8(2)( b). He did this despite the fact that the plea colloquy was inadequate and in accepting the plea the district court committed an error at law by accepting the plea. See Moore 638 N.W.2d at 738; Hook, 623 N.W.2d at 871. In conceding that the plea colloquy was sufficient, defendant's counsel erred. Had defendant's counsel adequately argued her claim, the plea would have been set aside.
Defendant's counsel did not raise the defect in the plea proceedings either at the time she pled guilty or in her motion for arrest of judgment. Consequently, the focal question is whether her trial attorney was ineffective in not raising the issue, and if he was, whether she was prejudiced by his failure. Moore, 638 N.W.2d at 739.
Defendant's counsel may have had a reason for not raising the issue at the plea proceedings. Had the omission been called to the district court's attention at that time, the error could and probably would have been corrected. However, defense counsel's failure to raise and argue the issue in the motion for arrest of judgment appears to have been an omission. Had it been raised at that time, it would have been grounds for setting the plea aside. The record makes it clear that defendant wanted the plea set aside. Consequently, but for defense counsel's failure to argue the omission in the plea proceedings, the plea would have been set aside. See Moore, 638 N.W.2d at 737 (a court cannot waive literal compliance with rule 2.8(2)( b) in a felony case). In Moore the court did not vacate the sentence despite the inadequate plea colloquy because the defendant was personally advised by the court to file a motion in arrest of judgment and failed to do so. Moore, 638 N.W.2d at 740. The court in Moore rejected Moore's claim that his counsel's failure was per se ineffective assistance and dismissed it on his failure to show prejudice. Id. In doing so the Moore court found that the defendant could not show prejudice because he did not show that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial. Id.
In this case defendant's motion in arrest of judgment asked for the plea to be vacated and advanced that she wanted a new trial and was ready to insist on going to trial. Defendant has shown the required prejudice.
Because we have remanded for a new trial, we need not address the other issues defendant raises. We reverse the district court, vacate the plea and remand for further proceedings.
REVERSED AND REMANDED.