STATE OF IOWA, Plaintiff-Appellee, vs. JEFFREY THOMAS RICH, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-146 / 06-0990
Filed April 11, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY THOMAS RICH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb,
District Associate Judge.
The defendant appeals his conviction and sentence following a guilty plea.
AFFIRMED.
Patricia Hulting, Des Moines, for appellant.
Jeffrey Rich, pro se.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Wayne Reisetter, County Attorney, and Jeannine Gilmore, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
VOGEL, P.J.
Jeffrey Rich appeals his conviction and sentence for third-degree theft, in
violation of Iowa Code sections 714.1 and 714.2 (3) (2005), asserting the district
court erred in failing to make a verbatim record of the plea proceedings. In our
review of the record, we conclude Rich waived the right to challenge his guilty
plea entered on February 19, 2006, because he failed to file a motion in arrest of
judgment prior to sentencing on June 8, 2006, as required under the parameters
of Iowa Rule of Criminal Procedure 2.24(3)(a). We affirm Rich’s conviction and
sentence pursuant to Iowa Court Rule 21.29(1)(c), (e).
Rich next asserts his counsel was ineffective for not requiring the court to
create a verbatim record of the plea proceedings as required under Iowa Rule of
Criminal Procedure 2.8(2)(d). He claims such a record would indicate whether
the court personally advised him of his obligation to file a motion in arrest of
judgment to challenge his guilty plea. Section III of the plea form contained this
language:
After pleading guilty, I further understand the following:
A) In order to contest this plea of guilty, I must file a motion in
arrest of judgment no later than 45 days after a plea of guilty and
no later than five days prior to pronouncing judgment, and that the
Court will set a sentencing date not less than fifteen days after the
date of its acceptance of this guilty plea unless I waive this right,
and the right to file a motion in arrest of judgment will be waived by
having the Court impose a sentence immediately or as soon as
possible.
B) By having sentence imposed immediately or as soon as
possible, I will never be able to challenge this plea of guilty and I
will be giving up my right to directly appeal my guilty plea.
3
Under section IV (A) of the plea form, Rich struck this language:
“I
hereby waive my right to have the Court address me personally and explain
to me each of the rights herein which I have acknowledged.”.
Notwithstanding that language, Rich proceeded to sign the plea form immediately
under this language: “I approve of the waiver of the procedures of Iowa Rule of
Criminal Procedure 2.8(2) and ask the Court to accept my plea of guilty by this
written document and pronounce judgment and sentence.” The requirement of a
verbatim record does not fall under Rule 2.8(2), but rather under 2.8(3).
Nonetheless, as Rich was aware of (as demonstrated in his written plea), yet
waived all requirements of 2.8(2), there remains nothing to challenge even if a
verbatim record were made. See State v. Barnes, 652 N.W.2d 466, 467-8 (Iowa
2002) (holding no in-court plea colloquy is necessary where the defendant
received notice of both requirements of 2.8(2)(d) and time for motion in arrest of
judgment and sentencing was specifically waived by the written plea).
The
written plea in this case tracked the language of the rule and informed Rich of the
consequences of a failure to file a timely motion in arrest of judgment. Cf. State
v. Meron, 675 N.W.2d. 537, 541-2 (Iowa 2004) (holding a verbal guilty plea and
abbreviated colloquy invalid when the defendant was not adequately informed of
both the motion in arrest of judgment requirement and the consequences of
failing to file such motion).
Therefore, we find no prejudice to Rich for his
attorney’s failure to request a verbatim record of the plea proceedings. See
State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999) (stating that prejudice is
shown by a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different).
4
AFFIRMED.
Eisenhauer, J. concur, and Vaitheswaran, J. dissents.
5
VAITHESWARAN, J. (dissenting)
I respectfully dissent. Rich argues trial counsel was ineffective “for not
requiring that the court create a verbatim record of his waiver of right to challenge
his guilty plea.”
Under State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002),
“defendants charged with serious or aggravated misdemeanors may enter into a
valid written waiver of the right to file a motion in arrest of judgment and thus
trigger the bar that rule 2.24(3)(a) imposes to challenging a guilty plea on
appeal.” Based on this opinion, I agree Rich could have waived his right to file a
motion in arrest of judgment. As a factual matter, I am not convinced he did so,
as he specifically struck the portion of the written plea pertaining to a waiver of
this right. However, even if Rich did waive this right, I agree with him that he
could not waive the court’s obligation to inform him of his rights in an on-therecord proceeding. See State v. Meron, 675 N.W.2d 537, 543 (Iowa 2004). In
Meron, the court stated:
Thus, while the rule embraces the use of written waiver forms,
neither [State v.] Kirchoff [452 N.W.2d 801 (Iowa 1990)] nor the
waiver language of rule 2.8(2)(b) diminishes the importance and
necessity of the court’s role to ensure each plea is voluntary,
intelligent, and supported by facts. Instead, they simply recognize
that the court, in making its required determination in misdemeanor
cases, can use a defendant’s written acknowledgement. The
language of the waiver portion of the rule adopted after Kirchoff
tracks with this approach and explains why it is written to permit
the court to waive the procedures, subject to the approval of the
defendant. See Iowa R.Crim. P. 2.8(2)(b). It allows the court, upon
examination of a written plea, to waive the necessity of a full incourt colloquy. It does not give the defendant the right to waive the
means for the court to determine that the plea is voluntarily and
intelligently entered.
6
This background reveals the flaw in the State’s argument. There
are two separate components of rule 2.8(2)(b). See [State v.]
Myers, 653 N.W.2d [574,] 577-78 [(Iowa 2002)]. The first concerns
the requirement of an in-court colloquy. See id. The second
concerns the requirement the defendant is informed. See id.
Although the court in guilty pleas to serious and aggravated
misdemeanors can waive the in-court colloquy component, the rule
still requires substantial compliance with the requirement that the
defendant be informed.
Based on this language, I believe Rich was entitled to an on-the-record
court proceeding and I would conclude trial counsel was ineffective in failing to
ensure that such a proceeding was held.
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