STATE OF IOWA, Plaintiff-Appellee, vs. GEORGE SNEED GIVENS, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-742 / 08-1831
Filed December 30, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GEORGE SNEED GIVENS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla
(guilty plea) and Douglas S. Russell (sentencing), Judges.
A defendant appeals his conviction and sentence for assault with a
weapon, contending that his guilty plea was not knowing, voluntary, and
intelligent. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Thomas Gaul, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Harold Denton, County Attorney, and Nicholas Maybanks, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.
2
VAITHESWARAN, J.
George Givens pleaded guilty to assault with a weapon, an aggravated
misdemeanor. See Iowa Code § 708.2(3) (2007). After he entered the plea, but
before he was sentenced, the Linn County Courthouse flooded and Givens’s
court file was destroyed.
At the subsequent sentencing hearing, Givens’s
attorney voiced no objection to proceeding with sentencing. The court asked her
whether she knew “of any legal cause why judgment and sentence may not be
pronounced.”
Counsel answered, “No, Your Honor.”
The district court
proceeded to sentence Givens.
Givens appealed his judgment and sentence after which he sought and
obtained a limited remand to reconstruct the record. The reconstructed record
contained no written plea agreement1 or transcript of a plea colloquy but did
include an order captioned “Plea.”
That order states, “The Court, with
Defendant’s approval, waives formal proceedings pursuant to I.R.C.P. 8(2). The
Court finds that the Defendant’s plea is knowingly, voluntarily, and intelligently
made, has a factual basis, and accepts the plea.”
Givens takes issue with this order. He contends he
did not make a knowing and voluntary plea because there is no
indication either through a personal colloquy or any written plea
agreement that the district court informed [him] of any of the rights
he was waiving when he pled guilty.
The State counters that the onus was on Givens to create an adequate record
affirmatively disclosing the error and that his limited reconstruction of the record
did not accomplish this task.
1
The certified court record reflects that a written guilty plea was filed prior to the
flood.
3
As a preliminary matter, we note that Givens’s issue is a narrow one:
whether the record discloses that the plea was knowing, intelligent, and
voluntary. Givens does not argue that the absence of a written record deprived
him of a meaningful appeal. See In re T.V., 563 N.W.2d 612, 614–15 (Iowa
1997) (holding absence of a full recording of juvenile proceedings and inability of
juvenile to reconstruct the record deprived juvenile of a meaningful appeal). Nor
does Givens argue that the State, as repository of criminal court files, had the
burden to reconstruct files destroyed by a force of nature.
Cf. McKnight v.
State, 356 N.W.2d 532, 535 (Iowa 1984) (“[W]hen the State shows that the
original records of a criminal proceeding cannot be produced notwithstanding its
good faith effort to make and preserve those records, a postconviction court
should allow the State to offer substitute proof of what occurred in those
proceedings.”).
Focusing on the narrow issue raised here, we agree with the State that
Givens did not provide us with a sufficient record to resolve it.
Specifically,
Givens did not furnish a copy of his written plea or a statement attesting to its
contents.
See T.V., 563 N.W.2d at 613 (noting that appellate attorney filed
affidavit of trial attorney attesting he lacked sufficient independent recollection of
proceedings). Givens also did not furnish a transcript of the plea proceeding or
an attestation concerning what transpired in that proceeding. See id. (noting
attorney “attempted to obtain a certified transcript of the hearing from a private
shorthand reporter firm” but could not, given poor quality of tapes); McKnight,
356 N.W.2d at 536 (noting State attempted to reconstruct record by eliciting
testimony from attorney who represented defendant). Without these documents,
4
we have no basis for scrutinizing the district court’s finding that the plea was
knowing, voluntary, and intelligent. See State v. Mudra, 532 N.W.2d 765, 767
(Iowa 1995) (declining to speculate as to what took place at an unreported
sentencing hearing where “[t]here [was] no written plea agreement, no transcript
of the proceedings, and no record of Mudra’s criminal background” and
concluding that “by voluntarily failing to provide such a record, Mudra has waived
error on his claim”); State v. Ludwig, 305 N.W.2d 511, 513 (Iowa 1981) (“It is
defendant’s obligation to provide this court with a record affirmatively disclosing
the error relied upon.”). As our highest court has stated, “We will not predicate
error on speculation.” State v. Belt, 505 N.W.2d 182, 185 (Iowa 1993).
Because the error cited by Givens is not apparent in the record before us,
we will presume the regularity of the district court’s finding that his plea was
knowing, intelligent, and voluntary. See State v. Snook, 260 Iowa 160, 162, 146
N.W.2d 252, 254 (1966) (“The rule is well established in this jurisdiction that we
presume the regularity of actions by officials and courts unless the contrary is
made to appear.”); see also Iowa Code § 622.56 (“The proceedings of all officers
and courts of limited and inferior jurisdiction within the state shall be presumed
regular, except in regard to matters required to be entered of record, and except
where otherwise expressly declared.”). Accordingly, Givens’s judgment and
sentence for assault with a weapon is affirmed.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.