STATE OF IOWA, Appellee, vs. DAVID J. TREPTOW, Appellant.
No. 19–1276
IN THE SUPREME COURT OF IOWA
Submitted October 14, 2020—Filed May 28, 2021
Amended August 3, 2021
Kellyann M. Lekar, Judge.
Appeal from the Iowa District Court for Buchanan County.
McDonald, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, Mansfield, Oxley, and McDermott, JJ., joined. Appel, J., filed a dissenting opinion.
Martha J. Lucey (argued), State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Zachary Miller (argued), Assistant Attorney
McDONALD, Justice.
David Treptow pleaded guilty to three drug-related offenses and was sentenced to an indeterminate term of incarceration not to exceed twelve years. In this direct appeal, Treptow contends there was not a factual basis supporting one of the convictions and his counsel provided constitutionally ineffective assistance in allowing Treptow to plead guilty in the absence of a factual basis. In addition to those issues, Treptow challenges the constitutionality of
I.
Police were dispatched to Treptow’s residence on report of a domestic disturbance. Upon entering the residence, officers immediately smelled marijuana and observed what appeared to be marijuana in an ashtray on the coffee table. The officers asked a cotenant of the residence if she would grant consent to search the residence, and she granted consent. The officers searched the residence with the assistance of a canine unit. They discovered and seized controlled substances and paraphernalia in various locations inside and outside the residence. A subsequent lab report from the Division of Criminal Investigation showed the officers seized approximately .17 grams of methamphetamine, 885.33 grams of marijuana, and 81.62 grams of marijuana concentrate.
Treptow was charged with six controlled substances offenses, and he ultimately pleaded guilty to three of them: (1) possession with the intent to deliver marijuana, in violation of
At the time he entered his guilty pleas, Treptow expressed his desire to proceed to immediate sentencing. The district court informed Treptow he had the right to delay sentencing, and Treptow stated he understood the right and waived the same. The district court informed Treptow he had the right to have a presentence investigation report prepared prior to sentencing, and Treptow stated he understood the right and waived the same. Finally, the district court informed Treptow that he had the right to file a motion in arrest of judgment and that if he did not file a motion in arrest of judgment he “would have to forever give up [his] right to challenge the validity of [his] guilty plea either before [the district court] or before an Appellate Court.” Treptow stated he understood the right and waived the same. Treptow asked his counsel to make a statement on his behalf. Counsel informed the court Treptow desired “the paperwork be done as soon as possible so he can be sent to prison on the next available group.” The district сourt accepted Treptow’s guilty
II.
In 2019, the general assembly passed and the governor signed an omnibus crime bill effective July 1, 2019. See 2019 Iowa Acts ch. 140. We have interpreted and applied several provisions of the omnibus crime bill in recent decisions. See generally Hrbek v. State, 958 N.W.2d 779 (Iowa 2021); State v. Tucker, 959 N.W.2d 140 (Iowa 2021); State v. Thompson, 954 N.W.2d 402 (Iowa 2021); State v. Boldon, 954 N.W.2d 62 (Iowa 2021); State v. Draine, 936 N.W.2d 205 (Iowa 2019); State v. Macke, 933 N.W.2d 226 (Iowa 2019). These recent decisions provide guidance in resolving the challenges raised in this appeal.
This appeal addresses two provisions of the omnibus crime bill. First, Treptow challenges
1. Right of appeal is granted the defendant from:
a. A final judgment of sentence, except in the following cases:
(1) A simple misdemeanor conviction.
(2) An ordinance violation.
(3) A conviction where the defendant has pled guilty. This subparagraph does not apply to a guilty plea for a class “A” felony or in a case where the defendant establishes good cause.
Second, Treptow challenges
An ineffective assistаnce of counsel claim in a criminal case shall be determined by filing an application for postconviction relief pursuant to chapter 822. The claim need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes, and the claim shall not be decided on direct appeal from the criminal proceedings.
III.
Treptow contends sections 814.6(1)(a)(3) and 814.7 violate the separation-of-powers doctrine аs unconstitutional restrictions on the judicial power. We recently addressed the identical challenge in Tucker and concluded these two provisions
[S]ections 814.6(1)(a)(3) and 814.7, whether considered in isolation or in tandem, do not violate the separation-of-powers doctrine. The Iowa Constitution provides this court’s appellate jurisdiction is subject to such restrictions as the legislature may prescribe.
Iowa Const. art. V, § 4 . The Iowa Constitution also tasks the legislature with the primary duty to provide for a system of practice in all Iowa Courts. Seeid. § 14 . Here, the legislative department determined that defendants who plead guilty to non-class A offenses should not have the right to pursue an appeal without a showing of good cause. SeeIowa Code § 814.6(1)(a)(3) . The legislature also determined all claims of ineffective assistance of counsel must be resolved in the first instance in postconviction-relief proceedings rather than on direct appeal. Seeid. § 814.7 . These decisions were within the legislative department’s prerogative and not in derogation of the judicial power.
IV.
Treptow contends the omnibus crime bill violates his constitutional right to equal protection of the laws. He argues section 814.6(1)(a)(3) makes an arbitrary distinction (1) between those convicted after trial and those сonvicted after a guilty plea and (2) between those convicted of a class “A” felony and those convicted of a non-class “A” felony. With respect to section 814.7, Treptow contends the statute makes an arbitrary distinction between those who were provided effective assistance of counsel in pleading guilty and those who were not provided effective assistance of counsel in pleading guilty. Our review is de novo. See State v. Mitchell, 757 N.W.2d 431, 434 (Iowa 2008) (applying de novo review to equal protection claims).
The United States and Iowa Constitutions guarantee the equal protection of the law to all persons. The Fourteenth Amendment to the United States Constitution provides, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
The first step in our equal protection analysis is to determine whether the challenged law makes a distinction between similarly situated individuals with respect to the purposes of the law. See id. at 882. This is a threshold test. See id. If the defendant “cannot show as a preliminary matter that [he is] similarly situated, [we] do not further consider whether . . . different treatment under a statute is permitted.” Id.
We have already rejected the contention that section 814.6(1)(a)(3) draws unconstitutional distinctions between those convicted after trial and those convicted pursuant to a guilty plea. In Tucker, we concluded “those convicted after trial and
Treptow’s next contention fares no better. Treptow contends section 814.6(1)(a)(3) makes an arbitrary distinction between those convicted of a class “A” felony and those convicted of other offenses. A class “A” felony is one punishable by a life sentence. See
Thus, our law draws numerous distinctions in the procedures afforded to defendants based on offense levels. For example, indigent defendants charged with a class “A” felony are appointed two lawyers while all other indigent defendants are appointed only one. See
Finally, Treptow contends section 814.7 makes an unlawful distinction between those who received effective assistance of counsel during plea proceedings and those who did not. We are not sure what to make of this argument. The statute makes no distinction between classes of persons in this regard. The statute prohibits any defendant—those convicted following trial and those convicted following a guilty plea—from presenting a claim of
In any event, those asserting claims other than a claim of ineffective assistance of counsel are not similarly situated to those asserting claims of ineffective assistance of counsel. A claim of ineffective assistance of counsel is more than an error preservation device; it is a substantive legal claim with its own elements. See Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 2582–83 (1986) (distinguishing between ineffective-assistance-of-counsel claim and underlying constitutional claim); Rose v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“While [the ineffective-assistance claim and underlying constitutional claim are] admittedly related, they are distinct claims with separate elements of proof, and each claim should have been separately and specifically presented to the state courts.”); Wright v. State, No. 16–0275, 2017 WL 1401475, at *2 (Iowa Ct. App. Apr. 19, 2017) (noting a direct legal claim and indirect legal claim presented within an ineffective-assistance framework are substantively different). A defendant asserting a claim of ineffectivе assistance of counsel must always show his “trial counsel failed to perform an essential duty and that this failure resulted in prejudice.” State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001).
“It is not unconstitutional or even unreasonable to treat as similarly situated only those parties whose cases are ‘factually and legally similar’ and ‘share similar procedural histories.’ ” Wright, 2017 WL 1401475, at *3 (quoting State ex rel. Brown v. Bradley, 658 N.W.2d 427, 433 n.7 (Wis. 2003)). Thus, in Hunt v. Nuth, the United States Court of Appeals for the Fourth Circuit rejected a similar challenge to a Maryland law. See 57 F.3d 1327, 1336–37 (4th Cir. 1995). In Maryland, the appellate courts typically require defendants to raise claims of ineffective assistance of counsel in postconviction-relief proceedings. See Mosley v. State, 836 A.2d 678, 686 (Md. 2003). However, in Maryland, appellate review of postconviction-relief proceedings is discretionary. See Hunt, 57 F.3d at 1336 n.10. In Hunt, the postconviction applicant challenged this system, contending his equal protection rights were violated because he did not have the opportunity to present his claims of ineffective assistance of counsel to an appellate court as a matter of right. See id. at 1336–37. The Fourth Circuit rejected the contention:
Hunt also raises an equal protection challenge to Maryland’s system of post-conviction review. He contends that Maryland improperly distinguishes between defendants with constitutional clаims cognizable on direct review, and those with claims that are only cognizable on post-conviction review. He claims that this unequal access to appellate review lacks a rational basis and violates equal protection guarantees. Thus, Hunt creates two classes of claims, rather than two classes of persons, and argues that these types of claims must be treated equally by Maryland. The State, however, has a legitimate interest in conserving judicial resources and need not provide the same review for each type of claim, particularly when Maryland already provides defendants with more than the constitutional minimum of opportunities for review. Therefore, we reject Hunt’s claim that Maryland’s discretionary post-conviction review system violates the Equal Protection Clause.
Because Treptow has not established he is similarly situated to a relevant comparator, we need not determine whether there is constitutionally sufficient justification for the distinctions drawn in the
V.
Treptow argues the omnibus crime bill violates his constitutional right to due process. More specifically, Treptow argues section 814.7 interferes with the ability of appellate counsel to present claims of ineffective assistance on direct appeal and thus violates Treptow’s right to due process. Stated differently, Treptow contends he has an absolute due process right to present clаims of ineffective assistance on direct appeal. We review challenges to the constitutionality of a statute de novo. See Mitchell, 757 N.W.2d at 434.
Treptow’s initial premise—that section 814.7 interferes with the right to effective assistance of counsel on direct appeal—is not sound. A criminal defendant is entitled to effective assistance of counsel on appeal. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (en banc). The right to the effective assistance of appellate counsel is the right to have counsel in an appeal and to have counsel perform competently in that appeal. See id. at 141–42. The right to the effective assistance of appellate counsel where direct appeal is available does not create an entitlement to direct appeal as a matter of right and a further entitlement to present any and all claims on direct appeal as a matter of right. Treptow does not cite any authority in support of such a claim, and we find none.
Further, the defendant’s due process concerns are simply overstated. Requiring claims of ineffective assistance of counsel to be presented in the first instance in postconviction-relief proceedings is not uncommon. See, e.g., Martinez v. Ryan, 566 U.S. 1, 4, 132 S. Ct. 1309, 1313 (2012) (“The State of Arizona does not permit a convicted person alleging ineffective assistance of trial counsel to raise that claim on direct review.”); State v. Spreitz, 39 P.3d 525, 527 (Ariz. 2002) (en banc); Wrenn v. State, 121 So. 3d 913, 914–15 (Miss. 2013) (holding that defendant’s conviction following a guilty plea could only be challenged under the postconviction statute rather than on direct appeal); State v. Dell, 967 P.2d 507, 509 (Or. Ct. App. 1998); State v. Brouillard, 745 A.2d 759, 768 (R.I. 2000) (“This Court repeatedly has held that it will not consider a claim of ineffectiveness of counsel that is raised for the first time on a direct appeal.”); Turner v. Commonwealth, 528 S.E.2d 112, 115 (Va. 2000) (explaining claims of ineffective assistance must be brought in collateral proceedings); State v. Rettig, 416 P.3d 520, 521 (Utah 2017) (rejecting claim that “the legislature
In addition to states that disallow the presentation of claims of ineffective assistance on direct appeal, most state courts do not review claims of ineffective assistance on direct appeal even when allowed because “[a] claim of ineffective assistance of counsel is generally not a basis for direct appeal and instead should be raised in a postconviction proceeding.” 24 C.J.S. Criminal Procedure and Rights of the Accused § 2119 & n.1, at 85 (2016) (collecting cases). In the vast majority of states, the defendant must wait to develop and present his claim of ineffective assistance of counsel in postconviction-relief proceedings. See Eve Brensike Primus, Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures, 122 Yale L.J. 2604, 2613 n.39 (2013) (collecting cases and stating “[i]n the vast majority of states, however, defendants must wait until state collateral review to raise ineffective assistance of trial counsel claims”). This was true in Iowa prior to the passage of the omnibus crime bill. As we explained in Tucker, Iowa’s appellate courts have been preserving most claims of ineffective assistance of counsel for development in postconviction-relief proceedings for half of a century. See Tucker, 959 N.W.2d at 152. The new law merely codified that practice in stronger form.
The practice of requiring claims of ineffective assistance of counsel to be resolved in the first instance in postconviction-relief proceedings is supported by a variety of legitimate interests. Among others:
Considering a claim of ineffective assistance of counsel on direct appeal (1) deprives the State, in responding to the defendant’s arguments, of the benefit of an evidentiary hearing, including trial counsel’s testimony; (2) places [the appellate courts] in the role of factfinder with respect to evaluating counsel’s performance; . . . and (4) constitutes a significant drain on [appellate court] resources in responding to such claims.
State v. Nichols, 698 A.2d 521, 522 (Me. 1997), holding modified by Petgrave v. State, 208 A.3d 371 (Me. 2019).
There is no due process right to present claims of ineffective assistance of counsel on direct appeal. Due process merely requires an opportunity to present those claims in some forum. For half of a century, Iowa, like most states, has resolved claims of ineffective assistance in postconviction-relief proceedings and not direct appeal.
VI.
Having concluded section 814.6(1)(a)(3) is constitutional and governs this appeal, we turn to the question of whether Treptow has established good cause to pursue this appeal as a matter of right. Treptow “bears the burden of establishing good cause to pursue an appeal of [his] conviction based on a guilty plea.” State v. Damme, 944 N.W.2d 98, 104 (Iowa 2020); see also
The statute does not define “good cause.” See id. The parties propose very different interpretations of the statute. Treptow claims “good cause” should be defined broadly to allow for direct appeal as a matter of right whenever a defendant has presented “some colorable claim” on
We need not resolve the parties’ disagreement to resolve the question presented in this appeal. In State v. Damme and State v. Boldon, we stated that “good cause” in section 814.6 means a “legally sufficient reason.” Boldon, 954 N.W.2d at 69 (quoting Damme, 944 N.W.2d at 104). What constitutes a legally sufficient reason is context specific. See Boldon, 954 N.W.2d at 69; Damme, 944 N.W.2d at 104. In those cases, we concluded “that good cause exists to appeal from a conviction following a guilty plea when the defendant challenges his or her sentence rather than the guilty plea.” Boldon, 954 N.W.2d at 69 (quoting Damme, 944 N.W.2d at 105). We explained that “[a] sentencing error invariably arises after the court has accepted the guilty plea. This timing provides a legally sufficient reason to appeal notwithstanding the guilty plea.” Id. (alteration in original) (quoting Damme, 944 N.W.2d at 105).
Here, Treptow has not established a legally sufficient reason to appeal as a matter of right. By definition, a legally sufficient reason is a reason that would allow a court to provide some relief. Here, there is no such possibility. When Treptow pleaded guilty and requested immediate sentencing, he waived his right to file a motion in arrest of judgment. His failure to file a motion in arrest of judgment precludes appellate relief. See
We have recognized two exceptions to this bar, but neither exception would allow for the possibility of relief on the facts of this case. First, we have recognized a defendant may challenge his guilty plea on appeal despite not filing a motion in arrest of judgment where the district court failed to adequately advise the defendant of the consequences of not filing a motion in arrest of judgment. See State v. Loye, 670 N.W.2d 141, 149–50 (Iowa 2003) (explaining court’s failure to advise of the consequences of the failure to file a motion in arrest of judgment reinstates the defеndant’s right to appeal the legality of his plea). Here, Treptow was adequately advised of and waived the right.
Second, we have allowed a defendant to indirectly challenge his guilty plea on appeal despite not filing a motion in arrest of judgment “if the failure to file a motion in arrest of judgment resulted from ineffective assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Because we have just upheld the constitutionality of section 814.7, this court is without authority to decide ineffective-assistance-of-counsel claims on direct appeal. Thus, the second exception no longer provides an avenue for relief on direct appeal.
Treptow argues this court need not decide his claim under the familiar ineffective-assistance-of-counsel framework. Instead, he argues, this court should adopt plain error review. We are disinclined to do so. We have repeatedly rejected plain error review and will not adopt it now. See State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016); State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999).
The defendant has not advanced a legally sufficient reason to pursue an appeal as a matter of right. The defendant was adequately advised of the necessity of filing in a motion in arrest of judgment to challenge his guilty plea and the consequences
VII.
Because Treptow has not established good cause to pursue a direct appeal as a matter of right, this court is without jurisdiction to hear the appeal.1
APPEAL DISMISSED.
All justices concur except Appel, J., who dissents.
STATE OF IOWA, Appellee, vs. DAVID J. TREPTOW, Appellant.
No. 19–1276
IN THE SUPREME COURT OF IOWA
APPEL, Justice (dissenting).
I respectfully dissent. In my view, under either prior law or S.F. 589, the strictly legal issue posed in this case—whether there was substantial evidence in the record to support a conviction of the crime of gathering for drug purposes—may be considered on direct appeal through statutory interpretation.
With respect to constitutional issues that are raised by David Treptow in this case, I incorporate my discussion in my special concurrence in State v. Tucker, 959 N.W.2d 140, 154–68 (Iowa 2021), as if fully set out here.
I. Consideration of Legal Question of Whether Guilty Plea is Supported by Substantial Evidence on Direct Appeal.
A. Introduction.
For many years, plea bargaining was forbidden, but now, criminal justice today “is for the most part a system of pleas, not a system of trials.” Missouri v. Frye, 566 U.S. 134, 143, 132 S. Ct. 1399, 1407 (2012) (quoting Lafler v. Cooper, 566 U.S. 156, 170, 132 S. Ct. 1376, 1388 (2012)). In recent decades, disposition of criminal cases by plea bargaining has approached or exceeded ninety percent. Lindsey Devers, Bureau of Just. Assistance, Plea and Charge Bargaining 1 (2011); see also McCarthy v. United States, 394 U.S. 459, 463 n.7, 89 S. Ct. 1166, 1169 n.7 (1969) (stating 86% of convictions in federal district courts in 1968 were pleas). As noted by two prominent scholars, plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992).
More recently, Justice Scalia observed that plea bargaining “presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense.” Lafler, 566 U.S. at 185, 132 S. Ct. at 1397 (Scalia, J., dissenting). See generally Boaz Sangero, Safety from Plea-Bargains’ Hazards, 38 Pace L. Rev. 301, 306–21 (2018) (summarizing risks of false confession and subsequent pleas). Justice Scalia’s observation has support in innocence cases uncovered through DNA analysis that were originally the product of plea bargaining. See Brandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 150–53 (2011) (noting that of the first 330 DNA exonerations, eight percent, or twenty-seven, had pled guilty).
As a matter of due process, in order to enter into a plea bargain, the defendant must be competent. Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 2685 (1993). The plea bargain must be made knowingly and voluntarily. Brady, 397 U.S. at 748, 90 S. Ct. at 1469. In order to be knowing and voluntary, the defendant must be aware of the consequences of the plea and comprehend the constitutional rights waived by the agreement. Boykin, 395 U.S. at 243–44, 89 S. Ct. at 1712.
In order to insure that plea bargains are entered into by defendants with “care and discernment,” the United States Supreme Court promulgated
The rule has two goals. Id. at 465, 89 S. Ct. at 1170. First, “it is designed to assist” district court judges “in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary.” Id. Second, it “is intended to produce a complete record at the time the plea is entered of the factors relevant to [the] voluntariness determination.” Id. Meticulous compliance with the rule thus discourages or at least provides for more expeditious disposition of the “often frivolous post-conviction attacks on the constitutional validity of guilty pleas.” Id. The effect of noncompliance is that the defendant’s guilty plea is set aside and the case remanded for another hearing at which he may plead anew. Id. at 471–72, 89 S. Ct. at 1173–74.
The Supreme Court concluded that prejudice to the defendant inheres in a failure to comply with rule 11 “for noncompliance deprives the defendant of the Rule’s procedural safeguards that are designed to facilitate a more accurate determination of the
The requirement that a plea be supported by a factual basis advances several purposes. As noted by one commentator, the factual basis requirement “may (1) assist a judge in the voluntariness determination, (2) make appellate review of a plea less complex, (3) facilitate the rehabilitation of a defendant, and (4) provide protection for an innocent defendant.” John L. Barkai, Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas but Innocent Defendants?, 126 U. Pa. L. Rev. 88, 95 (1977) (footnotes omitted).
Iowa caselaw generally followed the permutations of federal law. See, e.g., Finney, 834 N.W.2d at 55–60. In 1977, after legislative action, we promulgated a rule of our own related to plea bargaining.
Under our established approach to guilty pleas, this court on direct appeal considered attacks on the legal validity of guilty pleas in certain circumstances. For example, a guilty plea not supported by substantial evidence could be reviewed on direct appeal through a claim that counsel was ineffective for failure to object. State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014). Deficiencies in the plea colloquy required by
Under our prior caselaw, Treptow would be entitled to relief as, in my view, the record does not establish a factual basis for his conviction of the crime of gathering under
In my view, we should find that there is good cause to consider Treptow’s claim on direct appeal. First, I would hold that good cause is categorically present to consider a challenge to a guilty plea on direct appeal where a defendant claims that the guilty plea is not supported by substantial evidence on the record or where the defendant raises any other legal challenge to the guilty plea for failure of the district court to comply with
B. Meaning of “Good Cause.”
1. Introduction. At the outset, the legislature has declined to provide a definition
Objectively, the term “good cause” is not a brittle and narrow expression but is an elastic term that permits application as required by the facts and circumstances. See, e.g., Wilder v. Prokop, 846 F.2d 613, 622 (10th Cir. 1988); Dinko v. Wall, 531 F.2d 68, 73–75 (2d Cir. 1976); Jones v. Westinghouse Elec. Supply Co., 128 A.2d 808, 809 (Del. Super. Ct. 1957). Yеt, while the term is elastic and usually not susceptible to a precise formula, it is “not so elastic as to be devoid of substance.” Compania Interamericana Exp.-Imp., SA v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (quoting Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989)).
In its ordinary usage, the term “good cause” is a flexible catchall term designed to apply in a wide variety of facts and circumstances. The term ordinarily implies rationality and judgment, but not mathematical precision. See, e.g., Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 933–34 (7th Cir. 2002) (stating that good cause for failure to timely serve must be supported by some reasonable basis for noncompliance); State v. Pedockie, 95 P.3d 1182, 1188 (Utah Ct. App. 2004) (stating good cause for purposes of speedy trial must have reasonable basis).
Where the legislature has not defined “good cause,” we have noted that the term is capable of contraction and expansion by construction and that reducing it to a fixed meaning is nearly impossible. Wiese v. Iowa Dep’t of Job Serv., 389 N.W.2d 676, 680 (Iowa 1986). The term implies “adequate excuses that will bear the test of reason, just grounds for the action, and always the element of good faith.” Id. (quoting Mee’s Bakery, Inc. v. Unemp. Comp. Bd. of Rev., 56 A.2d 386, 387 (Pa. Super. Ct. 1948)).
The State suggests that good cause means “extraordinary” circumstances. This would amount to a remarkable reworking of the statutory language. Surely that cannot be correct. In our evaluation of the elastic term used by the legislaturе, “good cause,” we cannot substitute narrow and strict constructs that the legislature did not include in the statutory language.
C. Good Cause as Measured by Judicial Economy.
One approach to good cause in the statute is to interpret the elastic term in a fashion that promotes its underlying purpose. The purpose of the statute, it seems, is to promote judicial efficiency. If so, good cause to consider challenges to guilty pleas would be present where a claim categorically involves only straightforward legal issues that can be handled by the appellate courts.
A challenge to a guilty plea for insufficient evidence would fall into that category. If challenges to a guilty plea for insufficient evidence were considered on direct appeal, there would be no need for expenditure of appellate resources for some kind of triage. A challenge to a guilty plea for lack of sufficient evidence is always a legal determination and is always based on the existing record developed below. Unlike a claim of lack of voluntariness, there is no requirement of fact-finding that an appellate court would be ill equipped to make. In cases involving challenges to plea bargains for insufficient evidence, there is simply no point in sending such a case off to a trial court for a postconviction-relief proceeding.
It is true that challenges to plea bargains based on insufficiency of the evidence have sometimes been couched in terms of ineffective assistance. Under S.F. 589, ineffective-assistance claims may not be considered in direct appeal but must instead be filed in a postconviction action in district court. The majority believes that because of the prohibition of consideration of ineffective-assistance claims on direct appeal, Treptow’s attack on his guilty plea for lack of evidence must also be barred.
There are three responses. First, as indicated above, the interplay between the unqualified bar of ineffective-assistance claims on direct appeal and the provision permitting direct appeal of certain guilty pleas upon a showing of good cause is not at all clear but rather gives rise to ambiguity. State v. Nall, 894 N.W.2d 514, 518 (Iowa 2017) (holding that where a statute is ambiguous, the court may utilize tools of statutory construction). The good cause exception can certainly be read as a specific standalone provision for guilty pleas that is not overridden by the general bar against claims based on ineffective assistance of counsel, particularly if efficiency is seen as the overriding purpose of the statute.
Secondly, however, a challenge to a guilty plea based upon insufficient evidence, though often based on a claim of ineffective assistance of counsel, is also based upon our supervisory powers over inferior courts implemented through
Third, by diverting the challenge to the sufficiency of the evidence to postconviction relief, the defendant will be deprived
Based on the above, I would conclude that there is good cause to handle this claim on direct appeal rather than delay matters by sending the case off for a completely unnecessary postconviction-relief action.
D. Incorporation of “Plain Error” in “Good Cause.”
1. Introduction. A second, relatively clean, straightforward answer to good cause is to incorporate under the statutory rubric of good cause a version of plain error doctrine that has been adopted by the vast majority of courts throughout the country. As will be demonstrated belоw, the plain error doctrine is broad enough to permit this court to consider on direct appeal the strictly legal claim including challenges to guilty pleas based upon insufficient evidence. By utilizing our supervisory powers to adopt plain error and incorporating it within the good cause requirement of S.F. 589, we would achieve a desirable degree of harmony between the legislative directive and the power of the judicial branch to supervise inferior tribunals. Because the court has the power to create a plain error exception, and has the duty to confirm that guilty pleas have a factual basis, Treptow argues the court must now adopt a plain error exception to effectuate that duty in the wake of S.F. 589.4
The State urges us not to adopt a plain error approach. The State claims that Iowa courts “have been persistent and resolute in rejecting [plain error], and are not at all inclined to yield on the point.” State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (citing State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997)). The State also argues that Treptow has not satisfied the requirements of “highest possible showing” to overcome court precedent. See State v. Brown, 930 N.W.2d 840, 854 (Iowa 2019).
2. Development of plain error safety valve in federal courts. The general rule is that legal error must be preserved below in order to be raised on appeal. Bеginning
For instance, in Wiborg v. United States, 163 U.S. 632, 658–59, 16 S. Ct. 1127, 1137 (1896), the Supreme Court declared that “if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it.” A few years later, the Supreme Court reviewed the qualification of a juror even though review exceeded the scope of the objection. Crawford v. United States, 212 U.S. 183, 192–97, 29 S. Ct. 260, 264–65 (1909). The following year, in Weems v. United States, 217 U.S. 349, 362, 30 S. Ct. 544, 547 (1910), the Supreme Court emphasized the right of the court to review unpreserved errors involving constitutional issues. Throughout the 1920s, the Court further expanded the exception to include error involving a judge’s inappropriate questioning of the jury’s numerical division and passion and emotion from jury members. See N.Y. Cent. R. v. Johnson, 279 U.S. 310, 318–19, 49 S. Ct. 300, 303–04 (1929) (holding that the failure of counsel to particularize an exception will not preclude the court, on its own motion, from protecting suitors in their right to verdict uninfluenced by opposing counsel’s appeal to passion and prejudice); Brasfield v. United States, 272 U.S. 448, 450, 47 S. Ct. 135, 135–36 (1926) (reviewing unpreserved error involving relationship of court to jury). By the mid-twentieth century, the plain error doctrine had a firm footing in federal caselaw. See generally Jon M. Woodruff, note, Plain Error By Another Name: Are Ineffective Assistance of Counsel Claims a Suitable Alternative to Plain Error Review in Iowa, 102 Iowa L. Rev. 1811, 1815–16 (2017) (describing the development of the Supreme Court’s plain error jurisprudence) [hereinafter Woodruff, Plain Error].
The federal doctrine was summarized in United States v. Atkinson, 297 U.S. 157, 159–60, 56 S. Ct. 391, 392 (1936). In Atkinson, the court emphasized the availability of plain error in criminal cases where “errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 160, 56 S. Ct. at 392.
When the federal rules of criminal procedure were adopted in 1944,
In United States v. Olano, 507 U.S. 725, 731–35, 113 S. Ct. 1770, 1776–78 (1993), the Supreme Court elaborated on the plain error concept. In Olano, the Court stated that in order to qualify for plain error, the error must occur at the trial level, the error must be plain, and the plain error must “affеct substantial rights.” Id. Similarly, in Henderson v. United States, 568 U.S. 266, 273, 133 S. Ct. 1121, 1127 (2013), the Supreme Court emphasized that plain error may not be plain to the trial court but may become clear when a case is pending on appeal.
The development of plain error in the state courts is not unlike the federal path. For example, the Wisconsin Supreme Court early in the twentieth century declared that “[a]ny rule the enforcement of which results in a failure of justice should be carefully scrutinized and not blindly adhered to unless the abandonment of it will work more injustice than will follow if it be adhered to.” Cappon v. O’Day, 162 N.W. 655, 657 (Wis. 1917).
Although the vast majority of states have adopted plain error, the precise test for determining whether to invoke the doctrine shows variation. In order to be within the scope of the doctrine, it has been said that the error must: be “fundamental error,” Davis v. State, 661 So. 2d 1193, 1196–97 (Fla. 1995), disapproved of on other grounds by Mack v. State, 823 So. 2d 746 (Fla. 2002); be “affecting fundamental constitutional rights,” Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995) (quoting Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991), overruled on other grounds by Bester v. State, 188 So. 3d 526 (Miss. 2016)); State v. Hanson, 940 P.2d 1166, 1169 (Mont. 1997); involve “substantial rights,” Hasty v. United States, 669 A.2d 127, 134 (D.C. 1995) (quoting Olano, 507 U.S. at 732, 113 S. Ct. at 1776); be “of law” and be apparent “on the face of the record,” State v. Blasingame, 341 P.3d 182, 187 (Or. Ct. App. 2014) (quoting State v. Brown, 800 P.2d 259, 355 (Or. 1990) (en banc)); or involve a claim concerning only a question of law “or admitted facts [that] is determinative of the case” or “is necessary to serve the ends of justice or to prevent the denial of fundamental rights.” State v. Spotts, 206 P.3d 510, 512 (Kan. 2009). In one case, it was suggested that plain error could be invoked “if good cause exists or if the ends of justice require consideration of the issue.” Johnson v. Commonwealth, 458 S.E.2d 599, 602 (Va. Ct. App. 1995). That sounds a lot like S.F. 589’s good cause provision. Other states have rather narrow formulations.
4. Safety valve of direct appeal of ineffective-assistance claims in lieu of plain error in Iowa. In Iowa, we have rejected in conclusory fashion the plain error doctrine. Rutledge, 600 N.W.2d at 325. Yet, our caselaw rejecting plain error cannot be evaluated in a vacuum but must be considered in its larger legal context. If one looks at the broader legal landscape, Iowa has not been inhospitable to considerations of unpreserved error on appeal. Specifically, although we have rejected what has been labeled as plain error in the past, we have permitted a defendant to raise on direct appeal unpreserved claims under the rubric of ineffective assistance of counsel. See, e.g., State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982) (en banc). The access to direct appeal afforded by claims of ineffective assistance of counsel in Iowa has generally been broader than plain error in most jurisdictions.
As observed in a note in the Iowa Law Review, the relationship between plain error and ineffective assistance of counsel may be seen by comparing caselaw in the area of prosecutorial misconduct in closing arguments at a criminal jury trial. Woodruff,
Four years later, this court decided State v. Graves, 668 N.W.2d 860, 867–68 (Iowa 2003). In this case, very similar prosecutorial misconduct occurred. Id. In Graves, however, the defendant brought his challenge as a claim of ineffective assistance for failure to object. Id. at 868. The Graves court reached the unpreserved error and provided the defendant with relief. Id. at 884. Graves shows that an unpreserved “plain error” can be reached on direct appeal if couched as a claim based on ineffective assistance of counsel and if further factual development is not necessary to address the claim.
Under S.F. 589, however, claims of ineffective assistance of counsel can no longer be considered on direct appeal. If so, the need for a plain error rule is greater than it has been in the past. Plain error would no longer be redundant. With the enactment of S.F. 589, the Iowa legal landscape for direct appeal of unpreserved error has fundamentally shifted from prior years when ineffective-assistance claims provided the needed safety valve for review of fundamental errors on direct appeal.
5. Application of plain error doctrine to attacks on convictions for insufficient evidence. I now turn to the question of whether the plain error rule applies to unpreserved claims that a criminal conviction is not supported by sufficient evidence. According to a catalogue of cases compiled in 1990, at least twenty-five state jurisdictions had expressly held that appellate courts could consider sufficiency of evidence claims for the first time on appeal. See State v. McAdams, 594 A.2d 1273, 1275–76 (N.H. 1991) (Batchelder and Johnson, JJ., concurring specially) (listing cases); see also Horton v. State, 758 P.2d 628, 632 (Alaska Ct. App. 1988); State v. Govan, 744 P.2d 712, 717 (Ariz. Ct. App. 1987); State v. Payne, 530 A.2d 1110, 1111–12 (Conn. App. Ct. 1987); Fields v. United States, 484 A.2d 570, 576 (D.C. 1984); People v. Foster, 547 N.E.2d 478, 483 (Ill. App. Ct. 1989); Mftari v. State, 537 N.E.2d 469, 474 (Ind. 1989); Knox v. Commonwealth, 735 S.W.2d 711, 712 (Ky. 1987), overruled on other grounds by Lane v. Commonwealth, 956 S.W.2d 874 (Ky. 1997); State v. Lubrano, 563 So. 2d 847, 849 (La. 1990) (per curiam); State v. Hanson, 331 A.2d 375, 378 (Me. 1975); People v. Patterson, 410 N.W.2d 733, 738 (Mich. 1987); Walker v. State, 394 N.W.2d 192, 196 (Minn. Ct. App. 1986); Medious v. State, 375 So. 2d 405, 406 (Miss. 1979); State v. Fosdick, 776 S.W.2d 54, 56 (Mo. Ct. App. 1989); State v. Doe, 583 P.2d 464, 466 (N.M. 1978); People v. White, 561 N.Y.S.2d 756, 757–58 (N.Y. App. Div. 1990); State v. Kopp, 419 N.W.2d 169, 172–73 (N.D. 1988); State v. Gardner, 536 N.E.2d 1187, 1187–88 (Ohio Ct. App. 1987); State v. Hitz, 766 P.2d 373, 375–76 (Or. 1988); State v. Larocco, 665 P.2d 1272, 1273 n.4 (Utah 1983) (per curiam); State v. Bressette, 388 A.2d 395, 396 (Vt. 1978); Jimenez v. Commonwealth, 402 S.E.2d 678, 680–81 (Va. 1991); City of Seattle v. Slack, 784 P.2d 494, 499 (Wash. 1989) (en banc); Beamon v. State, 286 N.W.2d 592, 594 (Wis. 1980); Marshall v. State, 646 P.2d 795, 797 (Wyo. 1982).
There are many cases applying plain error analysis to claims that convictions were not supported by substantial evidence after a trial. The fountainhead federal
The question arises whether plain error can also be applied where the question is whether there was sufficient evidence to support a conviction after a plea bargain. In other words, in the application of the plain error rule to unpreserved substantial evidence questions, does it matter whether the underlying conviction was based on a plea bargain rather than a trial?
The answer to the question, according to the caselaw, is a resounding no. In United States v. Vonn, the United States Supreme court made it clear that plain error could be applied to cases involving unpreserved insufficient evidence claims in the context of a plea bargain where the error is “plain, prejudicial, and disreputable to the judicial system.” 535 U.S. at 65, 122 S. Ct. at 1050. Other federal and state authorities consistently support the proposition that unpreserved claims of insufficient evidence supporting convictions based on guilty pleas may be considered under the plain error rubric even where the defendant did not move to withdraw the guilty plea or otherwise object below. See, e.g., Garcia-Paulin, 627 F.3d at 131; United States v. Taylor, 627 F.3d 1012, 1016–18 (6th Cir. 2010); United States v. Orozco-Osbaldo, 615 F.3d 955, 958 (8th Cir. 2010); Kiet Hoang Nguyen, 299 P.3d at 686.
In sufficiency-of-the-evidence cases, it is sometimes suggested by the state that the availability of postconviction relief is adequate and that direct review based on plain error is unnecessary. But as noted by the concurring opinion in State v. McAdams: “[T]his argument ignores the tremendous burden placed on a defendant seeking collateral review. An indigent defendant . . . has no statutоry or constitutional right to counsel beyond a first, direct appeal.” 594 A.2d at 1279 (Batchelder and Johnson, JJ., concurring specially). Further, the concurrence noted that
[a] defendant whose conviction was plainly based on insufficient evidence should not be forced to spend several months or years imprisoned while he or she attempts to collaterally attack the conviction, whether pro se or with the aid of counsel.
6. Inadequacy of postconviction relief. Under the majority approach, a claim for insufficiency of the evidence to support a plea may be raised in an action for postconviction relief. For the reasons expressed in Tucker, 959 N.W.2d at 155–57, I regard this alternative an unconstitutional impairment of the right to counsel on the first appeal as a matter of right.
7. Discussion. So, the vast majority of states and federal courts all embrace plain error and many cases apply plain error in contexts very similar to this case. The legal environment has shifted if the ineffective-assistance-of-counsel provisions of S.F. 589 are enforced. Many jurisdictions apply plain error in the context of guilty pleas not supported by substantial evidence because it is the most efficient approach and avoids unnecessary delay. We should do the same.
As to the suggestion that we should engage in rulemaking before adopting
Second, it is our obligation, in this case, to interpret the term “good cause.” We cannot decline to fill in the blank of what the statute contains pending rulemaking. Treptow is entitled to a determination of whether his case amounts to good cause. We must address the issue, now, in his case. If desirable, rulemaking can come later, but a decision for Treptow cannot wait.
Applying plain error, based on my review of the record, there was not substantial evidence to support Treptow’s plea of guilty to the crime of gathering. As a result, I would reverse and remand to the district court. Gines, 844 N.W.2d at 442. On remand, the parties may seek to establish a factual basis for the plea, engage in further plea bargаining, or bring the matter to trial.
II. Conclusion.
For all of the above reasons, I would reverse and remand the case to the district court.
Notes
If a defendant challenges a guilty plea based on an alleged defect in the plea proceedings, the plea shall not be vacated unless the defendant demonstrates that the defendant more likely than not would not have pled guilty if the defect had not occurred.Treptow contends this provision violates the separation-of-powers doctrine. We decline to pass on the constitutionality of the statute given our conclusion that the court lacks jurisdiction in this matter. Judicial self-restraint imposes a duty upon this court to avoid constitutional questions where possible. See State v. Trucke, 410 N.W.2d 242, 243 (Iowa 1987) (en banc). “[W]e normally avoid constitutional claims when an appeal can be decided on other grounds.” State v. Kukowski, 704 N.W.2d 687, 690 (Iowa 2005). Treptow’s separation-of-powers challenge to section 814.29 will have to be developed, if at all, in postconviction-relief proceedings.