STATE of Iowa, Appellee, v. Kevin Duane FISHER II, Appellant.
No. 13-1238.
Supreme Court of Iowa
April 8, 2016.
This case requires us to determine whether a defendant pleading guilty to a controlled-substance offense has a right to be informed beforehand that, as a result of the conviction, his driver‘s license will be revoked for 180 days. We conclude that because revocation is automatic, immedi-ate, punitive, and a part of the sentencing order, the defendant has a right to be informed of this consequence. We further conclude that the defendant has a right to be informed of fine surcharges. Accord-ingly, we vacate the defendant‘s conviction and remand for further proceedings con-sistent herewith.
I. Background Facts and Prior Pro-ceedings.
According to the minutes of testimony, on April 11, 2013, Eric Seckel of the Uni-versity of Iowa Police Department was performing a bar check in Iowa City. As he walked toward the back of the bar, he could smell the odor of marijuana. He made contact with Kevin Fisher and could smell a strong odor of burnt marijuana on his breath. . When Fisher was asked if he had any marijuana on him, he handed’ Offi-cer Seckel.a cigarette box that contained a partially used joint. The joint contained marijuana. ■ ■
On April 25, Fisher was charged with possession of a controlled substance first offense, a serious misdemeanor, in viola-tion of Iowa Code sections 124.401(5) and 124.204(4)(to) (2013). Initially, Fisher pled not guilty and demanded a speedy Philip B. Mears of Mears Law Office, trial. However, on June 17,the scheduled Iowa City, for appellant. date of his pretrial conference, Fisher‘s Thomas J. Miller, Attorney General, counsel submitted a written guilty plea Bridget A. Chambers, Assistant Attorney signed by Fisher. Among other things, General, Janet Lyness, County Attorney, the plea set forth the maximum punish-and Elizabeth A. Beglin, Assistant County ment—six months—and the basic range of Attorney, for appellee. fines—$315 to $1875—for the offense. Ad-1
The actual plea agreement was hand- written into the signed form. It consisted of two days in jail, a $315 fine, substance abuse evaluation and treatment, and uri-nalysis within ten days.
In the plea form Fisher also acknowl- edged, in writing, as follows:
I have been advised of my right to challenge this plea of guilty by filing a Motion in Arrest of Judgment at least five (5) days prior to the date that the Court sets for sentencing and within forty-five (45) days after the Court ac-cepts my plea.
Fisher‘s counsel certified in the plea form that. he had “carefully explained to the defendant the procedural steps of filing a Motion in Arrest of Judgment, the defini-tion and grounds thereof and the time within which such Motion should be filed“.
On that same day of June 17, the district court entered a written order accepting the plea and entering judgment- and sen-tence. The order stated that the defen-dant was advised of his right to file a motion in arrest of judgment pursuant to the provisions of Iowa Rule of Criminal Procedure 2.24(3) and that “[t]he Defen-dant waives the right to have time prior to sentencing, waives the right to be present for sentencing, and requests the Court
On July 18, Fisher filed a notice- of appeal. The district ‘court appointed ap-pellate counsel on October 2. This counsel subsequently filed a motion for- leave to withdraw under Iowa Rule of Appellate Procedure 6.1005 on November 15.2
Following briefing,-we transferred the case to the court of appeals. •On appeal, Fisher argued his written plea was defec-tive because it failed to disclose the statu-tory minimum sentence of two days in jail, the mandatory six months’ revocation of his driver‘s license, and the surcharges that were later added to his fine. See Iowa Code § 124.401(5); id. § 901.5(10); id. §§ 911.1-.3. In addition, Fisher urged the court to bypass any error preservation concerns despite his failure to file a motion in arrest of judgment because the plea did not adequately inform him that a failure to file a motion in arrest of judgment would foreclose his ability to challenge his guilty plea on direct appeal. Alternatively, Fish-er argued that his counsel rendered inef-fective assistance for failing to -file a mo-tion in arrest ofjudgment.
In a September 23, 2015 decision, the court of appeals concluded “there was sub-stantial compliance with the requirement that Fisher’ be’ informed of the necessity of filing a motion in arrest of judgment in order to challenge his guilty plea,” thus barring Fisher‘s direct appeal. The court also determined that Fisher‘s counsel was not ineffective for failing to challenge the alleged defects’ in the written plea. Ac-cording to the court of appeals, Fisher “failed to show . . . he was unaware of the mandatory minimum sentence of two days in jail“; the surcharge did not “affect the range of Fisher‘s punishment“; and, “[t]he suspension of Fisher‘s driver‘s license was also a collateral consequence of his guilty plea.” The court thus affirmed Fisher‘s plea and sentence.
Substantial compliance with rule 2.8(2)(d) is mandatory and “[n]o defendant ... should suffer the sanction of rule [2.24(3)(a) ] unless the court has complied with rule [2.8(2)(d) ] during the plea pro-ceedings.” State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980).
We ordinarily review challenges to guilty pleas for correction of errors at law. We ordinarily review challenges to guilty pleas for correction of errors at law.
We have found sufficient compliance with the rule when the defendant was told that, if he requested immediate sentencing, his right to “question the legality of his plea of guilty” would be “gone.” State v. Taylor, 301 N.W.2d 692, 692 (Iowa 1981). And in State v. Oldham, 515 N.W.2d 44, 46-47 (Iowa 1994), we found that a collo-quy and a written application to withdraw the not-guilty plea—when considered to-gether—sufficed “to notify Oldham of the consequences of his failure to file the mo-tion [in arrest of judgment].” There the colloquy advised the defendant that he had the right to file a motion in arrest of judgment “if [he] claim[ed] that these plea proceedings [were] illegal” but such a mo-tion had to be filed “at least five days before the time set for sentencing.” Id. at 46. We viewed this advice alone as “equiv-ocal with respect to the consequences of the defendant‘s failure to file a motion in arrest of judgment.” Id. But the written application had added,
I understand that if I wish to attack the validity of the procedures involved in the taking of my guilty plea, I must do so by a motion in arrest of judgment filed with this court.. I understand that such mo-tion must be filed .at least five days before sentencing and also within 45 days of the date my plea of guilty is accepted by the court.
Id. Oldham had read and signed the appli-cation and we decided that when the appli-cation and colloquy were “considered to-gether,” he “was adequately informed of the necessity of filing a motion in arrest of judgment” and his failure to do so preclud-ed his challenge to his plea on appeal. Id. at 47.
“We employ a substantial compliance standard in determining whether a trial court has discharged its duty under rule 2.8(2)(d).” State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006). In Straw we found substantial compliance, noting,
The court‘s statement plainly indicated that if Straw wanted to appeal or chal-lenge the guilty plea, he had to file a motion in arrest of judgment. It also indicated this motion, had to be filed not less than five days before sentencing. In whole, it conveyed the pertinent in-formation and substantially complied with the requirements of rule 2.8(2)(d).
This case falls short of Taylor and Oldham and well short of Straw. Absent from Fisher‘s form was any statement that by signing it or proceeding to immediate sentencing, Fisher was giving up his abili-ty to contest the plea in the future, even if consequences (as we discuss below) that Fisher may not have been told about before pleading guilty. It is true that counsel for Fisher certified in the plea form that he had explained the procedure for filing a motion in arrest of judgment to the defendant. However, “[e]ven considering the assur-ances that counsel for [the defendant] ex-plained the right to file a motion in arrest of judgment, this guarantee would be in-sufficient to satisfy the second require-ment of rule 2.8(2)(d).” Meron, 675 N.W.2d at 541.
On these facts, we cannot conclude that there was substantial compliance with the court‘s duty to inform Fisher that a failure to file a timely motion in arrest of judg-ment would waive any challenge to his guilty plea on appeal. Because Fisher‘s written plea was deficient in this respect, he is not precluded from challenging his guilty plea on direct appeal.3
As with rule 2.8(2)(d), we utilize a substantial compliance standard to deter-mine whether a plea crosses the rule 2.8(2)(b)(2) threshold. See State v. White, 587 N.W.2d 240, 242 (Iowa 1998). Both parties agree for purposes of this appeal that Fisher needed to be informed of all direct consequences of the plea in the col-loquy or in any written waiver thereof. As we have said,
To the extent defendant alleges the sen-tencing court failed to inform him fully of the consequences of his plea, he impli-cates the due process clause of the Fourteenth Amendment to the United States Constitution. To adhere to the requirements of the Fourteenth Amend-ment a sentencing court must insure the defendant understands the direct conse-quences of the plea including the possi-ble maximum sentence, as well as’ any mandatory minimum punishment. How-ever, the court is not required to inform the defendant of all indirect and collater-al consequences of a guilty plea. See State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998) (per curiam) (citations omit-ted).
We begin with Fisher‘s assertion that the failure to inform’ him of the tem-porary revocation of his license rendered his plea defective. Iowa Code section 901.5(10) requires the sentencing court to “order the department of transportation to revoke the defendant‘s driver‘s license or motor vehicle operating privilege for a pe-riod of one hundred eighty days” when pronouncing a sentence for certain speci-fied offenses, including possession of a con-trolled substance under section 124.401. We must determine whether this mandato-ry license suspension is a direct or a collat-eral consequence of a guilty plea for pos-session of a controlled substance.
We reasoned that the purpose, of license revocation for those who had been convict-ed of OWI was “to protect the public by providing that drivers who have demon-strated a pattern of driving while intoxicat-ed be removed from the highways.” Id. at 909 (quoting State v. Moore, 569 N.W.2d 130, 132 (Iowa 1997)). In addition, we had previously ruled that license revocation as a consequence of an OWI conviction was “not punishment for purposes of the dou-ble jeopardy clause.” Id.; see State v. Krebs, 562 N.W.2d 423, (Iowa 1997) 424-25 (per curiam). Accordingly, we concluded that revoking the driver‘s license of a per-son convicted of OWI was a collateral con-sequence because it was not intended as punishment. Carney, 584 N.W.2d at 909.
However, unlike Carney, this case in-volves revocation of a driver‘s license as a mandatory consequence of a drug posses-sion conviction—not an OWI conviction. In this regard, we believe several pre-Carney decisions are relevant. In Hills v. Iowa Department of Transportation, 534 N.W.2d 640, 640-41 (Iowa 1995), Hills was charged with possession of marijuana un-der Iowa Code section 124.401(3), and she pled guilty three months after her arrest. During the time between Hills‘s arrest and her plea, Iowa Code section 321.209(8)— the former version of Iowa Code section 901.5(10)—went into effect. Id. at 641.4
Persons who illegally possess drugs are of course subject to appropriate criminal punishment. But many such persons choose not to drive. When they do not, they do not affect highway safety. Any connection between drugs, driving, and public safety is at most indirect. The amended statute authorizing this license revocation was aimed essentially at en-hancing punishment for controlled sub-stance possession. As such it was quasi-criminal and not civil in nature. Ex post facto principles therefore prohibit appli-cation of the amended statute.
Id.
Following the Hills and Dressler deci-sions, the general assembly amended the statute so it now provides that, as part of the criminal sentencing process, “the court shall order the department of transporta-tion to revoke the defendant‘s driver‘s li-cense or motor vehicle operating privilege for a period of one hundred eighty days ....” 1996 Iowa Acts ch. 1218, § 68 (codified at Iowa Code § 901.5(10)(a)). This takes care of the double jeopardy problem but does not alter our prior view that revoking the driver‘s license of a per-son convicted of a drug possession offense is a punitive rather than a regulatory con-sequence. As we previously said, “Any connection between drugs, driving, and public safety is at most indirect.” Hills, 534 N.W.2d at 642.
Because revocation of the driver‘s license of a person convicted of a drug possession offense is mandatory, immedi-ate, and part of the punishment for that offense, the court must inform the defen-dant of this consequence before accepting his or her plea. Here Fisher‘s written plea did not advise him that a guilty plea would result in the suspension of his li-cense. We therefore find that the plea was involuntary and Fisher‘s conviction
However, it analogizes surcharges to court costs, which are not considered a form of punishment and do not need to be dis-closed in advance of the plea. See id. (holding that a failure to disclose mandato-ry payments that are compensatory rather than punitive did not vitiate a guilty plea). The State begins with Fisher‘s assertion that the failure to inform’ him of the tem-porary revocation of his license rendered his plea defective. Iowa Code section 901.5(10) requires the sentencing court to “order the department of transportation to revoke the defendant‘s driver‘s license or motor vehicle operating privilege for a pe-riod of one hundred eighty days” when pronouncing a sentence for certain speci-fied offenses, including possession of a con-trolled substance under section 124.401. We must determine whether this mandato-ry license suspension is a direct or a collat-eral consequence of a guilty plea for pos-session of a controlled substance.
- A thirty-five percent criminal penal-ty surcharge,
- A drug abuse resistance education surcharge of $10, and
- A law enforcement initiative surcharge of $125.
All of these surcharges can be distin-guished from other court-ordered pay-ments, such as restitution, court costs, and reimbursement for the cost of court-ap-pointed counsel, which we regard as non-punitive. See Brady, 442 N.W.2d at 59. The latter items are compensatory and “do[] not fit the generally understood defi-nition of punishment.” Id. By contrast, the surcharges do not serve as compensa-tion but are simply what their title indi-cates—a “surcharge” on the fine. For rule 2.8 purposes, we see no meaningful differ-ence between a fine and a built-in sur-charge on a fine. As the United States Court of Appeals for the Seventh Circuit has put it, “Labels don‘t control. A fine is a fine even if called a fee ....” Mueller v. Raemisch, 740 F.3d 1128, 1133-34 (7th Cir.2014) (upholding the annual registra-tion fee for the sex offender database be-cause it was “intended to compensate the state for the expense of maintaining the sex offender registry“).
The State insisted at oral argument that surcharges cannot be characterized as punishment because the funds collected—or at least some of them—are used for “remedial” purposes, such as crime and drug abuse prevention. But the funds, col-lected through regular fines themselves are used for similarly beneficent purposes. They are deposited into the general fund which supports various state priorities in-cluding medical assistance and education. See Iowa Code § 602.1305; id. § 602.8108. This does not make them any less punitive.
All of these surcharges can be distin-guished from other court-ordered pay-ments, as such court and reimbursement we regard as non-punitive. See Brady, 442 N.W.2d at 59. The latter items are compensatory and “do[] not fit the generally understood definition of punishment.” Id. By contrast, the surcharges do not serve as compensa-tion but are simply what their title indi-cates—a “surcharge” on the fine. For rule 2.8 purposes, we see no meaningful differ-ence between a fine and a built-in sur-charge on a fine. As the United States Court of Appeals for the Seventh Circuit has put it, “Labels don‘t control. A fine is a fine even if called a fee ....” Mueller v. Raemisch, 740 F.3d 1128, 1133-34 (7th Cir.2014) (upholding the annual registra-tion fee for the sex offender database be-cause it was “intended to compensate the state for the expense of maintaining the sex offender registry“).
As Fisher‘s counsel pointed out during oral argument, the surcharges made it ef-fectively impossible that Fisher could ever actually be fined $315, the mandatory min-imum listed on the plea form. In fact, the actual dollar minimum was $560.25. We conclude that Fisher should have been in-formed .of the mandatory minimum and maximum possible fines, including sur-charges.5
Because we are vacating Fisher‘s plea and sentence and remanding for further proceed-ings anyway based on failure to disclose the mandatory license suspension, we need not decide today whether failure to disclose the surcharges alone would have meant the plea did not substantially comply with rule 2.8(2)(b)(2). Regardless, we hold that actual compliance with rule 2.8(2)(b)(2) requires disclosure of all applicable chapter 911 sur-charges.
Fisher also argues that his guilty plea was defective because he was not informed of the mandatory minimum of two days in jail. We note, however, that in his plea agreement, Fisher agreed to two days in jail.
IV. Conclusion.
For reasons stated above, we vacate the decision of the court of appeals and the judgment and sentence imposed by the district court. We remand for further pro-ceedings consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AND SENTENCE VACAT-ED AND CASE REMANDED.