STATE OF IOWA, Appellee, vs. SHANNON PAIGE HIGHTOWER, Appellant.
No. 22-1920
IN THE SUPREME COURT OF IOWA
Submitted March 21, 2024—Filed June 21, 2024
Shannon Hightower appeals her guilty plea, her sentence, and the conditions ordered for her appeal bond. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
May, J., delivered the opinion of the court, in which Waterman, Mansfield, McDonald, and Oxley, JJ., joined. McDermott, J., filed a dissenting opinion, in which Christensen, C.J., joined.
Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellee.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.
Shannon Hightower pleaded guilty to dependent adult abuse and theft in the second degree. On appeal, Hightower contends that there were defects in her guilty plea, her sentencing, and the conditions set for her appeal bond.
As part of her challenge to her guilty plea, Hightower argues that
We reject Hightower‘s challenges to
On the other hand, we agree with Hightower that resentencing is required because the district court relied on an improper sentencing factor. And we agree with Hightower that the district court erred by ordering unauthorized forfeiture requirements for Hightower‘s appeal bond.
In short, we affirm Hightower‘s conviction, we vacate her sentence, and we reverse the forfeiture requirements. We remand for resentencing and for lawful disbursement of funds paid for Hightower‘s release during this appeal.
I. Background.
In 2020, the State charged Hightower with dependent adult abuse and theft in the second degree, both class “D” felonies. The minutes of testimony showed that Hightower had power of attorney over J.S., a dependent adult.
Initially, Hightower pleaded not guilty. But two years later, in January 2022, Hightower signed and filed a “Written Guilty Plea and Waiver of Rights,” referred to here as the “guilty plea.” Through the guilty plea, Hightower pleaded guilty as charged to dependent adult abuse and theft in the second degree. The guilty plea said this about the “plea agreement” between the State and Hightower: “State will follow [the presentence investigation report] or recommend suspended sentence, 5 years concurrent, Defendant may apply to transfer probation to different jurisdiction, and this matter includes charges known on all matters related to [J.S.] an[d] restitution to be determined.” This explanation of the plea agreement was initialed by both Hightower and an assistant county attorney.
After Hightower filed the guilty plea, the district court entered an order finding Hightower guilty based on her plea. The same order set sentencing and ordered preparation of a presentence investigation report (PSI).
After multiple continuances, a sentencing hearing was held on November 17, 2022. The State argued that the court should follow the PSI‘s recommendation of a suspended sentence. Hightower‘s counsel argued for a deferred judgment.
The court sentenced Hightower to concurrent prison terms. The court gave a thorough statement of its reasons for the sentence. Important for this appeal, one of the court‘s reasons was Hightower‘s failure to pay restitution prior to sentencing.
After the court pronounced sentence and advised Hightower of her appeal rights, Hightower‘s attorney asked the court to withhold mittimus, i.e., to
The court expressed reservations about withholding mittimus. Ultimately, though, the court gave Hightower until 6:00 p.m. the next day to turn herself in.
The next day, November 18, Hightower filed a motion asking the court to order “a stay of the sentence” and to set a hearing to review concerns about her guilty plea. Alternatively, Hightower asked the court to set an appropriate appeal bond.
On November 21, Hightower filed a notice of appeal. Later that day, the court entered an order denying Hightower‘s request for a hearing about her guilty plea. In the same order, the court set an appeal bond in the amount of $17,000 cash only. The order also said this:
All parties are advised any appeal bond posted, regardless of who posts it, SHALL be used to satisfy victim restitution. The Clerk of Court shall notify any person posting the appeal bond that it will not be returned, but rather will be used for victim restitution.
Later, Hightower filed a separate notice of appeal from the order “setting the appeal bond and eventual forfeiture of the bond for victim restitution.” We consolidated the two appeals into this one case, which we retained.
II. Issues Presented.
Hightower‘s brief presents five substantive issues for our review:
- Hightower contends that we should reverse her conviction because her guilty plea was defective.
Hightower contends that the district court erred in failing to offer Hightower an opportunity to withdraw her plea during the sentencing hearing. - Hightower contends that the district court relied on an improper sentencing consideration.
- Hightower contends that the district court abused its discretion by setting her appeal bond at $17,000 cash only.
- Hightower contends that the district court erred by ordering forfeiture of her appeal bond to pay victim restitution.
We address each of these issues below. Before reaching these substantive issues, though, we first address our appellate jurisdiction.
III. Appellate Jurisdiction.
The right to appeal is statutory. State v. Loye, 670 N.W.2d 141, 147 (Iowa 2003); see also Johnson v. Iowa State Highway Comm‘n, 134 N.W.2d 916, 917 (Iowa 1965). “Unless an appeal” is authorized by statute, “this court is without jurisdiction” to hear the appeal, and we “must dismiss” the appeal. Ontjes v. McNider, 275 N.W. 328, 339 (Iowa 1937); accord State v. Tucker, 959 N.W.2d 140, 149 (Iowa 2021) (“It is our duty to reject an appeal not authorized by statute.” (quoting Crowe v. De Soto Consol. Sch. Dist., 66 N.W.2d 859, 860 (Iowa 1954))).
In criminal cases, the statute that authorizes appeals by a defendant is
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.
Subsection
Because Hightower‘s case does not involve a “class ‘A’ felony,” the first exception cannot apply.
IV. Substantive Issues.
A. The Guilty Plea. Hightower‘s central argument is her attack on her plea of guilty. As noted, Hightower offered her plea through a written request to plead guilty (“guilty plea” or “plea“). Hightower argues that the guilty plea contains numerous errors and ambiguities. And so, Hightower argues, we should vacate the plea and remand for trial.
We address each of Hightower‘s arguments below. First, we consider Hightower‘s arguments about the motion-in-arrest-of-judgment issue. Then, we consider Hightower‘s attacks on the guilty plea itself. Finally, we consider Hightower‘s arguments about
1. The motion-in-arrest-of-judgment issue. As a general rule, a defendant who wishes to challenge a guilty plea on appeal must first raise the challenge in the district court by filing a timely motion in arrest of judgment. See
In this case, Hightower filed no motion in arrest of judgment. But Hightower claims she was excused from filing a motion because she did not receive an adequate advisory about her obligation to file a motion and the consequences of failing to do so. Here is the advisory that Hightower received:
24. I understand that if I wish to challenge this plea of guilty, I must do so by filing a Motion in Arrest of Judgment at least five (5) days prior to the Court imposing sentence, but no more than 45 days from today‘s date. I understand that by asking the Court to impose sentence immediately that I waive my right to challenge the plea of guilty which I have hereby entered. Initials SH
25. I understand that I have the right to the preparation of a pre-sentence investigation report for a felony offense that is not a class A felony and a delay of at least 15 days between the date this plea is entered and the date of sentencing. I understand that if I am sentenced immediately, I lose my right to challenge any defect in this plea or plea proceeding by motion in arrest of judgment and appeal to a higher court, as well as my right to have a judge rely on a pre-sentence investigation report. Knowing the above, ☐ I ask the court to sentence me immediately. ☒ I ask the court to sentence me at a later date and for the court to order a pre-sentence investigation report. Initials SH
We agree with Hightower that this advisory was not adequate. It is true that the advisory informed Hightower that if she were “sentenced immediately,” she would lose the “right to challenge” plea defects “by motion in arrest of judgment and appeal to a higher court.” But Hightower did not request or receive immediate sentencing. There were many months between her plea and
Before addressing those challenges, though, we add a clarification about our approach to motion-in-arrest-of-judgment advisories. The State suggests that our opinion in State v. Damme changed our approach to those advisories. See id. at 107. We wish to clarify that our approach has not changed.
It is true that, in Damme, we approved an advisory that did not expressly state that failure to timely file a motion would preclude a plea challenge on appeal. Id. at 108. In Damme, though, the defendant was “not seeking to vacate her guilty plea.” Id. at 107. And so Damme‘s comments about the advisory could be properly viewed as dicta.
In any event, we now reaffirm that a proper advisory must advise the defendant that “the failure to challenge the plea by filing the motion within the time provided prior to sentencing precludes a right to assert the challenge on appeal.” Fisher, 877 N.W.2d at 680 (emphasis omitted) (quoting Meron, 675 N.W.2d at 540). If this warning is not included in the advisory, the defendant‘s failure to timely file a motion will not preclude a plea challenge on appeal. To
2. The plea itself. We turn next to Hightower‘s substantive argument that her guilty plea was defective. On this point, we agree with Hightower.
In this case, Hightower raises several concerns about her guilty plea. For purposes of analysis, we divide those concerns into two groups. On one hand, Hightower points to several “irregularities” in the written guilty plea form “that raise questions of whether Hightower knowingly and intelligently pled guilty.” These “irregularities” include Hightower‘s concerns that: (1) the guilty plea suggested that Hightower may not have been seeking a deferred judgment although the record shows she was; (2) the plea overstated the civil penalty that Hightower would be assessed in the event of a deferred judgment; (3) the plea was ambiguous as to whether she was entering an Alford plea or, instead, admitting her actual guilt; (4) the plea did not accurately state the factual basis for her plea to theft in the second degree; (5) the plea erroneously suggested that Hightower would be subject to a law enforcement initiative surcharge; and more.
We acknowledge Hightower‘s concerns. On the present record, though, we cannot conclude that these irregularities show that the guilty plea was not
We turn now to Hightower‘s separate concern about the guilty plea‘s advisory about maximum punishments.
That is what happened here. Hightower pleaded guilty to two class “D” felonies. At the time of her offenses, the Iowa Code required “a fine of at least seven hundred fifty dollars but not more than seven thousand five hundred dollars” for each class “D” felony conviction.
11. I know that the maximum sentence for each charge for which I am pleading guilty as provided by statute is confinement in the jail/prison for a period of not more than five years year(s) and fine(s) of not more than 0. Minimum fine(s) of 1,000.00 $750.
Because Hightower‘s guilty plea said that the maximum possible fine was “0” even though the actual maximum possible fine was $7,500 for each charge, the plea failed to substantially comply with
Before reaching that issue, however, we offer a general comment about written pleas. We believe that our rules governing written pleas generally provide both fairness and efficiency in the plea process. Even so, the concerns raised by Hightower serve as a reminder of the need for careful review of written pleas. If that review raises concerns in the mind of the plea judge, the judge certainly has authority to require a personal colloquy before accepting or rejecting a plea.
3. Section 814.29. We now turn to
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. The burden applies whether the challenge is made through a motion in arrest of judgment or on appeal. Any provision in the Iowa rules of criminal procedure that are inconsistent with this section shall have no legal effect.
Hightower offers three reasons why
a. Does the present record satisfy section 814.29? Hightower first argues that she has satisfied
On appeal, Hightower claims that her postsentencing statements demonstrate that she “would not have pled guilty” if she had understood that her guilty plea did not guarantee probation.
In any event, based on the current record, we cannot say that the requirements of
b. But does section 814.29 even apply? We now turn to Hightower‘s alternative argument that
To find the meaning of
Even so, Hightower suggests that due process concerns preclude us from giving
We disagree. Of course, due process is guaranteed by both the
Hightower received due process as to the requirements of
As for opportunity to be heard, Hightower had multiple chances to make any record that she wanted to make. For instance, Hightower‘s sentencing hearing was held in open court before a court reporter. At the beginning of the sentencing hearing, the court asked counsel if there was “any legal reason why sentencing cannot . . . proceed” or if the defense had any evidence to present. Later, but still prior to sentencing, Hightower was given another opportunity to address the court. Then, after the sentence was entered, Hightower and her counsel were again permitted to address the court regarding the issuance of mittimus. Then, on the day after sentencing, Hightower filed a motion that raised concerns about the guilty plea.
By our count, then, Hightower had at least four chances to make a record that might satisfy
c. Is section 814.29 unconstitutional on its face? We turn now to Hightower‘s broader constitutional challenges to
At the outset, we would clarify that
With that clarification, we turn to Hightower‘s facial due process challenge. We start with the recognition that facial due process challenges are generally difficult to win. Kluender v. Plum Grove Invs., Inc., 985 N.W.2d 466, 470 (Iowa 2023). The challenger must show that the statute is “unconstitutional in all its applications.” Id. (quoting Bonilla v. Iowa Bd. of Parole, 930 N.W.2d 751, 766 (Iowa 2019)). The challenger must show that the statute is “incapable of any valid application.” Id. (quoting Bonilla, 930 N.W.2d at 766). These showings are rarely easy. And facial challenges are disfavored for many reasons—including the fact that they require the court to speculate about whether there could be proper applications under facts that are not before the court. Id.
Hanes relied in part on our opinion in State v. Treptow, 960 N.W.2d 98. See Hanes, 981 N.W.2d at 459-61. In Treptow, we held that the legislature did not violate due process by prohibiting direct appellate review of claims that plea counsel had been ineffective. 960 N.W.2d at 107-08. It was sufficient, we concluded, that the defendant could raise those claims in a separate PCR action. Id. at 108. (“Due process merely requires an opportunity to present those claims in some forum.“).
Likewise, even if
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. . . . These decisions were within the legislative department‘s prerogative and not in derogation of the judicial power.
Id. (citation omitted).
We think Tucker largely forecloses Hightower‘s separation-of-powers challenge. Just as it was appropriate for the legislature to require a showing of good cause by defendants who have pleaded guilty, id., it was also appropriate for the legislature to require a showing that alleged plea defects were sufficiently prejudicial that no plea would have been entered if those defects had not occurred. Both requirements are consistent with the legislature‘s enumerated powers under
4. Conclusions regarding Hightower‘s plea. To summarize, we conclude that Hightower‘s failure to file a motion in arrest of judgment does not preclude appellate review of her guilty plea. Additionally, we conclude that Hightower has shown a substantial defect in her guilty plea: the absence of an accurate advisory
B. Opportunity to Withdraw Plea. We next consider Hightower‘s argument that
Hightower claims that her plea fell within
This lack of an agreed-upon sentence is reflected in the sentencing hearing transcript as well. The parties did not present an agreed-upon sentence to the court. The State argued that the court should impose a suspended sentence as recommended in the PSI. But the State also argued that it “would not be appropriate to grant a deferred judgment.” Then Hightower took the opposite position by requesting a deferred judgment. The parties didn‘t agree.
Because the parties had not agreed upon a sentence,
C. Improper Sentencing Factor.
Next we consider Hightower‘s argument that the court relied on an improper sentencing factor. On this issue, we agree with Hightower.
When the district court imposes a sentence that falls “within the statutory limits,” the court‘s decision “to impose a particular sentence . . . is cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). The discretion afforded to the sentencing court is necessarily broad. Id.
As we explained in State v. Formaro:
Judicial discretion imparts the power to act within legal parameters according to the dictates of a judge‘s own conscience, uncontrolled by the judgment of others. It is essential to judging because judicial decisions frequently are not colored in black and white. Instead, they deal in differing shades of gray, and discretion is needed to give the necessary latitude to the decision-making process. This inherent latitude in the process properly limits our review. Thus, our task on appeal is not to second guess the decision made by the district court, but to determine if it was unreasonable or based on untenable grounds.
Even so, if the sentencing court “uses any improper consideration, resentencing . . . is required.” State v. Boldon, 954 N.W.2d 62, 73 (Iowa 2021) (quoting State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000) (en banc)). This is true even if the improper factor was only a “secondary consideration.” State v. Goble, 4 N.W.3d 700, 704 (Iowa 2024) (quoting Boldon, 954 N.W.2d at 73). But
Here, the sentencing court repeatedly referred to Hightower‘s failure to make presentencing payments of victim restitution. Indeed, the record leaves no doubt that the court relied on Hightower‘s failure to pay restitution in making its sentencing determination. The only question, then, is whether this reliance was improper. We conclude it was. Prior to sentencing, Hightower hadn‘t been ordered to pay restitution. See
D. Appeal Bond.
We turn next to Hightower‘s complaints about her appeal bond. Hightower raises two concerns. First, Hightower argues that the district court abused its discretion by setting Hightower‘s appeal bond at $17,000 cash only. Second, Hightower argues that the order setting bond included improper forfeiture requirements. We discuss these arguments separately.
1. The amount. We begin with Hightower‘s complaint about the amount of her bond. Before we can reach the merits, though, we first consider whether the issue is moot.
It is a “familiar principle of judicial restraint” that courts usually “do not decide cases when the underlying controversy is moot.” Belin v. Reynolds, 989 N.W.2d 166, 171 (Iowa 2023) (quoting Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005)). “The key in assessing whether an appeal is moot is determining whether the opinion would be of force or effect in the underlying controversy.” Id. (quoting State v. Avalos Valdez, 934 N.W.2d 585, 589 (Iowa 2019)).
The State contends that Hightower‘s complaints about the amount of her appeal bond are moot. They are moot, the State argues, because the bond
Hightower does not dispute these points. Hightower effectively concedes that the requirements set for her appeal bond ($17,000 cash only) are now moot. As Hightower notes, though, Iowa appellate courts have sometimes reviewed the requirements set for appeal bonds even though, as here, mootness was likely present. See, e.g., State v. Kellogg, 534 N.W.2d 431, 433 (Iowa 1995). Also, as Hightower notes, our court has recognized a “so-called public-importance exception” to the mootness doctrine. Homan v. Branstad, 864 N.W.2d 321, 330 (Iowa 2015); see also Kirkwood Inst., Inc. v. Sand, 6 N.W.3d 1, 9 (Iowa 2024) (citing Belin, 989 N.W.2d at 171) (discussing the exception). This means that we have discretion to decide a moot issue “where matters of public importance are presented and the problem is likely to recur.” Belin, 989 N.W.2d at 171 (quoting Homan, 864 N.W.2d at 330); see also Homan, 864 N.W.2d at 330 (citing Maghee v. State, 773 N.W.2d 228, 234 (Iowa 2009)) (noting factors that our court considers when deciding whether to apply the exception).
But Hightower does not offer much explanation as to why we should exercise this discretion here. Most importantly, she does not explain why the requirements for her appeal bond are “matters of public importance.” Belin, 989 N.W.2d at 171 (quoting Homan, 864 N.W.2d at 330). And Hightower‘s case is not like State v. Briggs, for example, in which the defendant raised constitutional questions about the validity of a widely used bail practice. 666 N.W.2d 573, 576–77 (Iowa 2003). In cases like that, an opinion by this court can be helpful “to guide public officials in their future conduct” when addressing “an issue of general applicability that is likely to reoccur.” Maghee, 773 N.W.2d at 234–35
2. The forfeiture requirement. We turn next to Hightower‘s argument that the district court erred by ordering these forfeiture requirements on her appeal bond:
IT IS THEREFORE ORDERED appeal bond is set in the amount of $17,000 CASH ONLY. All parties are advised any appeal bond posted, regardless of who posts it, SHALL be used to satisfy victim restitution. The Clerk of Court shall notify any person posting the appeal bond that it will not be returned, but rather will be used for victim restitution.
(Emphasis added.)
We conclude that the district court erred by ordering these forfeiture requirements. Indeed, the State correctly concedes that these requirements were contrary to our decision in State v. Letscher, 888 N.W.2d 880, 886 (Iowa 2016). And so, as in Letscher, “we must return the case to the district court for the clerk to disburse the bail money as required by law.” Id. (citing
This opinion resolves both of Hightower‘s appeals. As to Hightower‘s appeal of her conviction and sentence: we affirm Hightower‘s conviction but we vacate Hightower‘s sentence. We remand for resentencing before another judge. As to Hightower‘s appeal of the order setting the appeal bond: we decline to review the terms ordered for Hightower‘s release during the pendency of this appeal. That issue is moot. But we reverse the district court‘s order for forfeiture of funds paid to secure Hightower‘s release. We remand for distribution of the funds as required by
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
Waterman, Mansfield, McDonald, and Oxley, JJ., join this opinion. McDermott, J., files a dissenting opinion, in which Christensen, C.J., joins.
MCDERMOTT, Justice (dissenting).
The majority rejects Hightower‘s request to withdraw her plea—a plea the majority acknowledges is defective—based on
“Due process,” we have declared, “requires that a defendant enter a guilty plea voluntarily and intelligently.” State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001). Our rules of criminal procedure thus require a district court, before accepting a defendant‘s plea bargain, to establish that the defendant entered the guilty plea “voluntarily and intelligently.”
For most felony charges, when a defendant enters a guilty plea, we require judges to personally address the defendant in open court to establish that the defendant understands (among other things) the maximum potential punishment for the crime and that the judge is not bound by any party‘s recommendation about the sentence unless the plea is conditioned on the judge‘s approval of the parties’ agreement. See
But an in-person colloquy between the judge and defendant is not required for certain class “D” felonies (the type of crimes charged in this case) so long as the same terms are memorialized in a written plea agreement that “[d]emonstrates the defendant has been informed of and understands the matters” that
When the district court sentenced Hightower to five years in prison, she immediately responded with shock that a sentence of imprisonment was even possible:
Can I just have one day, please? I haven‘t even told my kids [(two daughters, ages four and five)] good-bye. I had no idea this was happening, Your Honor. I had no idea. I had none. I haven‘t even said good-bye to my kids. I have no -- like, I did not expect this. I was under the assumption I was getting a -- I was getting the five years with it suspended, so I did not come prepared to come to jail today.
If I would have known that I was going to prison, I would have came prepared to go to prison today; but I had no idea. Like, my kids don‘t have anybody to pick them up or anything. I‘m the sole provider for my children. So I need at least 24 hours to get my brother to fly here and pick up my children because I was not told about any of this. I was told that there was an agreement and that I was supposed to be getting five years suspended to five years probation.
. . . .
. . . My brother is in Utah. All I have to do is make a couple of phone calls so he can come pick them up, and I can sign over all the paperwork that I need to give him because I‘m not -- I did not come prepared for this because I had no clue.
If I would have known, I would have came prepared, and my kids would have already been with somebody. But this was not what -- I was under the assumption of the agreement that I was signing when I signed my sentencing agreement. I signed it with the assumption that I was supposed to be getting five years suspended to five years probation. That‘s -- when I signed this with -- under the assumption that I was when I got this signed.
The next morning, Hightower‘s lawyer filed a motion requesting a hearing and to stay the sentencing order or set an appeal bond. Her lawyer‘s motion stated that “it was clear the defendant and the defense attorney had a different understanding of the plea.” The motion identified two provisions in the plea agreement, paragraphs 8 and 10, that had caused Hightower to believe she could withdraw the plea if the district court imposed anything harsher than a suspended sentence. The district court denied the motion for a hearing and set a $17,000 cash-only appeal bond that, if paid, would be tapped to satisfy victim restitution. This appeal followed.
It requires little imagination to see how a defendant would be confused by the plea agreement in this case. In paragraph 9 of the plea agreement, the “terms” are stated as follows:
State will follow [the presentence investigation report] or recommend suspended sentence, 5 years concurrent, Defendant may apply to transfer probation to different jurisdiction, and this matter includes charges known on all matters related to [the victim] an[d] restitution to be determined.
When the plea agreement was signed, the presentence investigation report had not yet been prepared. Hightower, we know, was pushing for a deferred judgment—a lighter sentencing option than a suspended sentence. Although paragraph 9‘s language is unclear about what would happen if the presentence investigation report recommended a harsher sentence than a suspended sentence, one could reasonably read this language to mean that the State was binding itself to a sentence no harsher than a suspended sentence. The discussion in the
Paragraph 8 of the plea agreement contains a key provision that describes the nature of the plea. Unfortunately, it suggests two plausible—yet completely divergent—readings. It provides:
The first option states that the guilty plea is made “without any agreement with the State‘s attorney regarding the charge(s) against me or my sentence.” The second statement offers the contrary position, stating that the plea is entered under “Iowa Rule of Criminal Procedure 2.10 based upon an agreement with the State‘s attorney regarding the charges against me and/or my sentence” with the agreement “binding on the Court unless the Court specifically tells me otherwise.” The first statement is marked with a preprinted “x.” The second statement contains no “x” but is inscribed with Hightower‘s handwritten initials.
Which one controls? Reasonable arguments can be made for treating either option as operative. In any event, it‘s enough to say that a defendant in Hightower‘s situation reasonably may have understood the plea agreement exactly as Hightower claims she did—that the court was bound by the parties’ agreement “regarding the charges against [her] and/or [her] sentence.” Such an understanding is entirely consistent with Hightower‘s immediate, bewildered reaction at the sentencing hearing.
This paragraph presents the same riddle of the prechecked box versus handwritten initials as paragraph 8. The first statement, marked with a preprinted “x,” seeks to affirm an understanding that “the Court is not bound by the plea agreement and may sentence me up to the maximum sentence provided by law.” The second statement, which Hightower personally marked with her initials, seeks to affirm the opposite: “that this is a Rule 2.10 plea agreement, which means that if the Court does not accept the plea agreement, I may withdraw my plea of guilty.” Again, it‘s reasonable to think that either statement could be operative. Requiring initials next to a sentence could be interpreted as affirming the content of that sentence and thus that the sentence trumps an inconsistent sentence that doesn‘t require initialing.
There are other significant problems with the plea agreement, not all of which require cataloging here, but several merit further discussion. There is, of course, the defect in paragraph 11 that the majority correctly concludes failed to comply with our plea rules by stating that the maximum possible fine was “0” even though the maximum was actually $7,500 for each charge:
But paragraph 11 is noteworthy for at least two other reasons. Consider the first of the two statements preceded by boxes, which states: “I am requesting a deferred judgment and if granted a civil penalty of $1,000.00 will be assessed.” Hightower was indisputably seeking a deferred judgment; the sentencing transcript includes discussion by both lawyers and the judge about it. Yet the box acknowledging that Hightower is seeking a deferred judgment is not checked. The statement is, however, initialed. This example again illustrates that, for Hightower, it may have been reasonable for her to conclude that a statement next to an unchecked box could still be operative.
The second statement preceded by a box in paragraph 11 (about the possibility of consecutive sentences if the defendant is pleading guilty to multiple charges) is notable in a different way. Hightower was indeed pleading to two charges. If the district court had discretion to order any sentence available—and the district court at sentencing certainly claimed it did—then the district court could have imposed consecutive sentences. Yet the box next to this statement is unchecked.
Other preprinted provisions on the plea agreement contradict handwritten ones. Paragraph 23, for instance, states in all-caps typeface that “I PLEAD GUILTY AS SET OUT ABOVE.” But above, in paragraph 7, these handwritten lines appear:
“[F]or the purposes of determining whether a guilty plea was involuntary due to confusion over the plea agreement, the important inquiry is what the defendant, not the defense attorney, understood.” State v. Philo, 697 N.W.2d 481, 489 (Iowa 2005). Suffice it to say, on this record, I have no confidence that Hightower understood that she had agreed to accept a sentence of incarceration. Both the “intelligent” and “voluntary” conditions that we require of all plea agreements were absent. The majority discusses only one defect in the plea—the amount of the potential fine—but when it comes to defects, this plea contains multitudes. And these defects go to the very heart of the plea agreement.
The majority‘s analysis of
But
I read the burden in
Even if
A review of the district court‘s docket suggests that Hightower wavered considerably about whether to go to trial or agree to a plea in this case. The State filed its complaint on April 1, 2020. Hightower pleaded not guilty, and the matter was set for trial. The trial was continued several times. In early February 2021, after at least two pretrial conferences, the district court set a plea hearing for later that month. That plea hearing was continued because the parties requested more time to work out a plea agreement. In May, still with no plea agreement, the district court reset the case for trial at Hightower‘s request. In early July, the court set another plea hearing for later that month. But in early August, the court entered an order stating that Hightower requested to return the matter to the jury trial docket once again, and the court set trial for August 24. The trial was continued to October, then November, then December. On December 21,
We need not doubt the reliability of Hightower‘s statements at the hearing. The prosecutor, after hearing Hightower‘s comments, said she had no objection when the district court asked for the State‘s input on Hightower‘s request to delay taking her into custody. And the district court, for its part, granted Hightower‘s request to delay taking her into custody and gave her until 6:00 p.m. the next day based on her statements at the hearing. The court did so despite stating that it “normally do[es] not withhold mittimus.” Everyone involved, it would appear, had no trouble relying on the veracity of Hightower‘s statements.
The majority returns to this point in summarizing its conclusion: “In any event, based on the current record, we cannot say that the requirements of section 814.29 are satisfied.” The majority holds that Hightower made an inadequate record because, in effect, it finds no record. Yet among the fundamental aspects of the right to due process is the right to be heard. See Lennette v. State, 975 N.W.2d 380, 396 (Iowa 2022) (noting that procedural due process “assure[s] . . . a right to a meaningful hearing when constitutionally protected interests are invaded or threatened“). I find no support for the majority‘s claim that “[a]s for opportunity to be heard, Hightower had multiple chances to make any record that she wanted to make.” The majority recites four such “opportunities.” The first two occurred before the district court even imposed the sentence and thus
For
“Duration of incarceration,” we have declared “unquestionably goes to the very heart of voluntariness required for a valid waiver of a defendant‘s right to trial on the charge alleged, as well as the voluntariness of a defendant‘s waiver of the other rights to be accorded.” State v. White, 587 N.W.2d 240, 246 (Iowa 1998) (en banc) (quoting State v. Irish, 394 N.W.2d 879, 884 (Neb. 1986) (Shanahan, J., dissenting) (per curiam)). Approval of Hightower‘s defective plea agreement, after all we‘ve said in our rules and cases about the enduring requirement of voluntary and intelligent guilty pleas, makes our lofty pronouncements ring hollow.
Christensen, C.J., joins this dissent.