State v. Kirchoff

Iowa, Appellee, STATE KIRCHOFF,

Timothy Appellant. John

No. 89-63.

Supreme of Iowa. Court

March 1990. Sobel, Moines, appellant. A. Des

Scott one, ceeding joint in which Kirchoff Miller, Atty. Gen., Thomas S. was a Thomas J. Smith, Gen., Tauber, Atty. appeared simultaneously James A. with three other Asst. Voogt, Daniel Asst. enter of Atty., pleas and who intended to County defendants against County Atty., appellee. guilty charges pending for to OWI Kirchoff, had Like these defendants them. signed plead completed petitions and charged guilty their offenses. McGIVERIN, Chief Justice. plea transcript joint proceed- The of the defendant, Kirchoff, Timothy John the ing that the court addressed shows district aggravated misde- pleaded guilty to two collectively at At the defendants times. accept- charges. The district court meanor points transcript the re- these attributes judgments of convic- pleas, ed the entered DEFENDANTS,” “THE sponses to with- tion, judg- sentence on the pronounced and in specifying joined whether Kirchoff out challenges appeal, Kirchoff ments. On responses. The did Kir- the court address and the sentences. both the convictions concerning individually choff the factual either, find no error in we Because we pleas, points these basis his and at affirm. transcript responses to Kirchoff attributes proceedings. I. and Background facts individually. accepted The court Kirchoff’s charged by trial information Kirchoff was guilty pleas. carrying in weapons, with the offense of judgment in No motion arrest of was (1987), Iowa section 724.4 violation of Code in- presentence filed Kirchoff. A ever operating a motor ve- and the offense vestigation prepared. was On December (OWI), second of- hicle while intoxicated on convic- Kirchoff was sentenced both fense, Iowa section in violation of Code appeal timely tions. notice of was and His (1987). ag- 321J.2(2)(b) Both offenses are properly filed. See Iowa Code gravated misdemeanors. (a person goes with a 724.4 who armed § appeal, argues pleas Kirchoff that his On weapon dangerous concealed on or about guilty must be set aside because of aggravated misde- person commits an plea proceeding Iowa defects under (a meanor); 321J.2(2)(b) per- Iowa Code § 8(2)(b). Rule of Criminal Procedure In the operates son who a motor vehicle while alternative, resentencing, arguing he seeks offense, legally intoxicated, com- second to comply district court failed misdemeanor). aggravated mits an 22(3) Iowa of Criminal Procedure Rule 13, 1988, completed Kirchoff On October find error when him. We no separate “petition to signed and a written and, therefore, affirm the and convictions charge. Among plead guilty” to each oth- doing so, In sentences. we reconsider petitions er stated the maximum things, partially overrule our decision

punishment for Kirchoff’s offenses (Iowa 1980). 287 N.W.2d 857 legal detailed recitations of his contained II. Preservation error in the rights. paragraph was a Next each plea proceeding. question The threshold check, presum- space blank for Kirchoff challenge Kirchoff’s failure to is whether It ably paragraph. he had read the after plea proceeding by a motion arrest of represented by appears was that Kirchoff challenge judgment precludes his of the completed signed the counsel when he plea proceeding appeal. on attorney only petitions, although signed his petitions one of the two forms. Kirchoff’s 23(3)(a) Iowa Rule of Criminal Procedure plead guilty reproduced Appen- are provides, part, in relevant defen- “[a] B, opinion. dices A and attached this adequacy of challenge dant’s failure to plea by motion in arrest day, appeared proceeding The a same before preclude right or judgment his Kir- shall his her pleas. the district court to enter pro- appeal.” Such attorney present.1 challenge The to assert such on choff’s appeal. 1. Kirchoff retained new counsel for this plea attack this in a ing your right to not later than made motion “must be Judgment? Motion in Arrest guilty ... plea of

forty-five days after [the] days later than five any case not DEFENDANTS: Yes. but THE judg- pronouncing the date set for before case, these In Kirchoff’s statements 23(3)(b). Rule R.Crim.P. ment.” Iowa the other incorrect. Unlike defen were 23(3)(a) conjunction in be read must joint plea proceeding, Kir- dants at the 8(2)(d) Procedure Iowa Rule of Criminal guilty pleas effectively did not choff s that: which states 23(3)(a) rights under rule because waive his the defendant The court shall inform sentencing. granted was not immediate he plea guilty of any challenges to a investigation report pre presentence A was plea pro- in alleged defects the based on not un pared, and Kirchoff was sentenced in motion in ceedings must raised a pleas be of months after his til over two to so judgment and that failure arrest of guilty. Taylor, v. 301 N.W.2d State Cf. the challenges preclude (Iowa 1981)(court’s shall raise such to defen statement appeal. pre them on right sentencing to assert would dant that immediate challenging legality defendant from clude 368, 370 Worley, 297 N.W.2d State v. See acknowl- guilty plea, and defendant’s of (Iowa 1980). defendant’s edgement, worked waiver of the learned from Worley, In defendant 23(3)(a) rights under rule where defendant that he could file a motion his counsel immediately and later sentenced explained to judgment, but no one arrest of challenge guilty plea appeal). on sought to consequences failing of defendant the the these circum- We conclude that under to do so. Id. We wrote: stances, 23(3)(a) preclude rule does not our suffer the sanc- No defendant ... should proceeding. plea of Kirchoff’s review 23(3)(a) has unless the court tion of rule proceed- adequacy plea III. the The 8(2)(d)during plea complied with rule of Proce- Iowa Rule Criminal ing under the trial court proceedings.... Where of 8(2)(b). contends that his dure procedural this informs the defendant of of pleas guilty of must be set aside because pre- hesitate to requirement, we will not proceeding. argu- His plea defects in the plea proceedings on challenges clude simple: the court failed to inform ment is appeal. But ... the court fails to where in Iowa him of the matters enumerated that he personally inform the defendant 8(2)(b), in the Procedure Rule of Criminal judgment may file a motion in arrest of prescribed by that rule. manner so, failing to do consequences of and the 23(3)(a) re- preclude not our rule does Procedure Iowa Rule of Criminal view. 8(2)(b) provides: omitted). (citations held that Wor- We Id. may The court guilty. b. Pleas of on challenge plea proceeding ley could accept plea guilty, of refuse to a by a despite his failure to do so appeal, accept plea a without shall not judgment. Id. motion arrest made determining plea that the is first intelligently and has a voluntarily and case the Worley, this As was true basis. factual adequately explain did not district court plea guilty, the accepting a 23(3)(a) Kirchoff s Before defendant. to the per- address the defendant court must plead guilty stated petitions written de- and inform the sonally open court [by] seeking im- “that Kirchoff understood of, the defen- determine that waiving fendant mediate was] [his] [he understands, following: filing dant guilty plea by a right attack this Judgment....” The charge in Arrest of to which (1) Motion of the The nature this issue at also addressed district court plea is offered. proceeding: plea punish- (2) mandatory minimum The possible ment, maximum any, if and the right. All You under-

THE COURT: de- by the statute provided punishment plea guilty you’re waiv- by your stand read, understood, freely signed plea ing had to which the fining the offense coming into court to petitions prior their offered. pleas. enter their (3) right has the the defendant That trial has the jury, and at be tried previously considered This court has counsel, right right to assistance plea may form be used a written whether witnesses and cross-examine to confront the matters enu- inform a defendant of defendant, right not to be against the Rule of Proce- merated in Iowa Criminal oneself, and the compelled to incriminate 8(2)(b). opinion in Our dure in the defen- present witnesses right to 1980), (Iowa suggests that 287 N.W.2d 857 compulso- have behalf and to dant’s own in a written enumeration of those matters securing their attendance. ry process sat- plea form can under no circumstances guilty pleads (4) That if the defendant Considering language the of isfy the rule.2 any of a further trial there will not be rule, the we stated: kind, guilty the de- by pleading so that personal ad- subject matter of the [T]he to a trial. right waives the fendant by should be [required the dress rule] may, in its discretion and The court the the enumerated items which each of defendant, the approval of with the requires that the defendant under- rule plea in a of procedures waive the above stand, determining the and the mode for guilty to a serious misdemeanor. understanding should be a defendant’s 8(2)(b), suggested purpose of rule as The personal address. ensure that by paragraph, its first is to Thus, the court held that Iowa Id. at 862. voluntarily, intelli- guilty pleas are made 8(2)(b) pre- Procedure Rule of Criminal Strict gently, and with a factual basis. explained only must be to scribes not what language literal compliance with the rule’s plea accepting a a defendant before plea guilty practically assures that a must guilty, also how that information but voluntarily, in- accepted is made thereafter jus- Three imparted be to the defendant. telligently, and with a factual basis. that and would have held tices dissented Nevertheless, a the rule does not establish plea, signed by the counselled the written without varia- litany that must be followed court, open acknowledged defendant and guilty plea may accepted. be tion before 8(2)(b). (Harris, rule Id. at 870-71 satisfied compliance with the rule is all Substantial J., dissenting). See, required. e.g., v. Smoth- that is (Iowa 1981). ers, 309 N.W.2d position the taken We now reconsider case, In Kirchoff does not Fluhr. this joint plea proceeding, the At the guilty pleas that his were even claim mandatory the court did not discuss district lacking involuntary, unintelligent, factual punishment maximum minimum and basis, any respect other taken or The court also did not Kirchoff’s offenses. the States or Iowa Con- violation of United constitutional trial discuss Kirchoff's argument under His is that stitutions. guilty, petitions plead rights. Kirchoff’s that the court in- the mere fact however, fully explained these matters. possible rights and the formed him of his signed by completed and petitions The were by use of writ- punishment for his offenses plea proceeding, Kir- prior to the orally requires plea ten forms—instead attorney represented by an choff was — that We do not believe automatic reversal. court satisfied throughout, and the district 8(2)(b) woodenly be so con- rule should and the the record that Kirchoff itself on joint plea proceed- strued. at the other defendants Fluhr, saying guished that case from always Mensah’s been read to stand for

2. Fluhr has not plea plea form the proposition that a written the written form nor the broad in Fluhr neither Mensah, 8(2)(b). satisfy 8(2)(b), In State colloquy cannot whereas plea satisfied rule oral 1988), (Iowa we affirmed a 424 N.W.2d 453 plea coupled his affirma- Mensah’s written plea guilty entered after a written conviction despite plea the rule. the at satisfied tion of argument that Fluhr re- the defendant’s at Id. 454-55. plea. quired We distin- that we set aside his agree. Whereas Kirchoff ar- that We cannot this shows the The record in case court, conclusively gues presume must open that we Kirchoff in addressed court responses join that he not in the attrib- Kirchoff was did thereby satisfying itself that transcript to the defendants uted in the voluntarily his and entering pleas likely jointly, think it far more that he we By had a basis. reference pleas factual he, in did. Kirchoff does not contend that guilty, signed petitions plead fact, responses, join in did not those pleas that the were en- determined court support such a con- in the that Kir- the record would not intelligently sense tered Kirchoff, represented an of, by while and under- tention. had been informed choff signed peti- 8(2)(b). completed and stood, attorney, in rule the matters listed attorney plead guilty. tions The same represented by attorney an Kirchoff was circumstances, during proceeding, at present plea was throughout. Under these plead which Kirchoff and the other defendants petitions the written read, signed, complemented acknowledged they had colloquy one anoth- in-court petitions. their written There no reason to believe that understood er. circumstances, we understanding Under these refuse of his situation Kirchoff’s join speculate not in the completed, that Kirchoff did undermined use of responses to the defendants petitions to attributed signed, acknowledged and are he did. Quite proba- jointly all indications that guilty. opposite the is when plead at true. 287 N.W.2d 871 bly See substantially complied The district court J., dissenting). (Harris, 8(2)(b). A record would with rule better peti- conclude that when Kirchoff’s made, however, We if defen- have been each plead guilty introduced into tions to were required respond to individu- dant had been by plea proceeding direct reference and the ally questions. to the court’s We recom- acknowledged by Kirchoff in and affirmed used procedure mend that be whenever court, compliance open substantial with proceeding. joint taken a guilty pleas are at 8(2)(b) Kirchoff will not rule was achieved. validity IV. the sentences un- The of Criminal merely plead because allowed to anew be der Rule Procedure Iowa of in of the matters listed he was informed 22(3). next asserts that even Kirchoff 8(2)(b) writing orally.3 of rule in instead affirmed, case though be his his convictions to extent. See id. Fluhr overruled that resentencing due to must remanded for be at 862-65. sentencing proceeding. He in the defects sentencing proceeding argues his contends that also that the district fatally was defective because must aside the tran plea be set because rea- to state the record its proceeding court failed on script plea of the attributes selecting particular sentence jointly, son for responses to the defendants some addition, and, imposed failed to advise In the lan specifically. than him rather appeal timely proper and notice of 8(2)(b), him that of Kirchoff asserts that guage rule appeal. jurisdictional prerequisite to is a respect transcript shows that in this (court 22(3)(d) shall R.Crim.P. per See Iowa did “address the defendant court not selecting for record reason state on the its sonally open court.” solely con- rights) the advice was petitions al because that Our conclusion Kirchoff's 3. attorney, adequately signed plead guilty veyed by him of the him and his informed a form 8(2)(b) with during plea pro- listed in rule is consistent orally matters delivered rather than reported the analo- least one decision under at gous held the use ceeding. at 582. The court that Id. Bell, In v. 471 federal rule. form, signed by and ac- Belford of Belford the written (E.D.Mich.1979), sought F.Supp. Belford va- 579 court, by knowledged open satisfied fed- him in through guilty plea at- collateral cation of his Id.; Del United States v. eral rule 11. but see U.S.C. Belford’s claim § tack under 28 2255. 928, Prete, (9th Cir.1978) (written F.2d 930 567 concerning him that the court’s advice to was satisfy re- rule "which cannot document rights comply trial did not his constitutional judge quires trial address defendant that the of Procedure 11 with Federal Rule Criminal listed in open matters [the court as each personally (requiring address court defen- 11].”). defendant constitutional tri- dant and inform 806 defendant);

particular imposed suspended, sentence on which were and Kirchoff was 22(3)(e)(court Iowa R.Crim.P. shall advise placed probation on years for two on each statutory right appeal defendant of and charge. a probation, As condition of Kir- filing requirements). related choff was ordered to reside at the Fort Des Facility Moines Residential until maximum timely appeal was Kirchoff's benefits had been achieved. The court also prescribed properly in the manner filed ordered that Kirchoff’s driver’s license be procedure. our rules Any of criminal error revoked, all costs taxed to Kirchoff. advising necessity or omission in him the (sentencing proce- Iowa ch. See Code therefore, timely proper filing, dures); (maximum Code Iowa 903.1 sen- §§ harmless. Kirchoff’s sentences not need misdemeanants), 321J.2(2)(b)(min- tence for be of it. vacated because Cf. OWI, imum offense), sentence for second Matlock, (Iowa 1981) 304 N.W.2d 226 (driver’s revocation); 321J.4 license Iowa (court's satisfy failure to Iowa R.Crim.P. (suspended ch. pro- Code sentence and 22(3)(d)by stating for reasons sentence im bation). posed error, was harmless where court im posed possible minimum sentence under Matlock, In we stated that main “[t]he statute). purpose requirement 22(3)(d) of the in rule court particular state its reason for a Kirchoff's contention that the dis sentence is to allow us to review sen- trict court on failed state the record its tence determine if there has been an selecting reason the sentence impose^ Matlock, abuse of discretion.” 304 N.W.2d on him is also without merit. tran The sufficient, at 228. may The statement be script proceeding Kirchoff’s succinct, long even if terse so as its is, part, follows: as brevity prevent does not review of the ex- THE County Attorney’s COURT: of- ercise See, of the trial court’s discretion. put jail, you fice wants to but I’d kind 337, e.g., Johnson, State v. 445 N.W.2d 343 of like to and wait see whether or not (Iowa 1989). Where the record shows that you straighten can your own out. life court exercised its discre- Okay, MR. KIRCHOFF: sir. tion, this court will not interfere an THE Do you COURT: understand otherwise valid sentence defen- “unless the that? dant shows such that discretion exer- Yes, MR. KIRCHOFF: sir. on grounds cised or for clearly reasons THE I’m going COURT: So what to do untenable or to an clearly extent unreason- put going put you is see—I’m —let’s Pappas, able.” 337 N.W.2d probation. sending you on I’m to the (Iowa 1983) (internal quotation 493 omit- Facility]; Fort Moines Residential [Des ted). aren’t I? 22(3)(d) The district court satisfied rule MS. ODELL [defendant’s counsel]: out, points this case. As the State Uh-huh. record primary shows reason for you days jail, THE COURT: Give imposed the sentence on Kirchoff was the you send to the Fort for maximum bene- hope court’s that Kirchoff would be able to fits, consecutive, and will these be run through rehabilitate placement himself in a you which up means if at mess the Fort facility residential probation, without you’ll up end going jail years. for four an imposition jail extended term. The you Do understand that? suggests record also that the court meant MR. KIRCHOFF: Uh-huh. society protect by holding possibility THE I’m trying give you COURT: an jail reserve, extended term in case get your some kind of break to life by Kirchoff failed to abide terms his straightened around, you to show this is probation. Kirchoff could have im- been game you’re no playing here. prisoned up years up two and fined $5,000 The court then sentenced Kirchoff aggravated to two to on each misdemeanor sixty 903.1(2). consecutive terms days jail, conviction. Iowa See Code § affirm the convictions ceedings, we show is sufficient record Because sentences. its discre- exercised properly the court sentencing Kir- reasons in tion and stated AFFIRMED. choff, 22(3)(d)was satisfied. resentenced. to be not entitled NEUMAN, except concur All Justices joined and is J., dissents no who find Because we Disposition. V. SNELL, LARSON, JJ. LAVORATO sentencing pro- plea or

error in either NEUMAN, (dissenting) Justice respectfully

I dissent. of Iowa Rule Civil Proce-

The directive 8(2)(b), by court in interpreted

dure as this

State v. the court’s plain: is It

duty of the to inform defendant trial upon plea

rights being waived to a than a misde-

crime more onerous serious may question the

meanor. One wisdom of rule, fact that given

such a counsel is

supposedly impart retained same rule, Commending the how-

information.

ever, pay it will is the likelihood de-

layed postconviction by reducing dividends

claims of ineffective counsel. resolving opposing these

Instead by majority change,

views has

simply liking. rule to rewritten the its another,

Substituting one shortcut for

majority trial excuses the court’s error and

dumps precedent pro- decade

cess. for I would reverse remand

procedure guaranteed this defendant

rule. McANDREW; Angela McAndrew;

Dennis McAndrew on Behalf Dennis McAndrew, McAn

Jennifer Brandon McAndrew, Appel

drew and McKenzie

lants, CADWALLADER, Pierson,

Rick Chuck McNeal, Snyder

Melvin L. Thomas Peterson, Appellees.

and Charles

No. 88-1877. Appeals

Court of of Iowa. Tobey III, Davenport, appellants. for J.E. Dec. 1989. Kamp Thomas N. Anderson Carole J. Waterman, Davenport, ap- of Lane & pellees. SCHLEGEL, P.J.,

Considered HABHAB, SACKETT JJ.

Case Details

Case Name: State v. Kirchoff

Court Name: Supreme Court of Iowa

Date Published: Mar 21, 1990

Citation: 452 N.W.2d 801

Docket Number: 89-63

Court Abbreviation: Iowa