STATE of Iowa, Appellee, v. Cary Lee STRAW, Appellant.
No. 04-0952.
Supreme Court of Iowa.
Feb. 3, 2006.
Because the dismissal of Jabour and Meyer did not preclude the litigation of Dickens’ claims against Associated Anesthesiologists, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case for further proceedings consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, and W. Wayne Saur, County Attorney, for appellee.
STREIT, Justice.
Cary Lee Straw appeals from the judgments and sentences entered by the district court following his guilty pleas to possession of a controlled substance, third offense, and driving while barred. Straw claims the district court erred by not substantially complying with the requirements of
On a Tuesday afternoon in the fall of November 2003, Cary Lee Straw rolled through the town of Oelwein with a license plate that did not match his vehicle. A police officer stopped Straw to investigate the license plate and discovered Straw was driving while barred. The officer arrested him, searched him, and found a plastic bag containing marijuana and rolling papers in his pocket. The officer also noticed an open bottle of Jim Beam bourbon whiskey and an open bottle of vodka in the back seat. Straw was charged with possession of a controlled substance (third offense), driving while barred, and possession of drug paraphernalia. He was also cited for an open container violation and improper use of a vehicle registration.
Pursuant to a plea agreement, Straw pled guilty to possession of a controlled substance, third offense, and driving while barred. See
Before accepting the plea, the court spoke with Straw and discussed the elements of the charged offenses, the factual basis for those charges, the right to go to trial, rights pursuant to trial, and the fact that if he pled guilty he would be forfeiting those rights. The court did not discuss the maximum punishment he would face by pleading guilty. The court accepted Straw‘s plea and found it “knowingly and voluntarily made” with a basis in fact. Straw never filed a motion in arrest of judgment to challenge the validity of his plea.
Weeks later, the sentencing court imposed sentences of up to five years for the possession of marijuana charge and up to two years for the driving-while-barred charge. The court ordered the sentences consecutive to each other and consecutive to a separate, unrelated conviction.
Straw appealed, contending the district court erred by not properly informing him of the potential punishments he faced for pleading guilty to these charges, and erred by not explaining these sentences could be ordered to run consecutively. Straw claimed this rendered his plea unknowing and involuntary. Straw asserted his claim should be considered directly on appeal because the district court did not adequately advise him of his right to file a motion in arrest of judgment. In the alternative, Straw claimed his counsel was ineffective for failing to ensure he was fully informed at the plea proceeding and for failing to file a motion in arrest of judgment.
We transferred the case to the court of appeals. The court of appeals found the district court substantially complied with its duty to inform Straw of his right to file a motion in arrest of judgment and determined Straw did not preserve the error for direct appeal because he did not file such a motion. It then analyzed whether Straw‘s counsel was ineffective. It determined Straw‘s counsel violated an essential duty by not filing a motion in arrest of judg-
II. Error Preservation
The State contends Straw may not directly challenge his guilty plea on appeal because he did not file a motion in arrest of judgment contesting the legality of his plea. See
Following Straw‘s guilty plea, the district court told Straw:
Now, if you have—wish to appeal or challenge any of the proceedings that have taken place in the courtroom today, you have to file a paper that we call a Motion in Arrest of Judgment. That is simply a paper that basically says I didn‘t follow all of the correct procedures in taking your guilty plea and it gives me a chance to go back and correct that. Mr. Harden can explain that to you. But the important thing is that that paper must be filed not less than five days before sentencing. So, when we come back for sentencing, if no such motion has been filed, then we will proceed to sentencing, and we will assume that all the procedures we followed up to this point are correct. Do you understand that, sir?
Straw responded, “Yes, Your Honor.”
We employ a substantial compliance standard in determining whether a trial court has discharged its duty under
The court‘s comments were sufficient to discharge its duty under
III. Merits and Scope of Review
An ineffective-assistance-of-counsel claim in a criminal case “need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes.”
A. Ineffective Assistance
To establish his claim of ineffective assistance of counsel, Straw must demonstrate (1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 693 (1984); State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004). Straw must prove both elements by a preponderance of the evidence. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999). As discussed in the following analysis, the record does not adequately present the issues in this case and the case is more properly addressed in a postconviction relief hearing. See State v. Ueding, 400 N.W.2d 550, 553 (Iowa 1987).
1. Failure to Perform an Essential Duty
Under the first prong of this test, counsel‘s performance is measured “against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner.” Dalton, 674 N.W.2d at 119. Straw claims his counsel violated an essential duty by failing to file a motion in arrest of judgment prior to sentencing. There is adequate evidence in the record to decide this issue on direct appeal.
Due process requires the defendant enter his guilty plea voluntarily and intelligently. State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005). “If a plea is not intelligently and voluntarily made, the failure by counsel to file a motion in arrest of judgment to challenge the plea constitutes a breach of an essential duty.” Id. In order to ensure a guilty plea is voluntarily and intelligently made, the court must articulate the consequences of the plea to the defendant. State v. Boone, 298 N.W.2d 335, 337 (Iowa 1980).
Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
The nature of the charge to which the plea is offered. - The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.
- That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant‘s status under federal immigration laws.
- That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant‘s own behalf and to have compulsory process in securing their attendance.
- That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial.
The State concedes the district court did not substantially comply with rule 2.8(2)(b)(2) when it omitted any mention of the punishment Straw could face by pleading guilty to the charges in this case. See, e.g., id. (holding substantial compliance is the measure for judging whether the requirements of rule 2.8(2)(b) have been met). When Straw‘s counsel did not bring this matter to the court‘s attention or file a motion in arrest of judgment, his counsel failed to perform an essential duty. See State v. Myers, 653 N.W.2d 574 (Iowa 2002) (finding counsel breached an essential duty by failing to raise court‘s failure to inform the defendant of the right to compulsory process); State v. Kress, 636 N.W.2d 12 (Iowa 2001) (holding defense counsel‘s failure to correct court‘s misinformation concerning defendant‘s potential sentence exposure, or to file motion in arrest of judgment raising the issue, placed counsel below range of normal competency).
2. Resulting Prejudice
Straw claims he suffered prejudice because, had he understood the sentences could be made consecutive,3 he would not have pled guilty. The fighting issue in this case is what standard should be applied to evaluate Straw‘s claim under this prejudice element. Four cases guide our analysis.
In 1983, we reviewed Joseph Ross Meier‘s appeal from the denial of his application seeking postconviction relief from his conviction pursuant to a guilty plea. Meier v. State, 337 N.W.2d 204, 205 (Iowa 1983). In the postconviction relief (PCR) hearing Meier established a record for our review. Id. At the PCR hearing, Meier described how his original counsel had told
The PCR trial court found Meier‘s original counsel misadvised him of the law. Id. However, because Meier “got what he bargained for; that is, a 25-year sentence without a mandatory minimum sentence,” the court concluded the record did not demonstrate his counsel was so “mistaken or careless in his advice to [Meier] to amount to ineffective assistance of counsel.” Id. at 205-06. Our court disagreed and reversed. Id. at 208. Noting the test in this context was for ineffective assistance of counsel, we determined Meier‘s trial counsel gave erroneous advice regarding the law and Meier relied on this advice in waiving trial and pleading guilty. Id. at 206-08. When it came to the prejudice element, we did not focus on what sentence Meier received, but instead focused on what he relinquished. Id. at 208. We found a due process deprivation occurred when Meier was unable to make an intelligent and informed choice from among his alternate courses of action at the plea hearing and we would not speculate as to the outcome of the trial waived by the guilty plea. Id. We reversed and remanded so Meier could plead anew. Id.
In Meier, the dissent focused on whether Meier proved he was substantially prejudiced by his attorney‘s misadvice. Id. The dissent noted the following evidence indicated there was no actual prejudice suffered by Meier: (1) there was “not even a hint of evidence that petitioner could have obtained a better result,” (2) his original attorney testified Meier had no chance to prevail in a jury trial on the issue of culpability, and (3) his original attorney thought the best deal was to take the plea bargain. Id. In the face of these three findings, the dissent found Meier failed to prove he suffered prejudice from his counsel‘s misadvice. Id.
Two years after Meier, the United States Supreme Court discussed the prejudice element of an ineffective-assistance-of-counsel claim in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985). In Hill v. Lockhart, the Court considered a prisoner‘s petition for habeas corpus alleging his trial counsel was ineffective in failing to accurately inform him as to his eligibility for parole. Id. The district court denied habeas relief because neither state law nor federal law required that Hill be informed of his parole eligibility date prior to pleading guilty. Id. at 55, 106 S.Ct. at 368, 88 L.Ed.2d at 207-08. A divided Court of Appeals for the Eighth Circuit affirmed the district court, with the dissent arguing a hearing should have been held to determine whether Hill‘s counsel wrongly advised him on his parole eligibility prior to the plea. Hill v. Lockhart, 731 F.2d 568, 573 (8th Cir.1984).
The Supreme Court affirmed the decision of the court of appeals, stating the prejudice element in a guilty plea case “focuses on whether counsel‘s constitution-
The Court described this test by explaining how, in many guilty plea cases, the prejudice inquiry would resemble the same inquiry as when the conviction was obtained through trial. Id. For example, when the alleged error of counsel is a failure to investigate potentially exculpatory evidence, the determination whether this failure prejudiced the defendant by causing him to enter into a plea agreement rather than go to trial will depend on whether it was likely the discovered evidence would have changed his counsel‘s recommendation as to the plea. Id. “This assessment ... will depend in large part on a prediction whether the evidence likely would have changed the outcome of [the] trial.” Id. However, the Court did not reach the question whether erroneous advice by counsel as to parole eligibility would be constitutionally ineffective assistance of counsel because Hill “did not allege in his habeas petition that had counsel correctly informed him about his parole eligibility date ... he would have pleaded not guilty and insisted on going to trial.” Id. at 60, 106 S.Ct. at 371, 88 L.Ed.2d at 211. The Court noted he “alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty” and it therefore found Hill did not satisfy the second prong of the ineffective assistance test. Id.
After the Hill decision, we applied the “reasonable probability” standard to ineffective-assistance-of-counsel claims. See, e.g., State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (evaluating prejudice in the context of a conviction by jury trial); Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995) (evaluating prejudice in the context of a conviction by guilty plea).
In State v. Kress, we again discussed the prejudice element of an ineffective-assistance-of-counsel claim in the context of a guilty plea. In Kress, the trial court accepting the guilty plea misinformed the defendant that the sentencing court could waive a mandatory minimum sentencing requirement. 636 N.W.2d at 21-22. We began our ineffective-assistance-of-counsel analysis by applying the familiar two-step test. Id. at 20. We first determined the defendant‘s trial counsel failed to perform an essential duty by not correcting the court‘s misinformation or filing a motion in arrest of judgment. Id. at 22. We then turned to the second element, resulting prejudice. The following is our entire analysis of this element:
Turning to the prejudice element, we think the prejudice results from what Kress relinquished. [Meier, 337 N.W.2d at 208]. Kress “had an unqualified constitutional right to a trial on the issue of [her] guilt, which she [may have] abandoned on the strength of [the court‘s misinformation].” Id. We do not speculate on the outcome of the trial waived by her guilty plea. Id. As mentioned, the remedy called for in these circumstances is to set aside the conviction and sentence and allow the defendant to plead anew.
Id. Rather than explicitly discussing the Hill reasonable probability analysis, we cited Meier and concluded there was resulting prejudice.
In State v. Myers, we again considered a direct appeal of an ineffective-assistance-of-counsel claim in the context of a guilty
The brevity of our analysis of the prejudice element in Kress has led some to characterize our holding as a per se rule of prejudice when the district court fails to tell the defendant the maximum sentence on an ineffective-assistance-of-counsel claim. We reject this characterization because Kress was an aberration which failed to consider the analysis set forth in Hill. We also refuse to adopt a per se rule of prejudice because such a rule would force us to accept conclusory claims of prejudice without the benefit of a true review of the circumstances surrounding the plea. Under the “reasonable probability” test, the defendant, who has already admitted to committing the crime, has the burden to prove he or she would not have pled guilty if the judge had personally addressed the maximum punishment for his or her crimes. On the other hand, if we adopted a per se rule, some defendants would grin like a Cheshire cat as we gave them a second bite at the apple—even though they committed the crime and actually knew the maximum length of punishment for the crime.4 Such a rule would under-
Our standard for the prejudice element in ineffective-assistance-of-counsel claims remains consistent—in order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he or she would not have pleaded guilty and would have insisted on going to trial. Id. (quoting Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210).
Under the “reasonable probability” standard, it is abundantly clear that most claims of ineffective assistance of counsel in the context of a guilty plea will require a record more substantial than the one now before us. Unlike our decision in Meier, there is nothing in this record to indicate whether or not Straw‘s trial counsel told him about the possibility of consecutive sentences. Such evidence could be a significant part of our prejudice analysis.5 This case exemplifies why claims of ineffective assistance of counsel should normally be raised through an application for postconviction relief. In only rare cases will the defendant be able to muster enough evidence to prove prejudice without a postconviction relief hearing. Atley, 564 N.W.2d at 833; Coil, 264 N.W.2d at 296.
IV. Conclusion
Once a defendant waives his or her right to a trial by pleading guilty and then does not file a motion in arrest of judgment prior to sentencing, “the State is entitled to expect finality in the conviction.” State v. Mann, 602 N.W.2d 785, 789 (Iowa 1999). “This is true because ‘[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction.‘” State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000) (quoting Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279 (1969)). Nothing in the record before us indicates we should overturn Straw‘s conviction. We affirm the decision of the court of appeals and uphold the conviction and sentence. Straw‘s ineffective-assistance-of-counsel claim is preserved for postconviction relief proceedings.
AFFIRMED.
All justices concur except LAVORATO, C.J. and WIGGINS, J., who dissent.
LAVORATO, Chief Justice (dissenting).
This case involves a claim of ineffective assistance of counsel arising out of a guilty plea. Pursuant to a plea agreement, the defendant pleaded guilty to two offenses: possession of a controlled substance and driving while barred. In return for the plea, the State agreed to drop several oth-
On appeal, the defendant contended that the district court erred when it did not inform him that it could impose consecutive sentences and for that reason the plea was not knowingly and voluntarily entered. The defendant also contended that his counsel was ineffective for failing to ensure that the defendant was fully informed at the plea proceeding regarding the potential for consecutive sentences and for failing to file a motion in arrest of judgment challenging the plea on this basis.
I agree with the majority that when the defendant‘s counsel did not bring this matter to the district court‘s attention or failed to file a motion in arrest of judgment, counsel failed to perform an essential duty. I disagree with the majority‘s holding on the prejudice prong of the claim for ineffective assistance of counsel. My reasons for disagreeing follow.
As we noted in State v. Loye,
The Due Process Clause [of the Fourteenth Amendment to the Federal Constitution] requires that a guilty plea be voluntary. “To be truly voluntary, the plea must not only be free from compulsion, but must also be knowing and intelligent.” Consequently, a defendant must be aware not only of the constitutional protections that he gives up by pleading guilty, but he must also be conscious of “the nature of the crime with which he is charged” and the potential penalties.
670 N.W.2d 141, 150-51 (Iowa 2003) (emphasis added) (citations omitted); see also State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005) (“‘A guilty plea results in a waiver of several constitutional rights. For the waiver to be valid, there must be an intentional relinquishment of known rights. Due process therefore requires that a defendant enter a guilty plea voluntarily and intelligently.‘” (Citation omitted.)).
The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
- The nature of the charge to which the plea is offered.
- The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.
- That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant‘s status under federal immigration laws.
- That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant‘s own behalf and to have compulsory process in securing their attendance.
- That if the defendant pleads guilty there will not be a further trial of any
kind, so that by pleading guilty the defendant waives the right to a trial.
As the majority notes, we apply a substantial compliance standard in assessing whether the trial court has adequately informed the defendant of the matters listed in the rule. Loye, 670 N.W.2d at 151. “‘Substantial compliance’ requires at a minimum that the defendant be informed of these matters and understand them.” Id.
A failure to challenge the plea in a motion in arrest of judgment precludes a defendant from asserting such a challenge on appeal.
On direct appeal, the remedy for a successful challenge to a guilty plea is to vacate the plea, reverse the judgment of conviction, and remand the case to allow the defendant to plead anew. Loye, 670 N.W.2d at 153-54 (because the district court did not substantially comply with
When the appeal occurs in the context of a claim of ineffective assistance of counsel, we have applied essentially the same remedy with some modification if the plea lacks a factual basis. See, e.g., State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996). When the claim is lack of a factual basis, two possible remedies exist. State v. Mitchell, 650 N.W.2d 619, 621 (Iowa 2002) (per curiam). If the record establishes that the defendant was charged with the wrong crime, we have vacated the judgment of conviction and sentence and remanded for dismissal of the charge. Id.; Hack, 545 N.W.2d at 263. In those circumstances, we allow the State to reinstate a charge dismissed in contemplation of a valid plea or re-indict the defendant under a code section supportable by the available evidence. Hack, 545 N.W.2d at 263. But if it is possible that a factual basis could be shown, the more appropriate remedy is to vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis. Mitchell, 650 N.W.2d at 621.
The net result of Mitchell and Hack is that we presume prejudice, that is, we apply a prejudice per se rule, which is contrary to the prejudice prong of a claim for ineffective assistance of counsel. Ordinarily, under the prejudice prong of a claim for ineffective assistance of counsel, we apply the prejudice requirement in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) when a defendant is claiming a violation of his
In Hack, we expressed our reasons for refusing to apply the Strickland prejudice requirement in a claim of ineffective of assistance of counsel arising out of a guilty plea that lacks a factual basis:
The court of appeals affirmed Hack‘s conviction, preserving the allegation of ineffective assistance of counsel for postconviction review. Its decision rested on the belief that counsel may have had strategic reasons for permitting his client to plead guilty notwithstanding the lack of a factual basis. Endorsing such strategies, however, would erode the integrity of all pleas and the public‘s confidence in our criminal justice system. For this reason, they cannot be permitted.
545 N.W.2d at 263 (emphasis added) (citations omitted).
I submit the same reasons support a refusal to apply the Strickland prejudice requirement when defendants plead guilty without being informed of the maximum possible punishment they face. White involved a direct appeal in which we concluded that a failure to inform the defendant of the possibility of consecutive sentences rendered his guilty plea involuntary. 587 N.W.2d at 241. We said in White:
“Duration of incarceration unquestionably goes to the very heart of voluntariness required for a valid waiver of a defendant‘s right to trial on the charge alleged....”
“It is virtually self-evident that a defendant‘s decision to plead guilty ... to a criminal charge is a grave and personal judgment, which a defendant should not be allowed to enter without full comprehension of possible consequences of conviction by such plea. Whether it be the maximum term of imprisonment authorized by the statute prescribing a penalty for conviction of a crime or whether it be a combination of terms of imprisonment imposed as penalties for convictions of separate crimes, duration of possible imprisonment is an important factor affecting any defendant‘s intelligent choice between the alternatives confronting a defendant—going to trial or entering a plea of guilty.... Anyone unaware that the term or duration of incarceration acutely affects a defendant‘s decision regarding a guilty plea in a criminal case is oblivious to one of the realities in our system for efficient criminal justice.”
Id. at 246 (citation omitted).
In terms of deprivation of due process, I equate a failure to inform defendants of the maximum possible punishment with a failure to establish a factual basis. As the above quote so eloquently suggests, nothing is more important to defendants contemplating a plea than knowing the maximum possible punishment they face.
In State v. Stallings, we held that trial counsel was ineffective for failing to comply with a rule to ensure that the defendant‘s waiver of a jury trial was knowing, voluntary, and intelligent. 658 N.W.2d 106, 111-12 (Iowa 2003). In coming to that conclusion, we did not apply the Strickland prejudice requirement but instead we presumed prejudice. In doing so, we said: “Because the right to a jury trial is so fundamental to our justice system, we conclude this is one of those rare cases of a ‘structural’ defect in which prejudice is presumed.” Id. at 112. It goes without saying that a failure to inform the defendant of the maximum possible punishment renders the plea defective. Because liberty is such a fundamental aspect of the Due Process Clause, I would similarly consider such a plea a structural defect in which prejudice should be presumed. Moreover, the prejudice resulting from such a plea is the relinquishment of a constitutional right to a trial by jury, Meier v. State, 337 N.W.2d 204, 208 (Iowa 1983), which is fundamental to our justice system, Stallings, 658 N.W.2d at 112. Although the majority mentions Stallings, it neglects to answer the question why the failure to advise a defendant of the maximum possible punishment in a plea is not a structural defect. As in Stallings, Straw waived his right to a jury trial in a plea process that was constitutionally defective.
What I am suggesting is not novel. In Commonwealth v. Persinger, a case we cited with approval in White, the trial court imposed consecutive sentences following a plea that was devoid of any mention of potential consecutive sentences. 532 Pa. 317, 615 A.2d 1305, 1307 (1992). The superior court affirmed. Id. at 1306. The sole issue on appeal to the supreme court of Pennsylvania was whether trial counsel was ineffective for failing to file a motion to withdraw defendant‘s guilty plea. Id. Although the defendant was informed of the maximum sentence possible on each count, the defendant was not informed that the sentences could be imposed consecutively. Id. at 1307. Reversing and remanding the case for trial, the supreme court of Pennsylvania stated:
Requiring the trial court to tell the defendant that the sentences may be imposed consecutively and what the total aggregate sentence could be will not significantly lengthen the colloquy or place any undue burden on the court. Accordingly, we find that the absence of this inquiry from the transcript renders the colloquy defective. As a result, appellant has suffered a manifest injustice. We find therefore, that appellant‘s claim has merit. We also find that because there were adequate grounds for withdrawal of appellant‘s plea, counsel‘s failure to seek withdrawal of appellant‘s plea was prejudicial to appellant.
Id. at 1308 (emphasis added); accord Pennsylvania v. Jones, 433 Pa.Super. 421, 640 A.2d 1330, 1335 (1994). A later superior court decision characterized this holding as a per se prejudice rule. Pennsylvania v. Stanley, 830 A.2d 1021, 1026 (2003); see also North Dakota v. Schumacher, 452 N.W.2d 345, 347-48 (N.D.1990) (on appeal per se prejudice rule was applied in the context of a claim for ineffective assistance of counsel because the trial court failed to abide by the statutory rule requiring the court to advise the defendant of the mandatory minimum punishment, if any, and the maximum possible punishment; defendant was not informed at the plea of the mandatory minimum sentence required by the charge to which he pleaded guilty); Hinton v. Hill, 197 Or.App. 238, 105 P.3d 923, 926 (2005) (court applied per se prejudice rule in the context of a claim for
In the course of its opinion, the court in Persinger quoted with approval this passage from one of its earlier cases:
“[T]he decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.”
615 A.2d at 1307 (citation omitted); see also Henry v. Alabama, 639 So.2d 583, 584 (Ala.Crim.App.1994) (holding that defendant‘s right to know the possible sentence he faces is absolute and the fact he was misinformed about the minimum and maximum sentence rendered his plea involuntary and the error was not harmless); cf. Kleppinger v. Florida, 884 So.2d 146, 148 (Fla.Dist.Ct.App.2004) (“A defendant is inherently prejudiced by his inability, due to his counsel‘s neglect, to make an informed decision whether to plea bargain.“). This passage from Persinger suggests the Pennsylvania Supreme Court considers the failure to advise the defendant of the maximum possible punishment that might be imposed a structural defect in the plea process.
That brings me to Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), a decision upon which the majority heavily relies. In Hill, the defendant filed a federal habeas corpus action alleging that his guilty plea was involuntary because he was misinformed as to his parole eligibility. 474 U.S. at 54-55, 106 S.Ct. at 368, 88 L.Ed.2d at 207. He claimed he was told that if he pleaded guilty he would become eligible for parole after serving one-third of his sentence when in fact to become eligible for parole he was required to serve one-half of his sentence. Id. at 55, 106 S.Ct. at 368, 88 L.Ed.2d at 207. The question was whether the defendant was entitled to a hearing on his habeas corpus action. The majority concluded that the defendant failed to allege the type of prejudice necessary to satisfy the Strickland test. To satisfy that test, the court reasoned that the defendant had to allege in his habeas corpus action that had counsel correctly informed him about his parole eligibility date, he would not have pleaded guilty and would have insisted on going to trial. Because the defendant did not make such allegations, the Court concluded that his claim of ineffective assistance of counsel failed as a matter of law. As a result, he was not entitled to a hearing. Id. at 60, 106 S.Ct. at 371, 88 L.Ed.2d at 211.
It is interesting to note that the concurring opinion found no professional error—the first prong of the Strickland test. In support of this finding, the concurring opinion noted the record was clear that the defendant did not advise his attorney of a previous felony conviction which required defendant under state law to serve one-half rather than one-third of his sentence. Id. at 61-62, 106 S.Ct. at 371-72, 88 L.Ed.2d at 212 (White, J., concurring). Additionally, the concurring opinion found that the record supported sufficient facts to show there was a reasonable probability that, but for counsel‘s errors, the defendant would not have pleaded guilty and
In any event, I think Hill is distinguishable. In Hill, the misinformation by the defendant‘s attorney was about parole eligibility rather than on the maximum possible punishment a defendant faces in pleading guilty. Parole eligibility is a collateral consequence of a plea. Kinnersley v. State, 494 N.W.2d 698, 700 (Iowa 1993), overruled on other grounds by State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001). The maximum possible punishment a defendant faces in pleading guilty is a direct consequence of a plea. Id. A court need not inform the defendant of collateral consequences of a plea while it must inform the defendant of the direct consequences of a plea. Id. The majority fails to mention and explain away this distinction.
There is a vast difference between a court‘s failure to advise a defendant about a maximum possible punishment and an attorney‘s misinformation about parole eligibility. Hill and Kress are good examples. The defendant in Hill was facing a possible life sentence on charges of first-degree murder and theft. 474 U.S. at 53-54, 106 S.Ct. at 368, 88 L.Ed.2d at 207. His counsel negotiated a plea bargain under which the State would recommend concurrent prison sentences of thirty-five years for the murder charge and ten years for the theft charge. Id. at 54, 106 S.Ct. at 368, 88 L.Ed.2d at 207. The trial judge sentenced the defendant in accordance with the plea agreement. Id. Death. Therefore, notwithstanding the attorney‘s alleged misinformation about parole eligibility, the defendant by pleading guilty at least had the chance to avoid a life sentence. So the defendant indeed had an incentive to plead guilty.
Contrast that situation with one in which the court misinforms or does not inform the defendant about the maximum possible punishment in violation of our rule and thereafter the defendant pleads guilty. That was exactly the situation in Kress. In Kress, the State charged the defendant with procurement of a prescription drug by forgery, which carried a ten-year sentence. 636 N.W.2d at 15, 17. There was no plea agreement, id. at 16, and therefore Kress had no incentive to plead guilty. In fact, the State also alleged that Kress had been previously convicted of a drug offense that enhanced the penalty. Id. at 16-18. Because of a previous drug conviction, Kress would have to serve one-third of the indeterminate sentence. Id. at 17-18. The court incorrectly informed Kress that the sentencing judge could waive the one-third mandatory minimum sentence requirement. Id. at 16. Kress then pleaded guilty. Id. Later, the district court imposed a ten-year indeterminate sentence and required Kress to serve at least one-third of her sentence. Id.
By pleading guilty, Kress gave up her constitutional right to a jury trial based on the incorrect information given at the plea. Id. at 22. Had Kress known the true facts, she had nothing to lose and everything to gain by going to trial because a jury may have found her not guilty. What possible reason would there have been to preserve Kress‘s claim of ineffective assistance of counsel on the prejudice prong of the Strickland test rather than just setting aside the plea and judgment of conviction and allowing her to plead anew? The result would have been the same in either case. It all boils down to this: “A guilty plea must represent the informed, self-determined choice of the defendant among practicable alternatives; a guilty plea can-
The majority faults Kress because it fails to consider the Hill analysis. At the time we decided Kress, the State apparently did not believe Hill was applicable because it did not even mention Hill in its brief.
The other distinguishing factor is the structural defect aspect surrounding a failure to inform a defendant of the maximum possible punishment, which I mentioned earlier. In Hack, which was decided eleven years after Hill, we applied a per se prejudice rule in the context of an ineffective assistance of counsel claim arising out of a plea in which there was a lack of factual basis. In that case we did not even consider Hill. The Pennsylvania Supreme Court likewise decided Persinger after Hill and applied a per se prejudice rule in the context of an ineffective assistance of counsel claim arising out of a plea in which the maximum possible punishment was not mentioned. It too did not consider Hill.
Under the per se prejudice approach, I suggest the following. I would, as we did in Kress, 636 N.W.2d at 22, presume prejudice, vacate the judgment of sentence and conviction, and remand the case to allow the defendant to plead anew. This disposition, of course, would, in cases like the one before us, invalidate a plea bargain involving the dismissal of other charges. I would therefore on remand allow the State to reinstate the charges, if it so desired, and to file any additional charges supportable by the available evidence. In answer to the majority‘s second-bite-at-the-apple claim, allowing the State to reinstate charges and file additional charges should eliminate any incentive on the part of defendants to claim they were not advised of the maximum possible punishment when in fact they were so advised. These remedies are analogous to the remedies we apply in claims of ineffective assistance of counsel based on a lack of factual basis. Moreover, contrary to the majority‘s conclusion, these remedies preserve the integrity of the process while at the same time they serve the purpose and spirit of rule 2.8(2)(b).
Finally, the approach I suggest would conserve judicial resources by eliminating a postconviction hearing and an appeal in the event the defendant lost in the postconviction process. This makes far more sense than the approach the majority takes.
For all of these reasons, I would vacate the court of appeals decision; I would also vacate Straw‘s judgment of sentence and conviction and remand to allow him to plead anew. In addition, I would also allow the State on remand to reinstate the charges it dismissed as part of the plea bargain and to file any additional charges supportable by the available evidence.
WIGGINS, J., joins this dissent.