*1 action, investigation and could have resulted REVERSED AND REMANDED WITH damage subjected to the environment and DIRECTIONS. city adverse economic conse- quences violating the law. For this rea-
son, the action took was Choate based on policy public grounded
considerations of
social, economic, political reasons.
Choate’s conduct therefore meets the second Berkovitz test —the chal- two-part
of the
lenged conduct judg- involves element of public policy.
ment based on Iowa, Appellee, STATE of Whether Choate abused discretion or negligent his decision to excavate the Gary WHITE, Appellant. Dean amount of dirt that was excavated is irrele- respect vant. His conduct in this fell within No. 97-2052. discretionary exception function of sec- Supreme Court of Iowa. 670.4(3). tion Dec. 1998. specification The final of negligence charged city improperly with declaring stockpiled nuisance, removing material same, disposing assessing of the cost removal theory to Goodman. Goodman’s city negligently
here is that if the determined excavated area was landfill and thus
improperly yards excavated cubic
dirt, it declaring had no basis for the stock
piled material assessing a nuisance and
costs abatement him. already
We have concluded Choate’s deter-
mination that the area was landfill and his
subsequent decision to excavate the 2600 cu- yards containing
bic soil the waste fell discretionary exception.
within the function
All of the reasons we have cited for this apply equal
conclusion force to the final Thus,
specification of negligence. city’s declaring stockpiled
action material a assessing
nuisance and the costs of abate-
ment fell Goodman likewise within the
discretionary exception. function
V. Conclusion. specifications
Because all negli-
gence jury submitted to the fell within the
discretionary exception function of Iowa 670.4(3), city exempt
Code section from
liability. jury’s upon verdict based these
specifications negligence cannot stand.
Accordingly, we reverse remand for an dismissing
order this case with costs as-
sessed to Goodman. *2 agree was invalid
sentences. We and therefore reverse remand. and pled Gary guilty Dean two of- White possession methamphetamine fenses deliver, in intent Iowa classified as Iowa class “C” felonies. Code (1997). 124.401(1)(c)(6) pur- § The was plea bargain to a with the State which suant “B” charges from class felonies. reduced 124.401(l)(b)(7). sentencing judge Id. The years ten the defendant serve ordered fined the prison for each offense and defen- for each offense. The court ad- dant $1000 mandatory by operation that of law a vised Next, minimum must be served. one-third that the sentences be ordered served was nev-
The record shows defendant possibility of consecutive er advised of the imposed, being either by any Defendant claims other source. rights this under that for reason by Iowa plea procedures established statutes the United Constitution have been and States consequently and he should be al- violated guilty plea. The de- lowed withdraw he argument is sound and should fendant’s permitted plead anew. 8(2)(b) Procedure Iowa Rule of Criminal states: may guilty. Pleas The court refuse b. Defender, Gallo, Appellate Linda Del accept guilty, and shall not Cooklin, Ap- Christopher Assistant State first accept without deter- Defender, for
pellate
appellant.
voluntarily
mining
plea made
a factual basis.
intelligently
and has
Miller,
General,
Attorney
Karen
Thomas J.
guilty,
the court
accepting
Before
Doland,
General,
P.
Attorney
John
Assistant
personally in
must address
Sarcone, County Attorney, and John Couri-
of,
inform
defendant
open court and
er,
County Attorney,
appellee.
Assistant
defendant under-
and determine
stands,
following:
(1)
charge to
The
which
nature
SNELL, Justice.
is offered.
validity
of defen-
This case considers
(2)
punish-
mandatory minimum
The
point
specific
raised
dant’s
ment,
any,
if
guilty plea by
was
is whether the
by the statute defin-
punishment provided
voluntarily,
intelligently,
under-
made
plea is offered.
ing the
to which the
offense
required by our rules of crimi-
standing^, as
import of
language and
focus is on the
Our
nal
and constitutional standards.
8(2)(b)(2).
Rule
he was
asserts it
not because
Defendant
standard
appellate review
Our
punishment
not informed
R.App. P.
of law. Iowa
case is for errors
imposed included consecutive
this
that could be
compliance
rights,
implicit
er
which is
4. We have held that substantial
of constitutional
voluntarily.
judging
guilty pleas,
whether the re-
must be made
is the measure
8(2)(b)(2)
States],
McCarthy
quirements of Rule
have been met.
United
394 U.S.
[v.
Kirchoff,
89 S.Ct. at
L.Ed.2d at 425.
State v.
1990).
truly voluntary,
plea must not
To be
*3
only
compulsion,
be free from
but must
accep-
The constitutional standards
knowing
intelligent.
also be
See
tance of a
have been established
637,
Morgan,
Henderson v.
426
645 &
U.S.
Supreme
several United States
Court
13,
2253, 2257-58,
n.
96 S.Ct.
49 L.Ed.2d
Denno,
368,
cases.
In
v.
378
Jackson
U.S.
108,
(1976); McCarthy,
114
394
at
U.S.
387,
1774, 1786,
908,
12
84 S.Ct.
L.Ed.2d
922
466,
89
L.Ed.2d at 425.
S.Ct.
(1964),
Supreme
Court decided that ad-
Thus,
cognizant of
the defendant should be
missibility of a confession must be based on
protections
the constitutional
to which he
“a reliable determination on the voluntari-
entitled, Boykin
would otherwise be
v.
ness issue which satisfies the constitutional
Alabama,
1709,
238, 243,
395 U.S.
89 S.Ct.
rights of the defendant.”
1712,
274,
(1969),
23 L.Ed.2d
279-80
Supreme
applied
The
Court later
the same
the nature of the crime with which he is
acceptance
guilty pleas:
standard
329,
charged,
O’Grady,
Smith v.
312 U.S.
requirement
prosecution
The
that
332-34,
572, 573-74,
859,
85 L.Ed.
61 S.Ct.
spread
prerequisites
on the
record
(1941).
valid waiver is no constitutional innovation.
Fluhr,
857,
State v.
863
Cochran,
506, 516,
Carnley
In
369 U.S.
1980).
884, 890,
70,
82 S.Ct.
8 L.Ed.2d
we dealt
1977,
legislature
In 1976 and
the Iowa
problem
right
with a
of waiver of the
arraignments
enacted standards for
and the
counsel,
right.
a Sixth Amendment
We
acceptance
guilty
of a
court’s
defendant’s
“Presuming
held:
waiver from a silent rec
plea, which are now
in
contained
the Iowa
impermissible.
ord is
The record must
Iowa
Rules
Criminal Procedure.
See
show,
allegation
there
an
or
must be
R.Crim. P. 8. Iowa Rule of
Proce-
Criminal
show,
an
evidence which
that
accused was
8(2)(b) provides
dure
that “the court must
intelligently
offered counsel but
and under
personally
open
address the defendant
rejected
standingly
Anything
the offer.
of,
court and inform the defendant
and deter-
less is not waiver.”
mine that the
understands ...
defendant
We think that the same standard must
possible punishment provided
applied
determining
guilty
whether
defining
the statute
the offense to which the
For,
voluntarily made.
have
we
is offered.” Defendant claims
said,
is more than an
punishment” in
words “maximum
conduct;
it is a
admission of
conviction.
require,
Rule 8 mean and
to be consistent
coercion,
Ignorance, incomprehension,
ter-
requirements,
with the constitutional
that he
ror, inducements, subtle or blatant threats
advised and understand
might
perfect cover-up
be a
of unconstitu-
plea may
imposition
result in the
of consecu-
tionality.
question
The
effective
tive sentences for his two convictions.
It is
right in a
of a federal constitutional
waiver
language
clear from the
used
Rule 8 and
proceeding
governed by
of course
feder-
purpose
recognize rights
its obvious
Alabama,
Douglas
al
380
standards.
defendants,
rights
that constitutional
are
415, 422,
1074, 1078,
85 S.Ct.
13
U.S.
fact,
plicated.
previously
we have
said
L.Ed.2d 934.
rights
that a defendant’s constitutional
are
Alabama,
238, 242-43,
Boykin v.
89
U.S.
8(2)(b).
Fluhr,
specified in Rule
(1969).
1712,
274,
1709,
5.Ct.
23 L.Ed.2d
N.W.2d at 861.
recognized
court has
the stan
Our
Supreme
has
that the ac-
The
Court
held
Boykin:
dard set forth
Jackson and
fully
con-
cused must be
aware of
direct
Brady
requirement
sequences
guilty plea.
of voluntariness stems
of a
v. United
States,
742, 755,
process
from the due
mandate that a waiv-
90 S.Ct.
U.S.
(1970).
concurrently
to be mended that the sentences run
25 L.Ed.2d
Sentences
consecutively
Remaining
a direct conse-
to each
counts in both
are
other.
served
are
here
quence
along
of a
We
criminal
were to
matters
be dismissed
adjudicated
prosecutor
the much
distinc-
concerned with
with two misdemeanor files. The
collateral conse-
agreed
tion between direct and
next
with defendant’s counsel
See, e.g.,
Carney,
quences.
pursuant
agreement
to the
the State
(Iowa 1998).
907, 908-09
N.W.2d
that the
the Polk
recommended
County
concurrently
run
with a case
cases
depend
Nor
on wheth-
does
result here
County.
against
defendant Boone
judge’s responsibility
er it is
advise
possible punish-
“maximum
court,
presentation
After this
to the
ex-
pos-
ment” means consecutive sentences are
tended
de-
discussion ensued
whether
knowledge
sible whether defendant’s
*4
fendant
could
released
his bond
understanding
gleaned
can be
from other
prior
sentencing.
to
Defendant
continued
Kirchoff,
in
indicia
the record. See
452 personally pleaded with the court for a
804-05; Fluhr, 287
at
N.W.2d at
N.W.2d
period
place
to
a
his
two-week
locate
for
863-64;
Reaves,
State
N.W.2d
arrangements
live
make
his
wife to
State,
1977);
Brainard v.
N.W.2d
children,' including
dependent
a new
four
(Iowa 1974);
Sisco,
711, 715
baby.
argued this
Defendant’s counsel
(Iowa 1969).
N.W.2d
judge
The
matter as well.
listened
arguments
inquired
these
of the
then
In
no
the instant case
statement
if
prosecutor and the defendant’s counsel
possible
sentences was
about
consecutive
any
either
like to make
further rec-
would
Also,
by
judge
made
the
to the defendant.
attorneys
Both
said no. The record
ord.
any
record
defen
the
is silent
advice to
as
thereupon
possibili-
closed without the
was
by
attorney
any
or from
other
dant
ty
sentencing
being
ever
of consecutive
possi
source that consecutive sentences were
by anyone. Although
mat-
mentioned
the
pled guilty.
if he
ble
sentencing hearing
at
the
ters discussed
hearing
The record discloses that
the
in the
of the
had relevance
context
during
accepted
guilty plea
which the
was
agreement’s contents and the defendant be-
was
or
of consecu-
there
no advice
discussion
bond,
focus on these
ing released on
the
by
judge
tive sentences
the
or defendant’s
effectively
any
matters
diverted
under-
lawyer,
any other
nor was there
evidence
standing by defendant of the maximum
introduced that shows defendant’s awareness
possible punishment. Adding to the likeli-
possibility
or
of the
of consecutive sentences
understanding
hood of defendant’s lack of
any knowledge
how a
even
concurrent
by
possible punishment,
from a consecutive sen-
sentence differed
misled,
the
being
or
circum-
unadvised
any
information from
source indi-
tence. No
court,
taking de-
that the trial
when
stance
any way
that his
cated
the defendant
conducting
guilty plea
fendant’s
and when
twenty
punishment
was
hearing,
sentencing
never told the de-
years
imprisonment
as
result of sen-
not
the court was
bound
fendant
that
imposed to be served
tences
prosecutor and
any agreement between the
accepted
silent
The
was
from a
or defendant’s counsel re-
matter.
record
this
guilty.
The
time
garding
plea of
first
sentencing hearing
The
occurred six weeks
sen-
heard of consecutive
defendant ever
hearing
again
At
record
dis-
later.
years
up
twenty
which added
tences
concerning the
closes that no information
they
imposed
when
were
prisonment was
com-
possibility of consecutive
was
on him.
fact,
In
municated to
defendant.
Williams,
407 F.2d
United States
misled,
probably
as well
(4th
Cir.1969), it was said:
unadvised,
being
con-
the discussion about
plea bargaining
serves
during
hearing.
“We think
current sentences
society
purpose
judge
pursuant
useful
both
prosecutor advised the
permanent part
prisoner and is a
agreement,
the State recom-
scene,
one,
criminal courtroom
but we think
from
prosecutor,
such as the
who is
ought
brought
position
that it
to be
out into the
promises
no
concerning
make
open.
suggest
do not
sentencing
We
that defense
has been made
trial
prosecutor actually
counsel and
‘probably’,
con-
‘maybe’,
terms of
Ior
negotiations
open
duct their
court but
am
‘promises’
inclined toward’. These
are
urge
we
occasionally
do
this circuit a full and
communicated to defendants
complete
negotiations
of such
disclosure
as firm deals. When the defendant
in-
plead
announced to the court and made a
duced to
on the basis of his
part
is,
of the record.
misinterpretation
The matter
after
‘promise’,
all,
business,
public
deplore
cases,
may,
and we
in certain
be invalid because it
hypocrisy
pretense
of silent
incomprehension
that it has
was based on
or misinter-
”
[Emphasis
occurred....
pretation.”
re-
moved.]
Cardenas, 545 P.2d
(emphasis
at 638-39
re-
...
inquire
The court must then
of the moved) (quoting
Frontero,
United States v.
purported
defendant if the
bargain is
(5th
as he
Cir.1971)).
452 F.2d
making
understood it to be
when
Defendant’s
accepted
contention has been
explain
decision. The court must
the bar-
jurisdictions.
jurisdictions
in other
Several
gain’s
respect
effect with
to maximum sen-
have concluded that in order for a defendant
tence and
effect
on concurrent or con-
*5
knowingly
voluntarily
enter a
sentencing,
part
secutive
if that be a
of the
plea, he or she must be informed of the
bargain,
aspects
agree-
and all other
possibility of
part
consecutive sentences as
of
by
ment must be reviewed
the court with
imparted
the information
revealing
when
the
the defendant. The court must make
possible
maximum
sentence.
In Common-
known to the defendant whether there is
Persinger,
wealth v.
532 Pa.
615 A.2d
anything
bargain
about the
which is abhor-
(Pa.1992),
Pennsylvania
Supreme
the
rent
any
to the court or which violates
Court concluded
informing
that when
a de-
aspect of the sentence which the court
sentence,
possible
fendant of the maximum
impose.
bargain purports
intends to
If the
the court must advise the defendant as to the
improperly
court,
bind the
the defen-
possible aggregate
total
may
sentence which
dant should know this and should be told
imposed
be
as a result of consecutive sen-
by
that the court will
any
not be bound
tencing.
plea
The defendant
a
entered
impropriety.
such
guilty to nine counts of bad checks and one
words, every aspect
In other
of the bar-
by deception. During
count of theft
the col-
gain and the court’s reaction to it should loquy, the court informed the defendant of
be
at
reviewed
the Bar on the record
possible
sentence for each of-
before the
is received so that
the
fense, but did not inform him the sentences
record will forever reflect that it was made
imposed
could
consecutively.
be
The court
voluntarily by the defendant and with a
imposed
Persinger,
consecutive sentences.
full understanding
consequences.
of its
“....
bargaining’
Inherent
the
range of sentences
fines for the
process
of-
possibility
is the
and/or
of a misunder-
charged.”
concluding
fenses
Id. at 1307. In
standing
part
on the
of the participants as
sentencing
court
in not
erred
dis-
possible consequences
guilty plea.
of a
closing that the sentences could be ordered
by
attorney
The defendant is often told
his
consecutively,
run
the court stated:
‘promise’
that a
of a certain sentence has
been
in exchange
made
for
goal sought
his
to be attained
when,
fact,
‘promise’
guilty plea colloquy
has come
is assurance that a
appeal-
The defendant
know-
served
guilty plea is tendered
defendant’s
ed,
trial
failed to
voluntarily
contending
that the
court
ingly, intelligently,
under-
obviously
fully
consequences
him the
of his
standingly. A
cannot
advise
advising him
intelligently
the sentences
expected
plead
without
not
be
imposed
understanding
consequences of his
be
consecutive-
the convictions could
Illinois
ly. Flannigan,
the conse-
N.E.2d at 740.
In order to understand
plea may
ac-
provided
that a
be
quences
of his
it is clear
defen-
law
“
cepted
‘the court has informed
must be informed of
maximum
when
dant
consequences
might
imposed for his
of his
punishment that
be
defendant of the
penalty provided
term “maxi-
law
To
and of the maximum
conduct.
hold
upon acceptance
total
may
imposed
mum” does
include the
not
which
”
clearly
plea.’
(quoting
at 743
38 Ill.Rev.
aggregate
incorrect.
such
Id.
sentence
(1969)).
1152(a)(2)
intelligently
was
The court found:
And to hold that a
Stat.
de-
understanding^ entered where a
charged
with more
Where a defendant
informed that consecutive
fendant
crime, the
in which he
than one
manner
upon
imposed
could
his multi-
may
imposed
have to serve
sentence^
incorrect.
ple
equally
convictions is
crimes,
consecutively or
whether
those
(citations omitted).
Id. at 1808
obviously consequence
concurrently, is
Bar
plea,
The court cited the American
Associ-
must be considered as crucial
for Criminal Justice
as the admonition on
ation Standards
decision
holding,
though
charges.
even
support
for each of the
Pennsylvania does have
commonwealth of
Id.
744.
criminal
comprehensive rules of
conclusion,
authority for its
As
take
governing
colloquy
which must
law,
after
which took effect
noted new state
entry
guilty plea.
of a
place before the
*6
“maxi-
plea, which defined
the defendant’s
Association,
III American Bar
Stan-
See
“
penalty to
penalty”
mum
to include
‘the
(2d
Justice, std. 14-1.4
Criminal
dards for
may
subjected be-
be
which the defendant
ed.1980).
explicitly
14-1.4
re-
Standard
prior
of
or consecutive sen-
cause
convictions
court
the defendant of
quires the
to inform
”
(quoting 110A Ill.Rev.Stat.
tences.’
Id.
sentences.
possibility
the
of consecutive
402(a)(2)).
also
the ABA
The court
cited
Standards,
regard to
ABA
the
the
With
support for
Justice as
Standards
Criminal
noted:
court
holding.
reasoning
We believe that
the
behind
sound,
approach
for this
this standard is
jurisdictions have
the same
reached
Other
help
ap-
to
the defendant
assure that
will
Pennsylvania
conclusion
that reached
significance
and conse-
preciates
Peters,
P.2d
People v.
738
and
Illinois.
that once
quences
of his
and
entered
395,
previ-
(Colo.Ct.App.1987) (noting
395-96
post-sentencing
will
at-
withstand
Supreme Court decision
ous Colorado
Requiring
trial court
tell the
tack.
it
ABA Standards
which was held
may
sentences
be
defendant
closely
exist-
relating
guilty pleas
tracked
ag-
consecutively and what
total
posed
concluding
thus
defen-
ing
and
Colorado law
signifi-
be will not
gregate sentence could
apprised
possi-
been
of
dant should have
place any
lengthen
colloquy or
cantly
sentences);
bility
of consecutive
burden on the court.
undue
Collins,
7,
871,
404 A.2d
872-73
176 Conn.
Persinger, 615
at 1308.
A.2d
that,
(Conn.1978)
(holding
voluntary,
must
knowing and
defendant
Ill.App.2d People
Flannigan,
of
sen-
possibility
of
consecutive
1059,
(IlLApp.Ct.1971), the
be informed
acutely stated, affects a defendant’s decision re- For the reasons we reverse and garding guilty or nolo proceedings contendere remand this case for further
247 potential under shall be allowed to withdraw there’s [section] which defendant guilty plead required anew. 124.411for the defendant to be imposed serve one-third the time before AND REVERSED REMANDED. eligible parole. HARRIS, J., justices except All concur White, you Mr. COURT: do understand C.J., McGIVERIN, and CARTER and potential penalties those are NEUMAN, JJ., who dissent. you’re facing in this case? HARRIS, (dissenting). Justice Yes, WHITE: Ma’am. agree majori- Not me. I cannot Surely majority cannot believe White ty’s guilty perception of flaws in White’s would from conclude the above consecu- proceeding. openers, prosecution For option tive sentences were not an for the plea agreement, was faithful to the recom- court. mending just promised— to the as it court — II. person guilty No fair minded wants that the would served concur- be anyone from who is or to be claims rently. pretends prosecutor No one even 8(2)(b) attempt innocent. is an Criminal rule hinted to or his counsel that the White cogni- the accused assure is No would bound recommendation. admitting zant of is at stake in it. The what pretends is innocent of one White either attempts requiring rule this charge, or there was no factual basis for again concerning the list- advise accused Rather, pleas. grounded reversal fundamentals, covering ed advice same wholly unnecessary on what strikes me as ordinarily expected to come from the defen- expansion litany and unwise of the formal lawyer. dant’s
required taldng pleas under Iowa 8(2)(b). rule of criminal list, prudent expand espe- It is not cially system persons our in Iowa where plainly unnecessary. I. It is The better are, pleading guilty exception, without clearly almost authority that the pos reasoned holds lawyers. 21 represented by See Am.Jur.2d sibility implicit of consecutive sentences is (1998) (representation 665 Criminal Law explanation pen the court’s significant determining factor counsel charge. alties for each v. See United States (8th knowing 442, Cir.1996); volun- whether Burney, 75 F.3d 445 tary). previously applied Hamilton, have a common 1302, We F.2d States v. 568 United (9th declining require 1304-05, Cir.1978); approach sense 1306 Paradiso (3d apprised con- States, 409, of other serious accused 482 F.2d 415 United Cir. sequences Kinnersley v. 1973); 246, Wesley, Ariz. State (Iowa 1993) (court State, 698, (Ariz.1982); 177, Irish, 494 N.W.2d P.2d ineligibility parole); 814, required to advise (Neb.1986); Neb. 394 N.W.2d State, State, Grout v. 104 Nev. 756 P.2d Rosemond v. *8 1982) State, (same); Boge (Nev.1988). 309 N.W.2d (Iowa 1981) (same). analogous On an I cannot an- understand how White could unanimously rejected an point, ineffec- we impose ticipate that the court would concur- grounded on claim tive-assistance-of-counsel rent sentences. The record shows: failure advise an accused govern- I ask the COURT: should also deportation. result Mott would give penalties. I think I ment us (Iowa 1987). State, N.W.2d skipped over that. Honor, It the siren call of charge, each Your is a mistake answer STATE: On imposition suggest an those that our would be indeter- who requirements, so prison years litany clarify more will minate term not to exceed consequent $50,000. appeals in the that future mistakes with fíne amount mandatory Every requirement invites There’s minimum can be avoided. fine mandatory litigation appeals more order to test count. There’s a each $1000 revocation, compliance. We days there has been license and whether driver’s Sisco, just plain wrong. I would such as this is in State v. rendered our decision (Iowa 1969), high hopes, N.W.2d 542 affirm. expectation prescribed that a format and the clearly so
would standardize C.J., McGIVERIN, and CARTER future error could avoided. Less NEUMAN, JJ., join this dissent. later, eight years we filed our than when Reaves, opinion in (Iowa 1977), in addition to all the dispositions, and less formal we unnumbered sixty-three opinions formal review-
had filed
ing challenges sufficiency
proceedings. unnecessary one To add