                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1252
                               Filed May 14, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CLAY KALVIG,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Cerro Gordo County, Gerald W.

Magee, Judge.



      A defendant appeals following his guilty plea, asserting it was not

voluntary and intelligent. REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Tyler Buller, Assistant Attorney

General, Sean M. Corpstein, Student Legal Intern, Carlyle D. Dalen, County

Attorney, and Steven D. Tynan, Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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MULLINS, J.

       Clay Kalvig appeals his conviction following his plea of guilty to theft in the

second degree, a class “D” felony, in violation of Iowa Code sections 714.1 and

714.2(2) (2011). He asserts his plea was not voluntary and intelligent because

the court failed to comply with the requirements of Iowa Rule of Criminal

Procedure 2.8(2)(b) to conduct an in-person colloquy informing him of the rights

that he was waiving by pleading guilty. He also asserts in the event error was

not preserved on this claim that his attorney rendered ineffective assistance in

not challenging his guilty plea through a motion in arrest of judgment. For the

reasons stated herein, we reverse Kalvig’s conviction and sentence, and remand

the case for further proceedings to allow Kalvig to plead anew.

I. Background Facts and Proceedings.

       The State charged Kalvig with four counts of second-degree theft, one

count of third-degree theft, and one count of driving while barred. The parties

entered into a plea agreement whereby Kalvig would plead guilty to one count of

second-degree theft, both parties would recommend a sentence of five years in

prison, and the State would dismiss all other charges. Kalvig signed a written

guilty plea that was filed with the court. Subsequently, a plea hearing was held

where the court accepted the written plea and discussed the following matters

with Kalvig:

               THE COURT: Do you have a copy of a written plea of guilty
       in front of you, Mr. Kalvig?
               THE DEFENDANT: I do, Your Honor.
               THE COURT: And are you Clay Douglas Kalvig?
               THE DEFENDANT: Yes.
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        THE COURT: That document in front of you has initials on
the left side of each page?
        THE DEFENDANT: Yes.
        THE COURT: Are those your initials?
        THE DEFENDANT: They are.
        THE COURT: Have you reviewed this document with your
attorney?
        THE DEFENDANT: Yes, sir.
        THE COURT: Have you reviewed every paragraph?
        THE DEFENDANT: Yes, sir.
        THE COURT: On the third page is a signature. Is that your
page—is that your signature?
        THE DEFENDANT: Yes, sir.
        THE COURT: And you understand what this document is?
        THE DEFENDANT: I do.
        THE COURT: It’s a plea of guilty?
        THE DEFENDANT: Yes.
        THE COURT: Have you had enough time to talk to your
attorney?
        THE DEFENDANT: Yes, sir.
        THE COURT: You understand that you’re entitled to have a
trial. You had previously pled not guilty and you can stand on that
plea of not guilty and have a trial?
        THE DEFENDANT: Right.
        THE COURT: And the State would be required to prove all
the elements of the offense and has the burden to prove your guilt
beyond a reasonable doubt. Do you understand that?
        THE DEFENDANT: I do.
        THE COURT: Is anybody threatening you or forcing you to
do this today?
        THE DEFENDANT: No, Your Honor.
        THE COURT: Has your attorney explained to you the
maximum and minimum penalties for this?
        THE DEFENDANT: Yes, sir.
        THE COURT: If you look on page 3 as I indicated earlier at
paragraph 17 it says, that I am pleading guilty only as I’m guilty of
one count of Theft in the Second Degree; is that correct?
        THE DEFENDANT: That is correct, Your Honor.
        THE COURT: What did you do?
        THE DEFENDANT: I hooked up to a trailer that was in an
alleyway and took it, it wasn’t mine.
        THE COURT: Okay. Do you understand that’s illegal and
you didn’t have permission to do that?
        THE DEFENDANT: Yes, Your Honor.
        THE COURT: And was the cost of that amount exceeding
$1000.00?
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              THE DEFENDANT: It seems it is, Your Honor, yeah.
              THE COURT: [Defense Counsel], do you know of any
       reason why I should not accept this plea?
              [DEFENSE COUNSEL]: No, Your Honor. I do not.
              THE COURT: [Prosecutor], do you know of any reason?
              [PROSECUTOR]: Just that this occurred in Cerro Gordo
       County, Your Honor.
              THE COURT: Okay. Did it occur in Cerro Gordo County,
       sir?
              THE DEFENDANT: It did.
              [PROSECUTOR]: I know of no reason, Your Honor.
              THE COURT: Mr. Kalvig, the Court will accept your written
       plea of guilty and the statements that you made today admitting
       that you have committed Theft in the Second Degree. And even
       though that written plea was filed a month ago, do you need any
       additional time—you’ve had sufficient time to discuss this matter
       with your client, and are you prepared proceed to sentencing,
       [Defense Counsel]?
              ....
              THE COURT: Again, the Court finds that the Defendant has
       knowingly and voluntarily entered a plea of guilty, understands the
       consequences. What is the State’s recommendation?

The court then proceeded to hear the joint sentencing recommendation and

sentenced Kalvig accordingly.         He now appeals claiming the court failed to

conduct a thorough in-person colloquy with him pursuant to Iowa Rule of Criminal

Procedure 2.8(2)(b) and should not have relied on his written plea of guilty as he

plead guilty to a class “D” felony.

II. Scope and Standard of Review.

       A claim that a guilty plea was not entered voluntarily and intelligently is

reviewed de novo because it implicates the Due Process Clause of the

Fourteenth Amendment. State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003).
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III. Error Preservation.

       In order to challenge a guilty plea on appeal, Iowa Rule of Criminal

Procedure 2.24(3)(a)1 requires a defendant to first file a motion in arrest of

judgment with the district court. However, this bar to challenging a guilty plea will

not operate if the court did not comply with rule 2.8(2)(d),2 which requires the

court to inform the defendant of the need to file a motion in arrest of judgment

and the consequences of failing to file the motion. See State v. Meron, 675

N.W.2d 537, 541 (Iowa 2004). Here, Kalvig did not file the motion but asserts the

court’s failure to personally advise him of the requirement relieves him of the

obligation to file the motion in order to challenge his guilty plea on appeal.

       In this case, the written guilty plea Kalvig signed contained the following

language:

               I understand if I wish to contest the validity of this guilty plea
       proceeding, I must do so by filing a Motion in Arrest of Judgment.
       The Motion must be in writing and filed with the Clerk of Court at
       least five days before sentencing or within forty-five days from the
       date my plea of guilty is accepted by the Court, whichever date is
       sooner. If I do not file the Motion, I cannot contest the validity of my
       guilty plea either in this Court or on appeal but I may still appeal the
       sentence.

The next paragraph of the written guilty plea acknowledged Kalvig would have

fifteen days to prepare for sentencing but waived that time. In addition to signing

the document as a whole, Kalvig also initialed each paragraph including these


1
  Iowa Rule of Criminal Procedure 2.24(3)(a) provides, in part, “A defendant’s failure to
challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall
preclude the defendant’s right to assert such challenge on appeal.”
2
   Iowa Rule of Criminal Procedure 2.8(2)(d) provides, “The court shall inform the
defendant that any challenges to a plea of guilty based on alleged defects in the plea
proceedings must be raised in a motion in arrest of judgment and that failure to so raise
such challenges shall preclude the right to assert them on appeal.”
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paragraphs. There was no discussion during the plea hearing about the need to

file a motion in arrest of judgment or the consequences of failing to do so.

       The supreme court in State v. Hook, 623 N.W.2d 865, 868 (Iowa 2001),

held the court’s failure to personally advise the defendant of his right to file a

motion in arrest of judgment and the consequences of failing to do so relieved

the defendant of the requirement to file the motion in order to preserve his

challenge to his guilty plea. Hook dealt with a defendant’s guilty plea to a class

“D” felony where the defendant filed a written guilty plea, and the trial court

conducted a shortened colloquy with the defendant questioning the defendant in

reference to the written plea.    632 N.W.2d at 866.       In reference to the rule

2.8(2)(d) advisory, the court asked defense counsel whether he had discussed

the rule with his client. Id. at 868. The defense attorney assured the court the

defendant had been advised, but the court did not specifically address the

defendant, state the requirements of the rule, or the consequences of not filing

the motion. Id. The supreme court found the colloquy inadequate and permitted

Hook to challenge his guilty plea despite his failure to file the motion in arrest of

judgment. Id.

       Hook was subsequently abrogated in part by the supreme court in State v.

Barnes, 652 N.W.2d 466, 468 (Iowa 2002), where the court held “defendants

charged with serious or aggravated misdemeanors may enter into a valid written

waiver of the right to file a motion in arrest of judgment and thus trigger the bar

that rule 2.24(3)(a) imposes to challenging a guilty plea on appeal.” However, we

conclude that Hook is still good law when applied to guilty pleas in felony cases.
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While the State seeks for us to extend the Barnes ruling to relieve the court of its

obligation to personally inform a defendant, who pleads guilty to a felony charge,

of the rule 2.8(2)(d) requirement if the defendant files a written acknowledgement

of the same, we decline to do so.

       We conclude in felony guilty plea cases the court is required to personally

inform the defendant of the rule 2.8(2)(d) requirement to file a motion in arrest of

judgment and the consequences of failing to file the motion, and the court cannot

rely on a written acknowledgement or waiver.           Because the court failed to

advised Kalvig pursuant to rule 2.8(2)(d), Kalvig is relieved of the requirement to

file the motion in arrest of judgment in order to challenge his guilty plea on

appeal. Thus, we need not consider Kalvig’s alternative claim that counsel was

ineffective in failing to file a motion in arrest of judgment. We now turn to Kalvig’s

claim his guilty plea was not entered voluntarily and intelligently.

IV. Rule 2.8(2)(b).

       Iowa Rule of Criminal Procedure 2.8(2)(b) provides a blueprint to the

district court to ensure a guilty plea is entered voluntarily and intelligently, and

thus in compliance with due process. State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). The rule provides, in part:

       [T]he court must address the defendant personally in open court
       and inform the defendant of, and determine that the defendant
       understands, the following:
              (1) The nature of the charge to which the plea is offered.
              (2) The mandatory minimum punishment, if any, and the
       maximum possible punishment provided by the statute defining the
       offense to which the plea is offered.
              (3) That a criminal conviction, deferred judgment, or deferred
       sentence may affect a defendant’s status under federal immigration
       laws.
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               (4) 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.
               (5) 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.

Iowa R. Crim. P. 2.8(2)(b). The in-court personal colloquy with the defendant

cannot be waived in felony cases. Id. (“The court may, in its discretion and with

the approval of the defendant, waive the above procedures in a plea of guilty to a

serious or aggravated misdemeanor.”); see also Hook, 623 N.W.2d at 868 (“At

no time can a written guilty plea to a felony serve as a substitute for a question

the court is required to pose to the defendant directly.”).

       Here, Kalvig filed a written plea of guilty to a class “D” felony, and the

court failed to conduct the required in-person colloquy with Kalvig during the plea

hearing. While the written guilty plea encompassed all the required advisories

contained in rule 2.8(2)(b), the in-court colloquy only addressed Kalvig’s right to a

trial and provided a factual basis to support the guilty plea. The colloquy failed to

address the nature of the charge; the minimum and maximum applicable

punishments; the advisory a guilty plea may affect his immigration status; and his

various trial rights including the right to a jury, to the assistance of counsel, to

confront and cross-examine witnesses, to not incriminate himself, and to present

witnesses and to have compulsory process to secure their attendance. See Iowa

R. Crim. P. 2.8(2)(b)(1)-(5).
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      Because the court failed to address the required advisories in rule

2.8(2)(b) with the defendant personally in open court, we vacate Kalvig’s guilty

plea and remand the case for further proceedings to allow him to plead anew.

      REVERSED AND REMANDED.
