                  IN THE SUPREME COURT OF IOWA
                                  No. 15–0308

                               Filed April 7, 2017


STATE OF IOWA,

      Appellee,

vs.

ANDRE LETROY ANTWAN HARRINGTON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Mary E.

Howes, Judge.



      Appellant seeks further review of a court of appeals decision

affirming   the    district   court’s   imposition   of   sentence   under   an

enhancement for repeat offenders. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT REVERSED IN PART AND

CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Mary A. Triick and Kevin R.

Cmelik, Assistant Attorneys General, Michael J. Walton, County

Attorney, Amy DeVine, Assistant County Attorney, for appellee.
                                           2

CADY, Chief Justice.

       In this case, we consider the procedural protections available to a

defendant when the State seeks a sentencing enhancement under Iowa’s

habitual offender statute. The district court in this case did not inform

the defendant of certain constitutional and statutory rights associated

with accepting pleas of guilt before accepting his admission to the prior

convictions to support the habitual offender status. The court of appeals

found the defendant failed to preserve error by filing a motion in arrest of

judgment based on his claims of deficiencies in the proceedings. It also

concluded the district court did not abuse its discretion in refusing to

permit the admission to be withdrawn.               Finally, the court of appeals

found that even if there were error, no prejudice resulted. On further

review, we vacate the decision of the court of appeals, reverse the district

court, and remand the case for a trial on the defendant’s habitual

offender status.

       I. Factual Background and Proceedings.

       Andre Letroy Antwan Harrington was arrested and charged with

the crime of robbery in the second degree. See Iowa Code § 711.1 (2013)
(“A person commits a robbery when, having the intent to commit a theft,

the person. . . [c]ommits an assault upon another.”); id. § 711.3 (“All

robbery which is not robbery in the first degree is robbery in the second

degree. Robbery in the second degree is a class “C” felony.”). 1 The State

also sought a “habitual offender” sentencing enhancement based on his

prior record. See id. § 902.8 (2013) (“An habitual offender is any person



       1At the time, the legislature did not provide for robbery in the third degree. See

2016 Iowa Acts ch. 1104, § 4 (codified at Iowa Code § 711.3A(1)–(2) (2017)) (providing
for aggravated misdemeanor robbery if the person perpetrating the robbery commits
simple misdemeanor assault).
                                        3

convicted of a class “C” or a class “D” felony, who has twice before been

convicted of any felony in a court of this or any other state, or of the

United States.”). Under the habitual offender statute, instead of a ten-

year sentence, Harrington faced a fifteen-year sentence. See id. §§ 902.8,

.9(3)–(4).

       The minutes of testimony revealed the State planned to call

designees of the Scott County jail and Jasper County clerk of court to

testify Harrington was convicted of the crime of going armed with intent

in 2000 and the crime of possession of a controlled substance with intent

to deliver in 2009. The State also attached a report from the National

Crime Information Center identifying the two prior felony convictions.

       The case proceeded to a jury trial on the charge of robbery in the

second degree. Harrington testified in his defense, and evidence of his

prior felony convictions was admitted during his testimony.       The jury

returned a verdict of guilty. The district court proceeded to consider the

habitual offender sentencing enhancement.

       Outside the presence of the jury, the district court asked

Harrington if he wanted to stipulate to the two prior felony convictions in
support of the habitual offender enhancement or if he wanted the issue

decided by the jury.          Harrington acknowledged the two prior felony

convictions, but expressed his desire for the matter to be decided by the

jury. After a spirited colloquy, the district court accepted Harrington’s

admission to the prior felonies and concluded no jury determination was

needed because Harrington admitted to the prior convictions. During the

colloquy, Harrington was informed that his admission meant he was no

longer entitled to a trial.
                                      4

      The district court subsequently sentenced Harrington for the crime

of robbery in the second degree as a habitual offender.              He was

sentenced to fifteen years in prison, with a mandatory minimum period

of incarceration of seventy percent before eligibility for parole.

      Harrington appealed. He claimed the courtroom habitual offender

colloquy was deficient for two reasons.      First, he claimed the colloquy

failed to show his admission to the prior offenses was made voluntarily

and intelligently.   Second, he asserted the colloquy failed to identify

evidence to show he was represented by counsel or waived counsel in the

cases involving the prior convictions.        Harrington also claimed the

district court should have construed his request during the colloquy for a

trial as a request to withdraw his admission, and it abused its discretion

in refusing the request.

      We transferred the case to the court of appeals.          The court of

appeals affirmed the judgment and sentence of the district court.         It

found Harrington failed to preserve error concerning deficiencies in the

habitual offender colloquy by failing to file a motion in arrest of judgment

following the habitual offender hearing and by also failing to object to the
deficiencies at the time of the colloquy.        The court of appeals also

concluded the district court did not abuse its discretion by failing to

allow Harrington to withdraw his admission to the prior felony

convictions after he expressed his desire for the jury to decide the matter.

We granted further review.

      II. Standard of Review.

      “Claims involving the interpretation of a statute or rule are usually

reviewed for errors at law.” State v. Kukowski, 704 N.W.2d 687, 690–91

(Iowa 2005); see also Iowa R. App. P. 6.907. However, to the extent our
                                           5

review extends beyond the habitual offender statute and into claims

having a constitutional basis, our review is de novo. See Kukowski, 704

N.W.2d at 690.

      III. Preservation of Error.

      We first consider whether Harrington has preserved error for

appeal on his claims of deficiency in the habitual offender colloquy. He

failed to assert an objection to any deficiencies during the habitual

offender colloquy and did not file a motion in arrest of judgment prior to

sentencing.

      A motion in arrest of judgment is an application by a defendant in

a criminal case that no judgment should be entered “on a finding, plea,

or verdict of guilty.” Iowa R. Crim. P. 2.24(3)(a). The rule serves as a

vehicle to bring a variety of claims before the court.                See State v.

Oldfather, 306 N.W.2d 760, 762 (Iowa 1981).              The motion is granted

when the whole record shows no legal judgment can be pronounced.

Iowa R. Crim. P. 2.24(3)(a). One type of claim identified by the rule that

must be raised in the motion is a challenge to the adequacy of a guilty

plea proceeding. Id. It is a claim that no judgment should be entered on
a “plea . . . of guilt[]” because deficiencies in the proceedings rendered

the plea involuntary.       Id.    The rule states, “A defendant’s failure to

challenge the adequacy of the guilty plea proceeding by a motion in

arrest of judgment shall preclude the defendant’s right to assert such a

challenge on appeal.”        Id.     Thus, the motion is both a procedural

mechanism      to   raise   claims    of   error   and   an   error   preservation

requirement. The question is whether both components of the motion

are applicable to claims of error in habitual offender admission

proceedings.
                                     6

      We have repeatedly said that an admission by an offender to the

prior convictions to support sentencing as a habitual offender is

comparable to a plea of guilty to support sentencing for the crime

identified in the plea. Kukowski, 704 N.W.2d at 692; State v. Brady, 442

N.W.2d 57, 58 (Iowa 1989). An admission is comparable to a guilty plea

because both acknowledge facts that render the person amenable to

punishment by law.      Additionally, the rights at stake in a habitual

offender proceeding are significant and “are often of the same magnitude

as in the case of a plea of guilty.” In re Yurko, 519 P.2d 561, 565 (Cal.

1974). If a defendant waives the right to a trial on the prior convictions,

he or she waives all the constitutional protections associated with the

trial, relieves the state of its burden of proof, and forecloses the

opportunity to appeal trial errors. See Wright v. Craven, 325 F. Supp.

1253, 1257 (N.D. Cal. 1971) (“The defendant who admits the priors

charged against him will be deemed to have waived nearly all rights later

to question their validity. But the harshness of this result is mitigated

by one, fragile principle: waiver must be a ‘knowing, intelligent act done

with sufficient awareness of the relevant circumstances and likely
consequences.’ ” (quoting Brady v. United States, 397 U.S. 742, 748, 90

S. Ct. 1463, 1469 (1970))). For these reasons, many other jurisdictions

also compare habitual offender admissions to guilty pleas.         See, e.g.,

People v. Cross, 347 P.3d 1130, 1135 (Cal. 2015) (“The same

constitutional standards of voluntariness and intelligence apply when a

defendant forgoes a trial on a prior conviction allegation.”); State v.

Cheatham, 80 P.3d 349, 353–54 (Idaho Ct. App. 2003) (compiling cases

from “[s]everal federal courts of appeal [that] have held . . . where the law

of the prosecuting jurisdiction affords a defendant the right to a trial on
                                        7

recidivist allegations, a trial court may not dispense with such a trial

without taking steps to ensure that the defendant himself is knowingly

and voluntarily admitting the prior convictions with an understanding

that he will thereby be subject to enhanced penalties,” and adopting the

same rule (footnote omitted) (citation omitted)).        Consistent with

Kukowski and Brady, we conclude that a motion in arrest of judgment is

a proper vehicle to bring claims of deficiencies in a habitual offender

proceeding. Like claims of deficiencies in guilty plea proceedings, claims

in deficiencies in habitual offender proceedings are assertions that no

judgment and sentence can be pronounced. The remaining question is

whether the motion is also a requirement to preserve error for appellate

review of the claims of deficiencies.

      It is not necessary for us to decide if a habitual offender admission

proceeding constitutes a “guilty plea proceeding” within the error-

preservation language of Iowa Rule of Criminal Procedure 2.24(3). Error

preservation is a fundamental principle of law with roots that extend to

the basic constitutional function of appellate courts.       See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); Thomas A. Mayes &
Anurahda Vaitheswaran, Error Preservation in Civil Appeals in Iowa:

Perspectives on Present Practice, 55 Drake L. Rev. 39, 43–45 (2006)

[hereinafter Mayes]. The doctrine has been developed over time by both

court rules and court decisions. Its purpose is to allow the district court

to correct error without the necessity of an appeal. See State v. Whorley,

297 N.W.2d 368, 370 (Iowa 1980). It also serves to create a record for

appellate review. See DeVoss v. State, 648 N.W.2d 58, 60 (Iowa 2002).

See generally Mayes, 55 Drake L. Rev. at 48–50.
                                          8

       We have applied the error preservation rule to a variety of motions

in the past.    See DeVoss, 648 N.W.2d at 61.            Having determined that

claims of deficiencies in a habitual offender proceeding are properly

raised by filing a motion in arrest of judgment, there is no reason not to

also apply the error preservation requirement. The purposes of the error

preservation rule would be served, just as they are by imposing the

requirement to preserve error for deficiencies in a guilty plea proceeding.

The error preservation requirement would lead to an orderly and prompt

process to dispose of claims of procedural error, just as for guilty-plea

claims.     Accordingly, we hold that offenders in a habitual offender

proceeding must preserve error in any deficiencies in the proceeding by

filing a motion in arrest of judgment.

       Notwithstanding, we only apply this rule of law prospectively. We

therefore excuse Harrington’s failure to preserve error by filing a motion

in arrest of judgment.

       IV. Habitual Offender Colloquy.

       We next consider the claims of deficiency in the habitual offender

colloquy.    At the outset, we reject the claim by Harrington that the
district court abused its discretion in failing to allow him to withdraw his

admission to the prior convictions after he expressed his desire for a

hearing. The record fails to reveal Harrington requested to withdraw his

admission after the district court informed him that his admission

obviated the need for a hearing. Thus, because no request to withdraw

was made, we also do not address the State’s claim that no prejudice

resulted from any abuse of discretion. 2 We turn, therefore, to consider

        2We observe that prejudice is part of an abuse-of-discretion claim.        See
Kukowski, 704 N.W.2d at 693–94 (stating error based on an abuse of discretion results
in reversal only when the abuse is prejudicial). The question on appeal is not whether
Harrington suffered no prejudice because evidence existed to establish the prior
                                          9

the claim by Harrington that the district court failed to engage in a

colloquy in the habitual offender proceeding to determine if the

admission to the prior convictions was made voluntarily and intelligently.

       A. Background. “[R]ecidivism . . . is a traditional, if not the most

traditional, basis for a sentencing court’s increasing an offender’s

sentence.” Almendarez-Torres v. United States, 523 U.S. 224, 243, 118

S. Ct. 1219, 1230 (1998).         In Iowa, the habitual offender process is

governed by statute. After two or more prior convictions of class “D” or

“C” felonies, the offender convicted of a subsequent felony is deemed a

habitual offender and subjected to a fifteen-year sentence with a

mandatory minimum period of incarceration of three years. See Iowa

Code §§ 902.8, .9(3).

       While recidivist statutes have deep roots in our law, the procedural

protections observed today grew with time. Under early versions of the

Code, the state charged present and prior offenses in one indictment, a

single trial was held, and the jury entered a special verdict on the prior

offenses. See Iowa Code §§ 4871-a, -d (Supp. 1902). But this singular

procedure immediately informed the jury of the defendant’s prior
criminal record, even though such evidence would ordinarily be

inadmissible. See State v. Fisk, 248 Iowa 970, 973, 83 N.W.2d 581, 582

(1957) (“It may be that such proof tends to convince the jury that the

defendant is not an upright citizen, and so makes his conviction on the

primary charge more likely.”). The defendant could only avoid this result

by admitting the prior convictions ahead of trial. See State v. Griff, 257


________________________
convictions, but whether Harrington knowingly and voluntarily admitted the prior
convictions. See State v. Finney, 834 N.W.2d 46, 61 (Iowa 2013); see also Kukowski,
704 N.W.2d at 692 (noting the court must “ensure that the affirmation is voluntary and
intelligent”).
                                      10

Iowa 852, 854, 135 N.W.2d 77, 78 (1965) (“[W]here the defendant admits

the prior convictions it is not proper or necessary to instruct thereon

. . . .”).

         In 1965, the legislature addressed the problem by adopting a two-

stage trial procedure. See generally 1965 Iowa Acts ch. 444. Under the

two-stage procedure, the state files two informations, one that omits any

reference to previous convictions. See Iowa R. Crim. P. 2.6(5). The jury

is only read the information charging the present offense, and the trial is

confined to that offense. If this trial results in a guilty verdict, the court

then gives the offender an opportunity to affirm or deny the prior

convictions. See id. r. 2.19(9). If the offender denies he or she was the

person identified in the prior convictions, there is a second trial by jury

“on the issue of the offender’s identity with the person previously

convicted.” Id.

         By 2002, the procedure was amended to reflect our caselaw giving

the offender the opportunity to affirm or deny not only identity, but “that

the offender was not represented by counsel and did not waive counsel”

in the prior convictions.     Id.   The offender is given this opportunity
because

         [t]o permit a conviction obtained in violation of Gideon v.
         Wainwright[, 372 U.S. 335, 83 S. Ct. 792 (1963),] to be used
         against a person either to support guilt or enhance
         punishment for another offense is to erode the principle of
         that case.

State v. Cameron, 167 N.W.2d 689, 694 (Iowa 1969) (citation omitted)

(quoting Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 262 (1967)).

Aside from this change and various renumbering, the rules have

remained largely unchanged since 1965. See Iowa Rs. Crim. P. 2.6(5),

.19(9) (2017).    The constant feature of these rules has been that the
                                    11

defendant is entitled to a second trial on the prior convictions. See Iowa

Code § 785.16 (1966); Iowa R. Crim. P. 2.19(9).       The State bears the

burden to establish the prior convictions beyond a reasonable doubt.

See State v. Long, 814 N.W.2d 572, 576 (Iowa 2012); see also State v.

Smith, 129 Iowa 709, 709, 106 N.W. 187, 189 (1908) (“Every fact

essential to the infliction of legal punishment upon a human being must

be proven beyond a reasonable doubt.”). The current rule reads,

      Trial of questions involving prior convictions. After conviction
      of the primary or current offense, but prior to
      pronouncement of sentence, if the indictment or information
      alleges one or more prior convictions which by the Code
      subjects the offender to an increased sentence, the offender
      shall have the opportunity in open court to affirm or deny
      that the offender is the person previously convicted, or that
      the offender was not represented by counsel and did not
      waive counsel. If the offender denies being the person
      previously convicted, sentence shall be postponed for such
      time as to permit a trial before a jury on the issue of the
      offender’s identity with the person previously convicted.
      Other objections shall be heard and determined by the court,
      and these other objections shall be asserted prior to trial of
      the substantive offense in the manner presented in rule
      2.11. On the issue of identity, the court may in its discretion
      reconvene the jury which heard the current offense or
      dismiss that jury and submit the issue to another jury to be
      later impaneled. If the offender is found by the jury to be the
      person previously convicted, or if the offender acknowledged
      being such person, the offender shall be sentenced as
      prescribed in the Code.

Iowa R. Crim. P. 2.19(9).

      B. The Colloquy. We have said that “[a]n affirmative response by

the defendant under the rule . . . does not necessarily serve as an

admission to support the imposition of an enhanced penalty as a

multiple offender.” Kukowski, 704 N.W.2d at 692. Instead, “[t]he court

has a duty to conduct a further inquiry, similar to the colloquy required

under rule 2.8(2), prior to sentencing to ensure that the affirmation is
                                     12

voluntary and intelligent.” Id. Today, we take the opportunity to define

the scope of this inquiry further.

      In Brady, we found “a defendant’s admission of prior felony

convictions which provide the predicate for sentencing as an habitual

offender [was] so closely analogous to a plea of guilty that it is

appropriate to refer to our rules governing guilty pleas,” at least to decide

the issue in that case. 442 N.W.2d at 58. In State v. Oetken, we found

“[t]he trial court discharged its duty to inform the defendant as to the

ramifications of an habitual offender adjudication,” when the defendant

was “fully cognizant of his rights, including those delineated under

[now-]rule [2.19(9)],” and “the possible implications with regard to the

sentencing of an habitual offender were discussed at length.”            613

N.W.2d 679, 688 (Iowa 2000). In Kukowski, we noted the court must

ensure “the affirmation is voluntary and intelligent.” 704 N.W.2d at 692.

      Overall, our precedent reveals a broad, dual command in accepting

an admission or stipulation to the prior convictions: courts must ensure

that the admission is “voluntary and intelligent,” id., and that the

defendant understands “the ramifications of an habitual offender
adjudication,” Oetken, 613 N.W.2d at 688. Because our guilty plea rules

embrace these constitutional requirements, see State v. Loye, 670

N.W.2d 141, 150–51 (Iowa 2003), “it is appropriate to refer to our rules

governing guilty pleas” to give this command substance, Brady, 442

N.W.2d at 58. Thus, we rely on those rules to now identify the specific

areas that must be a part of a habitual offender colloquy to support an

admission. See Iowa R. Crim. P. 2.8(2)(b).

      Courts may not accept a guilty plea without first determining it is

made voluntarily and intelligently and has a factual basis.        Id.   This
                                    13

standard directs the court to provide information to the defendant and to

determine the information is understood.       Id.   The information and

understanding pertains to the nature of the charge, the mandatory

minimum or maximum punishment, the impact of federal immigration

laws, the rights associated with the trial, and the waiver of the right to

trial by pleading guilty.   Id.   The court must also inquire into any

promises or agreements that are a part of the plea and inform the

defendant that any challenge to the plea must be raised in a motion in

arrest of judgment. Id.

      Generally, the voluntary-and-intelligent standard for admitting to

prior convictions in a habitual offender proceeding should follow the

same protocol. First, the court must inform the offender of the nature of

the habitual offender charge and, if admitted, that it will result in

sentencing as a habitual offender for having “twice before been convicted

of a felony.” See Iowa Code § 902.8 (2017). The court must inform the

offender that these prior felony convictions are only valid if obtained

when the offender was represented by counsel or knowingly and

voluntarily waived the right to counsel. See Iowa R. Crim. P. 2.19(9). As
a part of this process, the court must also make sure a factual basis

exists to support the admission to the prior convictions.     See Iowa R.

Crim. P. 2.8(2)(b).

      Second, the court must inform the offender of the maximum

possible punishment of the habitual offender enhancement, including

mandatory minimum punishment.         Id.   In the typical case, the court

must ensure the offender understands he or she will be sentenced to a

maximum sentence of fifteen years and that he or she must serve three

years of the sentence before being eligible for parole.    See Iowa Code
                                    14

§§ 902.8, .9(1)(c).   If the offender faces a greater mandatory minimum

punishment or maximum possible punishment due to the present

offense charged, the court must inform the offender of the specific

sentence he or she will face by admitting the prior offenses. See In re

Yurko, 519 P.2d at 565 (noting an offender must be informed “of the

precise increase in the term or terms which might be imposed”); State v.

Ross, 729 N.W.2d 806, 812 (Iowa 2007) (“[T]he mandatory minimum

sentences prescribed in section 902.12 apply to habitual offenders.”).

      Third, the court must inform the offender of the trial rights

enumerated in Iowa Rule of Criminal Procedure 2.8(2)(b)(4).         For the

reasons discussed below, the right to a jury in the second trial only

pertains to the issue of identity. Any claim by the offender that he or she

was not represented by counsel and did not waive counsel in the prior

convictions is heard and decided by the district court.       Although the

offender has no right to a jury trial on these issues, the other rights

associated with a trial are applicable at the hearing before the court.

      Fourth, the court must inform the offender that no trial will take

place by admitting to the prior convictions. The court must also inform
the offender that the State is not required to prove the prior convictions

were entered with counsel if the offender does not first raise the claim.

      Finally, we reiterate that the district court must inform the

offender that challenges to an admission based on defects in the habitual

offender proceedings must be raised in a motion in arrest of judgment.

The district court must further instruct that the failure to do so will

preclude the right to assert them on appeal.        See Iowa R. Crim. P.

2.8(2)(d).
                                        15

       We find no constitutional necessity for the district court to inform

the offender of the effect of the admission on the offender’s status under

federal immigration law as required in a guilty plea proceeding. Cf. Iowa

R. Crim. P. 2.8(2)(b)(3). Habitual offender status is not an offense, but a

sentencing enhancement. State v. Woody, 613 N.W.2d 215, 217 (Iowa

2000).   Generally, immigration consequences result from conviction of

the primary offense, not the length of the sentence.               See generally

8 U.S.C. § 1227(a)(2)(A)–(F) (2012) (identifying “deportable aliens” based

on   criminal    conviction).     In    certain   circumstances,       immigration

consequences may follow criminal convictions only if the length of the

sentence is at least one year. See, e.g., 8 U.S.C. § 1101(a)(43)(F), (G), (J),

(P), (R) (defining aggravated felonies based on conviction of certain

offenses when accompanied by sentence of at least one year); id.

§ 1227(a)(2)(A)(i)(II)   (requiring    removal    if   sentence   of    one   year

accompanies conviction of crime of moral turpitude). Yet the offender at

the habitual offender stage of trial has already been convicted in the first

stage of trial of an offense with a sentence of incarceration greater than

one year.     See Iowa Code § 902.9(1)(a)–(e).          Thus, any immigration
consequences would inevitably result from the primary offense, not the

sentencing enhancement. Therefore, an advisement from the court on

this point would be unnecessary in the habitual offender context.

       In this case, the colloquy engaged in by the court failed to satisfy

the requirements we now establish for an offender to affirm or admit the

allegations the state is obligated to prove at the habitual offender

proceeding. First, the district court failed to advise Harrington that the

prior convictions needed to have been obtained when he was represented

by, or waived the right to, counsel. Second, the court failed to advise
                                     16

Harrington during the colloquy that the habitual offender enhancement

would subject him to a seventy percent mandatory minimum on a

fifteen-year sentence. See Iowa Code §§ 902.9(1)(c), .12 (2013); State v.

Ross, 729 N.W.2d 806, 812 (Iowa 2007) (“[T]he mandatory minimum

sentences prescribed in section 902.12 apply to habitual offenders.”).

Second, the court did not fully advise Harrington of the right to a trial by

jury, the right to the assistance of counsel, the right to confront and

cross-examine witnesses, or the right against self-incrimination.         See

Kukowski, 704 N.W.2d at 693 (declining to interpret rule 2.19(9) “in a

manner that could interfere” with a constitutional right). Third, the court

failed to fully advise Harrington that a trial would not be held by

admitting to the prior convictions. Collectively, these failures leave us

unable   to   conclude   Harrington’s     admission    was   knowingly    and

voluntarily made.

      C. The Second Trial. We have never fully explained the process

of this second trial to determine the habitual offender status. We do so

at this time to give context to the required colloquy.

      Rule 2.19(9) provides that offenders must be given an “opportunity
in open court to affirm or deny that the offender is the person previously

convicted, or that the offender was not represented by counsel and did

not waive counsel.”    Iowa R. Crim. P. 2.19(9).      This initial step in the

proceeding is akin to an arraignment and plea. See id. r. 2.8(b). It alerts

the court to the course of proceedings to follow.        Three paths may be

taken.

      If the offender affirms that he or she is the person identified in the

prior conviction records and does not object on the basis that he or she

was not represented by counsel and did not waive counsel, the court
                                    17

must engage in the colloquy to ensure the affirmation is voluntary and

intelligent, including an understanding of the rights associated with the

trial. If the offender denies being the person previously convicted, the

case proceeds to trial on the issue of the offender’s identity with the

person previously convicted. The second trial, therefore, only decides the

issue of identity, and the court decides “[o]ther objections” prior to that

trial “in the manner presented in rule 2.11.” Id. r. 2.19(9). The “[o]ther

objections” would include any objection that the prior convictions cannot

be used because the offender was not represented by counsel and did not

waive counsel. Id. Thus, if the offender admits he or she is the person

identified in the prior conviction records, but claims he or she was not

represented by counsel and did not waive counsel, then the assistance-

of-counsel issue is presented to the district court to resolve without a

jury.
        This procedure is compatible with the burden-shifting approach we
adopted in Cameron, 167 N.W.2d at 694. In Cameron, we recognized the
state must establish the prior convictions were obtained in compliance
with Gideon, 372 U.S. at 344, 83 S. Ct. at 796. Id. Normally, the records
of the prior convictions supply the evidence needed for the court to
decide if the Gideon standard was met. But, “where the record is silent
as to whether an accused was furnished counsel at a critical stage,” the
accused must first “introduce[] evidence tending to show that he was not
in fact so represented,” and only then does the burden “shift[] to the state
to prove, by a fair preponderance of the evidence, that the accused was
represented.” Id. (quoting Losieau v. Sigler, 406 F.2d 795, 803 (8th Cir.
1969)); see also Parke v. Raley, 506 U.S. 20, 31, 113 S. Ct. 517, 524
(1992). Thus, if the prior conviction records state the defendant was not
represented by counsel and did not waive counsel, the State has the
                                    18

burden to prove the offender was in fact represented by counsel or
waived counsel.    If the records do not disclose if the defendant was
represented by counsel or waived counsel, or show the defendant was
represented or waived counsel, then the offender has the burden to
introduce some evidence to support the claim. The burden then shifts to
the State to show the offender was represented by counsel or
representation was waived. If the State fails to meet its burden of proof,
the prior convictions cannot be used to support the habitual offender
status.
      V. Conclusion.
      The procedural requirements imposed by this ruling today have
constitutional underpinnings, but they will also promote general fairness
in our trial process, help eliminate appeals by giving trial courts an
opportunity to correct error, and give greater understanding to offenders
faced with habitual offender claims.
      We conclude Harrington did not knowingly and voluntarily admit
his prior convictions because he was not informed of his constitutional
rights and the consequences of his admission. We vacate the decision of
the court of appeals, reverse the judgment and sentence of the district
court, and remand the case to the district court for further proceedings
consistent with this opinion or, if Harrington denies the prior convictions
or their validity, for trial on whether he meets the requirements of a
habitual offender as defined in Iowa Code section 902.8. We affirm the
uncontested judgment of guilt on the present offense, second-degree
robbery.
      DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED IN PART AND CASE REMANDED.
      All justices concur except Mansfield and Waterman, JJ., who
dissent.
                                    19

                                            #15–0308, State v. Harrington
MANSFIELD, Justice (dissenting).

      Although the court’s opinion offers a reasonable way to approach

the habitual offender enhancement colloquy in the future, it differs from

the approach required by our current rules and precedent. In addition,

the facts of this particular case do not warrant relief. Therefore, I would

affirm Harrington’s conviction under the enhancement.         Any changes

should   occur   through   amendments      to   Iowa   Rule   of   Criminal

Procedure 2.19(9), with public notice and opportunity for comment.

      Two points about the record should be noted.       First, Harrington

was informed at the beginning of trial of the consequences of the

enhancement. A record was made then of the State’s plea offer: i.e., a

guilty plea to first-degree theft without an enhancement.      The district

court thoroughly explained, and Harrington well understood, that if

convicted of second-degree robbery with the enhancement he would

receive fifteen years with a 70 percent minimum. As the court told him,

“70 percent of 15 years is a long time.” Harrington showed familiarity

with the workings of the enhancement as he participated in this

discussion and turned down the State’s proposed deal.

      Second, Harrington took the stand at trial and admitted he had

two prior felonies, both on direct and on cross-examination. Thus, his

prior felony convictions were a matter of record before this case even got

to the rule 2.19(9) enhancement phase.

      Rule 2.19(9) states that “[i]f the offender denies being the person

previously convicted,” there shall be a jury trial “on the issue of the

offender’s identity with the person previously convicted.” Iowa R. Crim.

P. 2.19(9). In the enhancement phase, Harrington did not deny being the

person previously convicted.    Rather, he said he wanted the jury to
                                    20

decide whether he was a habitual offender, something that rule 2.19(9)

does not provide:

            THE COURT: All right. So you admit those are your
      two felonies? THE DEFENDANT: Right.
             MR. KELLY: You have given up your right to have a
      hearing? THE DEFENDANT: No. I’m not giving up that
      right.
            THE COURT: Well, if you’re admitting those are your
      two previous felonies -- What is the purpose of bringing the
      jury back in for that? -- because you’re just admitting to
      them. THE DEFENDANT: Because I want the jury to make
      a decision whether or not --
            THE COURT: You want the jury to make a decision,
      but you’re not denying those are your convictions? This
      doesn’t make any sense. THE DEFENDANT: I would rather
      have the jury make a decision whether or not they find me
      an habitual offender.
             MS. DEVINE: Because one of the things -- I’ve only
      actually proceeded with this one other time, but the Court
      will ask the defendant in the presence of the jury, “Are you
      the defendant that was convicted of this?” And he -- I mean,
      he has to answer yes or no, and then, you would ask him,
      “Are you the defendant who was convicted of this on” -- and
      then, he would have to answer yes or no, and then, it
      becomes a trial if he says no to both of them.
            THE COURT: I see what you are saying. Yes, there’s
      no -- Why would we have a trial because he is stipulating
      those are his two offenses?, is what you are saying, Ms.
      Devine? Right?
            MS. DEVINE: Well, I mean, I guess, just for the
      record, he would have to either say yes or no to both, and
      then, we would proceed with the trial.
             MR. KELLY: Your Honor, it’s been a long time since
      I’ve done this. I don’t remember that the State can put Mr.
      Harrington on the stand.
            THE COURT: No. She is not saying in front of the
      jury. She is just saying in terms of -- purposes of whether or
      not we have to have a trial, which is like it’s an OWI III. You
      say, “Do you have two previous convictions of OWI?”, and if
      the guy says, “Yes,” that’s it. If he admits those are his two
      felony convictions, we are not having a trial.
            MS. DEVINE: He already admitted under oath he has
      two previous felony convictions, and under 902.8 and 902.9,
                             21

a person who has two felony convictions is an habitual
offender.
     MR. KELLY: I understand my client has admitted the
accuracy of these two convictions.
      THE COURT: Then we won’t have a trial on it.
      MR. KELLY: What I am saying --
      THE COURT: It’s a waste of time.
      MR. KELLY: I don’t remember the actual procedure as
to whether we can avoid having the --
       THE COURT: It’s only when he denies these are his
convictions. So, Mr. Harrington, do you admit that you were
convicted on March 5th, 2009, to the offense of Possession
with Intent to Deliver a Schedule I Controlled Substance, in
violation 124.401(1)(c) in FECR315494? I’ve got a certified
copy of it. So you admit that’s your conviction; yes or no? (A
discussion was held off the record with the defendant and
his attorney.)
     THE COURT: Look. I don’t want to play games here,
you know. THE DEFENDANT: Yes.
       THE COURT: Then, I have a certified copy in the Iowa
District Court for Jasper County, FECR006790, where you
were -- a certified copy of the Trial Information -- where you
entered a plea of guilty to Going Armed with Intent, in
violation of Section 708.8 and got a five-year prison
sentence, and so, it looks like, on June 12, 2000, in Jasper
County, and I think I already read the number, so is that
your conviction; yes or no? THE DEFENDANT: Yes.
      THE COURT: It says, “Andre Letroy Antwan
Harrington.” Did you say yes? THE DEFENDANT: Yes.
That was my conviction. It was ran concurrent with my
time.
       THE COURT: All right. Then there’s no reason to have
the habitual offender trial; right, Ms. Devine? There’s no
point in it because he is stipulating it.
       MS. DEVINE: Right. I just wanted to pull up the case,
just to make sure of any case law on Westlaw, but that’s my
understanding, it’s only if he answers no to the Court’s
colloquy.
      THE COURT: Yes, if he denies that it’s him.
      MS. DEVINE: Right.
      THE COURT: So he admits it, that these are both his
felony convictions, and he also admitted to the jury that he
had two felony convictions, so the purpose of having an
habitual offender trial doesn’t exist because the issue is
moot, so we are not going to have one, so go ahead and
                                       22

       excuse the jury. Thank you. Okay. The jury is going to be
       excused. (The jury was excused at this time.)
             THE COURT: It would be a complete and total waste
       of time to do anything else since he’s admitted his previous
       criminal record. Sentencing will be January 22nd, 2015, at
       2:30 p.m.

       I find no fault with what the trial judge did here. The only issue to

be tried to a jury would be whether Harrington was the person previously

convicted of the two felonies, and Harrington admitted he was.

       Rule 2.19(9) does not have the same bells and whistles as rule

2.8(2). For example, it does not mandate that the defendant be informed

of   the     mandatory       minimum    punishment,   maximum       possible

punishment, the right of trial by jury, or the necessity to file a timely

motion in arrest of judgment in order to challenge the plea.         See id.

r. 2.8(2)(b)(2), (2)(b)(4), (2)(d).

       There is good reason for these differences.       A defendant often

pleads guilty as part of a risk–reward calculus to avoid the possibility of

more severe consequences if he or she goes to trial and is convicted. In

such cases, there is an open question whether the defendant is actually

guilty of the charge or charges to which he or she is pleading guilty, but

the defendant is concerned that things would end up worse if a jury finds
him or her guilty of all the charged offenses following a trial. There, it is

imperative that the defendant be fully informed of the adverse

consequences of pleading guilty and the rights he or she is giving up by

not going to trial.

       But stipulating to the prior convictions in the enhancement phase

rarely if ever involves such a strategic choice.      Usually, a defendant

admits the prior convictions because a trial would be a waste of time.

Thus, while the defendant should certainly be cognizant of what he or
                                     23

she is doing, I question whether the colloquy needs to include all the

items identified by the majority in this case.

      Rule 2.19(9) reflects the differences between the two proceedings.

Therefore, it does not require the defendant to be told of the right to a

jury trial on the prior convictions. After all, the defendant has just been

through a jury trial and should have a good understanding of what that

entails.

      Nor does rule 2.19(9) require the defendant to be told of the right

to file a motion in arrest of judgment to challenge his stipulation to the

convictions. A timely motion in arrest of judgment is a way to challenge

a guilty plea after the fact, but proceedings to determine prior convictions

are subject to the normal rules of error preservation. In fact, objections

other than identity are supposed to be asserted before trial.         See id.

r. 2.19(9) (“Other objections shall be heard and determined by the court,

and these other objections shall be asserted prior to trial of the

substantive offense in the manner presented in rule 2.11.”); see also

State v. Long, 814 N.W.2d 572, 574 (Iowa 2012) (“The rule also requires

that if the defendant has any other objections to the prior conviction
evidence, he must assert those objections prior to trial.”).

      There is some logic to this as well. If a guilty plea is taken but

later set aside based upon a motion in arrest of judgment, no jury has

been dismissed because none was ever summoned. But if the defendant

is permitted to withdraw at a later date from a stipulation to prior

convictions, then it is necessary to start over with a new jury.        This

should be avoided, so long as the process is fair to the defendant.
      In State v. Kukowski, we held that a defendant’s admission of prior
convictions in the enhancement phase must be “voluntary and
intelligent,” and I have no quarrel with that proposition. See 704 N.W.2d
                                    24

687, 693 (Iowa 2005). Also, State v. Brady can be read as indicating that
the court has an obligation to inform the defendant of the punishment
resulting from the enhancements.         See 442 N.W.2d 57, 58–59 (Iowa
1989).
        My review of the record convinces me that Harrington made a
voluntary and intelligent admission of his prior felony convictions, not
just at the enhancement phase but when he testified at trial. Harrington
had considerable understanding of the criminal justice system and
actively participated with counsel and the court in various discussions
that took place outside the presence of the jury. The district court also
advised Harrington, albeit at the beginning of trial, of the effects of the
enhancement.     See State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000)
(finding no error when “[t]he trial court discharged its duty to inform the
defendant as to the ramifications of an habitual offender adjudication”).
        Furthermore, Kukowski held that an abuse of discretion standard
applied to a defendant’s attempt to withdraw an admission of prior
convictions. See 704 N.W.2d at 693. We said that reversal was required
only when the abuse of discretion was prejudicial. See id. at 693–94. In
finding prejudice in that case, we observed, “If the court had accepted
defense counsel’s earlier denial of the prior convictions, then there would
have been no other evidence before the court to support the prior
conviction at issue.” Id. at 694. The present case is different, because
Harrington had already admitted his convictions during the principal
trial. If Kukowski remains the law, then I think affirmance is required
here.
        Again, I do not dispute that the majority’s approach may have
merit going forward.    But given the current state of the law and the
record in this case, I would affirm the proceedings below including the
                                  25

thoughtful decision of the court of appeals.     We should look to
rulemaking for any needed amendments to rule 2.19(9).
     Waterman, J., joins this dissent.
