               IN THE SUPREME COURT OF IOWA
                              No. 18–0184

                           Filed March 8, 2019


STATE OF IOWA,

      Appellee,

vs.

BERNARD ANTHONY SMITH,

      Appellant.



      Appeal from the Iowa District Court for Story County, Timothy J.

Finn, Judge.



      A defendant challenges his sentence as a habitual offender and the

imposition of restitution and a fine. AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Jessica Reynolds, County Attorney, and Timothy C. Meals and

Shawna Johnson, Assistant County Attorneys, for appellee.
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WIGGINS, Justice.

      The defendant was convicted of second-degree burglary and

stipulated to being a habitual offender. The court sentenced the defendant

as a habitual offender, ordered restitution, and imposed a fine. On appeal,

we conclude the stipulation was not knowingly and voluntarily made

because the stipulation proceedings did not comply with the requirements

of State v. Harrington, 893 N.W.2d 36 (Iowa 2017). Accordingly, we must

reverse the habitual offender judgment, the defendant’s sentence, and

remand the case for further proceedings consistent with Harrington. See

id. at 45–46. We affirm the uncontested judgment of guilt on second-

degree burglary.

      I. Facts and Proceedings.

      On September 27, 2017, the State charged Smith with burglary in

the second degree in violation of Iowa Code sections 713.1 and 713.5

(2017), a class “C” felony, and being a habitual offender in violation of

section 902.8. Following Smith’s not-guilty plea, a bifurcated trial on the

burglary charge began on November 28.

      While the jury was in deliberations, Smith’s counsel informed the

court that Smith would stipulate to the predicate priors for the habitual

offender charge. The following exchange occurred:

             [DEFENSE COUNSEL]: Your Honor, I just discussed
      with my client about the sentencing enhancement charge on
      the Trial Information of offense of habitual offender and my
      client has decided that he will withdraw his request for a
      bifurcated trial and will stipulate to the priors for that
      particular section should the jury return a guilty verdict that
      it would be applicable to.

            THE COURT: Okay.        Very well.   Mr. Smith, is that
      correct?

            THE DEFENDANT: Yes, sir.
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             THE COURT: I told you earlier about the ramifications
      of doing that. It’s your decision and you voluntarily decided
      that you will stipulate to the habitual offender element of the
      trial?

            THE DEFENDANT: Yes.

            THE COURT: Okay. All right. Thank you. Anything
      further on behalf of the State?

            [PROSECUTOR]: No, Your Honor.

            THE COURT: Thank you.

            [DEFENSE COUNSEL]: Thank you, Your Honor.

      Subsequently, the jury returned a verdict finding Smith guilty of

burglary in the second degree.    After the court scheduled sentencing,

further discussion regarding Smith’s stipulation occurred:

            [DEFENSE COUNSEL]: Your Honor, [the prosecutor]
      brought to my attention a case State v. Harrington, 893
      N.W.2d 36. It concerns a Defendant making admissions to
      the habitual offender without the State having to prove it up
      and the issue of bringing it up in a motion in arrest of
      judgment or making an adequate record.

             I believe we probably have an adequate record but just
      to be safe, it probably would be best to maybe supplement the
      record a little bit at this time, that the Defendant did freely
      voluntarily stipulate to the priors of the habitual offender.

            THE COURT: All right. I think we did that. But you’re
      in agreement on that; aren’t you?

            THE DEFENDANT: Yes.

             THE COURT: All right. Thank you. I appreciate that.
      You understand that’s voluntary on your part and you elected
      to go along with that?

            THE DEFENDANT: Correct.

              THE COURT: Okay. I have one last thing I need to tell
      you about. You have the right to file what’s called a motion in
      arrest of judgment. The motion has to be filed at least I think
      it’s five days or three days?

            [THE PROSECUTOR]: Five days, Your Honor.
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              THE COURT: Five days before the date of sentencing. I
        set your sentencing on January 16th. So if you want the
        Court to consider that, it has to be filed at least five days
        before January 16th. Do you understand that?

             (At this time there is an off-the-record discussion
        between [defense counsel] and the Defendant.)

              (We are now back on the record.)

              [THE PROSECUTOR]: Your Honor, I think it’s forty-five
        days but no less than five days before sentencing.

              THE COURT: Okay.

              [DEFENSE COUNSEL]: That is correct.

              THE COURT: All right. Got that?

              THE DEFENDANT: Yes.

              THE COURT: Okay. All right. That will conclude the
        hearing.

              Thank you.

The court gave no other information on the motion and had no further

conversation about Smith’s stipulation to the prior convictions. Smith did

not file a motion in arrest of judgment challenging the habitual offender

stipulation proceedings.

        On January 16, 2018, the district court sentenced Smith as a

habitual offender to incarceration not to exceed fifteen years. The court

also imposed a fine of $1000, ordering, “The Defendant should be and is

hereby fined in the sum of $1,000 plus a 35 percent surcharge. This fine

and surcharge are hereby SUSPENDED.” Regarding restitution, the order

said,

        [T]he Defendant shall be required to pay the costs of this
        action, the $125 law enforcement initiative surcharge, and
        that he reimburse the state for the reasonable fees of his
        court-appointed attorney. The Defendant’s attorney is given
        10 days within which to file a statement of the legal services
        he has provided for the Defendant. All costs, surcharges, and
                                      5
      fees are due immediately and shall be considered delinquent
      if not paid within 30 days of today’s date.

On January 25, Smith appealed the court’s final order. The district court

filed a restitution plan on March 20, ordering Smith to pay a total of

$1434.60.

      II. Issues.

      On appeal, Smith raises three issues. First, he claims the district

court failed to comply with the Harrington requirements in accepting his

habitual offender stipulation. Second, he claims the district court erred
in ordering him to pay restitution in the form of attorney fees. Third, he

claims the district court erred in imposing a fine.

      We need not reach Smith’s second or third claim because our

resolution of the first issue will require resentencing.

      III. Standard of Review.

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

reviewed for errors at law.” Harrington, 893 N.W.2d at 41 (quoting State v.

Kukowski, 704 N.W.2d 687, 690–91 (Iowa 2005)); see Iowa R. App. P.

6.907.

      IV. Compliance with the Harrington Requirements.

      On appeal, Smith first claims the district court failed to comply with

the habitual offender stipulation requirements from Harrington and,

therefore, his stipulation could not have been voluntarily and intelligently

given. See 893 N.W.2d at 45–46. Alternatively, he contends that if he

failed to preserve error on his Harrington challenge, his trial counsel

provided ineffective assistance.

      A. Error Preservation. In Harrington we held that “offenders in a

habitual offender proceeding must preserve error in any deficiencies in the

proceeding by filing a motion in arrest of judgment.” Id. at 43. However,
                                     6

we elected to apply that rule of law prospectively such that it did not apply

in Harrington and in other cases that preceded our Harrington decision.

Id.; see, e.g., State v. Brewster, 907 N.W.2d 489, 493 n.3 (Iowa 2018)

(excusing failure to comply with error preservation rule because the case

was already on appeal at the time of the Harrington decision); State v.

Steiger, 903 N.W.2d 169, 170 (Iowa 2017) (per curiam) (excusing failure to

comply with error preservation rule because the rule was not in existence

at the time).

      Smith’s habitual offender proceedings occurred several months after

our Harrington decision, but he failed to file a motion in arrest of judgment

to challenge those proceedings. Accordingly, this case presents the first

opportunity, post-Harrington, for us to consider the consequences of

failing to file a motion in arrest of judgment to challenge the habitual

offender proceedings.

      Smith claims the Harrington error preservation requirement does

not apply here because the district court failed to adequately advise him,

as required by Iowa Rule of Criminal Procedure 2.8(2)(d) for guilty plea

proceedings, of his right to file a motion in arrest of judgment and of the

consequences of failing to do so. See, e.g., State v. Meron, 675 N.W.2d 537,

541 (Iowa 2004) (noting court’s failure to inform the defendant entering

guilty plea of those two pieces of information as required by rule 2.8(2)(d)

excuses the defendant’s failure to challenge the guilty plea proceedings by

filing a motion in arrest of judgment). Smith contends the requirement in

rule 2.8(2)(d) and the error preservation exception noted in Meron should

apply to habitual offender proceedings. See id. We agree.

      We have consistently acknowledged that stipulating to prior offenses

for purposes of sentencing enhancement is “comparable to a plea of guilty

to support sentencing for the crime identified in the plea.” Harrington, 893
                                       7

N.W.2d at 42; accord, e.g., Kukowski, 704 N.W.2d at 692; State v. Brady,

442 N.W.2d 57, 58 (Iowa 1989).         We have relied on this similarity to

conclude it is appropriate to refer to our guilty plea rules when resolving

challenges to stipulation proceedings. E.g., Harrington, 893 N.W.2d at 45

(referring to guilty plea rules to identify the specific topics that must be

part of the stipulation colloquy for the stipulation to be voluntary and

intelligent); Brady, 442 N.W.2d at 58. We also relied on that similarity in

holding that a motion in arrest of judgment must be filed to preserve those

challenges for appeal. See Harrington, 893 N.W.2d at 42–43. Thus, we

find it logical for us to consider the instant error preservation issue in light

of our jurisprudence regarding error preservation in the guilty plea

context.

      Moreover, we find the rationale for the error preservation exception

in the guilty plea context equally applicable to the prior-offenses

stipulation context.    In State v. Worley, we first recognized the error

preservation exception when a defendant failed to file a motion in arrest of

judgment to challenge his guilty plea proceedings. 297 N.W.2d 368, 370

(Iowa 1980). We noted then-rule 23(3)(a)—now rule 2.24(3)(a)—precluded

appellate challenges to guilty plea proceedings if the defendant did not first

challenge that proceeding in a motion in arrest of judgment. Id. But we

also explained that now-rule 2.24(3)(a) “must be read in conjunction with”

then-rule 8(2)(d)—now rule 2.8(2)(d)—which requires the court inform the

defendant that challenges to the guilty 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.” Id. (quoting Iowa R.

Crim. P. 8(2)(d) (1979)). We held,

      No defendant, however, should suffer the sanction of rule
      [2.24(3)(a)] unless the court has complied with rule [2.8(2)(d)]
      during the plea proceedings by telling the defendant that he
                                     8
      must raise challenges to the plea proceeding in a motion in
      arrest of judgment and that failure to do so precludes
      challenging the proceeding on appeal.

Id.

      As in the guilty plea context, the offender challenging the habitual

offender stipulation proceeding must do so in a motion in arrest of

judgment in order to preserve error on that challenge. Harrington, 893

N.W.2d at 43. Also like in the guilty plea context, the district court is

required to “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” and “that the failure to do so will preclude the right to

assert them on appeal.” Id. at 46. As in Worley, we must read these two

requirements in conjunction. See 297 N.W.2d at 370. Accordingly, no

offender in a habitual offender stipulation proceeding should suffer

Harrington’s error preservation sanction unless the court has complied

with its duty under Harrington to inform the offender that challenges to

the stipulation proceedings must be raised in a motion in arrest of

judgment and the failure to do so precludes raising those challenges on

appeal. See Harrington, 893 N.W.2d at 45–46.

      In assessing whether the district court complied with this Harrington

duty, we adopt the substantial compliance standard we use “in

determining whether a trial court has discharged its duty under rule

2.8(2)(d)” in the guilty plea context. State v. Straw, 709 N.W.2d 128, 132
(Iowa 2006); see also State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).

“The court must ensure the [offender] understands the necessity of filing

a motion to challenge a [prior-offenses stipulation] and the consequences

of failing to do so.” Straw, 709 N.W.2d at 132.

      The court’s statement that Smith had a right to file a motion in

arrest of judgment was insufficient to comply with its duty under
                                     9

Harrington. The court’s statement did not tie that right to the method of

challenging the stipulation proceedings, nor did it ensure Smith

understood that the failure to file such a motion would preclude him from

challenging the proceedings on appeal.     Cf. Straw, 709 N.W.2d at 132

(finding substantial compliance when the court informed the defendant

that if he wished to appeal or challenge any of the guilty plea proceedings,

he was required to file a motion in arrest of judgment). Moreover, there

was no written and signed stipulation to the prior offenses that otherwise

informed Smith of this information. Cf. Fisher, 877 N.W.2d at 682 (finding

written and signed guilty plea form failed to substantially comply with rule

2.8(2)(d)’s requirements when it did not indicate failing to challenge the

guilty plea proceedings in a motion in arrest of judgment waived such a

challenge on appeal); State v. Oldham, 515 N.W.2d 44, 46–47 (Iowa 1994)

(finding substantial compliance when the court’s otherwise insufficient

oral colloquy was considered together with the defendant’s written and

signed application to withdraw his not-guilty plea). Therefore, Smith is

not precluded from challenging his prior-offenses stipulation on appeal.

      B. The Sentencing Court Failed to Comply with Harrington.

The district court failed to comply with Harrington’s requirements to

ensure Smith’s prior-offenses stipulation in the habitual offender

proceeding was voluntary and intelligent. Although Smith affirmatively

responded to the court’s inquiry that Smith’s decision to stipulate to the

habitual offender charge was voluntary, “[a]n affirmative response by the

defendant . . . does not necessarily serve as an admission to support the

imposition of an enhanced penalty as a multiple offender.” Harrington,

893 N.W.2d at 45 (alteration in original) (quoting Kukowski, 704 N.W.2d

at 692). Rather, before sentencing, the court must engage in a colloquy
                                      10

with the offender “to ensure that the affirmation is voluntary and

intelligent.” Id. (quoting Kukowski, 704 N.W.2d at 692).

      In Harrington, we clarified the scope of this stipulation colloquy. Our

clarification   in   Harrington     specifically   addressed     prior-offenses

stipulations for habitual offender enhancement purposes, but we have

subsequently extended the Harrington colloquy requirements to other

sentence-enhancement, prior-offenses stipulations that occur pursuant to

Iowa Rule of Criminal Procedure 2.19(9). E.g., Brewster, 907 N.W.2d at

494 (applying Harrington to rule 2.19(9) “proceedings in which repeat-OWI-

offender enhancements are at issue”); State v. Coleman, 907 N.W.2d 124,

147 (Iowa 2018) (applying Harrington to rule 2.19(9) proceedings involving

“a second offense enhancement under Iowa Code section 692A.111”). The

stipulation colloquy here fell short of the Harrington standard.

      First, the court failed to inform Smith “of the nature of the habitual

offender charge,” “if admitted, that it will result in sentencing as a habitual

offender for having ‘twice before been convicted of a[ny] felony,’ ” and that

the “prior felony convictions are only valid if obtained when [Smith] was

represented by counsel or knowingly and voluntarily waived the right to

counsel.”   893 N.W.2d at 45 (quoting Iowa Code § 902.8 (2017)).           The

record is silent as to any determination by the court that “a factual basis

exists to support the admission to the prior convictions.” Id. at 45–46.

      Second, the court failed to inform Smith “of the maximum possible

punishment of the habitual offender enhancement, including mandatory

minimum punishment.” Id. at 46. Specifically, in this case, that he would

“be sentenced to a maximum sentence of fifteen years” and that he “must

serve three years . . . before being eligible for parole.” Id.

      Third, the court did not inform Smith of the applicable trial rights

enumerated in rule 2.8(2)(b)(4) and that no trial on the habitual offender
                                           11

charge would take place if he admitted to the prior convictions. 1 Id. Nor

did it indicate “that the state is not required to prove the prior convictions

were entered with counsel if [Smith] does not first raise the claim.” Id.

       Finally, the court did not adequately inform Smith that “challenges

to an admission based on defects in the habitual offender proceedings

must be raised in a motion in arrest of judgment” and that the “failure to

do so will preclude the right to assert them on appeal.” Id. It is undisputed

that the court advised Smith he had the right to file a motion in arrest of

judgment. Nonetheless, the court did not tie the filing of such a motion

with challenging the stipulation proceedings, and it made no indication

that such a motion is a prerequisite to challenging the proceedings on

appeal.

       As in Harrington, the habitual offender colloquy here leaves us

“unable to conclude [Smith’s] admission was knowingly and voluntarily

made.” Id. at 47. Accordingly, we affirm Smith’s uncontested judgment of

guilt for second-degree burglary, but we reverse the judgment and

sentence of the district court and remand for further proceedings

consistent with the stipulation requirements of Harrington, or if Smith

denies the prior convictions or their validity, for trial on whether he

qualifies as a habitual offender. See id. at 48.

       V. Conclusion.

       Smith did not file a motion in arrest of judgment to challenge his

habitual offender stipulation proceedings as required by Harrington.

However, the district court failed to substantially comply with its duty

under Harrington to ensure that Smith understood the necessity of filing

       1When Smith initially indicated he would stipulate to the prior offenses, the court

responded by noting it had told Smith “earlier about the ramifications of doing that.” Yet,
the record does not contain or otherwise reveal the substance and scope of that earlier
advisement.
                                   12

such a motion and that the failure to so file would preclude challenging

the proceedings on appeal.     Therefore, we excuse Smith’s failure to

preserve error.

      On the merits of Smith’s challenge to the stipulation proceedings,

we find that his prior-offenses stipulation was not knowingly and

voluntarily made because the stipulation proceedings fell short of

Harrington’s requirements.    Thus, we reverse the habitual offender

judgment and Smith’s sentence and remand the case for further

proceedings consistent with Harrington.     We affirm the uncontested

judgment of guilt on second-degree burglary.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      All justices concur except McDonald, J., who takes no part.
