                   IN THE COURT OF APPEALS OF IOWA

                                 No. 19-0076
                           Filed February 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JESSE LEE WATERLAND,
     Defendant-Appellant.
______________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Steven J.

Holwerda, District Associate Judge.



      A defendant appeals convictions for motor vehicle violations. AFFIRMED.



      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.

       The defendant pleaded guilty to felony eluding and operating while

intoxicated (OWI), third offense. On appeal, he alleges procedural defects in his

plea proceedings and error in the denial of his motion in arrest of judgment. We

find his procedural arguments to be unpreserved, and we find no abuse of

discretion in the denial of his motion in arrest of judgment. Accordingly, we affirm.

Facts and Proceedings

       In the early morning hours of April 10, 2018, Jasper County Deputy Sheriff

Ryan Engle noticed a passing vehicle’s rear license plate was not properly

illuminated. The vehicle, a Chrysler PT Cruiser, was registered to an owner with

a “surrendered” license. After verifying the vehicle’s registration, Deputy Engle

attempted to initiate a stop. The PT Cruiser traveled considerable distance in

the time it took Deputy Engle to research the vehicle’s registration, and to make

up for lost ground, Deputy Engle drove at speeds reaching 120mph.

       After closing the distance on the PT Cruiser, Deputy Engle used radar to

measure its speed, obtaining measurements of eighty-eight and ninety miles per

hour. The driver committed lane violations and ignored stop signs, eventually

leaving the road for a “packed path in the grass” while traveling at “road/highway

speed.” The PT Cruiser hit a tree stump and rolled onto its rooftop. The driver,

Jesse Lee Waterland, opened the door and fled. After a foot pursuit that led the

officer through two creeks, Deputy Engle apprehended Waterland. Deputy Engle

noted Waterland’s breath smelled of alcohol and his speech was slowed and

slurred. Waterland claimed the smell came from the spill of an open container

while he was driving.
                                         3

       Deputy Engle arrested Waterland and recited Miranda warnings, after

which Waterland conceded possession of drug paraphernalia, though at that

point Deputy Engle had not located any paraphernalia. The two headed back to

Deputy Engle’s patrol vehicle. On the way to the patrol vehicle, a falling tree limb

struck both Waterland and Deputy Engle. Waterland conceded ownership of a

needle lying adjacent to his car and admitted to using methamphetamine the

previous day. The two met with Newton medics, and an ambulance arrived.

Deputy Engle administered the horizontal gaze nystagmus test, during which he

noticed nystagmus in both of Waterland’s eyes. Waterland did not consent to a

preliminary breath test and, after Deputy Engle invoked implied consent,

Waterland again refused to provide a sample. Later, another deputy located an

open alcoholic beverage container in the PT Cruiser and sent photographs to

Deputy Engle.

       The State filed a trial information in Jasper County on April 14, 2018,

charging Waterland with OWI, third offense, in violation of Iowa Code section

321J.2 (2018) and eluding or attempting to elude a pursuing law enforcement

vehicle, in violation of Iowa Code section 321.279(3)(b).1

       Waterland pleaded guilty to both counts on June 6, 2018. After substitute

counsel was requested and granted on December 10, Waterland’s new counsel

filed a motion in arrest of judgment on December 14, 2018.

       The court considered the motion in arrest of judgment at a January 9,

2019 sentencing hearing. The court denied the motion in arrest of judgment,


1 Section 321.279(3)(b) applies if the eluding driver is operating while intoxicated
(section 321J.2) or in violation of the drug offenses set out in section 124.401.
                                         4


entered convictions against Waterland on both counts, and ordered the

sentences to run consecutively. Waterland appeals.

Standard of Review

       Challenges to guilty pleas are reviewed for corrections of errors at law.

State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016). We review a trial court’s grant

or denial of a motion in arrest of judgment for abuse of discretion. State v. Smith,

753 N.W.2d 562, 564 (Iowa 2008).

Discussion

       On appeal, Waterland attacks his guilty plea and the trial court’s denial of

his motion in arrest of judgment. He asks us to vacate his plea and sentence

because (1) the trial court’s explanation of the minimum and maximum

punishments for the operating-while-intoxicated offense was inaccurate, (2) the

trial court failed to ensure his prior-offense stipulation was voluntary and

intelligent, and (3) the trial court abused its discretion in denying his motion in

arrest of judgment because his plea lacked a factual basis. The State argues

Waterland must seek discretionary review in light of Senate File 589 and further

asks us to deny discretionary review. We reject the State’s argument in light of

State v. Macke, 933 N.W.2d 226 (Iowa 2019).2 However, we find error

preservation flaws in each of Waterland’s claims and therefore affirm the

judgments below.


2In Macke, 933 N.W.2d at 235, the Iowa Supreme Court determined that Senate
File 589’s modifications to Iowa Code section 814.6 “do not apply to cases
pending on July 1, 2019.” The State’s argument under Iowa Code section
814.6(2) relies on paragraph (f), which was newly added by Senate File 589.
Because this case was pending on July 1, 2019, and supreme court precedent
binds us, we reject the State’s argument.
                                         5


       Several error preservation issues are present. We first discuss whether

Waterland has timely filed a motion in arrest of judgment, a mandatory

precondition to raising a claim of error in his guilty plea or habitual offender

proceedings on appeal.

       Defendants are required to file a motion in arrest of judgment if they wish

to attack their guilty plea on appeal. Iowa R. Crim. P. 2.24(3)(a) (“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.”); see also Fisher, 877 N.W.2d at 680. A motion in arrest of judgment

“must be made not later than 45 days after plea of guilty . . . but in any case not

later than five days before the date set for pronouncing judgment.” Iowa R. Crim.

P. 2.24(3)(b).

       Waterland did not meet the forty-five-day deadline. He entered pleas of

guilty on June 6, 2018, and filed a motion in arrest of judgment on December 14,

2018. Despite the motion’s untimeliness, the court considered the motion,

stating, “Although the motion was, chronologically, not timely filed, the Court will

consider it, simply because there had been a change of attorneys midstream, but

the Court is going to deny the motion in arrest of judgment.”3

       Neither party’s brief directly addresses the issue of the trial court

considering the motion in arrest of judgment after the expiration of the forty-five-

day time limit expressed in rule 2.24(3)(b). The State asserts the defendant’s



3 The motion in arrest of judgment was held in conjunction with sentencing in the
instant proceeding, along with a hearing on an application for probation
revocation in a separate case.
                                         6


“three claims are unpreserved because Waterland failed to file a timely motion in

arrest of judgment.” By contrast, Waterland ignores the untimeliness of his

motion in arrest of judgment and contends error is preserved with respect to all

three of his arguments because “the Court denied the Motion.”

       The answer to the parties’ disagreement over this threshold issue lies in

Iowa Rule of Criminal Procedure 2.24(4)(a), which provides, “The time for filing

motions . . . in arrest of judgment may be extended to such further time as the

court may fix.” Under rule 2.24(4)(a), the trial court was entitled to forgive the

untimeliness of the motion in arrest of judgment.

       Although Waterland’s failure to timely file a motion in arrest of judgment

was cured by the trial court’s grant of an extension under rule 2.24(4)(a), our

inquiry into error preservation does not end. As the State points out, Waterland’s

appellate brief raises several arguments for the first time that were neither raised

in the written motion in arrest of judgment nor raised at hearing on the motion in

arrest of judgment. The State asks that if we find the motion to be timely, that

we then reject the arguments on appeal as unpreserved because they were

omitted from the motion and not discussed at the January 2019 hearing on the

motion in arrest of judgment or the sentencing hearing. The State’s request

presents a second question of error preservation: whether Waterland’s

arguments on appeal are limited to those he urged to the trial court in a motion

in arrest of judgment or at the motion hearing. We conclude Waterland is so

limited.

       It is well established that the error preservation rule requires a defendant

to file a motion in arrest of judgment to preserve an attack on his or her plea.
                                          7

State v. Smith, 924 N.W.2d 846, 851 (Iowa 2019); State v. Harrington, 893

N.W.2d 36, 41 (Iowa 2017). This requires more than a mere filing of the motion.

The error preservation rule is based on the notion that

       [i]t is fundamentally unfair to fault the trial court for failing to rule
       correctly on an issue it was never given the opportunity to consider.
       Furthermore, it is unfair to allow a party to choose to remain silent
       in the trial court in the face of error, taking a chance on a favorable
       outcome, and subsequently assert error on appeal if the outcome
       in the trial court is unfavorable.

DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002) (quoting 5 Am. Jur. 2d Appellate

Review § 690, at 360-61 (1995)). This rationale leads to a narrower application

of the error preservation rule: it “requires a party seeking to appeal an issue

presented to, but not considered by, the district court to call to the attention of

the district court its failure to decide the issue.” Meier v. Senecaut, 641 N.W.2d

532, 540 (Iowa 2002).

       The Iowa Supreme Court has used this application of the preservation-of-

error rule to preclude newly raised arguments in the context of “motions to

dismiss, motions for directed verdicts, motions for judgments notwithstanding

verdicts, and objections to instructions.” DeVoss, 648 N.W.2d at 61 (collecting

cases); see also State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (finding

defendant’s motion for judgment of acquittal did not preserve specific arguments

made for the first time on appeal). We explicitly applied the rationale of Meier,

DeVoss, and Crone to motions in arrest of judgment in State v. Halverson, No.

12-0571, 2012 WL 5547815, at *3 (Iowa Ct. App. Nov. 15, 2012). Following our

decision in Halverson, we reiterate that the error preservation rule prohibits

defendants from raising legal theories on appeal that went unmentioned in their
                                          8

motion in arrest of judgment and any hearings on the matter.             See Kriv v.

Northwestern Sec. Co., 24 N.W.2d 751, 754 (Iowa 1946) (“We do not feel justified

in deciding the case on a question apparently not raised in the court below.”).

       Having set forth the contours of the error preservation rule, we now apply

the rule to the instant case by considering each of Waterland’s arguments in turn.

Waterland’s first claim posits that the trial court did not substantially comply with

rule 2.8(2)(b)(2) when at his guilty plea proceeding on June 6, 2018, it failed to

correctly inform him of a DARE Surcharge and the proper minimum and

maximum fines for OWI, third offense. This claim was neither raised in the

motion in arrest of judgment nor argued at the motion hearing. It is therefore

unpreserved.

       Next, Waterland alleges flaws in the prior-offense stipulation and colloquy

that occurred on June 6, 2018, in relation to the charge for OWI, third offense.

Specifically, he asserts the court failed to execute the third, fourth, and fifth steps

from the prior-offense colloquy protocol as expounded in Harrington, 893 N.W.2d

at 46. These steps require that courts inform defendants of the trial rights

enumerated in Iowa Rule of Criminal Procedure 2.8(2)(b)(4); caution them that

“no trial will take place by admitting to the prior convictions” and that “the state is

not required to prove the prior convictions were entered with counsel if the

offender does not first raise the claim”; and remind them that challenges to an

admission based on defects in the habitual offender proceedings must be raised

in a motion in arrest of judgment. See Harrington, 893 N.W.2d at 46. This claim

was not raised in the motion in arrest of judgment or at hearing on the motion,

and could be deemed unpreserved. However, because Waterland argues he
                                        9


was not informed of the need to file a motion in arrest of judgment to challenge

the prior-offense stipulation, we must consider whether his failure to preserve

error is excused.

      As explained in Smith, 924 N.W.2d at 851,

      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.

Under Smith, if Waterland was not informed of the need to file a motion in arrest

of judgment to challenge the prior-offense stipulation, he will not suffer the

sanction of the error preservation rule.4 However, because we find Waterland

was so informed, he is precluded from raising this claim on appeal.

      Waterland’s prior-offense stipulation and guilty plea both took place on

June 6, 2018. At that hearing, the court said,

      One last thing, Mr. Waterland. If you ever choose to challenge the
      proceedings here in court today, to say that we did something
      inappropriate in accepting your guilty plea or in any way you wish
      to try to back out of your guilty plea, the only way you can do that
      is by filing a motion in arrest of judgment. And that motion is the
      only way you can challenge what we’ve done here in court today.
      That motion has to be filed at least five days before you’re
      sentenced. So right now since sentencing is set for August 1, you
      would have to file that motion no later than July 27. And if you don’t
      file that motion before July 27, then you’d lose your right to ever
      challenge what we’ve done here in court today. If you have any
      questions about that, Mr. Wallace, or any attorney, can answer
      those questions for you.




4 Both Smith and Harrington involve a stipulation following a jury trial. In the
instant proceeding, the prior-offense stipulations were addressed as part of a
guilty plea proceeding.
                                         10


       The written order, filed the same day, also contained advisory language

concerning the motion in arrest of judgment:

       Defendant is advised of his/her right to challenge the Court’s
       acceptance of this guilty plea by filing a motion in arrest of
       judgment. Defendant was advised that in order to challenge
       acceptance of his/her plea of guilty, he/she must file motion in
       arrest of judgment within 45 days of this date, but not less than 5
       days prior to the date of sentencing. Defendant was further
       advised that a failure to file a motion in arrest of judgment within
       that time will result in a loss of his/her right to challenge on appeal
       the Court’s acceptance of his/her plea of guilty.

       Waterland argues the motion-in-arrest-of-judgment colloquy lacks

mention of the prior-offense stipulation and contends that such a flaw allows him

to challenge his prior-offense stipulation on appeal. We reject this argument.

The court instructed Waterland that, “If you ever choose to challenge the

proceedings here in court today . . . the only way you can do that is by filing a

motion in arrest of judgment.” It reiterated the point: “And that motion is the only

way you can challenge what we’ve done here in court today.”

       The trial court placed Waterland on notice of the need to file a motion in

arrest of judgment to challenge any portion of the June 6 proceedings. Because

those proceedings included both the guilty plea and the prior-offense stipulation,

we hold the court’s admonition was sufficient to satisfy the rule that a defendant

must have notice of the need to file a motion in arrest of judgment to be subject

to error preservation sanctions. See Smith, 924 N.W.2d at 851 (evaluating a

district court’s compliance with the notice requirement under a substantial

compliance standard). We find “the court has complied with its duty under

Harrington to inform [Waterland] that challenges to the stipulation proceedings
                                         11


must be raised in a motion in arrest of judgment and the failure to do so precludes

raising those challenges on appeal.” Id.

       Because we find the trial court complied with Smith and Harrington by

properly informing the defendant of the need to file a motion in arrest of judgment,

Waterland is not shielded from the error preservation rule. Having determined

Waterland is not so shielded, we find his argument that the trial court failed to

comply with Harrington’s requirements to ensure Waterland’s prior-offense

stipulation was voluntary and intelligent in his guilty plea to OWI, third offense, to

be unpreserved, as no mention of this argument is contained in the written motion

in arrest of judgment, nor did Waterland urge this issue to the trial court at

hearing.

       Waterland also contends the factual basis colloquy at his guilty plea

proceedings was inadequate to support his guilty plea to felony eluding. He

asserts that error is preserved on this issue because the trial court denied his

motion in arrest of judgment. This argument was not raised in the motion in

arrest of judgment or at the hearing; therefore, to the extent the argument is an

attack on the guilty plea proceedings, it would be unpreserved.            However,

Waterland frames this argument as an attack on the district court’s denial of the

motion in arrest of judgment. Review of grants or denials of motions in arrest of

judgment is for abuse of discretion. Smith, 753 N.W.2d at 564. We thus consider

whether the sentencing court abused its discretion by denying the motion in

arrest of judgment.

       “An abuse of discretion occurs when a district court exercises its discretion

on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”
                                          12

State v. Wilson, 878 N.W.2d 203, 210–11 (Iowa 2016). “Grounds or reasons are

clearly untenable if they are not supported by substantial evidence or if they are

based on an erroneous application of law.” Eisenhauer ex rel. T.D. v. Henry

County Health Center, 935 N.W.2d 1, 9 (Iowa 2019). However, “[i]t is

fundamentally unfair to fault the trial court for failing to rule correctly on an issue

it was never given the opportunity to consider.” DeVoss, 648 N.W.2d at 60

(quoting 5 Am. Jur. 2d Appellate Review § 690, at 360-61 (1995)). We will not

consider abuse-of-discretion accusations premised on flaws that were not raised

before the trial court. Id.

       We find the sentencing court did not abuse its discretion in denying the

motion. The only ground Waterland raises on appeal to support his abuse-of-

discretion argument is the alleged lack of factual basis for the charge of felony

eluding. Waterland challenges only the “marked official law enforcement vehicle”

element of that charge. See Iowa Code § 321.279(3). Yet, neither Waterland

nor his counsel noted the lack of factual basis for that particular element of the

felony eluding charge during the hearing or in the motion in arrest of judgment.

       While defense counsel argued generally that there was no factual basis

to support the charges, defense counsel only specifically mentioned the charge

for OWI, third offense. We therefore find Waterman’s argument on appeal—that

the “marked official law enforcement vehicle” element of the eluding charge

lacked a factual basis—was not sufficiently urged to the district court for us to

evaluate the district court’s decision for abuse of discretion on that ground. See

Kriv, 24 N.W.2d at 754. We will not fault the trial court for failing to consider the

issue given these facts. DeVoss, 648 N.W.2d at 60.
                                         13


Conclusion

       We do not engage in de novo review of claims of error in guilty plea

proceedings. Such errors are to be raised in timely filed motions in arrest of

judgment. After the district court issues a ruling on a motion in arrest of judgment,

we will then review that ruling for abuse of discretion. We will only examine those

grounds that were properly urged in a motion or at the motion hearing. In

addition, because of our longstanding practice of refusing to assume a partisan

role, see Inghram v. Dairlyand Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974),

we will not consider arguments the defendant has not raised on appeal. As such,

we find that the defendant’s arguments that directly attack his guilty plea

proceedings are unpreserved. We further find no abuse of discretion by the trial

court in denying the motion in arrest of judgment.

       AFFIRMED.
