                                                IN THE COURT OF APPEALS OF IOWA

                                                              No. 16-1112
                                                           Filed May 3, 2017


                         STATE OF IOWA,
                              Plaintiff-Appellee,
CLERK OF SUPREME COURT




                         vs.

                         JASON GENE WEITZEL,
                              Defendant-Appellant.
                         ________________________________________________________________


                                Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

                         District Associate Judge.



                                A defendant seeks to vacate his guilty pleas due to the district court’s
MAY 03, 2017




                         failure to conduct a plea colloquy in compliance with Iowa Rule of Criminal

                         Procedure 2.8(2)(b)(2).     CONVICTIONS AND SENTENCES VACATED AND

                         REMANDED.
ELECTRONICALLY FILED




                                David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles

                         City, for appellant.

                                Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

                         Attorney General, for appellee.



                                Considered En Banc.




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MCDONALD, Judge.

       In State v. Fisher, 877 N.W.2d 676, 686 n.6 (Iowa 2016), the supreme

court held actual compliance with Iowa Rule of Criminal Procedure 2.8(2)(b)

required the district court to disclose to the defendant during a plea proceeding

“all applicable chapter 911 surcharges” related to the offenses to which the

defendant pleaded guilty.    Fisher left unresolved the question of whether the

district court’s failure to disclose to the defendant all applicable chapter 911

surcharges, standing alone, would mean the guilty plea proceeding failed to

substantially comply with Rule 2.8(2)(b)(2). See 676 N.W.2d at 686 n.6. This

appeal directly presents the question left unresolved in Fisher.

                                         I.

       Jason Weitzel pleaded guilty to and was convicted of domestic-abuse

assault, in violation of Iowa Code section 708.2A(5) (2016); possession of

methamphetamine, second offense, in violation of section 124.401(5); carrying

weapons, in violation of section 724.4(1); and operating while intoxicated (OWI),

first offense, in violation of section 321J.2. The underlying offense conduct is

immaterial to the question presented, and we need not discuss it. The only

material facts relate to the plea colloquy, and on this we focus our attention.

       Weitzel was represented by counsel during the plea proceeding. During

the plea proceeding, the district court informed Weitzel of the minimum and

maximum fines applicable to each offense. The district court also determined

Weitzel understood the minimum and maximum fines applicable to each offense.

The district court did not inform Weitzel of the criminal surcharge penalty

applicable to each offense. Iowa Code section 911.1(1) provides a “criminal


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penalty surcharge shall be levied against law violators as provided in this

section.”   The “additional penalty” shall be “in the form of a criminal penalty

surcharge equal to thirty-five percent of the fine . . . imposed.”     Iowa Code

§ 911.1(1). Where, as here, the defendant is convicted of multiple offenses, “the

surcharge shall be based upon the total amount of fines or forfeitures imposed

for all offenses.” Iowa Code § 911.1(2). The district court also did not determine

whether Weitzel understood he would be subject to an “additional penalty” as set

forth in code section 911.1.

                                        II.

       On appeal, Weitzel seeks to vacate his convictions on the ground the plea

proceeding was inadequate. Weitzel did not file a motion in arrest of judgment to

challenge the adequacy of the plea proceeding. Typically, “[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.”    Iowa R. Crim. P. 2.24(3)(a).      This procedural bar is inapplicable,

however, where the district failed to comply with Rule 2.8(2)(d) and inform the

defendant of the need to file a motion in arrest of judgment to challenge the

adequacy of the plea proceeding and the consequences for failing to file a motion

in arrest of judgment. See Iowa R. Crim. P. 2.8(2)(d) (“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.”);

State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980) (holding defendant should not

“suffer the sanction of rule [2.24(3)(a)] unless the court has complied with rule


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[2.8(2)(d)] during the plea proceedings by telling the defendant that he 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”).

      We conclude Weitzel is not barred from challenging the adequacy of his

plea proceeding on direct appeal. The State concedes the district court did not

advise the defendant as required by Rule 2.8(2)(d). Relying on State v. Oldham,

515 N.W.2d 44, 47 (Iowa 1994), the State contends the district court nonetheless

substantially complied with Rule 2.8(2)(d) because the required advisory was

contained in a change of plea form filed after the district court accepted the

defendant’s guilty plea.    See 515 N.W.2d at 47 (holding the district court

substantially complied with Rule 2.8(2)(d) where the defendant signed a form

containing the required advisory and was asked during the plea colloquy whether

he read and understood the form).       Oldham is inapplicable here.      There is

nothing in the record to establish Weitzel was given the form, read the form, or

understood the form prior to pleading guilty. On this record, we cannot conclude

the district court substantially complied with Rule 2.8(2)(d).   See Fisher, 877

N.W.2d at 682 (finding because advisory was deficient, defendant was not

precluded from directly challenging guilty plea on appeal). Accordingly, Weitzel

may directly challenge his guilty plea on appeal.

                                        III.

      We begin by clarifying the nature of the claim presented. Due process

requires a guilty plea be voluntary. See State v. Loye, 670 N.W.2d 141, 150

(Iowa 2003).    “To be truly voluntary, the plea must not only be free from

compulsion, but must also be knowing and intelligent.” Id. at 151. Due process


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requires the defendant to have an understanding of “the constitutional protections

that he gives up by pleading guilty, . . . ‘the nature of the crime with which he is

charged,’ and the potential penalties.” Id. (citation omitted).

       Iowa Rule of Criminal Procedure 2.8(2)(b), like Federal Rule of Civil

Procedure 11, is a prophylactic rule designed to protect the constitutional right to

due process during plea proceedings. See United States v. Adams, No. 98-

2067, 1999 WL 1253080, at *2 (6th Cir. 1999) (“The federal courts have enforced

the provisions of Rule 11 as a prophylactic measure against such due process

violations.”); United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997) (“To this

end, Rule 11 has a predominantly prophylactic purpose.”).

       In McCarthy v. United States, 394 U.S. 459 (1969), the Supreme Court

explained the prophylactic purpose of the parallel federal rule of criminal

procedure:

        First, although the procedure embodied in Rule 11 has not been
        held to be constitutionally mandated, it is designed to assist the
        district judge in making the constitutionally required determination
        that a defendant’s guilty plea is truly voluntary. Second, the Rule
        is intended to produce a complete record at the time the plea is
        entered of the factors relevant to this voluntariness determination.
        Thus, the more meticulously the Rule is adhered to, the more it
        tends to discourage, or at least to enable more expeditious
        disposition of, the numerous and often frivolous post-conviction
        attacks on the constitutional validity of guilty pleas.
               ....
                These two purposes have their genesis in the nature of a
        guilty plea. A defendant who enters such a plea simultaneously
        waives several constitutional rights, including his privilege against
        compulsory self-incrimination, his right to trial by jury, and his right
        to confront his accusers. For this waiver to be valid under the Due
        Process Clause, it must be “an intentional relinquishment or
        abandonment of a known right or privilege.” Consequently, if a
        defendant’s guilty plea is not equally voluntary and knowing, it has
        been obtained in violation of due process and is therefore void.
               ....


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               To the extent that the district judge thus exposes the
       defendant’s state of mind on the record through personal
       interrogation, he not only facilitates his own determination of a
       guilty plea’s voluntariness, but he also facilitates that determination
       in any subsequent post-conviction proceeding based upon a claim
       that the plea was involuntary. Both of these goals are undermined
       in proportion to the degree the district judge resorts to
       “assumptions” not based upon recorded responses to his inquiries.
       For this reason, we reject the Government’s contention that Rule
       11 can be complied with although the district judge does not
       personally inquire whether the defendant understood the nature of
       the charge.

McCarthy, 394 U.S. at 465–67.            The same considerations inform our

understanding of the purposes of Rule 2.8(2)(b).

      Although due process concepts are protected by the rule, a due process

challenge to a guilty plea is separate and distinct from a rule-based challenge to

the adequacy of a plea proceeding. A due process claim challenges whether the

guilty plea was actually voluntarily, knowingly, and intelligently made. See State

v. Finney, 834 N.W.2d 46, 58 (Iowa 2013) (explaining the difference between a

due process challenge to a guilty plea and a challenge to the adequacy of the

plea proceeding).    The object of the inquiry is the defendant’s subjective

understanding of the plea proceeding. Id. This requires the “court to delve into

the accused’s state of mind.” Id. In contrast, a challenge to the adequacy of the

plea proceeding as required by Rule 2.8(2)(b) is an objective inquiry. The claim

turns on the conduct of the district court and whether the “record shows that the

trial court explained or referred to the [required information] in a manner

reasonably intelligible to that defendant.” State v. Ballard, 423 N.E.2d 115, 120

(Ohio 1981).




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        Because the claims are separate and distinct, it is entirely possible a guilty

plea will be voluntarily, knowingly, and intelligently made although not in

compliance with Rule 2.8(2)(b). For example, the district court might wholly fail

to advise the defendant of the minimum and maximum prison sentences.

Undoubtedly, the plea proceeding would not substantially comply with Rule

2.8(2)(b). However, the record might show the defendant’s counsel advised the

defendant of the sentences off the record prior to the plea proceeding. See, e.g.,

Loye, 670 N.W.2d at 154 (vacating convictions where defense counsel told the

defendant of the penal consequences but the district court failed to comply with

Rule 2.8(2)(b)). Similarly, a guilty plea colloquy might fully comply with Rule

2.8(2)(b), but the plea might nonetheless fail to comport with due process. For

example, the record might reveal the defendant was under the influence of

medications that interfered with the defendant’s ability to understand the

proceedings or the record might reveal the defendant was given materially bad

legal counsel. See, e.g., State v. Holden, No. 16-0322, 2016 WL 7404615, at *3

(Iowa Ct. App. Dec. 21, 2016) (“Ultimately, counsel's failures undermined

Holden’s ability to understand the potential sentences he faced. While the district

court explained the options plainly, Holden's understanding was warped by his

counsel's incorrect advice. Based on that incorrect advice and the resulting

misinformation provided to Holden, we find Holden’s plea was not knowing and

intelligent.”).

        With that background, the questions material to the resolution of the issue

presented in this case are what is the specific claim asserted; and what relief, if




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any, is the defendant entitled to receive upon establishing the claim. We now

turn to these questions.

                                         IV.

                                          A.

       The claim presented in this appeal is a rule-based claim. Specifically,

whether the guilty plea proceeding complied with Rule 2.8(2)(b). As relevant

here, the rule provides:

              The court may refuse to accept a plea of guilty, and shall not
       accept a plea of guilty without first determining that the plea is
       made voluntarily and intelligently and has a factual basis. Before
       accepting a plea of guilty, the court must address the defendant
       personally in open court and inform the defendant of, and
       determine that the defendant understands, the following:
              ....
       (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.

       Although actual compliance with the rule is preferred, substantial

compliance is acceptable. The substantial compliance standard focuses on the

conduct of the district court during the plea proceeding. The objective is fixed,

but its application is flexible. We ask whether the record establishes the district

court conveyed the required information to the defendant such that it could be

said the defendant understood the information. See State v. Meron, 675 N.W.2d

537, 544 (Iowa 2004) (“Substantial compliance requires that the essence of each

requirement of the rule be expressed to allow the court to perform its important

role in each case.”); see also Ballard, 423 N.E.2d at 120 (“Rather, the focus,

upon review, is whether the record shows that the trial court explained or referred

to the right in a manner reasonably intelligible to that defendant.”).



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       At least two of our cases have applied some sort of harmless error or

material inducement standard to determine whether the plea colloquy was in

substantial compliance with the Rule 2.8(2)(b). In State v. Howell, No. 07-1179,

2008 WL 783760, at *1 (Iowa Ct. App. Mar. 26, 2008), this court declined to grant

relief on a claimed rule violation. The case was resolved on error preservation

grounds.   However, in dicta, the court stated the district court’s provision of

incorrect information regarding the fines substantially complied with the rule

because the error was harmless. See Howell, 2008 WL 783760, at *2. In State

v. Peterson, No. 11-1409, 2012 WL 3860730, at *1 (Iowa Ct. App. Sept. 6, 2012),

we denied a defendant’s challenge to his guilty plea where the district court failed

to disclose the minimum fine, concluding there was substantial compliance

because failure to disclose was not a material inducement to plead guilty. See

Peterson, 2012 WL 3860730, at *3.

       To the extent either Howell or Peterson could be interpreted to mean the

district court substantially complied with Rule 2.8(2)(b) because the information

was not a material inducement to the plea or was otherwise harmless,             we

disavow them. The cases confuse the rule and the remedy. See McCarthy, 394

U.S. at 468 (separating the issue of whether there was compliance with Federal

Rule of Criminal Procedure 11 from the issue of the remedy for the failure to

comply with Rule 11). We use a non-criminal case for illustrative purposes. If a

home purchaser brought a misrepresentation suit against a home seller for

failure to disclose a leaky basement, we would not say the home seller made an

adequate disclosure because, after the fact, the evidence showed the condition

of the basement was not actually a material inducement in purchasing the home.


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Instead, we would say there was a failure to disclose but, perhaps, there was no

remedy for the purchaser on the facts presented. The same concepts apply

here. Substantial compliance focuses on whether the seller (the district court)

adequately disclosed the leaky basement (Rule 2.8(2)(b) information). Whether

the failure to disclose the required information induced action or was otherwise

harmless is a question of remedies.

       To the extent the dissent contends there was substantial compliance

because the district court’s omission of information was not a material

inducement to the plea or was otherwise harmless, the dissent perpetuates the

analytical error in Howell and Peterson.       The dissent’s reliance on federal

precedent in support of its argument exposes the error.          As noted above,

McCarthy drew a distinction between the question of whether the district court

complied with the federal rule and whether there should be a remedy for the

failure to comply with the federal rule. At the time McCarthy was decided, the

Federal Rules of Criminal Procedure already contained a harmless-error

provision. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.”). Post McCarthy, a

similar harmless error rule was inserted into Federal Rule 11 to clarify the

harmless error rule applied to guilty plea proceedings. The text of the federal

rule provides there shall be no remedy for the district court’s failure to conduct a

compliant plea colloquy if the error “does not affect substantial rights.” Fed. R.

Civ. P. 11(h) (emphasis added). The dissent interchangeably uses the terms

“substantial compliance,” “substantial rights,” and “substantial error.” However,

the terms do not refer to the same concepts.         The federal focus is on the


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“substantial rights” of the defendant, i.e., whether the error caused harm to the

defendant. See United States v. Lane, 474 U.S. 438, 449 (1986) (stating the

harmless-error rule focuses on whether the error affected the defendant’s

substantial rights); United States v. Shacklett, 921 F.2d 580, 582 (5th Cir. 1991)

(stating “this court will evaluate such failure to comply with Rule 11 under a

harmless error analysis that focuses on whether the defendant’s substantive

rights were affected”). Our focus, for the purpose of determining “substantial

compliance,” is on the conduct of the district court. See State v. Smothers, 309

N.W.2d 506, 508 (Iowa 1981) (stating substantial compliance focuses on whether

the district court used language sufficient to inform the defendant of the required

information). The federal harmless-error cases do not address the question of

“substantial compliance” within the meaning of our law.

       When we turn our focus to the conduct of the district court, in light of the

broad, prophylactic nature of the rule, we cannot conclude the district court

substantially complied with Rule 2.8(2)(b). The rule requires the district court to

perform two separate and distinct tasks “before accepting a plea of guilty.” First,

the district court must inform the defendant of the information set forth in the rule,

which includes punishments. See Loye, 670 N.W.2d at 154 (stating district court

did not substantially comply with Rule 2.8(2)(b) because the district court did not

inform defendant of maximum possible punishments). As applicable here, Fisher

held the criminal penalty surcharge set forth in chapter 911 was a “punishment”

within the meaning of Rule 2.8(2)(b). 877 N.W.2d at 685–86. The Fisher court

further held that actual compliance with the rule required the additional criminal

penalty be disclosed during the guilty plea proceeding. It cannot follow that the


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district court’s failure to communicate any information regarding the “additional

penalty” is substantial compliance with the rule. See Meron, 675 N.W.2d at 542

(“In this case, the substantial compliance standard was not satisfied. A number

of the requirements of the rule were totally ignored.”). Second, the rule also

provides the district court “must” determine the defendant understands the

information communicated. See Loye, 670 N.W.2d at 154. In this case, because

the district court failed to mention the applicable additional criminal penalty

imposed by chapter 911, it necessarily follows the district court could not and did

not make an independent determination the defendant understood there would

be an additional penalty.

      The dissent seems to contend the district court’s disclosure of information

regarding the fines associated with each offense provided enough information to

the defendant regarding the financial consequences of the plea, generally, to

satisfy the substantial compliance standard. The dissent states, “What needs to

be communicated is how much money the defendant may owe to the

government as a result of pleading guilty.”      The contention fails for several

reasons. First, Fisher specifically required disclosure of the applicable chapter

911 surcharges independent of information regarding the fines. 877 N.W.2d at

685. To the extent one could conclude the wholesale failure to mention the

additional criminal penalty could constitute substantial compliance with the Rule

2.8(2)(b), one would necessarily have to ask why we would require the district

court to disclose the additional penalty at all. Second, treating the fines and

surcharges as a single penalty is inappropriate. The surcharge is a separate and

distinct “additional penalty.” Iowa Code § 911.1. Our cases require substantial


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compliance in identifying each piece of information required to be relayed by the

rule. See Meron, 675 N.W.2d at 542. Third, even assuming the information

regarding the fines and penalties should be considered a single financial penalty,

the district court still did not substantially comply with the rule. The failure to

disclose the surcharge means the district court did not tell Weitzel, in the

dissent’s terms, “how much money the defendant may owe to the government as

a result of pleading guilty.” See Fisher, 877 N.W.2d at 686 (noting the failure to

disclose the surcharge means the minimum financial punishment was

undisclosed). Indeed, the district court understated the maximum and minimum

financial penalty by thirty-five percent. To the extent our cases continue to hold

financial penalties are material to a guilty plea proceeding and must be disclosed

pursuant to Rule 2.8(2)(b), the failure to disclose thirty-five percent more in

additional financial penalties is a material consequence. Fourth, this court has

previously rejected the argument that disclosure of information regarding fines

only is equivalent to providing information regarding the additional criminal

penalty surcharge:

             The State concedes “Hoxsey was not specifically informed
       the surcharge amount could be thirty-five percent of the fine
       imposed” but asks the court to “find substantial compliance based
       on the plea form’s general reference to costs and surcharge.” We
       are not persuaded the general reference to surcharges amounted
       to substantial compliance. The court was obligated to inform
       Hoxsey of the minimum fine. The plea form identified the number
       as $625. This was not the minimum fine. With the thirty-five-
       percent surcharge, the minimum fine would have been $843.75.

State v. Hoxsey, No. 16-1043, 2017 WL 510983, at *1 (Iowa Ct. App. Feb. 8,

2017) (citations omitted).




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      In sum, we conclude the district court failed to substantially comply with

Iowa Rule of Criminal Procedure 2.8(2)(b) by failing to inform the defendant of

the applicable additional criminal penalties to be imposed pursuant to chapter

911 and by failing to determine the defendant understood the same.

                                        B.

      Our conclusion the plea proceeding in this case failed to substantially

comply with Rule 2.8(2)(b) does not end our inquiry. As noted above, we must

also address the issue of remedy.      The most persuasive discussion of what

remedy should be adopted for a violation of Rule 2.8(2)(b) is set forth in

McCarthy:

               Having decided that the Rule has not been complied with,
       we must also determine the effect of that noncompliance an issue
       that has engendered a sharp difference of opinion among the
       courts of appeals. In Heiden v. United States, 353 F.2d 53 (1965),
       the Court of Appeals for the Ninth Circuit held that when the district
       court does not comply fully with Rule 11 the defendant’s guilty plea
       must be set aside and his case remanded for another hearing at
       which he may plead anew. Other courts of appeals, however,
       have consistently rejected this holding, either expressly or tacitly.
               We are persuaded that the Court of Appeals for the Ninth
       Circuit has adopted the better rule.          From the defendant’s
       perspective, the efficacy of shifting the burden of proof to the
       Government at a later voluntariness hearing is questionable. In
       meeting its burden, the Government will undoubtedly rely upon the
       defendant’s statement that he desired to plead guilty and
       frequently a statement that the plea was not induced by any
       threats or promises. This prima facie case for voluntariness is
       likely to be treated as irrebuttable in cases such as this one, where
       the defendant’s reply is limited to his own plaintive allegations that
       he did not understand the nature of the charge and therefore failed
       to assert a valid defense or to limit his guilty plea only to a lesser
       included offense. No matter how true these allegations may be,
       rarely, if ever, can a defendant corroborate them in a post-plea
       voluntariness hearing.
              Rule 11 is designed to eliminate any need to resort to a later
      fact-finding proceeding “in this highly subjective area.” The Rule
      contemplates that disputes as to the understanding of the


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      defendant and the voluntariness of his action are to be eliminated
      at the outset. As the Court of Appeals for the Sixth Circuit
      explained in discussing what it termed the “persuasive rationale” of
      Heiden: “When the ascertainment is subsequently made, greater
      uncertainty is bound to exist since in the resolution of disputed
      contentions problems of credibility and of reliability of memory
      cannot be avoided.         There is no adequate substitute for
      demonstrating in the record at the time the plea is entered the
      defendant’s understanding of the nature of the charge against him.”
               ....
               On the other hand, had the District Court scrupulously
       complied with Rule 11, there would be no need for such
       speculation. At the time the plea was entered, petitioner’s own
       replies to the court’s inquiries might well have attested to his
       understanding of the essential elements of the crime charged,
       including the requirement of specific intent, and to his knowledge
       of the acts which formed the basis for the charge. Otherwise, it
       would be apparent to the court that the plea could not be
       accepted. Similarly, it follows that, if the record had been
       developed properly, and if it demonstrated that petitioner entered
       his plea freely and intelligently, his subsequent references to
       neglect and inadvertence could have been summarily dismissed
       as nothing more than overzealous supplications for leniency.
               We thus conclude that prejudice inheres in a failure to
       comply with Rule 11, for noncompliance deprives the defendant of
       the Rule’s procedural safeguards that are designed to facilitate a
       more accurate determination of the voluntariness of his plea. Our
       holding that a defendant whose plea has been accepted in
       violation of Rule 11 should be afforded the opportunity to plead
       anew not only will insure that every accused is afforded those
       procedural safeguards, but also will help reduce the great waste of
       judicial resources required to process the frivolous attacks on
       guilty plea convictions that are encouraged, and are more difficult
       to dispose of, when the original record is inadequate. It is,
       therefore, not too much to require that, before sentencing
       defendants to years of imprisonment, district judges take the few
       minutes necessary to inform them of their rights and to determine
       whether they understand the action they are taking.

McCarthy, 394 U.S. at 468–72. McCarthy is not controlling for two reasons.

First, it was an interpretation of the Federal Rule 11. Second, McCarthy was

superseded by the adoption of the harmless-error rule. See Fed. R. Crim. P.

11(h). We thus explore the issue of remedy further.



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       Peterson and Howell could be interpreted to adopt a material-inducement

or harmless-error standard with respect to the question of remedy. However,

Peterson and Howell fail to distinguish between a due process claim—which

focuses on the defendant’s subjective understanding and whether the plea was

actually voluntarily, knowingly, and intelligently made—and a rule-based claim—

which focuses on the adequacy of the plea colloquy. In blurring that line, the

cases rely on Stovall v. State, 340 N.W.2d 265, 267 (Iowa 1983), and State v.

West, 326 N.W.2d 316, 317 (Iowa 1982). In Stovall, the district court provided

incorrect information to the defendant regarding parole eligibility.    This was

information the district court was not required to provide pursuant to Rule

2.8(2)(b).   In resolving the issue of whether the plea was voluntarily and

intelligently made where the district court provided misinformation regarding

matters not covered by the rule, the court applied a material-inducement

standard. Similarly, in State v. West, the court again addressed the due process

standard when the district court provided incorrect information the district court

was not required by rule to provide to the defendant. See West, 326 N.W.2d at

317 (“It was not necessary for the court to inform him he was ineligible for

deferred judgment or probation, but the voluntary and intelligent nature of the

plea would be affected by any misstatement of the court placing in defendant’s

mind ‘the flickering hope of a disposition on sentencing that was not possible.’”

(citation omitted)). Because the claims were due process claims rather than rule-

based claims, the defendant was required to prove material inducement or actual

involuntariness. Peterson and Howell fail to recognize this distinction. Stovall




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and West cannot provide guidance on the remedy for a violation of Rule 2.8(2)(b)

because the rule was not at issue in either case.

       To the extent either Peterson or Howell could be interpreted to adopt a

material-inducement or harmless-error rule with respect to violations of Rule

2.8(2)(b), we disavow them.      First, whatever the merits (or demerits) of the

harmless-error rule, our state has chosen not to adopt the rule.           Such a

significant change in our mode of criminal practice and procedure should be

accomplished, if at all, by the supreme court or by amendment to the Iowa Rules

of Criminal Procedure after the time for notice and comment. See Spencer v.

Philipp, No. 13-1887, 2014 WL 4230223, at *2 (Iowa App. Ct. App. Aug. 27,

2014) (“As a general rule, the task of materially altering substantive or procedural

rights is best left to the General Assembly or the Supreme Court of Iowa.”).

       Second, controlling cases dictate that the required remedy for the district

court’s failure to substantially comply with Rule 2.8(2)(b) is to vacate the

defendant’s convictions and pleas and allow the defendant to plead anew. In

State v. White, 587 N.W.2d 240 (Iowa 1998), the supreme court held a guilty plea

is void where the plea was not taken in compliance with Rule 2.8(2)(b):

              Iowa Rule of Criminal Procedure 8(2)(b) requires the judge,
       before accepting a plea of guilty, to determine that the plea was
       made voluntarily and intelligently. The United States Constitution
       requires that to be truly voluntary the plea must be made knowingly
       and intelligently. The position urged by the State for our adoption
       violates these principles and requirements. It leaves the defendant
       informed of statutory words, thus partially informed, but uninformed
       of the true maximum possible punishment of twenty years
       imprisonment coming from consecutive sentences. In essence,
       defendant is uninformed and unenlightened. The letter of the law
       and the spirit of the law requiring that the guilty plea be made
       voluntarily and intelligently, mandated by Rule 8 and the Due



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      Process Clause of the United States Constitution have not been
      satisfied.
              A trial court could satisfy the Rule 8 and constitutional
      requirements on this issue with a few words explaining the
      difference between consecutive and concurrent sentences. This
      colloquy between the judge and the defendant could take less than
      one minute. It would comply with the requirements of our laws, in
      spirit and in truth. And, it would not unduly burden our courts.

White, 587 N.W.2d at 246 (citation omitted).

      Similarly, in Loye, the district court failed to inform the defendant of the

potential punishments, including fines. The State contended the guilty pleas and

convictions need not be vacated because the defendant had actual knowledge of

the punishments based on defense counsel’s discussion of the same with the

defendant.   In addition, the defendant had actual knowledge of all material

information because of the extensive proceedings related to the defendant’s

admission into drug court.    The Loye court rejected the conclusion that the

defendant’s actual knowledge of the punishments was relevant, stating:

      it does not relieve the [district] court of its obligation to ensure the
      defendant’s knowledge and understanding of the nature of the
      charges and the potential punishments.              Nor is the court’s
      obligation lessened because the defendant’s attorney has
      discussed the same matters with the accused in preparation for the
      plea hearing.

Loye, 670 N.W.2d at 153. The Loye court focused on the district court’s conduct,

and not the harm to the defendant.

      The dissent attempts to distinguish White and Loye on the ground those

cases involved misinformation regarding “lengthy prison sentences.” Nothing in

Fisher makes a distinction between the remedies available to a defendant based

on the nature of the penal consequences at issue. Nothing in the plain language

of the rule makes a distinction between the remedies available to a defendant


                                                                                 18 of 42
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based on the nature of the penal consequences at issue. More important, the

dissent’s distinction is immaterial. The material fact in Loye was not the nature of

the penal consequences not addressed during the plea colloquy; the material fact

was the defendant had actual knowledge of the penal consequences of the guilty

plea based on discussions with counsel. See Loye, 670 N.W.2d at 153. Loye

thus stands for the proposition that even when the defendant has actual

knowledge of the penal consequences—i.e., the omissions were harmless, as a

matter of law, because the defendant actually knew the omitted information—the

district court’s failure to substantially comply with Rule 2.8(2)(b) still required the

defendant’s convictions be vacated.

       Finally, Fisher also set forth the required remedy upon a finding the district

court failed to substantially comply with Rule 2.8(2)(b). The surcharge issue left

open in Fisher and resolved in this case actually was not the primary issue in

Fisher. The primary question presented in Fisher was “whether a defendant

pleading guilty to a controlled-substance offense has a right to be informed

beforehand that, as a result of the conviction, his driver's license will be revoked

for 180 days.”    Fisher, 877 N.W.2d at 678.        The court held that “[b]ecause

revocation of the driver's license of a person convicted of a drug possession

offense is mandatory, immediate, and part of the punishment for that offense, the

court must inform the defendant of this consequence before accepting his or her

plea.” Id. at 684. The supreme court further held the failure of the district court

to advise the defendant of this penal consequence in contravention of Rule

2.8(2)(b) required the defendant’s “conviction and sentence [ ] be set aside.” Id.

at 684-85. The Fisher court did not analyze whether the omission of information


                                                                                   19 of 42
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regarding revocation of the defendant’s license was a material inducement to the

plea or whether the defendant otherwise suffered some prejudice as a result of

the non-compliant plea colloquy. As in McCarthy, White, and Loye, the Fisher

court applied a bright line rule with respect to the remedy—if the district court

failed to conduct a plea colloquy in substantial compliance with Rule 2.8(2)(b),

then the conviction and sentence must be vacated and the matter must be

remanded for further proceedings. Fisher left open only the question of whether

the failure to advise the defendant of the chapter 911 criminal penalty, alone,

would constitute substantial compliance with the rule.             Fisher definitively

answered the question of the required remedy upon a finding the district court

failed to substantially comply with the rule. Fisher is controlling precedent, which

we are not at liberty to ignore.

       Third, the remedy required by White, Loye, and Fisher is dictated by the

text of the rule. Rule 2.8(2)(b) provides the district court “shall not accept a plea

of guilty without first determining that the plea is made voluntarily and intelligently

and has a factual basis.”      Generally, “shall” is considered mandatory.        Rule

2.8(2)(b) also provides, “[b]efore accepting a plea of guilty, the court must . . .

determine that the defendant understands . . . [t]he mandatory minimum

punishment, if any, and the maximum possible punishment provided by the

statute defining the offense to which the plea is offered.” (Emphasis added.)

Nothing in the language of the rule indicates the rule is satisfied if the defendant

does not rely on an omission or the omission is harmless. To the contrary, the

plain language of the rule provides the district court cannot accept a plea without

a prior determination the defendant understands the minimum and maximum


                                                                                   20 of 42
                                        21


financial penalty. The failure to disclose the surcharge means the defendant was

not informed of the mandatory minimum financial penalty or the maximum

possible financial penalty. See Fisher, 877 N.W.2d at 686 (noting the failure to

disclose the surcharge means the minimum financial punishment was

undisclosed); Hoxsey, 2017 WL 510983, at *1 (same). The failure to disclose the

surcharge, by necessity, also means the district court could not and did not make

the required determinations prior to accepting the plea.

      Finally, we note the material-inducement standard is inconsistent with

fundamental rule-of-law principles.   See State v. Gaskins, 866 N.W.2d 1, 40

(Iowa 2015) (stating rule-of-law values include “consistency and equal treatment,

stability, and predictability at any one time and over time”); State v. Campbell,

No. 15-1772, 2017 WL 706208, at *8–9 (Iowa Ct. App. Feb. 22, 2017) (explaining

we should prefer legal rules capable of consistent application).       A material-

inducement standard seems incapable of consistent application on appeal. The

result of any particular case would be largely dependent upon the appellate panel

drawn. Without a record regarding the defendant’s subjective motivations for

entering into a guilty plea, it is unclear how this court on direct appeal would be

able to determine, the defendant was not at all motivated by the financial

consequences of the plea.       It would be utter speculation to conclude one

defendant could not have cared as a matter of law because he received charging

concessions but another defendant might have cared as a matter of law because

he received a lesser charging concession. Where is the line to be drawn? How

is the line to be drawn with no record regarding the defendant’s subjective intent?

McCarthy, White, Loye, and Fisher resolve this problem by adopting a bright-line


                                                                               21 of 42
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rule—if the district court failed to substantially comply with Rule 2.8(2)(b), then

the case must be remanded to the district court to allow the defendant the

opportunity to plead anew.

      The dissent’s attempt to distinguish Fisher on the question of remedy

highlights the speculative nature of the endeavor. The dissent concedes the

Fisher court did not discuss or even mention materiality, which would seem to

indicate the Fisher court rejected the harmless-error approach and applied the

bright line rule required by White and Loye.     The dissent goes on to argue,

however, the Fisher court must have considered materiality because losing one’s

driving privileges was a “significant consideration” for the defendant. However,

the dissent also concludes it would not be a significant consideration if the case

involved other offenses that required incarceration. It is unclear on what basis

the dissent makes this distinction.   Would the punishment be material if the

charging concession was from a class D felony to an aggravated misdemeanor?

From an aggravated misdemeanor to a serious misdemeanor? From two class D

felonies to a single class D felony and an aggravated misdemeanor? From two

class D felonies to a single misdemeanor? Would it matter if the plea agreement

called for suspended sentences? The permutations are endless. Perhaps there

are easy cases on either end of the curve, but there are substantially more in the

mushy middle incapable of consistent resolution. Unless, of course, the dissent

simply means that the financial penalties associated with a guilty plea are always

immaterial as a matter of law. Again, that merely begs the question of why

interpret Rule 2.8(2)(b) to require the disclosure of immaterial penal

consequences.     We are not at liberty to question that determination.        Our


                                                                               22 of 42
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supreme court has concluded the financial penalties are sufficiently material to

require disclosure under the rule. Those cases are controlling.

       We note the district court’s failure to substantially comply with Rule

2.8(2)(b) would not necessarily mean the defendant would prevail if the claim

were presented as an ineffective-assistance-of-counsel claim on direct appeal or

in postconviction-relief proceedings. In those cases, the defendant would still

have to establish Strickland prejudice. See Strickland v. Washington, 466 U.S.

668, 687 (1984). In the typical case, any such claim presented on direct appeal

would be preserved for postconviction-relief proceedings. See State v. Straw,

709 N.W.2d 128, 138 (Iowa 2006) (“Under the ‘reasonable probability’ standard,

it is abundantly clear that most claims of ineffective assistance of counsel in the

context of a guilty plea will require a record more substantial than the one now

before us.”); see also State v. Feregrino, 756 N.W.2d 700, 707–08 (Iowa 2008)

(explaining a violation of required colloquy (jury trial waiver) does not necessarily

prove the defendant failed to actually understand the issue and concluding

Strickland prejudice would have to be established when such a claim was

presented as an ineffective-assistance-of-counsel claim). In postconviction-relief

proceedings, the defendant would bear the burden of establishing both that

counsel was ineffective and that the defendant would not have pleaded guilty but

for the alleged error. That is a significant barrier to overcome.

       For the foregoing reasons, we hold the required remedy for the district

court’s failure to substantially comply with Rule 2.8(2)(b) when presented on

direct appeal as a rule-based claim is to vacate the defendant’s pleas and

convictions and allow the defendant to plead anew.


                                                                                 23 of 42
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                                       V.

      We hold the defendant was not barred from directly contesting the

adequacy of the guilty-plea proceeding on direct appeal because he was not

informed of the need to file a motion in arrest of judgment. We hold the district

court failed to substantially comply with Rule 2.8(2)(b) when it wholly failed to

disclose to the defendant any information regarding the additional penalties to be

imposed pursuant to Iowa Code chapter 911 and failed to determine the

defendant understood the same. We hold the required remedy for the failure to

conduct a rule-compliant plea colloquy when the rule-based claim is directly

presented is to vacate the defendant’s guilty plea and convictions and remand

the matter for further proceedings.

      CONVICTIONS AND SENTENCES VACATED AND REMANDED.

      All Judges concur except Mullins, J. who concurs specially and Tabor and

Doyle, JJ. who dissents.




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MULLINS, Judge. (concurring specially)

       I concur in the majority opinion but write separately to emphasize

philosophical and practical implications of this case. It goes without saying that

our judicial system is an important component in the fabric of our democratic

form of government premised on the rule of law. Our courts interpret the law and

apply the interpretation to the cases before us.           We are governed by

constitutions, statutes, rules, and legal precedents. At every jurisdictional level,

courts make tough decisions every day that seem harsh to some but are

necessary if our society is to be governed by the rule of law. We dismiss cases

that are filed a day after a statute of limitations has expired. We dismiss criminal

cases that are not tried within speedy-trial deadlines. We find persons guilty of

crimes if their actions satisfy the elements of the offense. We revoke probation

and send defendants to prison for seemingly minor rule violations.          All are

premised on the rule of law.

       In addition to applying the law, our supreme court writes rules to govern

conduct. We sanction parties and lawyers for failing to follow rules. Sometimes

we forgive failure to comply if there was substantial compliance or if justice

requires a balancing of prejudice to the parties. The point is, we—the courts—

decide. That is our job and is required by our oaths of office.

       The public expects us to follow the law. They expect us to follow the

rules, especially the rules we—the courts—write. Persons charged with crimes

expect us to follow the rules. After all, we not only expect them to do so, we are

obligated to act responsively if they do not. Those accused of wrongdoing often

seem especially aware of violations of rules, even minor ones, by those seeking


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to enforce the rules. One sees it at home (“But Daddy, you did . . . .”), at school

(“But the teacher says . . . .”), at work (”But my supervisor told me . . . .”), on the

streets (“But the police officer did . . . .”), and in politics (“But he said he

would . . . .”).

        Most often, court rules are adopted to address ongoing or recurrent

issues; Iowa Rule of Criminal Procedure 2.8(2)(b) is such a rule.           Rules are

intended to bring continuity and predictability, to take the guess work out of what

is required. When we fail to follow our rules, we are inviting criticism: Why does

a party to a case have to follow the rules when the court does not? We should

limit variances from the rules. I certainly agree there are appropriate applications

of a “substantial compliance” approach to rule enforcement. But the present

case does not fit. The problem with failure to inform criminal defendants of the

specific surcharges that will be imposed is not an isolated problem. Our court is

planning to publish the opinions in this case and two other cases in response to

approximately twenty such cases that have flooded our court over the last

several months. The criminal penalty surcharge required by Iowa Code section

911.1 has been in effect since 1982. The amount of the surcharge has been

thirty-five percent since 2009. This surcharge is no surprise; it is well known by

the courts and the lawyers. The requirement that criminal defendants must be

informed of the maximum and minimum penalties, not just terms of incarceration,

has long been in place.       This is exactly the type of situation for which we

should—and do—have a rule; so we can avoid the uncertainties of ad hoc

decision-making, and so those who appear in court can know what to expect.




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       I am not unmindful of the pressures faced by our trial courts.       Heavy

caseloads, shortage of support, judicial vacancies, limited resources, ever-

present uncertainty of adequate funding, and public scrutiny all take a toll on the

courts and pressure us to do more with less. Notwithstanding these realities, the

public—one case, every case, at a time—expects us to play by the rules.

       We should follow the rules. It is not too much to ask, and it is the right

thing to do.




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TABOR, Judge. (dissenting)

       I respectfully dissent. Before accepting Weitzel’s guilty pleas, the district

court substantially complied with the penal-consequences requirement under

Iowa Rule of Criminal Procedure 2.8(2)(b)(2) by informing him and determining

he understood that he faced up to ten years in prison and more than $20,000 in

financial obligations to the State.1          The majority vacates Weitzel’s four

convictions because the court failed to mention that his fines, if imposed, would

carry 35% surcharges.2 See Iowa Code § 911.1. In doing so, the majority shifts

from a substantial-compliance standard to a strict-compliance measure

inconsistent with Iowa case law. See State v. Myers, 653 N.W.2d 574, 578 (Iowa

2002) (“[W]here the defect in the plea proceeding concerns the content of the

information conveyed to [the defendant], . . . only substantial compliance with

rule 2.8(2)(b) is required.”).

       Forty years ago, our general assembly enacted what is now rule 2.8(2)(b).

See State v. Finney, 834 N.W.2d 46, 58 (Iowa 2013). When first interpreting the

legislation’s effect, our supreme court held that a plea-taking court must inform a

defendant of and determine he understands “the nature of the charge, its

possible penal consequences and the particular constitutional rights he waives

by pleading guilty” and determine that a factual basis for the plea exists. State v.

Fluhr, 287 N.W.2d 857, 869 (Iowa 1980), overruled on other grounds by State v.
1
  The district court also informed Weitzel that he would be responsible for a domestic-
abuse surcharge of $100. Iowa Code § 911.2B (2016). The court further discussed the
law enforcement initiative surcharge of $125 and the DARE surcharge of $10 on the
methamphetamine-possession count. See id. §§ 911.2, .3.
2
  As a result of a plea bargain, Weitzel pleaded guilty to one felony and three indictable
misdemeanors; the State dismissed another felony count. At sentencing, Weitzel
received an indeterminate nine-year prison term, as well as a fine and surcharges
totaling $1922.50. Three of the four fines were suspended.

                                                                                      28 of 42
                                             29

Kirchoff, 452 N.W.2d 801 (Iowa 1990). In Fluhr, the supreme court discovered

an “extensive disregard of the rule’s requirements, thus raising doubts as to the

voluntariness of the plea.”3 Id. at 864.

          But the Fluhr court could not have imagined today’s majority decision

when announcing its holding. In fact, the Fluhr majority warned against such a

result:

          This holding should not be construed to mean that every minor
          omission from the oral colloquy in a guilty plea proceedings should
          be fatal. As [State v.] Sisco announced, “meaningful compliance,”
          169 N.W.2d [542,] 548 [(Iowa 1969)], or “substantial compliance,”
          Id. at 551, with procedural guidelines for taking guilty pleas is
          sufficient. Certainly a plea-taking error which raises no doubt as to
          the voluntariness or factual accuracy of the plea may be properly
          disregarded, provided the defendant is unable to prove prejudice.

Id. (cautioning against an “exalt [of] formalism at the expense of the societal

interest in finality of judgments”).

          I.    Substantial Compliance Means Plea-Taking Court Must Have
                Informed Defendant Regarding Essential Penal Consequences.

          Because rule 2.8(2)(b) lists five general categories of required

information,4 our case law has defined “substantial compliance” as expressing

“the essence of each requirement of the rule.” See State v. Meron, 675 N.W.2d


3
  In Fluhr, the court’s majority vacated the conviction because, among other deficiencies:
“The subject of penal consequences was not broached during the colloquy, except for
the judge’s comment that sentencing would be determined by a judge at a later time.”
287 N.W.2d at 861.
4
   Those categories are (1) the nature of the charges to which the pleas are being
offered; (2) mandatory minimum punishment, if any, and maximum possible punishment
provided by the statute defining the offenses to which the pleas are offered; (3) how a
conviction may affect the defendant’s immigration status; (4) trial rights, including trial by
jury, assistance of counsel, confrontation, cross-examination, against self-incrimination,
presentation of witnesses, and compulsory process; and (5) that a guilty plea waives the
right to a trial. See Iowa R. Crim. P. 2.8(2)(b). In Weitzel’s case, the district court
provided detailed information concerning each of these categories, as well as assuring a
factual basis for each of his four offenses.

                                                                                          29 of 42
                                          30

537, 544 (Iowa 2004); see also State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003)

(“‘Substantial compliance’ requires at a minimum that the defendant be informed

of [the items listed in the rule] and understand them.”).         More recently, the

supreme court reiterated the substantial-compliance standard in a case involving

the factual basis for a guilty plea by saying “insubstantial errors should not entitle

a defendant to relief.” Finney, 834 N.W.2d at 62; see also State v. Fisher, 877

N.W.2d 676, 682 (using “a substantial compliance standard to determine whether

a plea crosses the rule 2.8(2)(b)(2) threshold”5 ).

       The question today is whether understating Weitzel’s potential financial

obligation by not factoring in the surcharges mandated by section 911.1

constituted a substantial error entitling him to relief.     The majority misreads

Fisher in holding the district court’s failure to communicate “any information

regarding the surcharges” could not be substantial compliance with rule

2.8(2)(b)(2).6 But the potential imposition of “surcharges” is not a separate and

distinct category of information that needs to be communicated under the rule;

the category of information at issue is “the mandatory minimum punishment, if

any, and the maximum possible punishment provided by the statute defining the

offense to which the plea is offered.” See Iowa R. Crim. P. 2.8(2)(b)(2). The

district court does not need to talismanically utter the word “surcharge” to satisfy

Fisher. What needs to be communicated is how much money the defendant may

owe to the government as a result of pleading guilty. See Fisher, 877 N.W.2d at

5
  When reviewing the plea-taking court’s admonitions, we must take a “common sense
approach” to determine whether the court has substantially complied with the provisions
of the rule. See People v. Walker, 316 N.E.2d 138, 139 (Ill. App. Ct. 1974).
6
   The district court did provide Weitzel with information about some applicable
surcharges, just not the 35% surcharges mandated by section 911.1.

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686 (seeing “no meaningful difference between a fine and a built-in surcharge on

a fine”). And we must not overlook that the more important aspect of informing

the defendant about “the maximum possible punishment” is providing an

accurate picture of the potential loss of liberty resulting from the plea bargain. In

this case, the court accurately described for Weitzel and secured his appreciation

that his guilty pleas could result in prison sentences as lengthy as ten years. As

the State argues in its brief, under the totality of circumstances in this plea

bargain, information about the 35% surcharges added to the fines—three of

which the plea-taking court advised could be suspended—was of far less

consequence than the potential decade of incarceration.              See State v.

Richardson, 890 N.W.2d 609, 622–23 (Iowa 2017) (noting “imprisonment is

qualitatively different” from fines or restitution and stating “[o]ne is a matter of

liberty, the other a financial obligation”).

       The majority cites no case where an Iowa appellate court has vacated a

defendant’s convictions based solely on misinformation provided by the district

court concerning the financial implications of a plea bargain.         The majority

contends State v. Hoxsey, No. 16-1043, 2017 WL 510983 (Iowa Ct. App. Feb. 8,

2017), supports its conclusion because a panel of this court was “not persuaded”

that a general reference to surcharges on a guilty plea form amounted to

substantial compliance with rule 2.8(2)(b)(2).     But that statement was dicta.

Hoxsey “assumed without deciding” that counsel breached a material duty by not

ensuring the defendant was advised of the surcharges but found no prejudice




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because the fines and surcharges were suspended and affirmed Hoxsey’s

conviction.7 2017 WL 510983 at *1–2.

       The majority also focuses on White and Loye; in both of those cases, the

district court failed to accurately inform a defendant about the penalties resulting

from a guilty plea, prompting our supreme court to vacate the convictions and

allow the defendants to plead anew. But in both White and Loye, the plea-taking

court failed to provide accurate information about lengthy prison sentences. See,

e.g., White, 587 N.W.2d 240, 246 (Iowa 1998) (finding defendant was

“uninformed and unenlightened” about the maximum possible punishment of

twenty years imprisonment coming from consecutive sentences); see also Loye,

670 N.W.2d at 152 (chronicling numerous deficiencies in the plea colloquy

arising out of a drug-court case, including no information about the penalty for

marijuana possession, plus the court’s mistatement that penalty for third-degree

burglary was “five years in the penitentiary or as much as a $7500 fine” when

“[i]n fact, the possible penalty was five years imprisonment and a fine of at least

$750 and not more than $7500”).             White and Loye do not stand for the

proposition that all misinformation about penalties—however insignificant—

requires a reviewing court to vacate the defendant’s convictions. If they did,

Fisher would not have left unresolved the question “whether failure to disclose

the surcharges alone would have meant the plea did not substantially comply

with rule 2.8(2)(b)(2).” 877 N.W.2d at 686 n.6.

7
  Under the majority’s formulation today, in cases where a plea claim is analyzed directly
rather than through the lens of ineffective assistance of counsel, the ultimate suspension
of fines at sentencing would make no difference. If the plea-taking court failed to inform
the defendant about the surcharges, even if those obligations were never borne by the
defendant, the conviction must be vacated.

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                                       33


      En route to vacating Weitzel’s convictions, the majority disavows two

unpublished cases of our court—a move seemingly both pointless and rash. In

those two cases—Peterson and Howell—panels of our court decided that plea

colloquies had substantially complied with rule 2.8(2)(b)(2) despite the district

court making inaccurate statements about the amount of the fines. See State v.

Peterson, No. 11-1409, 2012 WL 3860730, at *3 (Iowa Ct. App. Sept. 6, 2012);

State v. Howell, No. 07-117, 2008 WL 783760, at *2 (Iowa Ct. App. Mar. 26,

2008). By disavowing those cases, we are now saying any minor variance in the

information provided by the district court concerning the financial obligations

owed by a defendant as a result of pleading guilty is cause for vacating the

convictions. If a plea-taking court forgets to tell a defendant about the $10 DARE

surcharge mandated by Iowa Code section 911.2(1), that is grounds for vacating

a drunk-driving conviction. If a plea-taking court misstates the amount of any

maximum or minimum fine, even slightly, that is grounds for vacating the

conviction. Such eventualities mark a radical departure from the substantial-

compliance standard.

      II.    Rule 2.8(2)(b) Codifies Due-Process Requirements; If
             Misinformation Given by Plea-Taking Court Is Not Material
             Inducement for Plea, No Due Process Violation Occurs.

      The majority tries to draw a bright line between due-process cases and

rule-based cases, relegating Weitzel’s appeal to the rule-based side of the line.

It is true that “the entry of a plea by a defendant has both constitutional and

procedural elements that must be addressed to ensure that a plea is entered

voluntarily and intelligently.” See State v. Thomas, 659 N.W.2d 217, 220 (Iowa

2003). But our case law defies a clean bifurcation between due-process and


                                                                              33 of 42
                                         34


rule-based claims.     The supreme court has announced that rule 2.8(2)(b)

“codifies” the due-process mandate. See Loye, 670 N.W.2d at 151; see also

Finney, 834 N.W.2d at 60–62 (explaining that a challenge to the sufficiency of the

plea colloquy would raise a due-process voluntariness issue).

       Moreover, Weitzel’s own brief alleges that because the colloquy failed to

disclose the surcharges,8 “the pleas violated due process and are void.” Weitzel

relies on State v. Boone, where the supreme court vacated a conviction because

the plea-taking court “placed in the defendant’s mind the flickering hope of a

disposition on sentencing that was not possible.” 298 N.W.2d 335, 338 (Iowa

1980). Boone is controlling authority for the holding in State v. West, 326 N.W.2d

316, 318 (Iowa 1982) (remanding to determine whether court’s statement

suggesting it had discretion to impose other than maximum prison sentence

induced defendant’s guilty plea). Boone and West apply when a defendant has

received misinformation concerning the consequences of a guilty plea, “whether

those statements are or are not required of the court under [now rule 2.8] of the

rules of criminal procedure.” See Stovall v. State, 340 N.W.2d 265, 267 (Iowa

1983) (holding plea is not voluntarily made if court makes a misstatement that is

material “in the sense that it is part of the inducement for the defendant’s

decision to plead guilty”); see also State v. Null, 836 N.W.2d 41, 49 (Iowa 2013)

(citing Boone for proposition a district court must “adequately explain the

penalties” as part of plea colloquy and finding court’s explanation adequate

despite lack of statement that consecutive sentences meant mandatory


8
 Weitzel also contends the plea court erred by telling him the maximum fine for OWI
was $1500, rather than $1250, and by failing to explain the fines could be cumulative.

                                                                                  34 of 42
                                            35

minimums would total 52.5 years); State v. Philo, 697 N.W.2d 481, 489 (Iowa

2005); State v. McCray, No. 11-0731, 2011 WL 6674712, at *2 (Iowa Ct. App.

Dec. 21, 2011).

       Weitzel received misinformation from the plea-taking court about the

financial implications of his guilty pleas. Boone, West, and Stovall dictate that

under these circumstances, the reviewing court must decide whether that

misinformation was a material inducement for Weitzel’s decision to plead guilty—

or, in other words, whether it rendered his guilty pleas unintelligent or involuntary.

Making that decision is not, as the majority suggests, “utter speculation” about a

defendant’s subjective motivations.        Rather, it is an objective assessment of

materiality. See Material, Black’s Law Dictionary (7th ed. 1999) (defining as “[o]f

such a nature that knowledge of the item would affect a person’s decision-

making process; significant; essential”).

       In Fisher, the court found the guilty plea was “involuntary” because the

defendant was not told that revocation of his driver’s license for 180 days was a

mandatory and immediate punishment resulting from his guilty plea to

possession of marijuana.        877 N.W.2d at 684–85.         Although Fisher did not

include an analysis of materiality, it is reasonable to conclude that losing one’s

driving privileges for six months would be a significant consideration in a guilty

plea to a misdemeanor drug-possession offense.9               In contrast, absence of


9
  In some situations, though, the failure to advise of the license revocation may have no
consequence. For instance, if Fisher’s plea had involved other offenses that required
incarceration, the six-month suspension of his driving privileges would not have affected
his decision to plead guilty. See Blackwell v. State, 736 A.2d 971, 973 (Del. 1999)
(holding trial court’s failure to advise defendant he would not have been able to drive for
more than two years was harmless when he was informed that he faced a fifteen-year
mandatory-minimum term of incarceration).

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information about the 35% surcharges was not material in the context Weitzel’s

felony plea bargain. First, Weitzel was advised that he faced a range of fines on

the four offenses to which he was pleading guilty and was advised that three of

the four fines could be suspended. So the surcharges were not an automatic

result of the plea bargain in the same way Fisher’s license suspension was.

Second, Weitzel was told he faced up to ten years in prison, which loomed larger

than the additional surcharge penalties.

      Weitzel told the court he decided to enter Alford pleas to four counts in

return for the State’s agreement to dismiss another felony charge because he

believed the evidence set out in the minutes of evidence was sufficient for a jury

to find him guilty on all charges beyond a reasonable doubt. When viewed in

context, Weitzel’s plea bargain was not “involuntary” and should not be vacated.

      III.   Iowa Has Not Followed the Automatic-Reversal Rule Adopted
             by the Majority

      Finally, the majority endorses an automatic-reversal rule derived from the

discussion in McCarthy v. United States, concerning an early version of Rule 11,

which governs guilty pleas in federal court.         394 U.S. 459, 471 (1969)

(concluding “prejudice inheres in a failure to comply with Rule 11”). But even the

federal courts moved quickly away from such an exacting approach. “In 1975, a

few years after McCarthy came down, Congress transformed Rule 11 into a

detailed formula for testing a defendant’s readiness to proceed to enter a plea of

guilty, obliging the judge to give specified advice about the charge, the applicable

criminal statute, and even collateral law.” United States v. Vonn, 535 U.S. 55, 69

(2002).



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       [A]lthough a rule of per se reversal might have been justified at the
       time McCarthy was decided, “[a]n inevitable consequence of the
       1975 amendments was some increase in the risk that a trial judge,
       in a particular case, might inadvertently deviate to some degree
       from the procedure which a very literal reading of Rule 11 would
       appear to require.” After the amendments, “it became more
       apparent than ever that Rule 11 should not be given such a
       crabbed interpretation that ceremony was exalted over substance.”

Id. at 70 (quoting Advisory Committee’s Notes on federal rule).            In 1983, a

harmless-error provision10 was added to the federal rule because “the practice of

automatic reversal for error threatening little prejudice to a defendant or disgrace

to the legal system” imposed “a cost on Rule 11 mistakes that McCarthy neither

required nor justified.” Id.

       Even before the addition of the harmless-error provision, some federal

circuits declined to automatically reverse when the trial court’s admonitions

strayed from the strict constructs of the guilty-plea rule. See, e.g., United States

v. Dayton, 604 F.2d 931, 940 (5th Cir. 1979) (upholding plea despite narration of

the nature of the charges being given by the prosecutor rather than the court);

United States v. Conrad, 598 F.2d 506, 510 (9th Cir. 1979) (rejecting claim that

plea court did not adequately inform defendant of the penalties “provided by law”

when it discussed only the bargained-for sentence because “[m]atters of reality,

and not mere ritual, should be controlling” (alteration in original) (quoting

McCarthy, 394 U.S. at 468 n.20)).           This line of reasoning was ultimately

embraced by the Advisory Committee on the federal rules, and the federal courts

have moved “almost full circle” from “the inflexible remedial approach” of



10
  “A variance from the requirements of this rule is harmless error if it does not affect
substantial rights.” Fed. R. Crim. P. 11(h).

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McCarthy. See Finney, 834 N.W.2d at 54 (citation omitted) (detailing history of

plea-bargain jurisprudence).

       Iowa has never purported to follow the McCarthy automatic-reversal rule

as a means to enforce the guilty-plea admonitions delivered by its trial judges. In

the same year McCarthy was decided, our court adopted the plea-colloquy

standards promulgated by the American Bar Association (ABA) Minimum

Standards for Criminal Justice, Pleas of Guilty, sections 1.4 through 1.7. See

Sisco, 169 N.W.2d at 547–48 (including the requirement that plea courts advise

defendants of “the maximum possible sentence” and the “mandatory minimum

sentence, if any”11).    The Sisco court did not take the same firm stand as

McCarthy regarding mandatory compliance with the procedural requirements,

stating: “This does not mean a determination by trial courts of the matters here

involved requires any ritualistic or rigid formula be fixed upon or followed. There

must, however, be meaningful compliance with these guideline standards.” Id.

       After Sisco, but before enactment of what is now rule 2.8(2)(b), our

supreme court twice held that a defect in the plea colloquy did not require

reversal. See State v. Reaves, 254 N.W.2d 488, 491 (Iowa 1977) (noting plea-

taking court omitted description of element of the crime), superseded by rule as

stated in Fluhr, 287 N.W.2d at 859; State v. Ceaser, 245 N.W.2d 510, 511 (Iowa

1976) (holding judge’s misstatement in plea hearing was “without prejudice and

. . . harmless beyond a reasonable doubt”). More recently in State v. Straw, a

11
  By use of the word “sentence” rather than “punishment,” the ABA Standards did not
specifically require defendants be told about fines or other financial penalties. See
generally 5 Wayne R. LaFave et al., Criminal Procedure § 21.4(d) (4th ed. 2016) (noting
emphasis has been on requirement that the judge inform the defendant of the maximum
possible punishment).

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majority of our supreme court rejected a dissenting view that reversal should be

automatic if the plea colloquy was flawed. 709 N.W.2d 128, 137–39 (Iowa 2006);

see also Finney, 834 N.W.2d at 53–54, 60 (discussing harmless-error standard

under federal rule and noting Iowa’s approach under Straw is “in many ways

similar to developments in federal case law after the 1983 amendment to Rule

11”).

        Given that parallel noted by our supreme court, I believe federal caselaw

provides a useful analogy here. Before entry of a guilty plea in federal court,

Rule 11 requires a full recitation of the potential penalties, including the possibility

that restitution may be imposed as part of the ultimate sentence. See Fed. R.

Crim. P. 11(b)(1)(K). Although Rule 11(b)(1)(K) requires the court to explain a

defendant’s liability for both fines and restitution, federal circuits, including the

Eighth Circuit, have held a defendant is not prejudiced if his liability does not

exceed the maximum amount that the court informed him could be imposed as a

fine.   United States v. Miell, 711 F. Supp. 2d 967, 982 (N.D. Iowa 2010)

(collecting cases). As Judge Bennett explained: “The simple logic underlying this

line of authorities is that ‘[i]t is the amount of liability, rather than the label

“restitution,” that affects [a defendant’s] substantial rights.’” Id. (citation omitted).

        Similarly here, any prejudice to Weitzel would not stem from unexplained

costs labeled as “surcharges” but from a bottom-line liability at sentencing that

was not foreshadowed at the plea hearing. At sentencing, Weitzel was ordered

to pay $1922.50, in the form of a fine and surcharges; because Weitzel had been

warned at the plea hearing he could face fines and surcharges totaling

$21,735—and decided to plead guilty anyway—his rights were not impaired by


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the court’s failure to specifically inform him of the 35% surcharges mandated by

section 911.1.     See Fluhr, 287 N.W.2d at 864 (discussing propriety of

disregarding inconsequential errors in plea colloquy unless defendant can show

prejudice).

       The majority’s “bright-line rule”—reversing for any error in the information

delivered by the plea-taking court concerning the potential penalties—

undermines the ability of crime victims and members of the public to have

confidence that valid convictions will not be vacated merely to remind plea-taking

courts of the importance of “conducting a rule-compliant plea colloquy.” The

majority’s refusal to consider whether a minor omission may, in context, be

insubstantial, which is “directed at technical and literal compliance by our

brothers [and sisters] on the district bench with [Fisher’s elaborations on rule

2.8(2)(b)], somewhat in the spirit of the exclusionary rule’s attempt to deter police

misconduct, seems to [me] inappropriate.” Dayton, 604 F.2d at 940 (bemoaning

“iron rule of review” for “post-McCarthy elaborations on Rule 11”).            Fisher

directed that district courts must reveal all applicable chapter 911 surcharges

when advising defendants about the penal consequences of their guilty pleas.

See 877 N.W.2d at 685–86. Rule 2.8(2)(b) “must be fully and faithfully followed,

and [I] do not doubt that the district courts of this [state] will make all efforts to

follow [Fisher’s] mandate. The question here is not whether such efforts should

be made but how we should appraise them when they are.” Dayton, 604 F.2d at

940 (declining to follow “automatic reversal” rule of McCarthy). Under the




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circumstances of Weitzel’s plea bargain, omission of the surcharge information

was not a substantial error entitling him to relief..

       Doyle, J., joins this dissent.




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                                               State of Iowa Courts

Case Number                     Case Title
16-1112                         State v. Weitzel




Electronically signed on 2017-05-03 09:10:10




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