                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1064 / 13-0388
                             Filed February 5, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARCUS DENIEL EARNEST,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Defendant appeals his conviction for child endangerment following his

guilty plea, arguing counsel rendered ineffective assistance. REVERSED AND

REMANDED.



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

Assistant Appellate Defender, for appellant.

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

General, Michael J. Walton, County Attorney, and Melisa Zhaeringer, Assistant

County Attorney, for appellee.



      Considered by Doyle, P.J., and Tabor and Bower, JJ.
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BOWER, J.

       After Marcus Earnest filed a written plea of guilty to the aggravated

misdemeanor of child endangerment, the court entered judgment and imposed

sentence.    See Iowa Code § 726.6 (2011).          On appeal, Earnest argues his

counsel rendered ineffective assistance by failing to file a motion in arrest of

judgment.    Because the record shows: (1) the court failed to exercise its

discretion to waive an in-court plea colloquy; (2) the court failed to determine the

plea was entered “voluntarily and intelligently and had a factual basis”; and (3)

the court failed to accept the written plea of guilty, counsel’s failure to challenge

the plea establishes ineffective assistance. We reverse and remand for further

proceedings.

I. Background Facts and Proceedings

       In May 2012 Earnest was charged by trial information with child

endangerment causing bodily injury, a class D felony. He initially pled not guilty.

On December 12, 2012, the parties filed a written memorandum of plea

agreement. Earnest agreed to enter a guilty plea to the lesser-included offense

of child endangerment, an aggravated misdemeanor. The State agreed to make

no recommendation at sentencing.1             The agreement states the court’s

concurrence “is” a condition to the acceptance of the plea. A second page,

headed “ORDER” was attached to the agreement. The blank order contained

several options—including an option stating the court “defers its decision as to



1
  A special condition in the plea agreement allowed the State to take action if Earnest
was determined to “have a criminal history more extensive than revealed in the
pleadings.”
                                            3



acceptance or rejection of the Plea Agreement until its receipt of a presentence

report.” No signed order appears in the record.

       In his simultaneously-filed written plea of guilty, Earnest acknowledged a

factual basis for the child endangerment offense. Earnest also accepted “the

minutes of evidence as substantially true as to the elements” of the charge.2

       Also on December 12, 2012, the district court filed an “order for pre-

sentence investigation and appearance of defendant.”              The court stated an

investigation is ordered on Earnest and checked three items: “plead guilty,”

“records check,” and “request for docket search.” The order also set sentencing

for February 7, 2013. The February sentencing hearing began with the court

stating:

               The file reflects that Mr. Earnest appeared on December 12,
       2012, and entered a written guilty plea to the lesser-included
       offense . . . of child endangerment . . . that being an aggravated
       misdemeanor. At that time the court did order a records check and
       set this matter for sentencing.

Thereafter, the parties discussed the informal report, the State declined to make

a sentencing recommendation, and defense counsel urged the court to order

probation. The court addressed Earnest: “Mr. Earnest, it’s now your opportunity

to tell me anything you wish for me to consider before I impose judgment and

sentence.” Earnest responded that he grew up in a house where spanking was a


2
   The minutes provide: (1) in April 2012 Marcus Earnest hit his ten-year-old son
(birthdate October 2001) with a studded belt and a wooden spoon, breaking the spoon;
(2) the police photographed the injuries, and “[t]he child sustained patterned redness
and bruising about his lower back, buttock, and forearm”; (3) Earnest told the
investigating detective he beat the child with a belt because of the child’s behavior at
school; (4) during the execution of a search warrant, Earnest’s girlfriend admitted she
saw Earnest “strike the child with a spoon but not with a belt”; and (5) the police found a
broken wooden spoon and a studded belt in Earnest’s house.
                                          4



form of discipline and he made a mistake. Finding Earnest “didn’t just spank

your child,” the court entered judgment and sentenced Earnest to 360 days in jail

with 180 days suspended, granted him work release, and ordered him to pay a

fine, costs, and victim restitution.

       In this direct appeal, Earnest claims trial counsel rendered ineffective

assistance by failing to file a motion in arrest of judgment challenging his plea.

Earnest contends trial counsel’s failure resulted in prejudice per se.

II. Error Preservation

       Generally, a defendant’s failure to file a motion in arrest of judgment bars

a direct appeal of the conviction. Iowa R. Crim. P. 2.24(3)(a). But this failure

does not bar a challenge to a guilty plea if the failure to file a motion in arrest of

judgment resulted from ineffective assistance of counsel. State v. Allen, 708

N.W.2d 361, 368 (Iowa 2006).

III. Scope and Standards of Review

       We review Earnest’s claims of ineffective assistance of counsel de novo.

See State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). “Ordinarily, we do not

decide ineffective-assistance-of-counsel claims on direct appeal,” preferring to

reserve the issues “for postconviction proceedings so the defendant’s trial

counsel can defend against the charge.” State v. Tate, 710 N.W.2d 237, 240

(Iowa 2006). But we depart from this preference in cases where the record is

adequate to resolve the claim. Id. We can resolve the claim presented.
                                           5



IV. Ineffective Assistance of Counsel

       To establish his ineffective-assistance-of-counsel claim, Earnest must

show (1) the attorney failed to perform an essential duty, and (2) prejudice

resulted.   See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).             Earnest

asserts counsel should have filed a motion to arrest judgment because “there is

nothing in the record indicating” the court exercised its discretion to waive the

plea colloquy or the court discharged its duty to ensure his plea was “made

voluntarily and intelligently and has a factual basis.” The record does not show

the court made “any of the required determinations.”

       The State argues the requirements of rule 2.8(2)(b) are all explicitly

acknowledged by Earnest in his written plea and neither Earnest nor his counsel

“ever suggested the plea was unknowing or involuntary.”

       We turn to our rules of criminal procedure.         A 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.” Iowa R. Crim. P. 2.8(2)(b) (emphasis

added). “Before accepting a plea of guilty, the court must address the defendant

personally in open court . . . .” Id. But the district “court may, in its discretion and

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

to a serious or aggravated misdemeanor.” Id.

       In State v. Meron, 675 N.W.2d 537, 542-43 (Iowa 2004), the State argued

“the absence in the record of any reference to some of the rights required to be

discussed under rule 2.8(2)(b) is not fatal because the defendant affirmatively

waived the necessity for the court to explain all the requirements of the rule.”
                                          6



Meron, 675 N.W.2d at 543. Our supreme court rejected the State’s argument

and discussed the parameters of waiver:

               [W]hile the rule embraces the use of written waiver forms,
       neither [case law] nor the waiver language of rule 2.8(2)(b)
       diminishes the importance and necessity of the court’s role to
       ensure each plea is voluntary, intelligent, and supported by facts.
       Instead, [case law and the rule] simply recognize that the court, in
       making its required determination in misdemeanor cases, can use a
       defendant's written acknowledgement. The language of the waiver
       portion of the rule . . . explains why it . . . permit[s] the court to
       waive the procedures, subject to the approval of the defendant . . . .
       It allows the court, upon examination of a written plea, to waive the
       necessity of a full in-court colloquy. It does not give the defendant
       the right to waive the means for the court to determine that the plea
       is voluntarily and intelligently entered.

Id. The court’s important role in each case “is not subject to waiver under the

rule.” Id. at 544.

       As discussed above, the plea record discloses only Earnest’s submission

of a written guilty plea form and a court order setting the time for sentencing and

requesting the preparation of an informal report. There is nothing in the record

indicating the district court exercised its discretion in waiver of the plea colloquy,

or discharged its duty to ensure Earnest’s plea was made “voluntarily and

intelligently and has a factual basis,” or accepted Earnest’s plea. We decline to

“affirm based on the [court’s] implicit rather than express discharge of [its] duties

under the rule. To hold otherwise conflicts with, rather than advances, the well-

established public policy codified in rule 2.8(2)(b) and compromises the integrity

of the misdemeanor plea-taking process . . . .” State v. MacGregor, No. 03-1136,

2004 WL 792848, at *2 (Iowa Ct. App. April 14, 2004) (citing Meron, 675 N.W.2d

at 542-45)).
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       We conclude trial counsel’s failure to contest Earnest’s plea under these

circumstances is a breach of duty resulting in prejudice. See State v. Randall,

258 N.W.2d 359, 362 (Iowa 1977) (vacating the judgment and remanding for a

hearing to make the determinations required under rule 2.8(2)(b)). We vacate

the court’s judgment and resulting sentence and remand this case to the district

court for further proceedings in conformity with rule 2.8(2)(b).

       REVERSED AND REMANDED.
