                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1959
                                  Filed June 5, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CURT DOUGLAS STEFFEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Mark T. Hostager,

District Associate Judge.



      A defendant challenges his conviction for second-offense operating while

intoxicated. DISTRICT COURT JUDGMENT REVERSED IN PART AND CASE

REMANDED.



      Sharon D. Hallstoos, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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TABOR, Judge.

        Before the jury even convicted Curt Steffen of operating while intoxicated

(OWI), the district court secured his waiver of a second trial to prove he had been

previously convicted of OWI. Steffen stipulated he had an OWI conviction from

2010.    Now, after judgment on his second offense, Steffen challenges the

adequacy of the court’s colloquy, which did not mention the prior OWI conviction

was only valid for enhancement purposes if Steffen had been represented by

counsel or knowingly waived the right to counsel. See Iowa R. Crim. P. 2.19(9).

Steffen also alleges the colloquy did not adequately advise him of the applicable

penalties for OWI, second offense.

        Because the colloquy did not comply with the requirements clarified in State

v. Harrington, 893 N.W.2d 36 (Iowa 2017), State v. Brewster, 907 N.W.2d 489

(Iowa 2018), and State v. Smith, 924 N.W.2d 846 (Iowa 2019), we reverse the

judgment entered on the OWI, second offense, and remand for further

proceedings.

        We begin by examining error preservation. Steffen did not file a motion in

arrest of judgment to challenge the stipulation as required to preserve error. See

Harrington, 893 N.W.2d at 42–43. But we excuse that omission because the

district court did not discuss the necessity of filing a motion in arrest of judgment

or the consequences of failing to do so.         See Smith, 924 N.W.2d at 851.

Accordingly, Steffen may raise his objections to the enhancement colloquy without

alleging ineffective assistance of counsel.

        We review the district court’s compliance with rule 2.19(9) for errors at law.

State v. Kukowski, 704 N.W.2d 687, 690–91 (Iowa 2005).
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       Harrington outlined the four-part stipulation colloquy necessary to ensure

an offender’s admission to being a recidivist is knowing and voluntary. 893 N.W.2d

at 45–46. First, the court must inform the offender of the nature of the enhanced

charge and, if admitted, that it will result in heightened consequences. Id. at 45;

see Brewster, 907 N.W.2d at 494 (applying Harrington to “proceedings in which

repeat-OWI-offender enhancements are at issue”). The court must inform the

offender that the prior conviction is “only valid if obtained when the offender was

represented by counsel or knowingly and voluntarily waived the right to counsel.”

Harrington, 893 N.W.2d at 45 (citing Iowa R. Crim. P. 2.19(9)). As a part of this

process, the court must also make sure a factual basis exists to support the

offender’s admission to the prior conviction. Id.

       Second, the court must inform the offender of the maximum possible

punishment, including any mandatory minimum, carried by the enhanced offense.

Id. at 46.   For example, in Brewster, the supreme court found the colloquy

inadequate, in part, because it failed to notify Brewster that admitting his prior

conviction exposed him to a maximum indeterminate sentence of two years of

incarceration and a mandatory minimum term of seven days in jail. 907 N.W.2d at

494.

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

Iowa Rule of Criminal Procedure 2.8(2)(b)(4). Harrington, 893 N.W.2d at 46. And

fourth, the court must inform the offender that if he admits to the prior conviction,

no trial will take place on the issue of identity. Id. “The court must also inform the

offender that the State is not required to prove the prior convictions were entered

with counsel if the offender does not first raise the claim.” Id.
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        Steffen asserts the court did not comply with Harrington because he was

not informed “for the prior conviction to qualify under Rule 2.19(9) [it] must have

been entered with the assistance of counsel or following a valid waiver of counsel.”

We agree the colloquy failed to advise Steffen “the prior OWI conviction could be

a basis for enhancing the classification of the crime and the sentence only if he

was represented by or had properly waived counsel in connection with that prior

offense.” Brewster, 907 N.W.2d at 494.

        “The prior conviction colloquy was also lacking in this case because it failed

to establish [Steffen] was informed that an admission of a prior conviction exposed

him to a maximum sentence” under Iowa Code section 321J.2(4)(a) (2018) of up

to two years of incarceration and a mandatory minimum sentence of seven days

in jail. Id.

        Focusing on a different exposure, Steffen complains particularly that the

court should have told him about the mandatory two-year driver’s license

revocation triggered by a test refusal in an OWI second prosecution. See Iowa

Code § 321J.2(4)(c). Citing State v. Carney, 584 N.W.2d 907 (Iowa 1998), the

State maintains the driver’s license revocation was not a direct consequence of

the OWI second-offense conviction and did not need to be explained in the

stipulation colloquy. Carney held license revocation under section 321J.4(2) was

a collateral consequence of a guilty plea to OWI and the district court had no duty

to inform the defendant of the revocation before taking the plea. 584 N.W.2d at

909 (acknowledging license revocation under section 321J.4(3) was “definite,

immediate, and largely automatic” but concluded it was not “punishment” because
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the revocation was aimed at protecting the public from drivers who demonstrated

a pattern of driving while intoxicated).

       For two reasons, we question the continued viability of the conclusion

reached in Carney. First, in 2010, the legislature reorganized section 321J.2 and

expressly stated a second OWI offense is “punishable” by imprisonment, fines, and

license revocation. Iowa Code § 321J.2(4)(a)–(c). An amendment to statutory text

after a judicial interpretation raises a presumption the legislature intended to alter

the rights explained in the case. See Iowa Farm Bureau Fed’n. v. Envtl. Prot.

Comm’n, 850 N.W.2d 403, 434 (Iowa 2014).            The plain language of section

321J.2(4) now includes license revocation in the category of punishment.

       Second, Carney was undermined by State v. Fisher, 877 N.W.2d 676 (Iowa

2016). See State v. Tompkins, 18-0304, 2019 WL 478507, at *3 (Iowa Ct. App.

Feb. 6, 2019) (McDonald, J., specially concurring).         Fisher held “[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.” 877 N.W.2d at 683 (distinguishing Carney based on difference between

OWI offenses and drug-possession convictions).           As the Tompkins special

concurrence suggested, it is difficult to reconcile Fisher and Carney. 2019 WL

478507, at *3. But we cannot overrule Carney. See Kersten Co. v. Dep’t of Soc.

Servs., 207 N.W.2d 117, 121–22 (Iowa 1973) (explaining it is generally the role of

the supreme court to decide if case precedent should no longer be followed).

       Even assuming the colloquy was not required to provide information on the

mandatory license revocation, we find its other omissions to be grounds for
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reversal. The prior-conviction colloquy leaves us unable to conclude Steffen’s

admission to the prior OWI was knowing and voluntary. Accordingly, we affirm the

uncontested guilty verdict on the current OWI conviction, but reverse the judgment

and sentence for OWI second offense. We remand for further prior-conviction

proceedings under rule 2.19(9).

      DISTRICT COURT JUDGMENT REVERSED IN PART AND CASE

REMANDED.
