                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1323
                            Filed December 24, 2014


JOHN COLLINS ANDERSON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson,

Judge.



      An applicant appeals the district court’s denial of his postconviction-relief

application. AFFIRMED.



      Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

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

General, Lisa L. Holl, County Attorney, and Gary E. Oldenburger, Assistant

County Attorney, for appellee State.




      Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VAITHESWARAN, J.

       The State charged John Anderson with two counts of sexual exploitation

of a minor. See Iowa Code § 728.12 (2009). Eventually, the State agreed to

dismiss one count and Anderson agreed to a stipulated trial on the minutes of

testimony as to the second count. The district court found Anderson guilty and

imposed sentence, including a ten-year special sentence mandated by Iowa

Code section 903B.2.1 This court affirmed Anderson’s judgment and sentence

on direct appeal. See State v. Anderson, No. 10-0787, 2011 WL 1376731, at *2–

3 (Iowa Ct. App. Apr. 13, 2011).

       Anderson filed an application for postconviction relief. He alleged (I) he

“was not advised of the special sentence upon conviction at the time he waived

his due process rights” and (II) he “has taken a polygraph examination, the

results of which indicate that he did not participate in the criminal conduct giving

rise to his conviction.”

       The district court reviewed the first assertion under an ineffective-

assistance-of-counsel rubric. The court found no recognized duty by a lawyer “to

advise a defendant of his potential sentence prior to his waiver of his right to a

jury trial” and no precedent holding such advice was “necessary to effectuate a

knowing, voluntary, and intelligent waiver” of his right to a jury trial. Regardless,


1
 Iowa Code section 903B.2 states a person convicted under section 728.12 shall also
be sentenced
       to a special sentence committing the person into the custody of the
       director of the Iowa department of corrections for a period of ten years,
       with eligibility for parole as provided in chapter 906. . . . The special
       sentence imposed under this section shall commence upon completion of
       the sentence imposed under any applicable criminal sentencing
       provisions for the underlying criminal offense and the person shall begin
       the sentence under supervision as if on parole or work release.
                                         3


the court found Anderson failed to prove prejudice on this claim.      As for the

second assertion, the court excluded the proffered polygraph report after citing

precedent holding “polygraph examination reports are generally inadmissible

except by stipulation.” This appeal followed.

I. Ineffective Assistance—Duty to Inform of Special Sentence

      Anderson contends “because [his] trial counsel failed to advise him of the

ten-year special sentence under section 903B.2, his jury waiver and stipulation to

a trial on the minutes of testimony must be set aside.” To prevail, Anderson must

show his attorney breached an essential duty and prejudice resulted. Strickland

v. Washington, 466 U.S. 668, 687 (1984).

      Anderson’s argument is premised on our rule requiring a court to advise a

defendant of the maximum possible sentence prior to accepting a guilty plea.

See Iowa R. Crim. P. 2.8(2)(b)(2). In this context, the court’s discussion would

necessarily include information on the section 903B.2 sentence, if applicable.

See State v. Hallock, 765 N.W.2d 598, 604–06 (Iowa Ct. App. 2009) (holding

district court had obligation to inform Hallock of the section 903B.2 special

sentence before accepting his Alford plea, and counsel failed to perform an

essential duty in failing to seek correction of this omission).         Anderson

acknowledges he did not enter a guilty plea but asserts “[t]hese constitutionally

required procedural safeguards were equally implicated in this case because

[his] jury waiver and stipulation to the minutes of testimony was solely for the

purpose of preserving his appellate rights.”

      The Iowa Supreme Court was not persuaded by a similar contention. In

State v. Everett, 372 N.W.2d 235, 236–37 (Iowa 1985), the court canvassed
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authority from other jurisdictions, then held “[t]he better rule emerging from these

authorities rejects any due process requirement to undertake a guilty plea

colloquy prior to accepting a stipulated factual record.” Everett, 372 N.W.2d at

237. The court reasoned as follows:

       The stipulation here did allow the admission of overwhelming
       evidence of defendant’s guilt. But it still remained for the finder of
       fact to determine whether the elements of the offense were shown
       beyond a reasonable doubt. Defendant had a chance of an
       acquittal.   Moreover, as the State points out, the appellate
       consequences after a conviction based on a stipulation differ from
       what they would have been following a guilty plea. This defendant
       could and did appeal.

Id. (emphasis added). In short, the defendant’s right to appeal was deemed a

reason for declining to require a guilty-plea style colloquy in connection with a

stipulated trial on the minutes of testimony.

       More broadly, Everett confirms guilty plea proceedings are not the same

as stipulated trials on the minutes of testimony and the provisions governing one

do not apply to the other. Compare Iowa R. Crim. P. 2.8(2)(b) with 2.17(1).

While rule 2.8 requires a discussion of the maximum possible punishment in the

guilty plea context, a colloquy in a stipulated trial on the minutes of testimony

need only establish that the defendant “voluntarily and intelligently waives a jury

trial.” Iowa. R. Crim. P. 2.17(1); State v. Liddell, 672 N.W.2d 805, 813 (Iowa

2003) (requiring court to “ascertain whether the defendant understands the

difference between jury and non-jury trials, through an in-court colloquy” and

setting forth five considerations).

       Everett is dated, but our courts have retained this distinction between

guilty plea proceedings and stipulated trials on the minutes of testimony. See
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State v. Nikkel, 597 N.W.2d 486, 488 (Iowa 1999) (noting distinction but

reversing and remanding after finding record too confusing to determine which

type of procedure was used); State v. Sayre, 566 N.W.2d 193, 195–96 (Iowa

1997) (rejecting defendant’s assertion that “stipulation was tantamount to a plea

of guilty requiring a colloquy to ensure the plea was intelligently and voluntarily

given, but reversing and remanding in the absence of compliance either with the

guilty plea colloquy requirements or the jury waiver requirements); State v.

Johnson, No. 12-1620, 2013 WL 3871077, at *2 (Iowa Ct. App. Jul. 24, 2013)

(discussing Everett and the distinction between a stipulated trial on the minutes

and a guilty plea); Bass v. State, No. 09-0407, 2009 WL 5125501, at *4 (Iowa Ct.

App. Dec. 30, 2009) (same).

      We turn to the record in this case.      On our de novo review, we find

Anderson’s trial attorney failed to inform Anderson of the section 903B.2 special

sentence. But he had no duty to do so in the context of a stipulated trial on the

minutes of testimony, nor did he have an obligation to insist on a district court

discussion of the special sentence.

      Our analysis arguably could end here. However, we feel compelled to

address certain similarities between this case and Nikkel and Sayre, both of

which resulted in reversals of the defendants’ convictions. As in those cases, the

court here used terminology implicating guilty plea proceedings. For example,

the court’s order imposing judgment and sentence was styled “written plea” and

referred to “the defendant’s plea” and “plea of guilty.” We must decide whether

this interspersing of guilty-plea language triggers the rule 2.8 requirement to

discuss the maximum possible sentence or, at a minimum, requires reversal and
                                           6

remand to clarify the record. See Nikkel, 597 N.W.2d at 488; Sayre, 566 N.W.2d

at 196.

       In Nikkel and Sayre, the district court failed to comply with the procedures

mandated in guilty plea proceedings or the procedures mandated for waiver of

jury trials. Id. Here, in contrast, the district court followed the jury-trial waiver

procedures. See Iowa R. Crim. P. 2.17(1). In an on-the record proceeding, the

court first cited the State’s “plea agreement”2 to dismiss one count of the trial

information. The court then explained that the second count would “proceed to

bench trial on the minutes.”       The court next engaged in a detailed colloquy

concerning Anderson’s waiver of his right to a jury trial, which conformed to the

requirements of rule 2.17(1). The court ended by asking, “so it is your free and

voluntary decision to go ahead and waive your right to a jury trial and proceed to

a bench trial on the minutes as is contained in Count II of the trial information?”

Anderson responded, “It is, Your Honor.”

       The     court’s   written   sentencing   order    confirmed    this   procedure.

Notwithstanding the stray guilty-plea language, the order referred to a “bench

trial” and afforded Anderson the right to appeal.             In sum, the confusion

precipitating reversal in Nikkel and Sayre is not present here.

       We conclude Anderson’s attorney did not breach an essential duty in

failing to advise Anderson of the special sentence or insist the court engage in a

colloquy about his sentence. Accordingly, his ineffective-assistance-of-counsel

claim fails.


2
  In effect, this was not a plea agreement but a unilateral decision by the prosecutor to
dismiss the count.
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II. Exclusion of Polygraph Test

      During the postconviction hearing, Anderson offered a polygraph testing

report for the purpose of showing “in a roundabout way that this was a weak

case.” The district court declined to admit it. Anderson now contends the court

should have considered the report because (A) he was required to take the test

as a condition of his probation and (B) “he did not offer the report as evidence of

his truthfulness” but “to illustrate how he was substantially disadvantaged by his

trial counsel’s error.” We are not persuaded by either contention.

      As the district court explained, polygraph test results are inadmissible in

Iowa courts absent a stipulation. Dykstra v. Iowa Dist. Ct, 783 N.W.2d 473, 485

(Iowa 2010) (noting Iowa Supreme Court exercises supervisory authority to

prohibit use of unstipulated exams in Iowa courts); State v. Losee, 354 N.W.2d

239, 242 (Iowa 1984). The fact the State required Anderson to take the test in

connection with his treatment does not mean the State waived any objection to

having the test result admitted in a court of law. See Reilly v. Iowa Dist. Ct, 783

N.W.2d 490, 498-99 (Iowa 2010) (stating “[i]t is not improper for [the Iowa

Department of Corrections] to consider polygraph examinations administered as

part of treatment to make decisions regarding whether an inmate’s participation

was satisfactory and whether the inmate should be removed” and noting test was

not used for “adjudicative fact-finding”); State v. Conner, 241 N.W.2d 447, 459–

60 (Iowa 1976) (“[T]he issue of admissibility of polygraph evidence is no more in

the hands of the adversary than is the issue of admissibility of any evidence to

which an adversary may lodge a valid objection.”).
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         As for Anderson’s contention that the test result was probative on the

Strickland prejudice prong, there is no way of assessing its probative value

without considering the evidence for the truth of the matter asserted. On this

score, “[t]he fact that the test results tend to be exculpatory does not remove the

taint that renders such evidence inadmissible.” Losee, 354 N.W.2d at 242. We

discern no abuse of discretion in the district court’s decision to exclude the

polygraph evidence.     See State v. Countryman, 573 N.W.2d 265, 266 (Iowa

1998) (setting forth standard of review).

         We affirm Anderson’s judgment and sentence for sexual exploitation of a

minor.

         AFFIRMED.
