                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0730
                               Filed April 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILHELM VONHOFSTEDER,
     Defendant-Appellant.
________________________________________________________________


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

Andreasen (plea) and Edward A. Jacobson (sentencing), Judges.



      The defendant appeals following his pleas of guilty to one count of

lascivious acts with a child and three counts of sexual exploitation of a minor.

VACATED AND REMANDED.




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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.



      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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DANILSON, Chief Judge.

      On November 2, 2015, Wilhelm VonHofsteder was charged in a twelve-

count trial information with third-degree sexual abuse, indecent contact with a

child, assault with intent to commit sexual abuse, exhibition of obscene material

to a minor, and eight counts of sexual exploitation of a minor (possession of a

visual medium depicting a minor child engaged in a prohibited sexual act).

Pursuant to a plea agreement, VonHofsteder agreed to plead guilty to an

amended charge of lascivious acts with a child (count 1) and three counts of

sexual exploitation of a minor (counts 5, 6, 7).    The parties agreed that the

sentences would be run consecutively for a period of eleven years but each party

could make its own recommendation on whether the sentences should be

imposed or suspended.

      At a plea hearing, the prosecutor went over the terms of the written plea

agreement and those terms were confirmed by the defendant and defense

counsel, including that written pleas concerning the three sexual exploitation

counts would be filed. VonHofsteder pled guilty to the charge of lascivious acts

with a child. The court specifically found VonHofsteder’s plea to the amended

charge of lascivious acts with a child was made “voluntarily and intelligently and

has a factual basis.” Following that guilty plea hearing, VonHofsteder submitted

his written guilty pleas to three counts of sexual exploitation of a minor.     A

sentencing hearing was held, and the district court imposed consecutive

sentences for a period not to exceed eleven years in prison. VonHofsteder now

appeals.
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      Generally, “[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); see also

State v. Fisher, 877 N.W.2d 676, 680-81 (Iowa 2016) (noting a written plea or

waiver of a motion in arrest of judgment can foreclose an appeal when it

complies with rule 2.8(2)(d)). However, “he is not precluded from challenging the

validity of his plea under a claim of ineffective assistance of counsel.” State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).

      On appeal, VonHofsteder contends plea counsel provided ineffective

assistance in failing to ensure the district court complied with Iowa Rule of

Criminal Procedure 2.8(2)(b) in respect to his written pleas. He contends there is

nothing in the record indicating the district court discharged its duty to ensure

VonHofsteder’s written pleas were made voluntarily and had factual bases.

             We review claims of ineffective assistance of counsel de
      novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). To
      succeed on an ineffective-assistance-of-counsel claim, a defendant
      must show by a preponderance of the evidence that: “(1) counsel
      failed to perform an essential duty; and (2) prejudice resulted.”
      State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “We can
      affirm on appeal if either element is absent.” State v. McPhillips,
      580 N.W.2d 748, 754 (Iowa 1998).

Rodriguez, 804 N.W.2d at 848.

      VonHofsteder asserts counsel should have filed a motion to arrest

judgment because the record lacks an indication the district court exercised its

discretion to waive the plea colloquy or that the court discharged its duty to

ensure his plea was made voluntarily and intelligently and has a factual basis.
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      Our rules of criminal procedure state 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. If the offense is an aggravated or serious

misdemeanor, the court, with the defendant’s consent, may waive the personal

in-court colloquy required by the rule. Iowa R. Crim. P. 2.8(2)(b)(5); State v.

Meron, 675 N.W.2d 537, 543 (Iowa 2004).           “The waiver language of rule

2.8(2)(b) only means the full in-court colloquy can be waived and the written plea

can serve to establish substantial compliance with the rule.” Meron, 675 N.W.2d

at 543.

      The written plea agreement provides, in part:

             The Defendant admits that the minutes of evidence, any
      attachments to the minutes of evidence, and any additional minutes
      of evidence filed in this matter fairly and accurately describe what
      he did as it relates to the charges he is pleading guilty to.
      Additionally, the Defendant specifically admits to the following
      factual basis to support his guilty pleas:
             A. COUNT 1: Lascivious Acts with a Child: On July 9, 2015,
      in Plymouth County, Iowa, the Defendant was 16 years of age or
      older, and solicited a child under the age of 14 to engage in a sex
      act. The Defendant and the child were not married at the time.
      The purpose of soliciting the child was to arouse or satisfy the
      sexual desires of the Defendant. Specifically, the Defendant who
      was 56 years old at the time first showed the victim pornography
      and then fondled and rubbed the genitals of a twelve year old male
      child, on the outside of the child’s clothing, and stated that
      “pleasuring is not a bad thing.”
             B. COUNTS 5, 6, 7: Sexual Exploitation of a Minor: On or
      about July 9, 2015, in Plymouth County, Iowa, the Defendant
      knowingly possessed visual medium (digital images stored on a
      compact disc), showing a person under the age of 18 engaged in
      prohibited sexual acts as defined by Code of Iowa § 728.1(7)(g)
      (nudity of a minor for the purpose of arousing or satisfying the
      sexual desires of the person who may view the visual depiction)
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      and there were three or more separate images of three or more
      different nude minors.

VonHofsteder’s and his attorney’s signatures appear just below the following

statement:

      I KNOWINGLY AND VOLUNTARILY ENTER INTO THIS PLEA
      AGREEMENT AFTER HAVING HAD ADQUATE TIME TO
      REVIEW AND CONSIDER IT WITH MY ATTORNEY, MY
      ATTORNEY HAS ANSWERED ALL OF MY QUESTIONS
      REGARDING THE PLEA AGREMENT, ANY DEFENSES I MAY
      HAVE, THE CONSEQUENCES OF PLEADING GUILTY, AS WELL
      AS THE RIGHTS I AM GIVING UP.

      In addition, each of the three signed written pleas includes these

statements:

      . . . I am GUILTY of the charge of Sexual Exploitation of a Minor, in
      violation of Iowa Code §§ 728.12(3) and 903B.2, and that no
      threats or promises have been made to induce me to enter my plea
      of guilty.
               This crime was committed by me on July 9, 2015, 15:00 p.m.
      in Plymouth County, Iowa by doing the following: the Defendant
      knowingly possessed visual medium showing a person under the
      age of 18 engaged in prohibited sexual acts as defined by Code of
      Iowa § 728.1(7)(g).
               ....
               I KNOWINGLY AND VOLUNTARILY PLEAD GUILTY
      AFTER HAVING HAD ADEQUATE TIME TO REVIEW AND
      CONSIDER THIS WAIVER OF RIGHTS AND GUILTY PLEA
      DOCUMENT WITH MY ATTORNEY.                 MY ATTORNEY HAS
      ANSWERED ALL OF MY QUESTIONS REGARDING IT, ANY
      DEFENSES I MAY HAVE, THE CONSEQUENCES OF PLEADING
      GUILTY, AS WELL AS THE RIGHTS I AM GIVING UP. I ASK
      THE COURT TO ACCEPT MY PLEA AND I WAIVE THE
      PRECEDING RIGHTS AND MY RIGHT TO HAVE THE COURT
      ADDRESS ME PERSONALLY REGARDING MY PLEA AND THE
      SENTENCE IN THIS MATTER.

      At the sentencing hearing, Judge Jacobson stated:

             It is my understanding that there were also some aggravated
      misdemeanor charges besides the felony charge and that the plea
      taking and the sentencing in those cases will be done on paper and
      not on the record; is that correct, Counsel?
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        [PROSECUTOR]: Yes, Your Honor, the guilty pleas were
filed in this matter for three aggravated misdemeanor pleas. They
will be part of the court’s discretion today. Each of those was a
violation of sexual exploitation of a minor for possession of child
pornography. Each carry a maximum two-year prison term.
        THE COURT: All right. The record should also show that on
the 28th day of March, I believe, in 2016, the defendant entered
into a plea agreement with the State where he would plead guilty to
the three aggravated misdemeanors and also the one Class D
felony and that the three sentences would run consecutively, not
concurrently, correct?
        [DEFENSE COUNSEL]: Yes, Your Honor.
        [PROSECUTOR]: Yes, Your Honor.
        THE COURT: All right. And the court should note that a
guilty plea was entered that same day in front of Judge Andreasen
on the 28th of March. The presentence investigation that was
ordered that day has been received and reviewed by the court and
counsel, and more than 15 days has expired since that plea.
        So at this time, Mr. VonHofsteder, do you know of any lawful
reason why judgment should not be imposed against you?
        THE DEFENDANT: No, Your Honor.
        THE COURT: [Defense counsel], do you?
        [DEFENSE COUNSEL]: No, Your Honor.
        ....
        THE COURT: Okay. It’s my understanding now is that the
court doesn’t have to decide a full range of punishment. The plea
agreement has been filed and accepted by Judge Andreasen, and
it provided for 11 years of punishment for this crime. And my
decision is that 11 years of probationary status or is that 11 years
Oakdale and wherever the parole board decides to send him. Am I
correct in that?
        [PROSECUTOR]: Yes, Your Honor. Judge Andreasen may
have reserved the ultimate acceptance of the plea agreement to the
sentencing court, but the plea agreement is clear that it is 11 years
in prison or 11 years’ probation. And if the court would not accept
the plea agreement, then we would be back at a trial phase.
        THE COURT: Well, Judge Andreasen did at least accept the
plea of guilty on these charges?
        MR. RAYMOND: Yes, Your Honor.
        ....
        [THE COURT:] The court finds that on March 28th, 2016, the
defendant pled guilty to the offenses shown. The court has read
the presentence investigation report on file, heard the arguments of
counsel and looked at the exhibits filed by counsel, together with
the victim impact statement and being duly advised in the premises,
it is now ordered that the defendant is guilty and convicted in Count
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       1 of lascivious acts with a child in violation of 709.8(1)(d) of the
       Iowa Code and also 903B.2 of the Iowa Code.
              In Counts 5, 6 and 7, the defendant is found guilty of sexual
       exploitation of a minor in violation of 728.12(3) and 902B.2 of the
       Iowa Code. Pursuant to 911.1 of the code and 902.9(5) of the
       code, defendant is sentenced to an indeterminate term of
       incarceration not to exceed five years on Count 1, two years on
       Count 5, two years on Count 6, and two years on Count 7.

       We agree the record fails to show that the trial court made the required

determinations that a factual basis existed for the written pleas or that the written

pleas were voluntarily and intelligently entered.     There is also no record the

written pleas were accepted by the court. Accordingly, it would be premature for

us to determine if a factual basis existed for the pleas. See Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002) (“[I]ssues must ordinarily be both raised and

decided by the district court before we will decide them on appeal.”).           We

conclude the proper remedy is a vacation of the conviction and remand for a

determination of whether a factual basis existed for the written pleas and if they

were freely and voluntarily entered. See State v. Randall, 258 N.W.2d 359, 362

(Iowa 1977) (concluding where the court failed to make a determination that a

factual basis existed, “the proper remedy is vacation of judgment and remand for

determination of whether a factual basis exists”). If the court determines there is

a factual basis for the pleas and the pleas were voluntarily and intelligently

entered, the court shall determine if the pleas should be accepted. If accepted,

the defendant shall be resentenced. See id. If no factual basis exists or the
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pleas were not voluntarily or intelligently entered, the pleas shall be set aside and

shall proceed as if no guilty plea was tendered.1 See id.

       We vacate the trial court’s judgment entered on the convictions for sexual-

exploitation and the resulting sentences and remand to the district court for a

hearing to make the determinations required under rule 2.8(2)(b) and proceed as

we have directed.

       VACATED AND REMANDED.




1
 We have referred to the pleas in plural; however, obviously the trial court must consider
each plea in making these determinations and may accept or reject each or all pleas.
