                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0674
                             Filed February 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH LLOYD CARMER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Kim M. Riley,

District Associate Judge.



      Kenneth Carmer appeals his guilty plea to domestic abuse assault causing

bodily injury, second offense. AFFIRMED.



      Shawn Smith of The Smith Law Firm, PC, Ames, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
                                           2


McDONALD, Judge.

       Kenneth Carmer pleaded guilty to domestic abuse assault causing bodily

injury, second offense, in violation of Iowa Code sections 708.1, 708.2A(1), and

708.2A(3)(b) (2018). The district court sentenced Carmer to an indeterminate term

of incarceration not to exceed two years to be served consecutively to Carmer’s

sentences in two different probation-revocation cases.        In this direct appeal,

Carmer contends his written guilty plea to domestic abuse assault causing bodily

injury was defective because he was not advised the sentence for the offense

could be served consecutively to his sentences in other cases.

       As a procedural matter, we note Carmer is not precluded from challenging

his guilty plea. Here, the plea form advised Carmer he was required to file a timely

motion in arrest of judgment to contest the adequacy of his guilty plea. However,

the plea form did not inform him that the failure to timely file a motion in arrest of

judgment would preclude his right to challenge his guilty plea on appeal. This

advisement was required by Iowa Rule of Criminal Procedure 2.8(2)(d). The State

concedes the plea form was deficient and Carmer may challenge the validity of his

guilty plea on direct appeal. See State v. Oldham, 515 N.W.2d 44, 46 (Iowa 1994)

(holding failure to fully comply with the requirements of rule 2.8(2)(d) reinstates a

defendant’s right to appeal the legality of a guilty plea).

       On the merits, Carmer is not entitled to any relief. Here, the written guilty

plea advised Carmer of the maximum punishment for the offense at issue in the

plea proceeding.     Nothing more was required under the Rules of Criminal

Procedure. See Iowa R. Crim. P. 2.8(2)(b)(2) (stating the defendant must be

advised of the “mandatory minimum punishment, if any, and the maximum possible
                                        3

punishment provided by the statute defining the offense to which the plea is

offered.” (emphasis added)); State v. Brammeier, No. 10-1157, 2011 WL 2556076,

at *2 n.3 (Iowa Ct. App. June 29, 2011) (“Nevertheless, we find no requirement

that a defendant be informed that the sentence being imposed will be served

following a sentence the defendant is already serving for a separate and prior

crime.”).

       We affirm the defendant’s conviction.

       AFFIRMED.

       Vogel, C.J., concurs; Vaitheswaran, J., dissents.
                                         4


VAITHESWARAN, Judge (dissenting)

       I respectfully dissent. “[T]he accused must be fully aware of the direct

consequences of a guilty plea.” State v. White, 587 N.W.2d 240, 242–43 (Iowa

1998). “Sentences to be served consecutively are a direct consequence of a guilty

plea.” Id. at 243; accord State v. Weitzel, 905 N.W.2d 397, 408 (Iowa 2017) (“We

conclude the district court must inform Weitzel of all direct consequences of the

plea in the oral colloquy or in any written waiver thereof.”); State v. Fisher, 877

N.W.2d 676, 686 (Iowa 2016) (“We conclude that Fisher should have been

informed of the mandatory minimum and maximum possible fines, including

surcharges.”); cf. State v. Hill, 878 N.W.2d 269, 274 (Iowa 2016) (“[R]ule 2.23(3)(d)

applies to require the district court to state the reasons for its sentence,

notwithstanding the statutory presumption for consecutive sentences in section

908.10A.”).

       Following the sentencing hearing, the district court ordered Carmer to serve

his sentence consecutively to the sentence in FECR092096 and one other

sentence. In my view, the possibility that the pending sentence would be imposed

consecutively to Carmer’s other sentences was a direct consequence of the plea

and Carmer should have been informed of this consequence.

       In reaching this conclusion, I have considered the State’s argument that

White is distinguishable because the case dealt “with multiple counts within the

single case that could be run consecutive, not a single count running consecutive

with unrelated sentences in other cases.” See State v. Reed, No. 02-0480, 2003

WL 556195, at *2 (Iowa Ct. App. Feb. 28, 2003) (distinguishing White on the

ground that “[t]he only reference made at the plea hearing to Reed’s prior
                                          5


convictions was his counsel’s request to continue the pending probation

revocations to the date of sentencing.”). In fact, this proceeding did not involve a

single case.

       Carmer pled guilty to domestic abuse assault causing bodily injury, second

offense. The second offense—styled FECR092096—was identified in the written

guilty plea document governing this case. At the sentencing hearing, the district

court included three criminal case numbers in the caption, addressed “several

Marshall County criminal cases,” and advised Carmer about those matters.

Pertinent to this appeal, the court stated:

               I want you to understand that when you’re sentenced in this
       case, the sentence that is imposed could run consecutively to any
       other sentence that would be imposed since you have got two other
       matters before the Court today. They could run at the same time,
       concurrently; or the sentence could run consecutively; that is one
       after the other.

I would conclude this clear and concise statement also should have appeared in

the guilty plea form. Because the form did not include such a statement, I would

set aside the guilty plea and remand the case to the district court. See Weitzel,

905 N.W.2d at 411.
