                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1319
                               Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL SHAWN BALL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.




      Michael Ball appeals his convictions and sentence after pleading guilty to

indecent exposure and invasion of privacy.       JUDGMENT AND SENTENCE

VACATED AND CASE REMANDED.




      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       In a paper plea proceeding, Michael Ball pled guilty to indecent exposure

and invasion of privacy, both serious misdemeanors. In his written guilty plea, he

waived his personal presence at the plea and sentencing proceedings, and he

requested immediate sentencing.1         The court imposed suspended sentences

with a twenty-four-month probationary period, and it ordered him to pay all court

costs, including the costs associated with two dismissed counts. He appeals

both the convictions and his sentence. We vacate the judgment and sentence

imposed by the district court and remand to allow Ball to plead anew.

       Ball first challenges his convictions, arguing his plea was not knowing and

voluntary because he was not adequately informed he would be subject to a

special sentence pursuant to Iowa Code section 903B.2. The State counters that

Ball has waived any claim that the guilty-plea proceeding was deficient because

he failed to file a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a)

(“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.”). Ball argues the plea form was deficient because it does

not specifically state that failing to file a motion in arrest of judgment waives the

right to challenge the plea on appeal.

       If the court fails to adequately inform a defendant who is pleading guilty of

the consequences of failing to file a motion in arrest of judgment, the challenge is

1
 In the same written guilty plea, Ball pled guilty to a charge of harassment. He was
sentenced separately on this charge. His application for discretionary review was
denied by the Iowa Supreme Court. See Iowa Code § 814.6(2)(d) (2013) (providing for
discretionary review of simple misdemeanors). Ball asks us to vacate his plea to the
harassment charge. We have no jurisdiction to do so.
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not waived.    See Iowa R. Crim. P. 2.8(2)(d) (“The court shall inform the

defendant that any challenges to a plea of guilty based on alleged defects in the

plea proceedings must be raised in a motion in arrest of judgment and that failure

to so raise such challenges shall preclude the right to assert them on appeal.”);

State v. Fisher, ___ N.W.2d ___, ___, 2016 WL 1391874, at *3 (Iowa 2016);

State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006) (“The court must ensure the

defendant understands the necessity of filing a motion [in arrest of judgment] to

challenge a guilty plea and the consequences of failing to do so.” (emphasis

added)); State v. Meron, 675 N.W.2d 537, 541 (Iowa 2004).            We employ a

substantial-compliance standard in determining whether the trial court has

complied with the requirements of rule 2.8(2)(d). See Straw, 709 N.W.2d at 132.

       Because this was a paper plea proceeding, the court’s acceptance of

Ball’s guilty plea involved no personal colloquy.       The only information Ball

received from the court regarding rule 2.8 was contained in his written plea. The

written plea agreement states: “I understand that by following this procedure I am

giving up my right to raise any challenge to my guilty plea through a Motion in

Arrest of Judgment pursuant to Rule 2.24(3) of the Iowa Rules of Criminal

Procedure.” Ball’s written plea did not inform him that the failure to file a motion

in arrest of judgment would preclude his right to appeal. It does not mention the

word “appeal” at all.   See State v. Love, 670 N.W.2d 141, 150 (Iowa 2003)

(“Moreover, the court’s comments in no way conveyed the fact that the

defendant’s failure to file a motion attacking the adequacy of her plea would

forfeit her right to challenge the plea on appeal.”); State v. Ralston, No. 14-1470,

2015 WL 3624436, at *1 (Iowa Ct. App. June 10, 2015); State v. Drew, No. 10-
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0764, 2011 WL 238443, at *2 (Iowa Ct. App. Jan. 20, 2011). Ball’s written plea

of guilty did not substantially comply with the requirements of rule 2.8(2)(d);

therefore, Ball’s failure to file a motion in arrest of judgment does not prevent him

from challenging his guilty plea on appeal. See Fisher, 2016 WL 1391874, at *4-

5.

       Turning to the merits, Ball argues his guilty plea was rendered unknowing

and involuntary because he was not sufficiently informed of the mandatory ten-

year special sentence of supervision under Iowa Code section 903B.2. Before

accepting a plea, a court must inform the defendant of the mandatory minimum

and maximum punishment provided by statute.               See Iowa R. Crim. P.

2.8(2)(b)(2). Convicted of a misdemeanor offense under chapter 709, Ball is

subject to a mandatory “special sentence committing [him] into the custody of the

director of the Iowa department of corrections for a period of ten years.” Iowa

Code § 903B.2.2 This special sentence commences upon the completion of any

sentence for the underlying criminal offense. See id. This special sentencing

provision is a part of Ball’s sentence. See State v. Hallock, 765 N.W.2d 598, 605

(Iowa Ct. App. 2009). Thus, the district court had an obligation to inform Ball of

the ten-year period of parole. See id. at 606.

       Paragraph five of the guilty plea and waiver of presence form, concerning

the maximum sentence Ball faced, is devoid of any mention of the section

903B.2 ten-year special sentence. Paragraph thirteen of the plea, reciting the

plea agreement, only references “903B requirements” and “903B” and is devoid


2
 Indeed, Ball’s judgment and sentence provides he “shall comply with the Iowa Code
section 903B requirements.”
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of any mention of the ten-year special sentence. Mere reference to the Code

section did not in any way adequately inform Ball of the maximum punishment he

faced. The plea form did not inform Ball of the ten-year special sentence. The

plea form did not inform Ball as to when the special sentence would commence.

The plea form did not inform Ball the special-sentencing provision, which could

subject him to imprisonment in excess of the incarceration he faced for the

serious misdemeanors, applied.       Thus, we conclude the rule 2.8(2)(b)(2)

requirement of informing a defendant of applicable minimum and maximum

penalties was not substantially complied with prior to the acceptance of Ball’s

guilty plea. Therefore, Ball’s plea was rendered unknowing and involuntary. See

State v. Hollingsworth, No. 09-0456, 2009 WL 5126331, at *2 (Iowa Ct. App.

Dec. 30, 2009); State v. Cortez, No. 08-0882, 2009 WL 928873, at *3 (Iowa Ct.

App. Apr. 8, 2009).

       We vacate Ball’s indecent exposure and invasion of privacy convictions

and sentence and remand the case to the district court for further proceedings to

allow Ball to plead anew. See Meron, 675 N.W.2d at 544. Because we have

vacated Ball’s sentence and remanded, we need not address Ball’s challenge to

the legality of his sentence.

       JUDGMENT AND SENTENCE VACATED AND CASE REMANDED.
