                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1630
                             Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHNNIE RAY STEIGER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Douglas C.

McDonald (trial and plea) and Christine Dalton Ploof (sentencing), District

Associate Judges.



      Johnnie    Steiger   appeals   two   judgments   for   indecent   exposure.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

       Johnnie Steiger appeals two judgments for indecent exposure (third or

subsequent offense).      The first was entered following a bench trial.         At the

conclusion of trial, Steiger stipulated to two prior convictions for sentencing

enhancement purposes. The second judgment was entered in connection with a

guilty plea. At the end of the guilty-plea proceeding, Steiger acknowledged his

stipulation to the prior convictions.

       On appeal, Steiger contends the district court (I) “failed to engage in a

sufficient colloquy” about his stipulation to prior convictions in the first case and

(II) failed to engage in a sufficient guilty plea colloquy in the second case.

I.     Colloquy on Stipulation to Prior Convictions

       Where the State alleges an offender has one or more prior convictions

that may subject the offender to an increased sentence, Iowa Rule of Criminal

Procedure 2.19(9) authorizes a second proceeding, “[a]fter conviction of the

primary or current offense,” in which “the offender shall have the opportunity in

open court to affirm or deny that the offender is the person previously convicted,

or that the offender was not represented by counsel and did not waive counsel.”

“The court has a duty to conduct a further inquiry, similar to the [guilty plea]

colloquy required under rule 2.8(2), prior to sentencing to ensure that the

affirmation is voluntary and intelligent.” State v. Kukowski, 704 N.W.2d 687, 692

(Iowa 2005).      Steiger challenges the district court’s compliance with the

obligation to conduct a rule 2.19(9) colloquy but preliminarily addresses the

question of whether he preserved error.
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       Steiger concedes he “did not file any motion in arrest of judgment

challenging his stipulation to the prior offenses.” In his view, “such failure does

not preclude a challenge to his stipulation on direct appeal because the district

court failed to advise [him] either (1) of the right to challenge defects in his

stipulation by filing a motion in arrest of judgment, or (2) that the failure to file a

motion in arrest of judgment would preclude him from challenging his stipulation

on appeal as required under rule 2.8(2)(d).”          The State responds that “a

stipulation to prior convictions is not a guilty plea” and “the rule governing the

defendant’s admission of prior convictions does not mention a requirement to file

a motion in arrest of judgment” but “recognizes that the defendant must make

some objections prior to or at the time of trial.”

       This court recently addressed the identical error preservation issue in

State v. Harrington, No. 15-0308, 2016 WL 3556375, at *3 (Iowa Ct. App. June

29, 2016). There, as here, the defendant stipulated to his prior convictions and

did not object to the sufficiency of the district court’s rule 2.19(9) colloquy. See

Harrington, 2016 WL 3556375, at *1-2.           And there, as here, the defendant

argued that this court could nonetheless review the sufficiency of the colloquy

because the district court failed to advise him of his ability to challenge the

colloquy by filing a motion in arrest of judgment. We stated, although

       a motion in arrest of judgment would have been an appropriate
       vehicle to challenge the enhancement proceedings in this case . . .
       the availability of that remedy [did] not mandate the district court
       provide a warning . . . that a failure to file a motion in arrest of
       judgment precludes the right to assert a challenge on appeal of a
       defect.
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Id. at *3. Because the defendant did not alternatively raise the sufficiency of the

rule 2.19(9) colloquy under an ineffective-assistance-of-counsel rubric, we

concluded error was not preserved. See id.; cf. State v. Peterson, 11-1409, 2012

WL 3860730, at *4 (Iowa Ct. App. Sept. 6, 2012) (determining “the court’s notice

for the requirement to file a motion in arrest of judgment was insufficient” and

deciding the issue on direct appeal where “the admissions at issue were made in

conjunction with the guilty plea proceedings”).

      We find the reasoning of Harrington persuasive. Steiger had an obligation

to object to the sufficiency of the rule 2.19(9) colloquy either by way of a motion

in arrest of judgment or otherwise in order to preserve the issue for appeal. The

district court’s failure to advise him of the right to challenge the defects via a

motion in arrest of judgment as well as the consequences of failing to file a

motion did not obviate his obligation to object. Because Steiger failed to object

and did not alternatively raise the issue as an ineffective-assistance-of-counsel

claim, we conclude error was not preserved and we decline to address the

sufficiency of the colloquy. We affirm the judgment and sentence for indecent

exposure (third or subsequent offense) in the case involving the bench trial

(SRCR369368).

II.   Guilty Plea Colloquy

      Steiger next challenges the sufficiency of the guilty plea colloquy in the

second case. See Iowa R. Crim. P. 2.8(2)(b) (requiring the court to inform the

defendant of various matters in a guilty plea proceeding). The State concedes

error was preserved and concedes the guilty plea colloquy was insufficient.
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      We conclude the colloquy was inadequate. We reverse the judgment and

sentence in the guilty plea proceeding (SRCR369403) and remand for further

proceedings to allow Steiger to plead anew.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
