                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1303
                             Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW ALAN ONSTAD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Allamakee County, Richard D.

Stochl, Judge.




      Matthew Onstad appeals following his guilty plea to a serious

misdemeanor, asserting violations of the Iowa Rules of Criminal Procedure, as

well as the United States Constitution and the Iowa Constitution. AFFIRMED.




      Karl G. Knudson, Decorah, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
                                               2


DOYLE, Judge.

          Matthew Onstad appeals following his guilty plea to a serious

misdemeanor, asserting violations of the Iowa Rules of Criminal Procedure, as

well as the United States Constitution and the Iowa Constitution. We affirm.

          I. Background Facts and Proceedings.

          In October 2014, Onstad was charged by trial information with three

criminal counts: (I) first-degree burglary, (II) child endangerment, and (III)

domestic abuse assault causing bodily injury.              Regarding count III, the trial

information accused Onstad of violating Iowa Code section 708.2A(1) and (2)(b)

(2013) as follows:

                  [Onstad], on or about October 9, 2014, . . . did without
          justification, an act which was intended to cause pain or injury to or
          which was intended to result in physical contact which would be
          insulting or offensive to [the complaining witness] with whom he
          shares a child,[1] coupled with the apparent ability to execute the
          act, and in doing so did cause bodily injury to [the mother].

The minutes of testimony filed therewith stated the mother would testify Onstad

          is the biological father of her [youngest child]. [The mother] will
          testify that on October 9, 2014, she was at her residence with her
          three children when [Onstad] came to her home in a very
          aggressive manner as he was spitting and yelling obscenities. She
          will testify that she told [Onstad] multiple times to leave the
          residence. . . . She will testify that she ran to the corner of the
          kitchen and [Onstad] trapped her and grabbed her by her hair and
          threw her down to the ground with their [child] in her hands. She
          will testify that she and [their child] hit the floor and her arm broke
          most of the fall, but [their child’s] forehead hit the floor very hard,
          causing immediate bruising and a large bump.
                  . . . She will testify that she ran upstairs where the phone
          was and called 911.




1
    We will refer to the complaining witness as “the mother” hereinafter.
                                        3


The minutes further stated an officer would testify he was dispatched to a

residence “regarding a domestic dispute.”      After talking to the mother at the

residence, he observed “[their child] was crying and had a visible bump and

contusion on [the] head.” He would also testify the mother “had several visible

bruises on her body,” and “there was an indication of an altercation in the kitchen

as items were strewn throughout the floor.”

      Ultimately, Onstad entered into a plea agreement with the State. In the

agreement, Onstad stated he was thirty-six years old, had his GED, and was

“able to read, write and speak the English language.” He acknowledged that he

“should not initial any paragraph in this document if [he did] not understand the

paragraph or [if] any part of its contents [were] incorrect.” Onstad placed his

initials at the end of each numbered paragraph and all subparts. At the end of

the document, Onstad indicated that, “[h]aving read and completed this entire

form, [he] respectfully ask[ed] that the Court waive [his] presence for purpose of

pleading guilty,” and he “consent[ed] to and affirmatively request[ed] that the

Court accept this written plea of guilty.” He then signed the document.

      The specific terms of the agreement were set out as follows:

             A. I will plead guilty to Count III, domestic abuse assault, a
      serious misdemeanor, in violation of Iowa Code [§] 708.2A(1) and
      708.2A(2)(b), and Counts I and II will be dismissed.
             B. I will be assessed a criminal fine of $315 along with a
      surcharge of 35%.
             C. I will be sentenced to up to one year in jail with all but 20
      days suspended, and I will be given credit for time already served.
             D. I will be placed on formal probation for up to one year.
             E. A condition of my probation will be that I will be required
      to attend mental health counseling and medication management as
      recommended by my mental health professionals. I will also be
      required to attend the Batterer’s Education Program or a similar
      program under the laws of another state.
                                         4


              F. I will be able to make monthly payments of at least $50
       and/or complete community service to satisfy any monies owed to
       the Court.
              G. I will not be required to reimburse the State for court
       appointed attorney fees because I am not reasonably able to afford
       any reimbursement.
              H. Any and all companion charges will be dismissed at my
       cost.

Onstad placed his initials at the end of each of these paragraphs.

       In other initialed paragraphs, Onstad admitted he had “received a copy of

the [t]rial [i]nformation before being called upon to plead,” he had read the trial

information and the minutes of testimony or had them read to him, and he had

discussed the matter with his lawyer.        Additionally, Onstad affirmed that the

contents of the minutes of testimony were “substantially correct.”           Onstad

averred: “I fully understand the charge(s) against me.” He acknowledged “[n]o

other defenses other than a general denial [were] available.” He also stated:

       I am aware that any agreement made . . . does not bind the Court
       unless I state the Court’s concurrence is required. If the Court’s
       concurrence is required, the Judge will inform me whether the
       Court accepts the agreement or rejects it before accepting my guilty
       plea. I know that if the Judge rejects the agreement, that the Court
       may impose a sentence less favorable than that contemplated in
       the agreement. I also understand that if the Court rejects the
       agreement, I have the right to enter a not guilty plea.

The agreement did not expressly contain a condition that the court’s concurrence

with the terms of the agreement was required to bind the court to the

agreement’s terms.

       Onstad’s counsel also filed a professional statement regarding Onstad’s

plea agreement, stating the attorney “read and fully explained to [Onstad] the

allegations in the [trial information] . . . and carefully reviewed with [Onstad] the

[m]inutes of [t]estimony attached to the [i]nformation.” The attorney also opined
                                          5


that Onstad’s guilty plea was “voluntarily and understandingly made and there

[was] a factual basis for the Court’s accepting the plea of guilty.”

         Onstad also signed a waiver of presence for guilty plea and sentence. In

it, he stated he understood his right to be present at his plea of guilty and

sentencing, but he informed the court he “[did] not wish to be personally present

for either [his] plea of guilty or [his] sentencing” and requested “that the Court

accept [his] plea of guilty and impose sentence in [his] absence.”

         Thereafter, the district court entered its order accepting Onstad’s guilty

plea.2    The court judged Onstad guilty on count III and sentenced Onstad

consistent with the plea agreement but for one exception; instead of one year of

probation, the court placed Onstad on probation “for a period of 1–2 years

subject to rules and conditions of probation.” The court stated its reasons for the

sentence was that this sentence “[was] most likely to protect society and

rehabilitate [Onstad] based upon the nature of the offense, [Onstad’s] prior

record, and the recommendation of the parties and the [presentence

investigation report].”

         Onstad now appeals.

         II. Scope and Standards of Review.

         We review a claim of error in a guilty-plea proceeding for correction of

errors at law. See State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016); see also

Iowa R. App. P. 6.907. However, we review sentencing orders for an abuse of

discretion. See State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016). Constitutional


2
 The district court’s order states Onstad appeared in person, but in view of Onstad’s
waiver of presence it is unclear whether this was so.
                                          6

claims are reviewed de novo. See State v. Jackson, 878 N.W.2d 422, 428 (Iowa

2016).

         III. Discussion.

         Onstad argues his guilty plea was defective and, as a result, the court

erred in accepting the plea and his attorney rendered ineffective assistance in

permitting him to submit the plea. Onstad also challenges the constitutionality of

his waiver of an in-court colloquy. Finally, Onstad maintains the court’s failure to

abide by the terms of the plea agreement violated Iowa Rule of Criminal

Procedure 2.10 and his due process rights under the constitutions of the United

States and Iowa. We address his arguments in turn.

         A. Plea Agreement.

         Onstad asserts his guilty plea was defective in two respects: (1) it did not

explicitly “inform him that in order to convict him of domestic abuse assault, the

[S]tate must prove not only an assault, but also that the assault involved

‘domestic abuse’ as defined in Iowa Code [section] 236.2(2),” and (2) it “did not

explain that the acts which constitute assault are subject to the defense of

justification, and the plea record did not show that Onstad knowingly waived that

potential defense.” Based upon these alleged deficiencies, Onstad asserts he

could not have intelligently or voluntarily entered into the agreement,

demonstrating both that the court erred in accepting the plea and that his

attorney rendered ineffective assistance in allowing him to submit the plea.

         1. Rule 2.8.

         To comport with the mandates of the Due Process Clause, a guilty plea

must be voluntary, meaning “the plea must not only be free from compulsion, but
                                        7

must also be knowing and intelligent.” State v. Loye, 670 N.W.2d 141, 150 (Iowa

2003) (citation omitted). This requires that a defendant “be conscious of ‘the

nature of the crime with which he is charged.’” Id. at 151 (citation omitted). This

principle is codified in Iowa Rule of Criminal Procedure 2.8(2)(b). See id. If the

court fails to substantially comply with rule 2.8(2)(b), the defendant’s conviction

and sentence must be set aside. See Fisher, 877 N.W.2d at 684-85; Loye, 670

N.W.2d at 151.     But if the court substantially complies with the rule, the

defendant can only challenge the guilty plea “under the rubric of ineffective

assistance of counsel.” Fisher, 877 N.W.2d at 682 n.3.

      Rule 2.8(2)(b) “requires the court to ‘address the defendant personally in

open court and inform the defendant of, and determine that the defendant

understands’” the concepts stated in the rule’s subparagraphs, id. at 682 (quoting

Iowa R. Crim. P. 2.8(2)(b)(2)), including the “nature of the charge to which the

plea is offered,” Iowa R. Crim. P. 2.8(2)(b)(1). Thus, the rule has two separate

components: (1) the in-court colloquy and (2) the determination that the

defendant is informed. See State v. Meron, 675 N.W.2d 537, 543 (Iowa 2005).

However, rule 2.8(2)(b)(5) expressly allows the court, “in its discretion and with

the approval of the defendant,” to “waive the above procedures in a plea of guilty

to a serious or aggravated misdemeanor.” Id. (emphasis added) (quoting Iowa

R. Crim. P. 2.8(2)(b)). Consequently:

      Although the court in guilty pleas to serious and aggravated
      misdemeanors can waive the in-court colloquy component, the rule
      still requires substantial compliance with the requirement that the
      defendant be informed. 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.
                                          8

Id. Yet, rule 2.8(3) goes on to state that a “verbatim record of the proceedings at

which the defendant enters a plea shall be made.” (Emphasis added.)

       Here, Onstad pled guilty to a serious misdemeanor. Consequently, the in-

court-colloquy component of rule 2.8(2)(b) could be waived if Onstad approved

and the court allowed it.      See Iowa R. Crim. P. 2.8(2)(b)(5).        In the plea

agreement, Onstad indicated he understood he had “a right under the Rules of

Criminal Procedure to have the Judge address [him] personally in open court to

discuss [his] understanding of all of the matters set out in this written plea” and

that he was giving up his “right under that Rule by signing this written guilty plea.”

Furthermore, in his waiver of presence for guilty plea and sentence Onstad

stated he understood his right to be present at his plea of guilty and sentencing.

He informed the court he “[did] not wish to be personally present for either [his]

plea of guilty or [his] sentencing” and requested “that the Court accept [his] plea

of guilty and impose sentence in [his] absence.”

       i. In-Court-Colloquy Component.

       Onstad does not dispute that he assented to the guilty plea and his waiver

of an in-court colloquy.    Rather, he suggests that a rule 2.8(2)(b)(5) waiver

should not be allowed and instead a verbatim record as contemplated in rule

2.8(3) be created. Stated another way, he advocates that rule 2.8(3) should not

be allowed to be waived. We have not the power nor the inclination to interpret

rule 2.8(3) as trumping rule 2.8(2)(b)(5). See State v. Miller, 841 N.W.2d 583,

584 n.1 (Iowa 2014) (“Generally, it is the role of the supreme court to decide if

case precedent should no longer be followed.”).
                                           9


          First, a defendant who enters a plea of guilty waives certain constitutional

rights.    See Kyle v. State, 364 N.W.2d 558, 561 (Iowa 1985).            It would be

incongruous for the criminal rules to allow a defendant to waive constitutional

rights, as set forth in rule 2.8(2)(b), but not allow a defendant to waive the right by

rule to a verbatim record. See State v. Hinners, 471 N.W.2d 841, 845 (Iowa

1991) (“We too think that if a defendant can waive such important constitutional

rights, the defendant ought to be able to waive a lesser statutory right such as

the right of appeal.”). Moreover, the Iowa Supreme Court has clearly approved

of the waiver of an in-court colloquy in such cases. See Meron, 675 N.W.2d at

543 (discussing State v. Kirchoff, 452 N.W.2d 801, 805 (Iowa 1990) and stating,

“In Kirchoff . . . we said that the requirements for the court to personally address

a defendant to cover the necessary areas of inquiry—now listed under rule

2.8(2)(b)—could be satisfied in cases involving pleas of guilty to serious and

aggravated misdemeanors by supplementing the in-court colloquy with a written

plea that tracked with the language of the rule”). If there is no in-court colloquy,

there is no proceeding from which a “verbatim record” could be created. For that

reason, a waiver pursuant to rule 2.8(2)(b)(5) necessarily results in a waiver of

rule 2.8(3). We therefore turn to the alleged deficiencies in the plea.

          ii. The Determination that Onstad was Informed.

          As noted above, waiving the in-court colloquy in misdemeanor cases does

not absolve the court from ensuring “each plea is voluntary, intelligent, and

supported by facts.” Meron, 675 N.W.2d at 543. It only means the court may

use a defendant’s written acknowledgement in making its required determination.

See id.
                                        10


      The plea agreement, signed and initialed by Onstad, stated he would

“plead guilty to Count III, domestic abuse assault, a serious misdemeanor, in

violation of Iowa Code [section] 708.2A(1) and 708.2A(2)(b).” Iowa Code section

708.2A(1) specifically states that, “[f]or the purposes of [chapter 708], ‘domestic

abuse assault’ means an assault, as defined in section 708.1, which is domestic

abuse as defined in section 236.2, subsection 2, paragraph ‘a’, ‘b’, ‘c’, or ‘d.’”

Section 708.1(2) provides that a

      person commits an assault when, without justification, the person
      does any of the following:
             a. Any act which is intended to cause pain or injury to, or
      which is intended to result in physical contact which will be insulting
      or offensive to another, coupled with the apparent ability to execute
      the act.
             b. Any act which is intended to place another in fear of
      immediate physical contact which will be painful, injurious, insulting,
      or offensive, coupled with the apparent ability to execute the act.

Section 236.2(2)(c) defines domestic abuse assault as an assault “between

persons who are parents of the same minor child, regardless of whether they

have been married or have lived together at any time.”

      The plea agreement informed Onstad the elements of the crime were:

              On or about October 9, 2014 . . . :
              1. I committed an act which was intended to cause pain or
      injury to, result in physical contact which was insulting or offensive,
      or place [the mother] in fear of immediate physical contact which
      would have been injurious, insulting or offensive to [the mother],
              2. I had the apparent ability to do the act, and
              3. My actions cause a bodily injury or mental illness to [the
      mother].

Onstad asserts this was deficient because it failed to specifically state that the

State had to prove there was a domestic relationship between him and the

mother. He argues that “[b]ecause neither the written guilty plea nor any other
                                        11


record in the file shows that this legal term had been explained to Onstad and

that he understood it, the record does not show substantial compliance” with rule

2.8(2)(b), and his plea, as a result, was not voluntary.         Similarly, Onstad

maintains the lack of the reference to the defense of justification, contemplated

by section 708.1, resulted in the agreement being deficient.

       In determining whether a court has adequately informed a defendant of

the rule 2.8(2)(b) advisories, we apply a substantial compliance standard. See

State v. Sutton, 853 N.W.2d 284, 288 (Iowa Ct. App. 2014) (discussing Loye, 670

N.W.2d at 151).      Concerning the 2.8(2)(b)(1) requirement that the defendant

know and understand the nature of the charge to which the plea is offered, if it is

apparent in the circumstances the defendant understood the nature of the

charges against him, the court “need not review and explain each element of the

crime.” Id. (citation omitted).

       Reviewing the plea agreement in its entirety, along with the trial

information and the minutes of testimony, it is apparent in the circumstances that

Onstad understood the nature of the charges against him, including that the

State would have to establish a domestic relationship between Onstad and the

mother. The crime charged was “domestic abuse assault.” The trial information

clearly asserted Onstad shared a child with the mother, and Onstad does not

dispute that fact.    Moreover, Onstad does not assert he did not know or

understand the nature of the charge against him, only that the court failed inquire

if he knew or understood the “domestic” element of the crime, given it was not

explicitly set out in the plea agreement. Upon our review, we find the detailed

agreement substantially complied with rule 2.8(2) in this respect.
                                        12


       As to the potential justification defense, we question whether this is truly

an element of the offense.      Nevertheless, even assuming without deciding

justification should have been stated as an element of the crime in the plea

agreement, the court was not required to “review and explain each element of the

crime” to Onstad. See id. (citation omitted). The trial information included the

term “without justification,” and Onstad acknowledged in the plea agreement that,

other than a general denial, no other defenses were available. Onstad does not

argue he was justified in his actions. In fact, he admitted in the plea agreement

that there was a factual basis for his plea and his description of the events,

which—as stated in the elements of the crime in the plea agreement—

“accurately describe[d] what happened in all significant aspects.” He instead

argues, because of the absence of that explicit statement in the plea agreement,

the court failed to inquire as to whether Onstad knew or understood the potential

applicability of a justification defense. Upon our review, we find the detailed

agreement substantially complied with rule 2.8(2) in this respect.

       The court did not err in accepting the plea agreement because it

substantially complied with the requirements of section 2.8(2)(b) and determined

Onstad’s guilty plea was voluntary, intelligent, and supported by facts. We affirm

on this issue.

       2. Ineffective-Assistance-of-Counsel Claim.

       Onstad also asserts his counsel was ineffective in allowing him to plead

guilty on “a record which did not comply with due process requirements of [rule]

2.8(2)(b) and the Iowa and U.S. Constitutions; and in allowing him to waive his

right to file a Motion in Arrest of Judgment.” To establish his claim of ineffective
                                           13


assistance of counsel, Onstad “must demonstrate (1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.” State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). Ordinarily, “[w]hen a defendant seeks

to have an ineffective-assistance claim resolved on direct appeal, the defendant

must establish that the record is adequate to allow the appellate court to

determine the issue. If the record is inadequate on appeal, the issue must be

addressed in an action for postconviction relief.”3 State v. Thacker, 862 N.W.2d

402, 405 (Iowa 2015) (citation omitted). The record here is adequate.

       The district court substantially complied with the requirements of rule

2.8(2)(b), and therefore Onstad’s counsel had no duty to assert a meritless claim.

State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015) (“Counsel does not fail to

perform an essential duty by failing to raise a meritless objection.”). Because we

preclude relief if we find either prong—duty or prejudice—lacking, see id.,

Onstad’s ineffective-assistance-of-counsel claim on this issue fails.

       B. Sentencing.

       Finally, Onstad maintains the plea agreement was conditioned upon the

court’s concurrence in regard to his sentence, and the court’s deviation from the




3
  Onstad also requests the court’s holding in Straw be overturned and that we require
“that prejudice . . . be presumed in a direct appeal where ineffective counsel allows a
guilty plea to be submitted on a deficient record which does not show compliance with
voluntariness criteria required [rule] 2.8(2)(b) and constitutional due process.” Because
we address Onstad’s ineffective-assistance-of-counsel claim on direct appeal, and
because we have no authority to reverse Straw, we do not address the issue further.
See Miller, 841 N.W.2d at 584 n.1 (“Generally, it is the role of the supreme court to
decide if case precedent should no longer be followed.”); State v. Eichler, 83 N.W.2d
576, 578 (Iowa 1957) (“If our previous holdings are to be overruled, we should ordinarily
prefer to do it ourselves.”); State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990)
(“We are not at liberty to overturn Iowa Supreme Court precedent.”).
                                        14


probationary term of one year to “a period of 1–2 years” violated Iowa Rule of

Criminal Procedure 2.10 and his due process rights. Under rule 2.10(2):

              If a plea agreement has been reached by the parties the
       court shall require the disclosure of the agreement in open court at
       the time the plea is offered. Thereupon, if the agreement is
       conditioned upon concurrence of the court in the charging or
       sentencing concession made by the prosecuting attorney, the court
       may accept or reject the agreement, or may defer its decision as to
       acceptance or rejection until receipt of a presentence report.

Additionally:

               When the plea agreement is conditioned upon the court’s
       concurrence, and the court accepts the plea agreement, the court
       shall inform the defendant that it will embody in the judgment and
       sentence the disposition provided for in the plea agreement or
       another disposition more favorable to the defendant than that
       provided for in the plea agreement.

Iowa R. Crim. P. 2.10(3).

       The plea agreement specifically states Onstad was aware his agreement

concerning the charge against him and his sentence “does not bind the Court

unless I state the Court’s concurrence is required.” Nowhere in the agreement

does Onstad state the court’s concurrence is required. Onstad does not seem to

dispute this but points to a provision of the agreement which states, “I understand

the complete agreement to be as follows: . . . I will be placed on formal probation

for up to a year.” Onstad asserts use of the word “will” meant the agreement was

conditioned upon the court’s concurrence. This is insufficient under the language

of the plea agreement. See State v. Thompson, 856 N.W.2d 915, 922 (Iowa

2014); see also State v. Porter, No. 13-0463, 2013 WL 6700301, at *2 (Iowa Ct.

App. Dec. 18, 2013). While it might be a better practice to explicitly state in plea

agreements whether the agreement is or is not conditioned upon the court’s
                                       15


concurrence, the absence of such statement under the terms of this agreement

means the agreement was not so conditioned. Accordingly, the court did not

abuse its discretion when it deviated from the sentence set forth in the plea

agreement.

         IV. Conclusion.

         The court did not err in accepting the plea agreement because it

substantially complied with the requirements of section 2.8(2)(b) and properly

determined Onstad’s guilty plea was voluntary, intelligent, and supported by

facts.    Onstad’s ineffective-assistance-of-counsel claim premised upon rule

2.8(2) fails for the same reasons. Finally, the sentencing court did not abuse its

discretion in deviating from the sentence set forth in the plea agreement because

the agreement was not conditioned upon the court’s concurrence with the

agreement. We therefore affirm Onstad’s conviction and sentence.

         AFFIRMED.
