                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2110
                             Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID CHARLES MILLER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Benton County, Ian K. Thornhill,

Judge.



      A defendant challenges his convictions and sentence for one count of

voluntary manslaughter and two counts of second-degree theft. JUDGMENT

AFFIRMED, SENTENCE VACATED, AND REMANDED FOR FURTHER

PROCEEDINGS AND RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant State Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
                                            2


TABOR, Judge.

       The jury heard evidence David Miller killed his live-in girlfriend and, after

leaving the bloody crime scene, totaled two stolen pickup trucks.               Following

deliberation, the jury returned guilty verdicts of voluntary manslaughter and two

counts of second-degree theft. The district court enhanced the theft offenses

based on Miller’s habitual-offender status and sentenced him to consecutive terms

totaling forty years. Miller appeals his convictions and prison sentence, alleging

ineffective assistance of counsel, insufficient evidence, improper enhancement

procedures, and sentencing errors.

       Because defense counsel may have had a strategic reason for not moving

for judgment of acquittal on the homicide count, we preserve that claim for possible

postconviction proceedings. We find substantial evidence to support the two theft

convictions. As for the habitual-offender enhancement, vacation of the sentence

is required.   Because we remand for further proceedings consistent with the

interpretation of Iowa Rule of Criminal Procedure 2.19(9) in State v. Harrington,

893 N.W.2d 36 (Iowa 2017), we need not reach the sentencing issues.1

    I. Facts and Prior Proceedings

       On a chilly morning in late October, a passersby noticed a man—later

identified as Miller—walking barefoot along the shoulder of Lewis Bottoms Road

near Palo wearing only his boxer shorts. Dispatched to the location around 11:30

a.m., state troopers detained Miller while they tried to figure out what was going

on. The troopers noticed Miller had “scratches and blood all over him,” as well as


1
 For purposes of Miller’s resentencing, if the district court imposes the habitual-offender
sentences under Iowa Code section 902.9(1)(c) (2015), the $750 fines are not authorized.
                                           3


large gashes on his head and right hand. Miller gave troopers the implausible

explanation that he had been out with friends “playing a game of war” and had to

strip when the others placed “smoke bombs” around his waist and in his pockets.

Emergency services transported Miller to the hospital.

       Contemporaneous with Miller’s detention, dispatch received a report that

neighbors found the body of Sabrina Hustad Janish,2 outside the rural Vinton

residence she shared with Miller.        Benton County authorities were already

investigating two reports of stolen pickup trucks that morning.

       One of the trucks was taken from the driveway of Justin Varner, who lived

in the same rural neighborhood as Miller. Varner woke to the “rumble” of his 1977

Chevy Silverado around 3:45 a.m. Varner raced outside but could not stop the

man—whom he did not know at the time, but identified at trial as Miller—from

driving off in the Silverado. Varner recalled Miller wearing a “hoodie” and staring

at him with a “deer-in-the-headlights look.” That look led Varner to believe Miller

was under the influence of methamphetamine.            Varner recalled Miller saying

“something along the lines of his dad told him to either take the truck or told him to

get the truck.” Varner notified police who found the pickup on the “next gravel road

over” that had been closed for construction. The pickup was a total loss after being

“smashed into the front of a large crane.”

       After his Silverado was recovered—the driver’s door smeared with blood—

Varner and some neighbors spied a blood trail from his driveway to the next lot up

the street where Miller lived. The trail ended at the body of a woman, clad in


2
  The parties generally refer to the victim as Sabrina Hustad, so we will do the same in
this opinion.
                                            4


pajamas, lying face down on the grass outside Miller’s trailer home. One of the

neighbors touched her shoulder and said “she’s cold, you better call 911.” The

deceased woman was later identified as twenty-six-year-old Hustad, who moved

into the residence with Miller just ten days earlier. Agents with the Iowa Division

of Criminal Investigation (DCI) told Miller a woman’s body had been discovered

outside his trailer. He responded that he didn’t know anything about it or who it

was.3

        The second pickup, a white 2001 Ford F-150, was taken sometime before

9 a.m. from outside of Brian Brummer’s machine shed. Brummer lived about an

eighth of a mile from where the Silverado smashed into the construction crane.

Later that morning, state troopers flying a plane over the Pleasant Creek State

Recreation Area near Palo spotted Brummer’s F-150 mired in the mud in a heavily

wooded area. On the ground, officers discovered the truck had slid off the road

bed and collided with several trees, ripping off the front bumper. The driver’s side

airbag had deployed, and the interior was covered with “quite a bit of blood.” In

the nearby lake bed, officers found a hooded sweatshirt and two boots, as well as

prints left by the barefooted Miller.

        State Criminalist Brenda Crosby examined these mud-caked exhibits.

Crosby detected blood on the sweatshirt but could not develop a DNA sample

because bacteria in the mud inhibited the process. Crosby found blood stains on

the boots that tested positive for DNA from two individuals, but she could only




3
 Miller told the DCI agents during an hour-long interview at the hospital that he had been
using methamphetamine the night before he was detained by the state troopers. Miller
also stuck to his story that he received his injuries during some bizarre war game.
                                                5


develop the profile matching Miller as the major contributor. The criminalist also

performed a Hematrace blood screening test that revealed Hustad’s blood on the

lace from the right boot. In more lab analysis, Crosby tested swabs of blood taken

from the driver’s side door of the Silverado, which matched Miller’s DNA profile.

Crosby also detected Miller’s DNA in blood droplets retrieved from Hustad’s

pajama pants and her bare foot.

          Investigators found more blood evidence, as well as signs of a struggle,

inside the residence shared by Miller and Hustad. A lamp and end table were

overturned; cigarettes and beer cans were scattered around the living room. Most

significantly, a buck knife was left in a pool of blood on the carpet.                  Crosby

confirmed Hustad’s blood was on the knife.4

          An autopsy performed on Hustad revealed two-dozen measurable stab

wounds and many more scratches. Hustad had defensive wounds on her hands,

indicating she tried to grab the knife during the struggle.                Associate Medical

Examiner Michele Catellier determined Hustad also had been strangled, based on

bruising and petechial hemorrhages on the vicitm’s neck. Dr. Catellier declared

the cause of death as “multiple stab wounds with strangulation.”




4
    In closing argument, the prosecutor summarized the State’s theory of the case:
           You could reasonably conclude from this evidence that Sabrina never gets
           to her feet while this attack is happening, but [Miller] does and [Miller] has
           the ability to walk around and take off from the scene. . . . [Miller] takes
           Varner’s truck, without his permission and wrecks it, wrecks it fairly close
           to where he takes it from. He then proceeds on foot, . . . takes the Brummer
           vehicle and then wrecks it at Pleasant Creek State Recreational Area. . . .
           At this point, [Miller] has exhausted his vehicle options and he’s on foot.
           And he’s in his underwear, . . . and he’s still attempting to get away.
                                          6


       The State charged Miller with murder in the first degree and two counts of

theft in the second degree while being an habitual offender. His jury trial took place

in September 2016. The jury returned guilty verdicts on the second-degree theft

counts. But the jury acquitted the defendant of murder, instead finding him guilty

of the lesser-included offense of voluntary manslaughter.         The district court

discussed the habitual offender allegations with Miller, and Miller stipulated to

having at least two qualifying felony convictions. The court sentenced Miller to

consecutive terms of fifteen years on the two enhanced theft offenses and ten

years on the voluntary manslaughter count, for a total sentence not to exceed forty

years. Miller appeals his convictions and sentence.

   II. Scope and Standards of Review

       Because of its constitutional basis, we review Miller’s claim of ineffective

assistance of counsel de novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012). We review his substantial-evidence challenge for correction of legal error.

See Iowa R. App. P. 6.907; see also State v. Rohm, 609 N.W.2d 504, 509 (Iowa

2000). As for his objection to the enhancement proceeding, we again review for

correction of legal error; but if the argument implicates constitutional rights, we

engage in a de novo review. See Harrington, 893 N.W.2d at 41.

   III. Analysis

       A. Ineffective Assistance of Counsel—Homicide Count

       Miller contends he was denied effective assistance of counsel because his

trial attorney did not move for judgment of acquittal on count I, the homicide

offense, and did not ask for a new trial on the voluntary manslaughter verdict.

       After the close of the State’s case in chief, defense counsel told the court:
                                                7


          Your Honor, we are aware, obviously, of the ability to file or to ask
          for a motion for judgment of acquittal at the close of the State’s
          evidence. The real question is vague as to whether or not there’s
          enough there to make that motion. As it relates to Count 1, we are
          not making that motion, and I have discussed it otherwise with my
          client and he understands that.

On appeal, Miller contends counsel was constitutionally remiss in not moving for

judgment of acquittal because the State did not offer substantial evidence to prove

voluntary manslaughter.5 Specifically, Miller argues the State did not present

evidence that Hustad’s death by strangulation or stabbing “was preceded by any

provocation.” In addition, Miller contends counsel was remiss in limiting his motion

for new trial to the theft counts, rather than also alleging the voluntary-

manslaughter verdict was against the greater weight of the evidence.

          The defense may move for judgment of acquittal as a means to challenge

the sufficiency of the evidence before the district court submits a criminal case to

the jury. See Iowa R. Crim. P. 2.19(8)(a); State v. Serrato, 787 N.W.2d 462, 465

(Iowa      2010).      “A   guilty   verdict    must     be   supported      by    substantial

evidence.” Serrato, 787 N.W.2d at 465. Substantial evidence is defined as the

quantity and quality of proof from which a rational trier of fact could find the accused

guilty beyond a reasonable doubt. See id. After the jury has returned a guilty


5
    Iowa Code section 707.4 provides:
                 A person commits voluntary manslaughter when that person
         causes the death of another person, under circumstances which would
         otherwise be murder, if he or she acts solely as the result of sudden, violent,
         and irresistible passion resulting from serious provocation sufficient to
         excite such passion in a person and there is not an interval between the
         provocation and the killing in which a person of ordinary reason and
         temperament would regain his or her control and suppress the impulse to
         kill. Voluntary manslaughter is an included offense under an indictment for
         murder in the first or second degree. Voluntary manslaughter is a class “C”
         felony.
                                         8


verdict, the defense may move for a new trial on the ground that “the verdict is

contrary to law or evidence.” Iowa R. Crim. P. 2.24(2)(b)(6). “A verdict is contrary

to evidence when it is against the [greater] weight of the evidence” presented at

trial. State v. Taylor, 689 N.W.2d 116, 133–34 (Iowa 2004) (citing State v. Ellis,

578 N.W.2d 655, 659 (Iowa 1998)).

       To prevail on his ineffective-assistance claim, Miller must show both that (1)

counsel failed to perform an essential duty and (2) prejudice resulted from the

omission. See State v. Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010). The test

is whether counsel’s performance fell below an objective standard of

reasonableness to the extent that the Sixth Amendment’s guarantee was not

fulfilled. See Strickland v. Washington, 466 U.S. 668, 688 (1984). Our scrutiny of

counsel’s performance is “highly deferential,” and we indulge in a strong

presumption counsel has acted in a professional manner.            See id. at 689.

Defendants are not entitled to perfect representation, only that which is within the

range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).

“Improvident trial strategy, miscalculated tactics, or mistakes in judgment do not

necessarily amount to ineffective assistance of counsel.” Osborn v. State, 573

N.W.2d 917, 922 (Iowa 1998). We often reserve claims of ineffective assistance

for postconviction-relief proceedings, in part, so counsel may have his “day in

court” as his reputation is being impugned. See State v. Stewart, 691 N.W.2d 747,

750 (Iowa Ct. App. 2004) (quoting State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)).

       In this case, defense counsel did not misunderstand or overlook the

opportunity to seek judgment of acquittal on the homicide offense. Rather, he

consulted with his client and decided against it. Similarly, counsel targeted the
                                            9


theft counts in the motion for new trial and declined to attack the voluntary-

manslaughter verdict.

       On appeal, the State contends defense counsel should be permitted to

explain his strategic choices in postconviction proceedings. We agree the record

is inadequate to address these claims on direct appeal and preserve the

ineffective-assistance complaints for further development should Miller seek

postconviction relief.

       B. Substantial Evidence—Vehicle Theft

       Miller next claims the district court should have granted his motion for

judgment of acquittal on the second-degree theft counts. For those offenses, the

State was required to prove, beyond a reasonable doubt, the following elements:

(1) Miller knowingly took possession or control of a motor vehicle; (2) at the time

of the taking, the motor vehicle belonged to another person; (3) Miller took

possession or control with the specific intent to permanently deprive the other

person of the vehicle. Iowa Code §§ 714.1(1), 714.2(2).

       As defense counsel argued in making his motion for judgment of acquittal,

“the fighting issue is the intent to permanently deprive.” Counsel asserted Miller’s

taking of the pickup trucks could be best described as an “erratic exodus from his

home” and the State did not offer evidence indicating Miller “wanted to keep the

vehicles for himself.”6 The prosecutor articulated a counterpoint: Miller’s intent




6
  Contrary to defense counsel’s assertion, the State was not required to prove Miller
sought a pecuniary advantage from taking the trucks. The requisite intent is stated in
terms of “the owner’s deprivation rather than of the thief’s gain.” See 3 Wayne R. LaFave,
Substantive Criminal Law § 19.5 (3d ed. 2017) [hereinafter LaFave].
                                             10


“was to use those vehicles like commodities . . . he was not concerned about

returning them in nice shape to the owners.” Indeed, both vehicles were totaled

after Miller crashed them into a construction crane and a grove of trees,

respectively.

       To support his substantial evidence argument on appeal, Miller relies on

State v. Schminkey, 597 N.W.2d 785, 787 (Iowa 1999) and State v. Morris, 677

N.W.2d 787, 788 (Iowa 2004). In Schimkey, our supreme court contrasted the

mens rea element for theft by taking in section 714.1(1) (“the intent to deprive”7)

with the definition of operating without the owner’s consent in section 714.7

(“without the intent to permanently deprive the owner thereof”) and held “the intent

to permanently deprive the owner of his property” is an essential element of theft

by taking. 597 N.W.2d at 789. The Schmikey court vacated a guilty plea for vehicle

theft because the record did not support a factual basis for the defendant’s intent

to permanently deprive.8 Schminkey had been drinking heavily, took a truck

owned by a man he did not know, drove erratically, soon crashed the truck, and

killed another driver before colliding with a fence. Id. at 787. The Schminkey court

opined none of those facts indicated the defendant “intended to do anything more



7
  The definition of theft in Iowa Code section 714.1 is based on the Model Penal Code.
State v. Donaldson, 663 N.W.2d 882, 885 (Iowa 2003). The Model Penal Code defines
“deprive” in two ways: “(a) to withhold property of another permanently or for so extended
a period as to appropriate a major portion of its economic value, . . . ; or (b) to dispose of
the property so as to make it unlikely that the owner will recover it.” Model Penal Code §
223.0(1) (Am. Law Inst. 1962).
8
  Iowa is among “a large number of states [that] have singled out the motor vehicle for
special treatment, making it a crime (generally called ‘joyriding,’ a crime somewhat less
serious than larceny) to take such a vehicle with intent to use it and return it.” See LaFave,
at § 19.5(b).
                                        11

than temporarily use the vehicle to go home or to another bar.”          Id. at 791.

“Because Schminkey wrecked the pickup before he could dispose of it, we do not

have the typical inferences that can be drawn from a defendant’s actions

subsequent to the taking.” Id. The court held Schminkey’s admitted taking was

insufficient, standing alone, to support an inference that he intended to

permanently deprive the owner of the truck. Id. at 791–92 (emphasizing plea

record contained “no admissions by the defendant or statements from other

witnesses that would indicate Schminkey’s purpose in taking the vehicle”).

      The supreme court reaffirmed Schminkey in Morris. Morris took a truck that

had been warming up in front of the owner’s house. 677 N.W.2d at 787. Within

half an hour of the owner reporting the truck missing, police stopped Morris behind

the wheel about five miles away; he fled on foot. Id. at 788. The State argued

Morris’s evasive action signaled his intent to permanently deprive.        Id.   The

supreme court disagreed, reasoning: “Abandoning the vehicle and fleeing upon

observing the presence of police was an act that would ordinarily assure that the

truck would be returned to its owner.” Id. The Morris court further explained:

             Although apprehension of the suspect within a short time of
      the taking of the vehicle does not defeat the possibility that there was
      an intent to permanently deprive the owner of the property at the time
      of the taking, it is a circumstance that severely limits the
      circumstantial evidence from which that intent can be inferred.

Id.

      Our task is to decide if substantial evidence buoys the jury’s verdicts finding

Miller guilty of two counts of second-degree theft. We consider all the evidence,

not just that supporting the verdicts, and view such evidence in the light most

favorable to the State. State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017). As framed
                                            12

in State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012), the question is whether the

State offered sufficient proof from which a reasonable jury could conclude Miller

“took the [trucks] for more than a joyride.”

       Proof that Miller acted with the specific purpose of permanently depriving

Varner and Brummer of their trucks requires us to decipher what Miller was

thinking at the time of the takings. See Schminkey, 597 N.W.2d at 789. What

someone is thinking can seldom be established with direct evidence. State v.

Fratzke, 446 N.W.2d 781, 783 (Iowa 1989).                  “Therefore, the facts and

circumstances surrounding the act, as well as any reasonable inferences to be

drawn from those facts and circumstances, may be relied upon to ascertain the

defendant’s intent.” Schminkey, 597 N.W.2d at 789. Accordingly, we examine the

record for facts and circumstances that would support an inference Miller intended

to permanently deprive Varner and Brummer of their trucks.

       Several circumstances separate Miller’s case from Schminkey and Morris.

First, the jury could have inferred Miller’s purpose at the time he took Varner’s truck

was to place distance between himself and his blood-soaked trailer where he had

stabbed his girlfriend twenty-four times. The evidence showed Miller decided

against taking his own pickup truck or his work van, both of which remained parked

outside his trailer.   The jury could have deduced that Miller wanted to take

someone else’s vehicle to avoid detection.

       Second, unlike Schminkey and Morris who did not encounter the owners of

the vehicles they operated, Miller took Varner’s vehicle in the owner’s physical

presence and against his obvious wishes. When Varner was running down his

driveway to stop the theft, Miller did not tell Varner, “Don’t worry. I’ll bring your truck
                                         13


right back.” Rather he gave Varner the odd excuse that Miller’s father told him to

take Varner’s truck. The jury could have inferred from this exchange that Miller

had no intent to return the truck.

        Third, after Miller wrecked Varner’s truck, he fled on foot and seized a

second getaway vehicle. Miller drove Brummer’s truck off the road into a thicket

of trees at a remote recreation area. The sequential nature of Miller’s thefts and

acts of vandalism distinguishes this case from Schminkey and Morris. The jury

could infer Miller had no bona fide intent to return the trucks to their owners—but

rather expected to use them in whatever manner possible to avoid apprehension

for killing his girlfriend.

        Fourth, while being detained along Lewis Bottoms Road, Miller was

confronted by a state trooper, “we have a pretty good idea you stole and wrecked

two vehicles.” Miller cursed a denial and insisted he had not been driving. The

jury could have found Miller’s failure to reveal the location of the trucks was

inconsistent with a true intent that they be restored to their owners.

        Miller argues the evidence did not show his intent to permanently deprive

because he “took the vehicles in an attempt to remove himself from the area.” But

taking someone else’s truck as a getaway vehicle is not the equivalent of a

joyride—where the only plan is to take a quick excursion and then return the

vehicle. Even assuming Miller actually intended to use Varner’s truck and then

Brummer’s truck “‘only temporarily’ (as he would need [them] to achieve a

successful flight from the authorities)” we are not convinced his theory negates, as

a matter of law, his specific intent to permanently deprive the owners of their

property. See State v. Gordon, 321 A.2d 352, 357 (Me. 1974) (explaining lack of
                                          14


contradiction between a thief’s temporary use of stolen property and the owner’s

permanent deprivation).

       A leading commentator has described actions like those taken by Miller as

evincing the intent to permanently deprive; “if one takes another’s property

intending to use it recklessly and then abandon it, the obstacles to its safe return

to the owner are such that the taker possesses the required intent to steal.” See

LaFave, at § 19.5(b) (citing State v. Davis, 38 N.J.L. 176 (N.J. 1875); Regina v.

Holloway, 169 Eng. Rep. 285 (1848) (“intent to use another’s goods ‘in a reckless,

wanton, or injurious manner, and then to leave it to mere chance whether the

owner ever recovered them or no, and if he recovered them at all would probably

recover them in a damaged or altered condition’ is an intent to deprive the owner

wholly of his property, which describes the mental state required for larceny”)).

       Schminkey draws a distinction between accidental and intentional damage

to property taken without permission. 597 N.W.2d at 791–92 (summarizing Slay

v. State, 241 So. 2d 362, 364 (Miss. 1970) as “holding evidence insufficient to

prove intent to permanently deprive where eighteen-year-old driver did not

purposefully wreck car taken from used car lot” and summarizing State v.

Winkelmann, 761 S.W.2d 702, 708 (Mo. Ct. App. 1988) as “finding sufficient

evidence of an intent to permanently deprive where defendant intentionally drove

car into a brick wall, inflicting severe damage”). But in Miller’s case, the jurors

could have accepted either inference. The jurors could have believed Miller—high

on drugs—accidentally totaled both trucks before he had a chance to restore them

to their rightful owners. But the jurors instead, as they were entitled to do, adopted

the State’s theory that Miller had no intent to return the trucks in operable condition
                                          15


and either recklessly or deliberately damaged them to throw the authorities off his

trail. See Gordon, 321 A.2d at 358–59 (deciding jury was warranted in concluding

defendant had intent to permanently deprive as he was “indifferent” to whether the

owner would ever see his car again and would “abandon it in whatever manner

might happen to meet the circumstantial exigencies of defendant’s predicament—

without . . . any thought that the relinquishment of the possession was to be in a

manner having some affirmative tendency to help in the owner’s recovery of his

property”).

       In this case, Miller disposed of the pickup trucks in a manner that made it

unlikely their owners would recover them with any remaining economic value. The

district court appropriately let the question of Miller’s intent to permanently deprive

be decided by the jury. We will not disturb the guilty verdicts on the two counts of

second-degree theft.

       C. District Court Colloquy—Habitual Offender Enhancement

       Miller submits the district court erred in accepting his stipulation to prior

felony offenses for purposes of the habitual offender enhancement without

complying with Iowa Rule of Criminal Procedure 2.19(9). Our supreme court

recently spelled out the necessary elements of the habitual offender colloquy.

Harrington, 893 N.W.2d at 45 (requiring district courts to ensure admission to prior

offenses is voluntary and intelligent, and defendant understands ramifications of

habitual-offender adjudication); see also State v. Kukowski, 704 N.W.2d 687, 691–

94 (Iowa 2005).

       Persons convicted of class “C” or “D” felonies are subject to sentencing

enhancements if they have been twice before been convicted of any felony. Iowa
                                          16


Code § 902.8. The habitual-offender sentence is an indeterminate fifteen years

with a minimum term of three years before parole eligibility.              Id. § 902.8,

902.9(1)(c). After being convicted, an offender has the chance in open court to

affirm or deny he or she is the same person who was previously convicted. Iowa

R. Crim. P. 2.19(9). If an offender denies being the person previously convicted,

he or she is entitled to a jury trial on the identity issue. Id. If the offender admits

to being the person previously convicted, the habitual-offender sentencing

proceeds. See id.

       Under Harrington, the district court must engage the offender in a colloquy

before accepting his or her admission to being the person who committed the

previous felonies. 893 N.W.2d at 45. The district court must inform the offender

of five things: (1) the nature of the habitual-offender charge, including the fact that

the prior felony convictions are only valid enhancers if the offender was

represented by counsel or knowing and voluntarily waived counsel before being

convicted of the previous felonies; (2) the maximum possible punishment,

including the mandatory minimum punishment; (3) the trial rights listed in Iowa

Rule of Criminal Procedure 2.8(2)(b)(4) the offender is waiving; (4) that no trial will

take place if the offender admits the prior convictions; and (5) that challenges to

an admission based on defects in the habitual-offender proceedings must be

raised in a motion in arrest of judgment. Id. at 45–46.

       In Miller’s case, after the jury returned its verdicts, the parties conferred with

the district court about the habitual-offender enhancements. The court asked if the

defense was “prepared to address the habitual offender nature” of the two theft

convictions. Defense counsel said Miller would not be seeking a jury trial on the
                                          17


qualifying offenses. Counsel further asserted Miller would “concede he has two

prior felonies, so all the elements, the State will have to prove nothing.” The court

then addressed Miller personally, advising him of the habitual-offender penalties

and that he could ask for a jury to hear the facts of his previous felony convictions.

Miller said he was not disputing his felony record. The court ensured Miller

understood he could “put [the State] through those paces” if he chose to require

documentation of the prior felony convictions.

       The district court did not inform Miller that for the prior convictions to qualify

under rule 2.19(9) they must have been entered with the assistance of counsel or

followed a valid waiver of counsel. The court also did not fully inform Miller of the

trial rights he was giving up by stipulating. See Iowa R. Crim. P. 2.8(2)(b)(4)–(5).

The record of the stipulation also did not establish a factual basis for the habitual-

offender adjudication. See Harrington, 893 N.W.2d at 45–46. Accordingly, the

court’s colloquy with Miller did not substantially comply with the Harrington

mandates.

       The State agrees the colloquy was deficient but contests error preservation

and the retroactive application of Harrington. The State also argues Miller cannot

show he was prejudiced by the faulty habitual-offender colloquy because the

minutes of evidence set forth the details of his prior felony convictions and Miller

has not challenged his identity as the person previously convicted or that the

convictions were obtained in violation of his right to counsel.

       Harrington held offenders in a habitual offender proceeding “must preserve

error in any deficiencies in the proceeding by filing a motion in arrest of judgment.”

893 N.W.2d at 43. But the court decided the error-preservation rule would apply
                                         18

prospectively. See id. Miller did not file a motion in arrest of judgment, but his

colloquy predated Harrington.9 He was thus excused from the necessity of filing a

motion in arrest of judgment to preserve error on this issue. See State v. Steiger,

903 N.W.2d 169, 170 (Iowa 2017) (reversing for failure to comply with colloquy

despite no motion in arrest of judgment because Harrington’s error-preservation

rule was not established at time of colloquy).

       As for the State’s retroactivity argument, we have decided Harrington’s

colloquy requirements shall be applied to all non-final cases pending in district

court or on direct appeal at the time that decision was issued. See State v. Allie,

No. 17-0190, 2018 WL 739297, at *5 (Iowa Ct. App. Feb. 7, 2018). We also reject

the State’s prejudice argument. The question before us is not whether Miller

“suffered no prejudice because evidence existed to establish the prior convictions,

but whether [he] knowingly and voluntarily admitted the prior convictions.” See

Harrington, 893 N.W.2d at 43 n.2.

       The proper remedy in this case is to vacate Miller’s sentence and remand

for further proceedings consistent with this decision. See State v. Coleman, ___

N.W.2d ___, ___, 2018 WL 672132, at *16 (Iowa 2018) (vacating sentence that

included the enhancements and remanding for further proceedings consistent with

Harrington and for resentencing).

       JUDGMENT AFFIRMED, SENTENCE VACATED, AND REMANDED FOR

FURTHER PROCEEDINGS AND RESENTENCING.




9
  Harrington was decided on April 7, 2017. The district court engaged in the habitual-
offender colloquy with Miller on September 21, 2016.
