                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0869
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DOMINICK R. MARCOTT,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Christine Dalton

Ploof, District Associate Judge.



       Dominick Marcott appeals from the judgment and sentence entered

following his guilty plea to driving while barred as a habitual offender and driving

while license denied or revoked.       CONVICTIONS AFFIRMED, SENTENCE

VACATED, AND REMANDED FOR RESENTENCING.




       Sharon D. Hallstoos of Halstoos Law Office, Dubuque, for appellant.

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

Attorney General, for appellee.



       Considered by Danilson, C.J., and Doyle and McDonald, JJ.
                                        2


DOYLE, Judge.

       Dominick Marcott appeals from the judgment and sentence entered after

he pled guilty to driving while barred as a habitual offender and driving while

license denied or revoked. We affirm his convictions but vacate his sentence

and remand for resentencing.

       I. Background Facts and Proceedings.

       On June 21, 2015, Marcott was stopped for speeding. When the officer

asked for Marcott’s driver’s license, Marcott handed him a non-driver

identification card.   Marcott was placed under arrest after the officer learned

Marcott was barred from driving and that his driver’s license was revoked.

       Marcott was charged with operating a motor vehicle while license is barred

as a habitual offender, in violation of Iowa Code section 321.560 and 321.561

(2015), an aggravated misdemeanor, and driving while license is denied or

revoked, in violation of section 321J.21, a serious misdemeanor. On November

25, 2015, Marcott submitted to the district court a written plea of guilty to both

charges. On the same day, the court accepted Marcott’s plea and set sentencing

for March 23, 2016.

       A warrant for Marcott’s arrest was issued after he failed to appear for

sentencing. A sentencing hearing was eventually held on May 13, 2016. The

sentencing order indicates Marcott appeared at the hearing with his counsel.

The court entered judgment accepting Marcott’s guilty plea to the two charges,

sentenced him to a term of incarceration, and imposed fines, costs, and

surcharges. Marcott filed his notice of appeal the same day.
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       II. Standard of Review.

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

errors at law. See State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004); 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).

       III. Error preservation.

       Marcortt asserts his guilty plea was defective because the court did not

inform him of the statutory maximum and minimum punishment for the criminal

charges prior to accepting his plea. See Iowa R. Crim P. 2.8(2)(b). He did not

file a motion in arrest of judgment challenging the plea.

       In order to challenge a guilty plea on appeal, a defendant must file a

motion in arrest of judgment. See Meron, 675 N.W.2d at 540 (“Generally, a

defendant must file a motion in arrest of judgment to preserve a challenge to a

guilty plea on appeal.”); see also 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.”).   However, before we will penalize a defendant for failing to file a

motion in arrest of judgment, the district court must have informed the defendant

of the obligation to file the motion and the consequences of failing to file the

motion. See Meron, 675 N.W.2d at 540; see also 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
                                          4


right to assert them on appeal.”).       Substantial compliance with the rule is

mandatory. See State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).

       Marcott asserts that despite his failure to move in arrest of judgment, his

challenge to the plea proceeding is properly before this court. He claims the

court failed to personally inform him that he could file a motion in arrest of

judgment and the consequences of failing to do so. Marcott pled guilty to an

aggravated misdemeanor and a serious misdemeanor,

       and in such proceedings it is “unnecessary . . . for the trial court to
       actually engage in an in-court colloquy with a defendant so as to
       personally inform the defendant of the motion in arrest of judgment
       requirements.” Meron, 675 N.W.2d at 541. Instead, a written
       waiver filed by the defendant can be sufficient. Id. A defendant’s
       written plea or waiver can foreclose an appeal when it complies
       with rule 2.8(2)(d). See State v. Barnes, 652 N.W.2d 466, 468
       (Iowa 2002) (per curiam) (concluding that defendant failed to
       preserve error because he did not file a motion in arrest of
       judgment when his written plea clearly stated that a failure to file
       such a motion would bar any challenge to his plea on appeal). Yet
       regardless of whether the information is imparted through a
       colloquy or a written plea, the defendant must be made aware of
       the substance of rule 2.24(3)(a).

Fisher, 877 N.W.2d at 680-81; see also State v. Thacker, 862 N.W.2d 402, 411

(Iowa 2015) (“[T]he district court, with the defendant’s consent, may waive the in-

court colloquy otherwise required by [rule] 2.8(2)(b).”).

       Paragraph eleven of Marcott’s written guilty plea states:

       If I claim there are any irregularities or errors in this guilty plea, I
       must file a Motion in Arrest of Judgment not later than 45 days after
       this plea of guilty or in any case, not later than five days before the
       day of sentencing. Failure to do so will preclude my rights to assert
       any defects in this plea in any appeal to the Iowa Supreme Court.

Immediately above Marcott’s signature is the statement, “I STATE TO THE

COURT THAT I FULLY UNDERSTAND ALL OF MY FOREGOING RIGHTS; I
                                         5


GIVE UP THOSE RIGHTS; AND I ENTER MY PLEA OF GUILTY TO THE

CHARGES LISTED ABOVE.”            Below his signature is a “Consent to Waive

Presence.” The form states, “I expressly waive my rights to be present and

participate in an in-court plea colloquy.” There is also a waiver of the right to be

present and address the court at the time of sentencing.         Marcott’s second

signature appears immediately below these waivers.

       Marcott’s guilty-plea form substantially complies with the requirements of

rule 2.8(2)(d).   See, e.g., State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006)

(finding court’s colloquy conveying same information to Straw “substantially

complied with the requirements of rule 2.8(2)(d)”); Barnes, 652 N.W.2d at 467-68

(finding nearly identical language in Barnes’s written guilty plea to an aggravated

misdemeanor was “a valid written waiver” of his right to an in-court colloquy “and

thus trigger[ed] the bar that rule 2.24(3)(a) imposes to challenging a guilty plea

on appeal”). Marcott was made aware of the substance of rule 2.24(3)(a), and

we reject his assertion to the contrary.        The lack of a motion in arrest of

judgment, coupled with Marcott’s written waiver, would normally prevent him from

contesting his guilty plea on appeal. See State v. Rodriguez, 804 N.W.2d 844,

848 (Iowa 2011).

       But Marcott also asserts his failure to file a motion in arrest of judgment

does not preclude him from challenging his plea on appeal because the district

court violated Iowa Rule of Criminal Procedure 2.23(1). That rule requires that a

court fix the date for pronouncing judgment not less than fifteen days after a

guilty plea is entered. See Iowa R. Crim. P. 2.23(1). Marcott claims he was not

given a delayed sentencing hearing.          The record belies this claim, and we
                                         6


therefore reject it. Marcott’s guilty plea was accepted by the district court on

November 25, 2015. The order accepting the plea set a sentencing hearing for

March 23, 2016. Obviously, the sentencing hearing was set for more than fifteen

days after the court accepted Marcott’s plea.      In fact, the actual sentencing

hearing was not held until May 13, 2016, almost six months after the court

accepted the plea.

      In an effort to sidestep the error-preservation issue, Marcott also asserts

his failure to file a motion in arrest of judgment was due to ineffective assistance

of counsel. The failure to file a motion in arrest of judgment will not preclude a

challenge to a guilty plea on appeal if the failure was the result of ineffective

assistance of counsel. See Rodriguez, 804 N.W.2d at 848.

      IV. Ineffective Assistance of Counsel.

      We review claims of ineffective assistance of counsel de novo. See State

v. Finney, 834 N.W.2d 46, 49 (Iowa 2013). To prevail, Marcott must show (1)

counsel breached an essential duty and (2) prejudice resulted. See Strickland v.

Washington, 466 U.S. 668, 687 (1984).        The claim fails if either element is

lacking. See Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).

      Generally, we do not resolve claims of ineffective assistance of counsel on

direct appeal. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).            If we

determine the claim cannot be addressed on appeal, we must preserve it for a

postconviction-relief proceeding. See State v. Johnson, 784 N.W.2d 192, 198

(Iowa 2010).
                                          7


       Marcott claims his plea was not voluntarily and intelligently made because

the court failed to inform him of the statutory penal consequences he faced prior

to accepting his plea.

       Due process requires the defendant enter his guilty plea voluntarily
       and intelligently. If a plea is not intelligently and voluntarily made,
       the failure by counsel to file a motion in arrest of judgment to
       challenge the plea constitutes a breach of an essential duty. In
       order to ensure a guilty plea is voluntarily and intelligently made,
       the court must articulate the consequences of the plea to the
       defendant.

Straw, 709 N.W.2d at 133 (internal citations and quotation marks omitted).

Specifically, Marcott contends he was not alerted to the sentencing penalties for

the charge of driving while license denied or revoked. This claim implicates a

failure of the district court to comply with Iowa Rule of Criminal Procedure 2.8(2).

That rule provides, in relevant part:

             2.8(2) Pleas to the indictment or information.
             ....
             b. Pleas of guilty. . . Before accepting a plea of guilty, the
       court must address the defendant personally in open court and
       inform the defendant of, and determine that the defendant
       understands, the following:
             ....
             (2) The mandatory minimum punishment, if any, and the
       maximum possible punishment provided by the statute defining the
       offense to which the plea is offered.

Iowa R. Crim. P. 2.8(2). Substantial compliance with this rule is required. See

State v. Myers, 653 N.W.2d 574, 577-78 (Iowa 2002).

       Driving while a license is denied or revoked, in violation of section

321J.21, is a serious misdemeanor. The mandatory minimum punishment for a

serious misdemeanor is a fine of at least $315. See Iowa Code § 903.1(1)(b).

The fine may not exceed $1875.          See id.   In addition, the court may order
                                        8

imprisonment not to exceed one year. See id. Section 321J.21(1) also provides:

“In addition to any other penalties, the punishment imposed for a violation of this

subsection shall include assessment of a fine of one thousand dollars.”

      Marcott’s guilty-plea form provides in relevant part:

             9. On a plea of guilty to:
             ....
       √ An aggravated misdemeanor, the Court can sentence me to
      prison not to exceed two years and fine me between $625.00 and
      $6250.00, plus surcharge and court costs.
             ....
      ___ A serious misdemeanor, the Court can sentence me to jail for
      up to one year, and fine me between $315.00 and $1875.00, plus
      surcharge and court costs.
      ___ Driving While Revoked, the Court can sentence me to jail for
      up to a year, and fine me between $1000.00 and $1875.00, plus
      surcharges and court costs.

The line before the penalty for the aggravated misdemeanor was checked by

Marcott, but the lines before the penalties for the serious misdemeanor and

driving while revoked were not checked. Left unchecked, Marcott argues this

shows he did not acknowledge that he was made aware of the penalties for

driving while denied or revoked. The State responds,

              The unchecked portion begins with “Driving While Revoked,”
      which was the name of the charge that [Marcott] wrote down on his
      written guilty plea when he listed the charged crimes and when he
      described the factual basis for his pleas. Any reader pleading guilty
      to that offense would have noticed the provision and realized that it
      applied.

The State argues it is not apparent that the absence of a check mark means

Marcott did not read or understand the statement.             It contends Marcott’s

signature on the form should be treated as an acknowledgment of the

maximum/minimum possible penalties for driving while revoked.
                                               9


          While a person could interpret Marcott’s guilty-plea form as having

informed him of the mandatory minimum and maximum punishment for the

charge of driving while denied or revoked, a reasonable person would not be

compelled to do so because of the unchecked lines preceding the penalties for

the offense. The form signed by Marcott does not conclusively establish he was

informed of the mandatory minimum and maximum punishment he faced for the

offense of driving while denied or revoked offense, to which he pled guilty. The

record before us is silent as to whether or not Marcott was informed by the court

or his counsel of the applicable mandatory minimum and maximum punishment

he faced for the driving while denied or revoked, or what Marcott’s understanding

was as to the punishment he faced for the offense.

          Marcott also argues he was not informed of the surcharge mandated by

Iowa Code section 911.1(1).1 He should have been informed of the surcharge.

See Fisher, 877 N.W.2d at 686. For the reasons stated above, the guilty-plea

form signed by Marcott does not conclusively establish he was informed of a

surcharge.       Furthermore, the guilty-plea form does not mention a mandatory

thirty-five percent surcharge. The record is silent as to whether Marcott was

informed of the mandatory thirty-five percent surcharge by either the court or his

counsel.




1
    Iowa Code section 911.1(1) provides:
         A criminal penalty surcharge shall be levied against law violators as
         provided in this section. When a court imposes a fine . . . for a violation of
         state law . . . , the court or clerk of the district court shall assess an
         additional penalty in the form of a criminal penalty surcharge equal to
         thirty-five percent of the fine . . . .
                                         10


       Marcott also argues he was not informed of the possibility of imposition of

consecutive sentences.     See State v. White, 587 N.W.2d 240, 242-43 (Iowa

1998) (“[T]he accused must be fully aware of the direct consequences of a guilty

plea. Sentences to be served consecutively are a direct consequence of a guilty

plea.”). The guilty-plea form is silent on the matter, and the record is silent as to

whether Marcott was informed by the court or his counsel of the possibility of

imposition of consecutive sentences.

       Marcott’s attorney did not bring these matters to the court’s attention or file

a motion in arrest of judgment on these grounds. In this situation, Marcott’s

attorney held a duty to correct these omissions of the court—if in fact there were

omissions.   See Straw, 709 N.W.2d at 134; see also State v. Hallock, 765

N.W.2d 598, 606 (Iowa Ct. App. 2009) (recognizing counsel’s duty to correct any

omission by the court during plea proceedings so that the defendant may be fully

informed when entering a guilty plea).

       Marcott can succeed on his ineffective-assistance claim only by

establishing both that his counsel failed to perform an essential duty and that

prejudice resulted. See Anfinson, 758 N.W.2d at 499; see also Hill v. Lockhart,

474 U.S. 52, 59 (1985) (holding that to show counsel was ineffective in the

context of a guilty plea, “the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial”). As set forth above, there is nothing in the

record before us as to whether the court or Marcott’s trial counsel advised

Marcott of the matters set forth above.       Such evidence is significant to any

prejudice analysis, regardless of our view of the potential viability of the
                                         11

underlying claim. See Johnson, 784 N.W.2d at 198; Straw, 709 N.W.2d at 138.

As in Straw, “This case exemplifies why claims of ineffective assistance of

counsel should normally be raised through an application for postconviction

relief. In only rare cases will the defendant be able to muster enough evidence to

prove prejudice without a postconviction relief hearing.” 709 N.W.2d at 138.

       Accordingly, we affirm Marcott’s convictions and preserve his claims of

ineffective assistance of counsel relating to alleged deficiencies of his written

plea for a possible postconviction-relief proceeding.

       V. Sentencing.

       Marcott also argues he was improperly sentenced because the court failed

to give sufficient reasons for his sentence on the record or in the written

sentencing order.    “Errors in sentencing, including contentions the trial court

failed to articulate adequate reasons for a particular sentence, ‘may be

challenged on direct appeal even in the absence of an objection in the district

court.’” Thacker, 862 N.W.2d at 405 (citation omitted).

       Iowa Rule of Criminal Procedure 2.23(3)(d) requires the court to “state on

the record its reason for selecting the particular sentence.” See also Hill, 878

N.W.2d at 273.      This procedure “ensures defendants are well aware of the

consequences of their criminal actions” and “affords our appellate courts the

opportunity to review the discretion of the sentencing court.”         Id.   (citation

omitted). If the court’s reasons for its sentencing decision “are obvious in light of

the statement and the record before the court,” a “terse and succinct statement”

may be sufficient. Thacker, 862 N.W.2d at 408. Nevertheless, if the defendant

waives the reporting of the sentencing hearing, the court must include in the
                                       12

written order the reasons for the sentence. See State v. Thompson, 856 N.W.2d

915, 920-21 (Iowa 2014). “[B]oilerplate language, standing alone, is insufficient

to satisfy Iowa Rule of Criminal Procedure 2.23(3)(d).” Thacker, 862 N.W.2d at

410.

       Here, we cannot conclude the district court adequately stated its reasons

on the record for the sentence it imposed as required under Iowa Rule of

Criminal Procedure 2.23(3)(d). See id. The court’s sentencing order only set

forth boilerplate language—“The following sentence is based on all of the

available sentencing considerations set out in Iowa Code Section 907.5.”—and

stated “The Plea Agreement” was the most significant factor in determining the

sentence. See id. (holding “The Plea Bargain” was not a sufficient reason for a

sentence when the record did not reflect the parties’ agreement). In this case,

there is no record beyond the sentencing order.             The plea-agreement

memorandum is not part of our record, nor is there any record of any discussion

of the terms of the plea agreement. Consequently, we cannot determine what

“motivated the district court to enter a particular sentence.” See id. The State

agrees the case requires a remand based on the reasons identified in Thacker.

We therefore vacate the sentence and remand the matter to the district court for

further proceedings.

       On remand, there is no requirement the district court arrive at a different

sentence, but only that it satisfy the requirements of Iowa Rule of Criminal

Procedure 2.23(3)(d), as described by the Iowa Supreme Court in Hill, 878

N.W.2d at 275 (“We encourage sentencing courts to give more detailed reasons

for a sentence specific to the individual defendant and crimes and to expressly
                                         13

refer to any applicable statutory presumption or mandate.”), Thacker, 862

N.W.2d at 410 (“On remand, if the district court determines it merely gave effect

to the parties’ agreement and exercised no discretion in sentencing other than to

accept the plea agreement as advanced by the parties, it should make the

particulars of the plea agreement with respect to the sentence a part of the

record.”), and Thompson, 856 N.W.2d at 921 (“In this age of word processing,

judges can use forms . . . to check the boxes indicating the reasons why a judge

is imposing a certain sentence.        If the choices in the order need further

explanation, the judge can do so by writing on the order or adding to the order

using a word processing program. If the sentencing order does not have boxes

similar to the ones in this case, the judge can use his or her word processor to

insert the reasons for a particular sentence.”).

       CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.
