No. 2-1031 / 02-0219.Court of Appeals of Iowa.
Filed February 28, 2003.
Appeal from the Iowa District Court for Johnson County, L. Vern Robinson, Judge.
Clyde Hoffpauir appeals from his conviction following a guilty plea to going armed with intent in violation of Iowa Code sections 702.7 and 708.8 (2001) and domestic abuse assault causing bodily injury in violation of sections 708.1, 708.2(2), 708.2A(2)(b), and 236.2. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, J. Patrick White, County Attorney, and M. Victoria Dominguez and Janet Lyness, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
MAHAN, J.
Clyde Hoffpauir appeals from his conviction following a guilty plea to going armed with intent in violation of Iowa Code sections 702.7 and 708.8 (2001) and domestic abuse assault causing bodily injury in violation of sections 708.1, 708.2(2), 708.2A(2)(b), and 236.2. Specifically, he contends the district court erred in: (1) failing to conduct a full-length, in-court colloquy concerning his plea; (2) failing to advise him about his right to file a motion in arrest of judgment and, alternatively, Hoffpauir contends his trial counsel was ineffective in failing to file a motion in arrest of judgment. We affirm.
Background Facts and Proceedings. On January 22, 2001, Hoffpauir was charged by trial information with going armed with intent, in violation of Iowa Code section 702.7 and 708.8 (Count I); first-degree harassment in violation of section 708.7(2) (Count II); and domestic abuse assault causing bodily injury in violation of sections 708.1, 708.2(2), 708.2A(2)(b), and 236.2
(Count III). Hoffpauir entered into a plea agreement with the State whereby the State agreed to dismiss the harassment charge (Count II) in exchange for a plea of guilty to the charges of going armed with intent (Count I) and domestic abuse assault (Count III). In addition, the State agreed to argue for no more than a suspended sentence and probation in Count I and credit for time served in jail for Count III.
On March 9, 2001, Hoffpauir filed a written waiver of rights. At a plea proceeding the same day, the district court addressed Hoffpauir about the terms of his plea agreement, the nature of his charges, and the maximum possible penalties. Then the following colloquy occurred with Hoffpauir:
THE COURT: I’m showing you a document. It’s entitled trial rights. It has your name and signature on it and it lists all the rights you would have if you had a trial and it indicates you understand you give up these rights when you plead guilty. Did you read and sign the document?
HOFFPAUIR: Yes.
THE COURT: Do you understand you give up these rights to a trial by pleading guilty?
HOFFPAUIR: Yes.
The district court accepted Hoffpauir’s plea but did not personally address him about the rights he was waiving. Hoffpauir received a deferred judgment on Count I, Count II was dismissed, and sixty days already served on Count III. On January 11, 2002, Hoffpauir’s deferred judgment on Count I was revoked, and he was sentenced to an indeterminate term of five years imprisonment. Following this final judgment, Hoffpauir appeals.
Motion in Arrest of Judgment. Hoffpauir’s attorney did not file a motion in arrest of judgment. Hoffpauir now challenges for the first time on direct appeal the district court’s reliance on his written guilty plea in lieu of conducting a full-length, in-court colloquy as required by Iowa Rule of Criminal Procedure 2.8(2)(b) and his attorney’s failure to object to the alleged deficiencies in the plea proceeding. The State concedes the district court erred in relying on Hoffpauir’s written waiver of rights in lieu of conducting a full-length, in-court colloquy. See State v. Moore, 638 N.W.2d 735, 738 (Iowa 2002) (“in a felony case, the court may not rely, to any extent, on a written plea of guilty to satisfy the requirements of rule [2.8(2)(b)].”); State v. Hook, 623 N.W.2d 865, 870-71 (2001) (“at no time can a written guilty plea to a felony serve as a substitute for a question the court is required to pose to the defendant directly.”). However, the State contends Hoffpauir may not challenge the voluntariness of his plea because he failed to file a motion in arrest of judgment. Hoffpauir contends his failure to file a motion in arrest of judgment does not bar him from challenging his guilty plea because the district court did not personally advise him of his right to file said motion and the consequences of failing to do so. We disagree.
After the district court accepted the guilty plea, the court gave Hoffpauir the following advice regarding his right to file a motion in arrest of judgment:
[I]n order for you to appeal any judgments and sentences that are entered in these — in this case in these counts to the Iowa Supreme Court based on any mistakes that you think I may have made in accepting your pleas of guilty this morning, you have to tell me abut any such mistakes prior to the entry of judgments and sentences.
The way you do that is by filing a document with the court that explains to me what mistakes you think I might have made this morning in accepting your pleas of guilty and that gives me a chance to correct any mistakes before this matter is completed.
The reason this is important is, if you do not file a document pointing out any mistakes in this guilty plea procedure before the date set for the judgment and sentence, you couldn’t later appeal the judgments and sentences, based on any mistakes in this guilty plea procedure.
Our supreme court has stated only substantial compliance with rule 2.8(2)(d) is required. State v. Myers, 653 N.W.2d 574, 578
(Iowa 2002); State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001). “Under the substantial-compliance standard, a trial court is not required to advise a defendant of his rights using the precise language of the rule; it is sufficient that the defendant be informed of his rights in such a way that he is made aware of them.” State v. Smoothers, 309 N.W.2d 506, 508 (Iowa 1981). We note the district court could have been more specific but when the proceeding is considered in its entirety, we find the court substantially complied with rule 2.8(2)(d) and adequately informed Hoffpauir of the consequence of failing to challenge acceptance of his guilty plea. Consequently, Hoffpauir is barred under rule 2.24(3)(a) from attacking the district court’s acceptance of his guilty plea.
Ineffective Assistance of Counsel. Hoffpauir, in his alternative argument, contends his trial counsel was ineffective in failing to file a motion in arrest of judgment. We review such claims de novo. State v. Ledezma, 626 N.W.2d 134, 141 (Iowa 2001).
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). “Even a lawyer is entitled to his day in court, especially when his professional reputation is impunged.” State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record in this case is adequate to decide this issue. In our discretion, we address the prejudice prong first State v. Nebinger, 412 N.W.2d 180, 192 (Iowa Ct.App. 1987). Hoffpauir must prove that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987).
We conclude Hoffpauir has failed to prove that there is a reasonable probability that but for counsel’s error he would not have pleaded guilty and would have insisted on going to trial. First of all, he failed to show how a full-length, in-court colloquy would have changed his mind to plead guilty. Secondly, given Hoffpauir’s plea agreement and the State’s favorable recommendation for sentencing it is unlikely he would have changed his desire to enter a plea of guilty. Therefore, since Hoffpauir cannot show he was prejudiced by trial counsel’s conduct his claim of ineffective assistance of counsel must fail.
AFFIRMED.