State of Iowa v. Eric Gene Thompson ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0561
Filed November 23, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ERIC GENE THOMPSON,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,
Judge.
Defendant challenges his convictions for felony eluding and operating
while intoxicated. AFFIRMED.
John P. Beauvais Jr., of Deck law L.L.P., Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Kristin Guddall, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.
Eric Thompson pleaded guilty to felony eluding and operating while
intoxicated, second offense. In this appeal, Thompson challenges his
convictions, contending his plea was not intelligently made and this matter must
be remanded because the district court failed to advise him of the surcharges to
be imposed for each offense. We affirm the defendant’s convictions.
Iowa Rule of Criminal Procedure 2.8(2)(b) requires the district court,
before accepting a plea of guilty, to advise the defendant of certain information to
make sure the defendant’s guilty plea is intelligently made. As relevant here, the
district court must advise the defendant of “[t]he 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)(b)(2). In State v. Fisher, 877 N.W.2d 676, 686 n.6 (Iowa 2016), the
supreme court held “actual compliance with rule 2.8(2)(b)(2) requires disclosure
of all applicable . . . surcharges” associated with the offense to which the plea is
offered. The court declined to decide “whether failure to disclose the surcharges
alone would have meant the plea did not substantially comply with rule
2.8(2)(b)(2).” Id.
We cannot resolve the question left open in Fisher, however, because
Thompson’s claim is not preserved for our review. Generally, “[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.” Iowa R. Crim. P. 2.24(3)(a). The rule precluding appellate relief does
not apply where the plea court failed to advise the defendant “during the plea
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proceedings, as required by rule 2.8(2)(d), that challenges to the plea must be
made in a motion in arrest of judgment and that the failure to challenge the plea
by filing the motion within the time provided prior to sentencing precludes a right
to assert the challenge on appeal.” State v. Meron, 675 N.W.2d 537, 540 (Iowa
2004). Here, Thompson did not file a motion in arrest of judgment, but he
contends the district court failed to comply with Iowa Rule of Criminal Procedure
2.8(2)(d) and inform him the failure to file a motion in arrest of judgment would
preclude him from challenging his guilty plea on appeal. See State v. Loye, 670
N.W.2d 141, 149–50 (Iowa 2003). Thompson’s claim is belied by the record.
The district court explicitly told Thompson if he “would ever want to challenge” his
guilty plea, he would have to timely file a motion in arrest of judgment. The
district court’s use of the word “ever” communicated to the defendant “all
avenues for challenging the plea were being cut off.” Fisher, 877 N.W.2d at 681.
The district court’s advisory substantially complied with Rule 2.8(2)(d). See State
v. Straw, 709 N.W.2d 128, 132 (Iowa 2006) (“We employ a substantial
compliance standard in determining whether a trial court has discharged its duty
under rule 2.8(2)(d).”); State v. Camp, No. 11-1331, 2012 WL 2407675, at *2
(Iowa Ct. App. June 27, 2012) (holding advisory “if you don’t file such a motion,
then you are precluded from ever attacking the guilty plea” substantially complied
with Rule 2.8(2)(d)).
We affirm the defendant’s convictions without further opinion. See Iowa
Ct. R. 21.26(1)(a) and (e).
AFFIRMED.