State v. Carney , 1998 Iowa Sup. LEXIS 203 ( 1998 )

SNELL, Justice

(dissenting).

I respectfully dissent.

Defendant’s plea of guilty was accepted in violation of his due process rights under the Fourteenth Amendment to the United States Constitution and in violation of Iowa Rule of Criminal Procedure 8(2)(b). The plea should, therefore, be vacated; the case should be reversed and remanded with directions allowing the defendant to plead anew.

The constitutional framework regarding guilty pleas was established by the Supreme Court in Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 (1970) (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”), and Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-80 (1969) (In accepting a guilty plea, a court must employ “the utmost solicitude ... in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.”).

Regarding the Due Process Clause of the Fourteenth Amendment, we said in State v. Boone, 298 N.W.2d 335, 337 (Iowa 1980) (citations omitted):

A defendant who enters a plea of guilty waives several constitutional rights. For the waiver to be valid under the Due Process Clause ..., there must be an intentional relinquishment of known rights or privileges. If a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of constitutional guarantees of due process and is therefore void. The defendant must have a full understanding of the consequences of a plea before constitutional rights can be waived knowingly and intelligently.

In Saadiq v. State, we noted the following:

To insure that the requirements of the fourteenth amendment are satisfied, we have required strict adherence to our guidelines in rule 8 of the Iowa rules of criminal procedure. See also Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712-13, 23 L.Ed. 2d 274, 279-80 (1969); State v. Sisco, 169 N.W.2d 542, 548-51 (Iowa 1969). The sentencing court must insure the defendant understands the “direct consequences of the plea including the possible maximum sentence, as well as any mandatory minimum punishment.”

Saadiq v. State, 387 N.W.2d 315, 324-25 (Iowa 1986) (quoting State v. Rand, 268 N.W.2d 642, 648 (Iowa 1978) (citations omitted)).

In Saadiq, we further described the requirements in that judges are not required to inform defendants of all indirect and collateral consequences of guilty pleas. We also said:

“ ‘The distinction between “direct” and “collateral” consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ ”

Id. at 325 (quoting State v. Warner, 229 N.W.2d 776, 782 (Iowa 1975) (quoting Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1365-66 (4th Cir.1973))).

Though shaded distinctions may pass constitutional muster through the eye of the court, their utility may be dark as pitch in adding knowledge and understanding to a defendant contemplating a guilty plea. Yet, that is the basis for deciding what the defendant is entitled to know as consequences of pleading guilty and in so doing waiving constitutional rights.

However, as gleaned by the court in Saad-iq, a direct consequence, of which the defendant must be informed, is one that is definite, immediate and largely automatic in result on the- range of the defendant’s punishment. Id. When one looks at our Iowa statutes, it is clear that all these requirements are met.

Iowa Code section 321J.4(3)(a) (1995) states in pertinent part:

Upon a plea or verdict of guilty of a third or subsequent violation of section 321J.2, the court shall order the department to revoke the defendant’s motor vehicle license or nonresident operating privilege for a period of six years.

In law the word “shall” is a command, and the statute specifically provides that the revocation is effected by court order, not by the authority or discretion of the state department of transportation. The revocation by court order is definite, immediate, and automatic.

The majority opinion lightly allows that loss of a person’s driver’s license for six years may carry the “sting of punishment.” Most people living in the real world would wonder at the judicial distinction crafted by the majority that a six-year loss of a driver’s license is not a direct consequence of a guilty plea because it may be only a sting of punishment, not real punishment. Comparisons by the majority to double jeopardy case distinctions are inapposites that add nothing to the analysis. Jurisdictions cited that hold that license revocation is a collateral consequence have relied on statutes that place the revocation decision not with the court, but with an administrative agency. See Moore v. Hinton, 513 F.2d 781, 782 (5th Cir.1975); Villa v. State, 456 A.2d 1229, 1231 (Del.1983); Stoltz v. State, 657 N.E.2d 188, 190-92 (Ind.Ct.App.1995); Commonwealth v. Johnson, 434 Pa.Super. 1, 641 A.2d 1170, 1175-76 (Pa.Super.Ct.1994). Our statute is not so subtle. The power, authority, and administrative result is statutorily determined by the legislature and meted out by the court. There is nothing indirect, collateral, or uncertain left. Accepting defendant’s guilty plea without advising him that his driver’s license would be automatically revoked as a direct consequence was invalid because it violated defendant’s due process rights under the Fourteenth Amendment to the United States Constitution and violated our own Iowa Rule of Criminal Procedure 8(2)(b).

I also believe defendant received ineffective assistance of counsel in this matter. In Mott v. State, 407 N.W.2d 581 (Iowa 1987), we stated the applicable law. We said:

The general test applied to a claim of ineffective assistance of counsel is “whether under the entire record and totality of the circumstances counsel’s performance was within the range of normal competency.” Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). When the claim is grounded on counsel’s failure to take some action, the claimant must show that (1) counsel failed to perform an essential duty; and (2) prejudice resulted. Id. The claimant must rebut the presumption of counsel’s competence, Henderson v. Scurr, 313 N.W.2d 522, 524 (Iowa 1981), and establish ineffectiveness by a preponderance of the evidence. Kellogg v. State, 288 N.W.2d 561, 563(Iowa 1980).

We first address the question of whether Mott’s attorney failed to perform an essential duty under the first prong of the test. This requires a showing “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Saadiq v. State, 387 N.W.2d 315, 325 (Iowa 1986) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). To show counsel was ineffective in a guilty plea case, the petitioner must show that counsel’s advice was not within the normal range of competency demanded of attorneys in criminal cases. Saadiq, 387 N.W.2d at 325-26 (citing Hawkman v. Parratt, 661 F.2d 1161, 1170 (8th Cir.1981)).

When the ineffectiveness claim is based on alleged failure to advise a defendant of the consequences of a guilty plea, the rule is that, if the consequences flow “directly” from the plea, the plea may be held invalid. Saadiq, 387 N.W.2d at 324-25. If, on the other hand, the fallout from the plea is “collateral,” counsel is generally not held to be ineffective for failing to inform the defendant about it. Id. at 326.

Mott, 407 N.W.2d at 582-83.

In Mott, the consequence of deportation after defendant pled guilty to second-degree burglary was held to be collateral. Deportation was not part of the sentencing statute for burglary. In the instant case, the direct consequence of a guilty plea, by statute, for third offense OWI (which applied to defendant Carney), was a six-year revocation of the, defendant’s driver’s license.

When the statute plainly states the consequences, I believe it is within the normal range of competency of an Iowa lawyer to understand the law and so advise the client. That is the situation here. Carney’s counsel failed to advise his client of the license revocation consequences of his guilty plea. Counsel failed to perform an essential duty and prejudice obviously resulted. The claim by Carney of ineffective assistance of counsel clearly appears by a preponderance of the evidence. See Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981).

I would reverse and remand based on violations of the Sixth Amendment, Fourteenth Amendment, and Iowa Rule of Criminal Procedure 8(2)(b).

LAVORATO, J., joins this dissent.