State of Iowa v. David J. Treptow ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 19–1276
Submitted October 14, 2020—Filed May 28, 2021
STATE OF IOWA,
Appellee,
vs.
DAVID J. TREPTOW,
Appellant.
Appeal from the Iowa District Court for Buchanan County,
Kellyann M. Lekar, Judge.
A defendant challenges the factual basis supporting his guilty plea
to a drug offense. APPEAL DISMISSED.
McDonald, J., delivered the opinion of the court, in which
Christensen, C.J., and Waterman, Mansfield, Oxley, and McDermott, JJ.,
joined. Appel, J., filed a dissenting opinion.
Martha J. Lucey (argued), State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Zachary Miller (argued),
Assistant Attorney General, and Shawn M. Harden, County Attorney, for
appellee.
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McDONALD, Justice.
David Treptow pleaded guilty to three drug-related offenses and was
sentenced to an indeterminate term of incarceration not to exceed twelve
years. In this direct appeal, Treptow contends there was not a factual
basis supporting one of the convictions and his counsel provided
constitutionally ineffective assistance in allowing Treptow to plead guilty
in the absence of a factual basis. In addition to those issues, Treptow
challenges the constitutionality of Iowa Code section 814.6 (2020), which
limits the ability of a defendant to appeal as a matter of right from a
conviction following a guilty plea, and Iowa Code section 814.7, which
requires that claims of ineffective assistance of counsel be presented and
resolved in the first instance in postconviction-relief proceedings rather
than on direct appeal.
I.
Police were dispatched to Treptow’s residence on report of a
domestic disturbance. Upon entering the residence, officers immediately
smelled marijuana and observed what appeared to be marijuana in an
ashtray on the coffee table. The officers asked a cotenant of the residence
if she would grant consent to search the residence, and she granted
consent. The officers searched the residence with the assistance of a
canine unit. They discovered and seized controlled substances and
paraphernalia in various locations inside and outside the residence. A
subsequent lab report from the Division of Criminal Investigation showed
the officers seized approximately .17 grams of methamphetamine, 885.33
grams of marijuana, and 81.62 grams of marijuana concentrate.
Treptow was charged with six controlled substances offenses, and
he ultimately pleaded guilty to three of them: (1) possession with the intent
to deliver marijuana, in violation of Iowa Code section 124.401(1)(d)
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(2018); (2) failure to affix a drug tax stamp, in violation of Iowa Code
section 453B.12; and (3) gathering where controlled substances are used
(marijuana), enhanced as a second offense, in violation of Iowa Code
sections 124.407 and 124.411. As part of the plea agreement, the State
agreed to drop the habitual offender enhancements applicable to counts 1
and 2, to dismiss the remaining counts, and to dismiss a companion case
against Treptow.
At the time he entered his guilty pleas, Treptow expressed his desire
to proceed to immediate sentencing. The district court informed Treptow
he had the right to delay sentencing, and Treptow stated he understood
the right and waived the same. The district court informed Treptow he
had the right to have a presentence investigation report prepared prior to
sentencing, and Treptow stated he understood the right and waived the
same. Finally, the district court informed Treptow that he had the right to
file a motion in arrest of judgment and that if he did not file a motion in
arrest of judgment he “would have to forever give up [his] right to challenge
the validity of [his] guilty plea either before [the district court] or before an
Appellate Court.” Treptow stated he understood the right and waived the
same. Treptow asked his counsel to make a statement on his behalf.
Counsel informed the court Treptow desired “the paperwork be done as
soon as possible so he can be sent to prison on the next available group.”
The district court accepted Treptow’s guilty pleas and request for
immediate sentencing and entered sentence that day, July 16, 2019.
II.
In 2019, the general assembly passed and the governor signed an
omnibus crime bill effective July 1, 2019. See 2019 Iowa Acts ch. 140.
We have interpreted and applied several provisions of the omnibus crime
bill in recent decisions. See generally Hrbek v. State, ___ N.W.2d ___ (Iowa
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2021); State v. Tucker, ___ N.W.2d ___ (Iowa 2021); State v. Thompson, 954
N.W.2d 402 (Iowa 2021); State v. Boldon, 954 N.W.2d 62 (Iowa 2021); State
v. Draine, 936 N.W.2d 205 (Iowa 2019); State v. Macke, 933 N.W.2d 226(Iowa 2019). These recent decisions provide guidance in resolving the
challenges raised in this appeal.
This appeal addresses two provisions of the omnibus crime bill.
First, Treptow challenges Iowa Code section 814.6. That provision now
provides:
1. Right of appeal is granted the defendant from:
a. A final judgment of sentence, except in the following
cases:
(1) A simple misdemeanor conviction.
(2) An ordinance violation.
(3) A conviction where the defendant has pled guilty.
This subparagraph does not apply to a guilty plea for a class
“A” felony or in a case where the defendant establishes good
cause.
Iowa Code § 814.6 (2020). In State v. Tucker, we examined the effect of
this new law. ___ N.W.2d at ___. We explained section 814.6 “restricts
only a narrow class of defendants from pursuing a direct appeal as a
matter of right: those who plead guilty to non-class A offenses and cannot
articulate a legally sufficient reason to pursue a direct appeal.” Id. In
other words, section 814.6 “prohibits those who plead guilty to non-class
A offenses from pursuing frivolous appeals as a matter of right.” Id.Second, Treptow challenges Iowa Code section 814.7. That
statutory provision now provides:
An ineffective assistance of counsel claim in a criminal
case shall be determined by filing an application for
postconviction relief pursuant to chapter 822. The claim need
not be raised on direct appeal from the criminal proceedings
in order to preserve the claim for postconviction relief
5
purposes, and the claim shall not be decided on direct appeal
from the criminal proceedings.
Iowa Code § 814.7. In Tucker, we explained this statute “merely diverts all
claims of ineffective assistance of counsel to postconviction relief
proceedings and requires they be resolved there in the first instance.” ___
N.W.2d at ___. We explained claims of ineffective assistance of counsel
can rarely can be resolved on direct appeal. See id. (collecting cases); see
also Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694
(2003) (“In light of the way our system has developed, in most cases a
motion brought under § 2255 is preferable to direct appeal for deciding
claims of ineffective assistance.”). Section 814.7 worked no significant
change in appellate practice; the new law simply codified more strongly
our “judicial practice stretching back for almost a half-century.” Tucker,
___ N.W.2d at ___.
III.
Treptow contends sections 814.6(1)(a)(3) and 814.7 violate the
separation-of-powers doctrine as unconstitutional restrictions on the
judicial power. We recently addressed the identical challenge in Tucker
and concluded these two provisions did not violate the separation-of-
powers doctrine. See ___ N.W.2d at ___. Tucker is dispositive on this issue:
[S]ections 814.6(1)(a)(3) and 814.7, whether considered in
isolation or in tandem, do not violate the separation-of-powers
doctrine. The Iowa Constitution provides this court’s
appellate jurisdiction is subject to such restrictions as the
legislature may prescribe. Iowa Const. art. V, § 4. The Iowa
Constitution also tasks the legislature with the primary duty
to provide for a system of practice in all Iowa Courts. See id.§ 14. Here, the legislative department determined that
defendants who plead guilty to non-class A offenses should
not have the right to pursue an appeal without a showing of
good cause. See Iowa Code § 814.6(1)(a)(3). The legislature
also determined all claims of ineffective assistance of counsel
must be resolved in the first instance in postconviction relief
proceedings rather than on direct appeal. See id. § 814.7.
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These decisions were within the legislative department’s
prerogative and not in derogation of the judicial power.
Id. at ___.
IV.
Treptow contends the omnibus crime bill violates his constitutional
right to equal protection of the laws. He argues section 814.6(1)(a)(3)
makes an arbitrary distinction (1) between those convicted after trial and
those convicted after a guilty plea and (2) between those convicted of a
class “A” felony and those convicted of a non-class “A” felony. With respect
to section 814.7, Treptow contends the statute makes an arbitrary
distinction between those who were provided effective assistance of
counsel in pleading guilty and those who were not provided effective
assistance of counsel in pleading guilty. Our review is de novo. See State
v. Mitchell, 757 N.W.2d 431, 434 (Iowa 2008) (applying de novo review to
equal protection claims).
The United States and Iowa Constitutions guarantee the equal
protection of the law to all persons. The Fourteenth Amendment to the
United States Constitution provides, “No State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The Iowa Constitution provides, “All laws of a general
nature shall have a uniform operation; the general assembly shall not
grant to any citizen, or class of citizens, privileges or immunities, which,
upon the same terms shall not equally belong to all citizens.” Iowa Const.
art. I, § 6. We have interpreted this provision of the Iowa Constitution to
mean “similarly situated persons [should] be treated alike under the law.”
In re Det. of Williams, 628 N.W.2d 447, 452 (Iowa 2001) (en banc). At its
core, the federal and state “equal protection guarantee requires that laws
treat all those who are similarly situated with respect to the purposes of
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the law alike.” Varnum v. Brien, 763 N.W.2d 862, 883 (Iowa 2009)
(emphasis omitted).
The first step in our equal protection analysis is to determine
whether the challenged law makes a distinction between similarly situated
individuals with respect to the purposes of the law. See id. at 882. This
is a threshold test. See id. If the defendant “cannot show as a preliminary
matter that [he is] similarly situated, [we] do not further consider
whether . . . different treatment under a statute is permitted.” Id.We have already rejected the contention that section 814.6(1)(a)(3)
draws unconstitutional distinctions between those convicted after trial
and those convicted pursuant to a guilty plea. In Tucker, we concluded
“those convicted after trial and those convicted pursuant to a guilty plea
are not similarly situated for the purposes of appellate review.” ___ N.W.2d
at ___. We explained that those who plead guilty have acknowledged their
guilt and waived their constitutional rights so the need for appellate review
is not necessary in the same way as it is after trial. See id. at ___. Because
those convicted after a guilty plea are not similarly situated to those
convicted following trial, “[r]equiring those who plead guilty to establish
good cause to pursue a direct appeal as a matter of right does not violate
federal or state guarantees of equal protection of the laws.” Id. at ___.
Treptow’s next contention fares no better. Treptow contends section
814.6(1)(a)(3) makes an arbitrary distinction between those convicted of a
class “A” felony and those convicted of other offenses. A class “A” felony
is one punishable by a life sentence. See Iowa Code § 902.1(1). It is the
maximum punishment authorized by Iowa law. Those convicted of an
offense subject to the maximum punishment authorized by Iowa law are
not similarly situated to those convicted of an offense subject to a lesser
punishment. Persons committing different offenses or different levels of
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offenses are not similarly situated for equal protection purposes. See State
v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998) (“In other words, if the
elements of the offenses are not the same, persons committing the crimes
are not similarly situated and, therefore, may be treated differently for
purposes of the Equal Protection Clause.”), overruled on other grounds by
State v. Bruegger, 773 N.W.2d 862 (Iowa 2009); People v. Jones, 350
N.E.2d 913, 915 (N.Y. 1976) (per curiam) (stating for the purposes of equal
protection, “[T]he circumstances were not the same since defendant was
convicted of a crime different than that of her codefendants”).
Thus, our law draws numerous distinctions in the procedures
afforded to defendants based on offense levels. For example, indigent
defendants charged with a class “A” felony are appointed two lawyers while
all other indigent defendants are appointed only one. See Iowa Code
§ 815.10(1)(b). Defendants charged with a class “A” felony are entitled to
ten peremptory strikes, but defendants charged with anything other than
a class “A” felony are entitled to only six peremptory strikes. See Iowa R.
Crim. P. 2.18(9). Non-class “A” felons are entitled to have a presentence
investigation report prepared prior to sentencing and misdemeanants are
not. See Iowa Code § 901.2(2). The Iowa Rules of Criminal Procedure draw
a distinction between felons and misdemeanants with respect to required
procedures during plea proceedings. See Iowa R. Crim. P. 2.8(2)(b). And
those convicted of a simple misdemeanor cannot invoke the jurisdiction of
this court as a matter of right. See Iowa Code § 814.6(1)(a). There is no
suggestion these classifications distinguish between similarly situated
persons or violate principles of equal protection. The constitutional
entitlement to equal protection does not prevent the state from affording
those facing greater punishment additional procedural protections.
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Finally, Treptow contends section 814.7 makes an unlawful
distinction between those who received effective assistance of counsel
during plea proceedings and those who did not. We are not sure what to
make of this argument. The statute makes no distinction between classes
of persons in this regard. The statute prohibits any defendant—those
convicted following trial and those convicted following a guilty plea—from
presenting a claim of ineffective assistance of counsel on direct appeal.
In any event, those asserting claims other than a claim of ineffective
assistance of counsel are not similarly situated to those asserting claims
of ineffective assistance of counsel. A claim of ineffective assistance of
counsel is more than an error preservation device; it is a substantive legal
claim with its own elements. See Kimmelman v. Morrison, 477 U.S. 365,
374, 106 S. Ct. 2574, 2582–83 (1986) (distinguishing between ineffective-
assistance-of-counsel claim and underlying constitutional claim); Rose v.
Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“While [the ineffective-
assistance claim and underlying constitutional claim are] admittedly
related, they are distinct claims with separate elements of proof, and each
claim should have been separately and specifically presented to the state
courts.”); Wright v. State, No. 16–0275, 2017 WL 1401475, at *2 (Iowa Ct.
App. Apr. 19, 2017) (noting a direct legal claim and indirect legal claim
presented within an ineffective-assistance framework are substantively
different). A defendant asserting a claim of ineffective assistance of
counsel must always show his “trial counsel failed to perform an essential
duty and that this failure resulted in prejudice.” State v. Kress, 636
N.W.2d 12, 20 (Iowa 2001).
“It is not unconstitutional or even unreasonable to treat as similarly
situated only those parties whose cases are ‘factually and legally similar’
and ‘share similar procedural histories.’ ” Wright, 2017 WL 1401475, at *3
10
(quoting State ex rel. Brown v. Bradley, 658 N.W.2d 427, 433 n.7 (Wis.
2003)). Thus, in Hunt v. Nuth, the United States Court of Appeals for the
Fourth Circuit rejected a similar challenge to a Maryland law. 57 F.3d
1327, 1336–37 (4th Cir. 1995). In Maryland, the appellate courts typically
require defendants to raise claims of ineffective assistance of counsel in
postconviction-relief proceedings. See Mosley v. State, 836 A.2d 678, 686
(Md. 2003). However, in Maryland, appellate review of postconviction-
relief proceedings is discretionary. See Hunt, 57 F.3d at 1336 n.10. In
Hunt, the postconviction applicant challenged this system, contending his
equal protection rights were violated because he did not have the
opportunity to present his claims of ineffective assistance of counsel to an
appellate court as a matter of right. Id. at 1336–37. The Fourth Circuit
rejected the contention:
Hunt also raises an equal protection challenge to
Maryland’s system of post-conviction review. He contends
that Maryland improperly distinguishes between defendants
with constitutional claims cognizable on direct review, and
those with claims that are only cognizable on post-conviction
review. He claims that this unequal access to appellate review
lacks a rational basis and violates equal protection
guarantees. Thus, Hunt creates two classes of claims, rather
than two classes of persons, and argues that these types of
claims must be treated equally by Maryland. The State,
however, has a legitimate interest in conserving judicial
resources and need not provide the same review for each type
of claim, particularly when Maryland already provides
defendants with more than the constitutional minimum of
opportunities for review. Therefore, we reject Hunt’s claim
that Maryland’s discretionary post-conviction review system
violates the Equal Protection Clause.
Id.Because Treptow has not established he is similarly situated to a
relevant comparator, we need not determine whether there is
constitutionally sufficient justification for the distinctions drawn in the
challenged statutes. See State v. Dudley, 766 N.W.2d 606, 616 (Iowa 2009)
11
(“If a plaintiff cannot show preliminarily that persons in the two classes
are similarly situated, we have concluded the court need not determine
whether there is a constitutionally adequate basis for the persons’ different
treatment.”); Varnum, 763 N.W.2d at 882. Requiring those who plead
guilty to establish good cause to pursue a direct appeal as a matter of right
and requiring all defendants to present claims of ineffective assistance of
counsel in postconviction-relief proceedings rather than on direct appeal
does not violate federal or state guarantees of equal protection of the laws.
See In re Morrow, 616 N.W.2d 544, 548 (Iowa 2000) (en banc) (“If people
are not similarly situated, their dissimilar treatment does not violate equal
protection.”); see also People v. Ivester, 286 Cal. Rptr. 540, 542–43 (Ct.
App. 1991) (rejecting equal protection challenge to statute denying appeal
from a judgment of conviction upon a plea of guilty unless the defendant
filed a written statement of reasonable grounds that challenge the legality
of the plea).
V.
Treptow argues the omnibus crime bill violates his constitutional
right to due process. More specifically, Treptow argues section 814.7
interferes with the ability of appellate counsel to present claims of
ineffective assistance on direct appeal and thus violates Treptow’s right to
due process. Stated differently, Treptow contends he has an absolute due
process right to present claims of ineffective assistance on direct appeal.
We review challenges to the constitutionality of a statute de novo. See
Mitchell, 757 N.W.2d at 434.
Treptow’s initial premise—that section 814.7 interferes with the
right to effective assistance of counsel on direct appeal—is not sound. A
criminal defendant is entitled to effective assistance of counsel on appeal.
See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (en banc). The
12
right to the effective assistance of appellate counsel is the right to have
counsel in an appeal and to have counsel perform competently in that
appeal. See id. at 141–42. The right to the effective assistance of appellate
counsel where direct appeal is available does not create an entitlement to
direct appeal as a matter of right and a further entitlement to present any
and all claims on direct appeal as a matter of right. Treptow does not cite
any authority in support of such a claim, and we find none.
Further, the defendant’s due process concerns are simply
overstated. Requiring claims of ineffective assistance of counsel to be
presented in the first instance in postconviction-relief proceedings is not
uncommon. See, e.g., Martinez v. Ryan, 566 U.S. 1, 4, 132 S. Ct. 1309,
1313 (2012) (“The State of Arizona does not permit a convicted person
alleging ineffective assistance of trial counsel to raise that claim on direct
review.”); State v. Spreitz, 39 P.3d 525, 527 (Ariz. 2002) (en banc); Wrenn
v. State, 121 So. 3d 913, 914–15 (Miss. 2013) (holding that defendant’s
conviction following a guilty plea could only be challenged under the
postconviction statute rather than on direct appeal); State v. Dell, 967 P.2d
507, 509 (Or. Ct. App. 1998); State v. Brouillard, 745 A.2d 759, 768 (R.I.
2000) (“This Court repeatedly has held that it will not consider a claim of
ineffectiveness of counsel that is raised for the first time on a direct
appeal.”); Turner v. Commonwealth, 528 S.E.2d 112, 115 (Va. 2000)
(explaining claims of ineffective assistance must be brought in collateral
proceedings); State v. Rettig, 416 P.3d 520, 521 (Utah 2017) (rejecting
claim that “the legislature lacks the constitutional power to require that
[the defendant] pursue his claim through the Post-Conviction Remedies
Act”).
In addition to states that disallow the presentation of claims of
ineffective assistance on direct appeal, most state courts do not review
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claims of ineffective assistance on direct appeal even when allowed
because “[a] claim of ineffective assistance of counsel is generally not a
basis for direct appeal and instead should be raised in a postconviction
proceeding.” 24 C.J.S. Criminal Procedure and Rights of the Accused
§ 2119 & n.1, at 85 (2016) (collecting cases). In the vast majority of states,
the defendant must wait to develop and present his claim of ineffective
assistance of counsel in postconviction-relief proceedings. See Eve
Brensike Primus, Effective Trial Counsel After Martinez v. Ryan: Focusing
on the Adequacy of State Procedures, 122 Yale L.J. 2604, 2613 n.39 (2013)
(collecting cases and stating “[i]n the vast majority of states, however,
defendants must wait until state collateral review to raise ineffective
assistance of trial counsel claims”). This was true in Iowa prior to the
passage of the omnibus crime bill. As we explained in Tucker, Iowa’s
appellate courts have been preserving most claims of ineffective assistance
of counsel for development in postconviction-relief proceedings for half of
a century. See Tucker, ___ N.W.2d at ___. The new law merely codified
that practice in stronger form.
The practice of requiring claims of ineffective assistance of counsel
to be resolved in the first instance in postconviction-relief proceedings is
supported by a variety of legitimate interests. Among others:
Considering a claim of ineffective assistance of counsel on
direct appeal (1) deprives the State, in responding to the
defendant’s arguments, of the benefit of an evidentiary
hearing, including trial counsel’s testimony; (2) places [the
appellate courts] in the role of factfinder with respect to
evaluating counsel’s performance; . . . and (4) constitutes a
significant drain on [appellate court] resources in responding
to such claims.
State v. Nichols, 698 A.2d 521, 522 (Me. 1997), holding modified by
Petgrave v. State, 208 A.3d 371 (Me. 2019).
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There is no due process right to present claims of ineffective
assistance of counsel on direct appeal. Due process merely requires an
opportunity to present those claims in some forum. For half of a century,
Iowa, like most states, has resolved claims of ineffective assistance in
postconviction-relief proceedings and not direct appeal. Iowa Code section
814.7 is consistent with that practice and does not violate due process.
VI.
Having concluded section 814.6(1)(a)(3) is constitutional and
governs this appeal, we turn to the question of whether Treptow has
established good cause to pursue this appeal as a matter of right. Treptow
“bears the burden of establishing good cause to pursue an appeal of [his]
conviction based on a guilty plea.” State v. Damme, 944 N.W.2d 98, 104
(Iowa 2020); see also Iowa Code § 814.6(1)(a)(3) (stating that the provision
prohibiting an appeal from a conviction where the defendant pleaded guilty
does not apply “in a case where the defendant establishes good cause”
(emphasis added)).
The statute does not define “good cause.” See id. The parties
propose very different interpretations of the statute. Treptow claims “good
cause” should be defined broadly to allow for direct appeal as a matter of
right whenever a defendant has presented “some colorable claim” on
appeal. The State argues this is a low bar. It counters “good cause” should
be defined narrowly to allow for an appeal only where the defendant’s claim
is “likely meritorious” and cannot be addressed elsewhere in the criminal
justice system.
We need not resolve the parties’ disagreement to resolve the question
presented in this appeal. In State v. Damme and State v. Boldon, we stated
that “good cause” in section 814.6 means a “legally sufficient reason.”
Boldon, 954 N.W.2d at 69 (quoting Damme, 944 N.W.2d at 104). What
15
constitutes a legally sufficient reason is context specific. See Boldon, 954
N.W.2d at 69; Damme, 944 N.W.2d at 104. In those cases, we concluded
“that good cause exists to appeal from a conviction following a guilty plea
when the defendant challenges his or her sentence rather than the guilty
plea.” Boldon, 954 N.W.2d at 69 (quoting Damme, 944 N.W.2d at 105).
We explained that “[a] sentencing error invariably arises after the court
has accepted the guilty plea. This timing provides a legally sufficient
reason to appeal notwithstanding the guilty plea.” Id. (alteration in
original) (quoting Damme, 944 N.W.2d at 105).
Here, Treptow has not established a legally sufficient reason to
appeal as a matter of right. By definition, a legally sufficient reason is a
reason that would allow a court to provide some relief. Here, there is no
such possibility. When Treptow pleaded guilty and requested immediate
sentencing, he waived his right to file a motion in arrest of judgment. His
failure to file a motion in arrest of judgment precludes appellate relief. See
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.”). We
thus cannot provide relief.
We have recognized two exceptions to this bar, but neither exception
would allow for the possibility of relief on the facts of this case. First, we
have recognized a defendant may challenge his guilty plea on appeal
despite not filing a motion in arrest of judgment where the district court
failed to adequately advise the defendant of the consequences of not filing
a motion in arrest of judgment. See State v. Loye, 670 N.W.2d 141, 149–
50 (Iowa 2003) (explaining court’s failure to advise of the consequences of
the failure to file a motion in arrest of judgment reinstates the defendant’s
16
right to appeal the legality of his plea). Here, Treptow was adequately
advised of and waived the right.
Second, we have allowed a defendant to indirectly challenge his
guilty plea on appeal despite not filing a motion in arrest of judgment “if
the failure to file a motion in arrest of judgment resulted from ineffective
assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
Because we have just upheld the constitutionality of section 814.7, this
court is without authority to decide ineffective assistance of counsel claims
on direct appeal. Thus, the second exception no longer provides an avenue
for relief on direct appeal.
Treptow argues this court need not decide his claim under the
familiar ineffective-assistance-of-counsel framework. Instead, he argues,
this court should adopt plain error review. We are disinclined to do so.
We have repeatedly rejected plain error review and will not adopt it now.
See State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016); State v. Rutledge,
600 N.W.2d 324, 325 (Iowa 1999).
The defendant has not advanced a legally sufficient reason to pursue
an appeal as a matter of right. The defendant was adequately advised of
the necessity of filing in a motion in arrest of judgment to challenge his
guilty plea and the consequences of failing to do so. Upon being properly
advised of his right and the consequences of waiving that right, the
defendant waived the right and proceeded to immediate sentencing. The
defendant has no right to assert a claim of ineffective assistance of counsel
on direct appeal, and this court has no authority to decide a claim of
ineffective assistance of counsel on direct appeal. Under the
circumstances, the appellate courts cannot provide the defendant with
relief. The defendant has thus not established good cause to pursue his
appeal as a matter of right under section 814.6.
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VII.
Because Treptow has not established good cause to pursue a direct
appeal as a matter of right, this court is without jurisdiction to hear the
appeal.1
APPEAL DISMISSED.
All justices concur except Appel, J., who dissents.
1Treptow also challenges the constitutionality of Iowa Code section 814.29, which
provides,
If a defendant challenges a guilty plea based on an alleged defect in the
plea proceedings, the plea shall not be vacated unless the defendant
demonstrates that the defendant more likely than not would not have pled
guilty if the defect had not occurred.
Treptow contends this provision violates the separation-of-powers doctrine. We decline
to pass on the constitutionality of the statute given our conclusion that the court lacks
jurisdiction in this matter. Judicial self-restraint imposes a duty upon this court to avoid
constitutional questions where possible. See State v. Trucke, 410 N.W.2d 242, 243 (Iowa
1987) (en banc). “[W]e normally avoid constitutional claims when an appeal can be
decided on other grounds.” State v. Kukowski, 704 N.W.2d 687, 690 (Iowa 2005).
Treptow’s separation-of-powers challenge to section 814.29 will have to be developed, if
at all, in postconviction-relief proceedings.
18
#19–1276, State v. Treptow
APPEL, Justice (dissenting).
I respectfully dissent. In my view, under either prior law or S.F. 589,
the strictly legal issue posed in this case—whether there was substantial
evidence in the record to support a conviction of the crime of gathering for
drug purposes—may be considered on direct appeal through statutory
interpretation.
With respect to constitutional issues that are raised by David
Treptow in this case, I incorporate my discussion in my special
concurrence in State v. Tucker, ___ N.W.2d ___, ___ (Iowa 2021), as if fully
set out here.
I. Consideration of Legal Question of Whether Guilty Plea is
Supported by Substantial Evidence on Direct Appeal.
A. Introduction. For many years, plea bargaining was forbidden,
but now, criminal justice today “is for the most part a system of pleas, not
a system of trials.” Missouri v. Frye, 566 U.S. 134, 143, 132 S. Ct. 1399,
1407 (2012) (quoting Lafler v. Cooper, 566 U.S. 156, 170, 132 S. Ct. 1376,
1388 (2012)). In recent decades, disposition of criminal cases by plea
bargaining has approached or exceeded ninety percent. Lindsey Devers,
Bureau of Just. Assistance, Plea and Charge Bargaining 1 (2011); see also
McCarthy v. United States, 394 U.S. 459, 463 n.7, 89 S. Ct. 1166, 1169
n.7 (1969) (stating 86% of convictions in federal district courts in 1968
were pleas). As noted by two prominent scholars, plea bargaining “is not
some adjunct to the criminal justice system; it is the criminal justice
system.” Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract,
101 Yale L.J. 1909, 1912 (1992).
The decision to enter into a “plea is a grave and solemn act to be
accepted only with care and discernment.” Brady v. United States, 397
19
U.S. 742, 748, 90 S. Ct. 1463, 1468 (1970). As noted years ago in Boykin
v. Alabama, the process of plea bargaining “demands the utmost solicitude
of which courts are capable in canvassing the matter with the accused to
make sure he has a full understanding of what the plea connotes and of
its consequence.” 395 U.S. 238, 243–44, 89 S. Ct. 1709, 1712 (1969).
More recently, Justice Scalia observed that plea bargaining
“presents grave risks of prosecutorial overcharging that effectively compels
an innocent defendant to avoid massive risk by pleading guilty to a lesser
offense.” Lafler, 566 U.S. at 185, 132 S. Ct. at 1397 (Scalia, J., dissenting).
See generally Boaz Sangero, Safety from Plea-Bargains’ Hazards, 38 Pace
L. Rev. 301, 306–21 (2018) (summarizing risks of false confession and
subsequent pleas). Justice Scalia’s observation has support in innocence
cases uncovered through DNA analysis that were originally the product of
plea bargaining. See Brandon Garrett, Convicting the Innocent: Where
Criminal Prosecutions Go Wrong 150–53 (2011) (noting that of the first 330
DNA exonerations, eight percent, or twenty-seven, had pled guilty).
As a matter of due process, in order to enter into a plea bargain, the
defendant must be competent. Godinez v. Moran, 509 U.S. 389, 396, 113
S. Ct. 2680, 2685 (1993). The plea bargain must be made knowingly and
voluntarily. Brady, 397 U.S. at 748, 90 S. Ct. at 1469. In order to be
knowing and voluntary, the defendant must be aware of the consequences
of the plea and comprehend the constitutional rights waived by the
agreement. Boykin, 395 U.S. at 243–44, 89 S. Ct. at 1712.
In order to insure that plea bargains are entered into by defendants
with “care and discernment,” the United States Supreme Court
promulgated Federal Rule of Criminal Procedure 11. Fed. R. Crim. P. 11
Advisory Committee’s Note to 1983 Amendments. Under the rule as
originally enacted in 1944, the court was required to make inquiries into
20
voluntariness, but later amendment specifically required the court to
determine the underlying factual basis for the plea and personally address
the defendant to ensure understanding of the consequences associated
with the plea. McCarthy, 394 U.S. at 465–66, 89 S. Ct. at 1170. As noted
in McCarthy v. United States, the rule was promulgated by the United
States Supreme Court pursuant to its constitutional authority to supervise
lower federal courts. Id. at 464, 89 S. Ct. at 1169.
The rule has two goals. Id. at 465, 89 S. Ct. at 1170. First, “it is
designed to assist” district court judges “in making the constitutionally
required determination that a defendant’s guilty plea is truly voluntary.”
Id. Second, it “is intended to produce a complete record at the time the
plea is entered of the factors relevant to [the] voluntariness determination.”
Id. Meticulous compliance with the rule thus discourages or at least
provides for more expeditious disposition of the “often frivolous post-
conviction attacks on the constitutional validity of guilty pleas.” Id. The
effect of noncompliance is that the defendant’s guilty plea is set aside and
the case remanded for another hearing at which he may plead anew. Id.
at 471–72, 89 S. Ct. at 1173–74.
The Supreme Court concluded that prejudice to the defendant
inheres in a failure to comply with rule 11 “for noncompliance deprives the
defendant of the Rule’s procedural safeguards that are designed to
facilitate a more accurate determination of the voluntariness of [the] plea.”
Id. An amendment to rule 11 and subsequent caselaw has, however,
adjusted the prejudice requirements a certain extent. See generally State
v. Finney, 834 N.W.2d 46, 51–55 (Iowa 2013) (discussing the amendment
and caselaw which adopted a harmless error rule if the failure of complying
with rule 11 does not affect substantial rights).
21
The requirement that a plea be supported by a factual basis
advances several purposes. As noted by one commentator, the factual
basis requirement “may (1) assist a judge in the voluntariness
determination, (2) make appellate review of a plea less complex, (3)
facilitate the rehabilitation of a defendant, and (4) provide protection for
an innocent defendant.” John L. Barkai, Accuracy Inquiries for All Felony
and Misdemeanor Pleas: Voluntary Pleas but Innocent Defendants?, 126 U.
Pa. L. Rev. 88, 95 (1977) (footnotes omitted).
Iowa caselaw generally followed the permutations of federal law.
See, e.g., Finney, 834 N.W.2d at 55–60. In 1977, after legislative action,
we promulgated a rule of our own related to plea bargaining. Iowa R. Crim.
P. 2.8(2)(b). Rule 2.8(2)(b) requires the court to determine before accepting
a plea that there is substantial evidence supporting the crimes for which
the defendant has agreed to plead guilty. In addition, the rule requires the
court to personally address the defendant, inform the defendant of, and
personally make sure the defendant understands, (1) the nature of the
charge, (2) the minimum and maximum punishment, (3) a conviction
might impact the defendant’s immigration status, (4) the defendant has a
right to a jury trial, “the right to assistance of counsel, the right to confront
and cross-examine witnesses . . . , the right not to be compelled to
incriminate oneself, and the right to present witnesses” and have a
compulsory process to secure them at trial, and (5) that by pleading guilty,
there will be no further trial and that by pleading guilty, the defendant
waves the right to a jury trial. Id.Under our established approach to guilty pleas, this court on direct
appeal considered attacks the legal validity of guilty pleas in certain
circumstances. For example, a guilty plea not supported by substantial
evidence could be reviewed on direct appeal through a claim that counsel
22
was ineffective for failure to object. State v. Gines, 844 N.W.2d 437, 441
(Iowa 2014). Deficiencies in the plea colloquy required by rule 2.8(2)(b)
could also be raised on direct appeal in certain circumstances. State v.
Weitzel, 905 N.W.2d 397, 401–02 (Iowa 2017) (allowing direct appeal for
failure to advise adequately about consequences of the plea). Such an
approach is consistent with efficient disposition of the challenges. Where
a strictly legal question is posed challenging the validity of a guilty plea
and no fact finding is required, there is simply no point in referring such a
claim to a postconviction-relief proceeding in district court.
Under our prior caselaw, Treptow would be entitled to relief as, in
my view, the record does not establish a factual basis for his conviction of
the crime of gathering under Iowa Code section 124.407 (2018). See, e.g.,
State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (en banc) (“The
district court may not accept a guilty plea without first determining that
the plea has a factual basis.”); see also Gines, 844 N.W.2d at 441 (same,
quoting Schminkey). While there was sufficient evidence to support
various other drug offenses to which Treptow pled guilty, there was no
evidence in the record to support conviction of the marijuana gathering
offense.2
2Treptow of course pled guilty to the various offenses. Thus, under federal law,
he forfeits constitutional claims that arose prior to the plea bargaining process. Tollett v.
Henderson, 411 U.S. 258, 266–67, 93 S. Ct. 1602, 1607–08 (1973). But see State v.
Ethington, 592 P.2d 768, 769–70 (Ariz. 1979) (in banc) (holding state public policy
prevents negotiation of waiver of right to appeal in context of plea bargaining); People v.
Butler, 204 N.W.2d 325, 330 (Mich. Ct. App. 1972) (holding under the Michigan
Constitution’s due process clause the right to appeal may not be bargained away while
pleading guilty). Under the best, but not universal, view of federal law, Treptow does not
forfeit claims related to the formation of the plea bargaining itself. Specifically, a plea
bargain does not prevent a defendant from attacking the plea itself as not supported by
a factual basis. See, e.g., United States v. Culbertson, 670 F.3d 183, 190 (2d Cir. 2012);
United States v. Lacey, 569 F.3d 319, 323–24 (7th Cir. 2009); United States v. Adams,
448 F.3d 492, 502 (2d Cir. 2006); United States v. Baymon 312 F.3d 725, 727 (5th Cir.
2002); United States v. McKelvey, 203 F.3d 66, 69–70 (1st Cir. 2000). But see United
States v. Beck, 250 F.3d 1163, 1166–67 (8th Cir. 2001); United States v. Johnson, 89 F.3d
23The State claims, however, that we must follow the approach in
S.F. 589, which took effect on July 1, 2019. 2019 Iowa Acts ch. 140, § 33
(codified at Iowa Code § 814.29 (2020)). Under the new approach
established by S.F. 589, a defendant seeking to challenge a guilty plea on
direct appeal must establish “good cause.” Id. § 28(a)(3) (codified at Iowa
Code § 814.6(1)(a)(3) (2020)). The State maintains that Treptow has not
shown good cause and that, as a result, this court should not decide the
straightforward legal issue raised by Treptow but should instead send the
case off to a district court for an action in postconviction relief.
In my view, we should find that there is good cause to consider
Treptow’s claim on direct appeal. First, I would hold that good cause is
categorically present to consider a challenge to a guilty plea on direct
appeal where a defendant claims that the guilty plea is not supported by
substantial evidence on the record or where the defendant raises any other
legal challenge to the guilty plea for failure of the district court to comply
with Iowa Rule of Criminal Procedure 2.8(2)(b). In the alternative, I would
accept Treptow’s invitation and adopt a version of the plain error doctrine
sufficiently broad to permit consideration of his legal challenge to his guilty
plea on direct appeal. Such an approach smoothly harmonizes a nearly
778, 784 (11th Cir. 1996), abrogation on other grounds recognized by United States v.
Davila, 749 F.3d 982 (11th Cir. 2014). Further, an explicit waiver of appeal rights
pursuant to a plea bargain does not prevent a defendant from attacking the resulting
conviction on the grounds that it was not knowing and voluntary, was not taken in
compliance with Federal Rule of Criminal Procedure 11, or was the product of ineffective
assistance. See, e.g., United States v. Atkinson, 354 F. App’x 250, 252 (6th Cir. 2009);
United States v. Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001); United States v.
Hernandez, 242 F.3d 110, 113–14 (2d Cir. 2001) (per curiam); Jones v. United States, 167
F.3d 1142, 1144–46 (7th Cir. 1999); see also Robert K. Calhoun, Waiver of the Right to
Appeal, 23 Hastings Const. L. Q. 127, 140 (1995) (“[D]efendants remain free to raise on
appeal any issue which goes to the validity of the plea or the waiver itself[;] . . . there
appears to be general consensus that an accused may raise the question of adequate
assistance of counsel in making the waiver.”).
24
universally accepted judicial doctrine with the good cause requirement of
the new legislation.3
B. Meaning of “Good Cause.”
1. Introduction. At the outset, the legislature has declined to provide
a definition of “good cause.” The interpretation of the term has thus been
delegated by the legislature to the courts. In one of our first cases
construing S.F. 589, we noted that good cause means “a legally sufficient
reason.” State v. Damme, 944 N.W.2d 98, 104–05 (Iowa 2020). In State v.
Damme, we held that a challenge to the sentence imposed pursuant to a
guilty plea was not an attack on the plea itself and was therefore subject
to direct appeal. Id. at 105.
Objectively, the term “good cause” is not a brittle and narrow
expression but is an elastic term that permits application as required by
the facts and circumstances. See, e.g., Wilder v. Prokop, 846 F.2d 613,
622 (10th Cir. 1988); Dinko v. Wall, 531 F.2d 68, 73–75 (2d Cir. 1976);
Jones v. Westinghouse Elec. Supply Co., 128 A.2d 808, 809 (Del. Super.
Ct. 1957). Yet, while the term is elastic and usually not susceptible to a
precise formula, it is “not so elastic as to be devoid of substance.”
Compania Interamericana Exp.-Imp., SA v. Compania Dominicana de
Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (quoting Coon v. Grenier, 867
F.2d 73, 76 (1st Cir. 1989)).
In its ordinary usage, the term “good cause” is a flexible catchall
term designed to apply in a wide variety of facts and circumstances. The
term ordinarily implies rationality and judgment, but not mathematical
3See Morton Gitelman, The Plain Error Rule in Arkansas—Plainly Time for a
Change, 53 Ark. L. Rev. 205, 217 (2000) (noting that forty-seven states had adopted some
version of the plain error rule). After publication of the Gitelman article, New Hampshire
adopted plain error. See Jon M. Woodruff, note, Plain Error By Another Name: Are
Ineffective Assistance of Counsel Claims a Suitable Alternative to Plain Error Review in
Iowa, 102 Iowa L. Rev. 1811, 1816 n.19 (2017).
25
precision. See, e.g., Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932,
933–34 (7th Cir. 2002) (stating that good cause for failure to timely serve
must be supported by some reasonable basis for noncompliance); State v.
Pedockie, 95 P.3d 1182, 1188 (Utah Ct. App. 2004) (stating good cause for
purposes of speedy trial must have reasonable basis).
Where the legislature has not defined “good cause,” we have noted
that the term is capable of contraction and expansion by construction and
that reducing it to a fixed meaning is nearly impossible. Wiese v. Iowa
Dep’t of Job Serv., 389 N.W.2d 676, 680 (Iowa 1986). The term implies
“adequate excuses that will bear the test of reason, just grounds for the
action, and always the element of good faith.” Id. (quoting Mee’s Bakery,
Inc. v. Unemp. Comp. Bd. of Rev., 56 A.2d 386, 387 (Pa. Super. Ct. 1948)).
The State suggests that good cause means “extraordinary”
circumstances. This would amount to a remarkable reworking of the
statutory language. Surely that cannot be correct. In our evaluation of
the elastic term used by the legislature, “good cause,” we cannot substitute
narrow and strict constructs that the legislature did not include in the
statutory language.
C. Good Cause as Measured by Judicial Economy. One approach
to good cause in the statute is to interpret the elastic term in a fashion
that promotes its underlying purpose. The purpose of the statute, it
seems, is to promote judicial efficiency. If so, good cause to consider
challenges to guilty pleas would be present where a claim categorically
involves only straightforward legal issues that can be handled by the
appellate courts.
A challenge to a guilty plea for insufficient evidence would fall into
that category. If challenges to a guilty plea for insufficient evidence were
considered on direct appeal, there would be no need for expenditure of
26
appellate resources for some kind of triage. A challenge to a guilty plea for
lack of sufficient evidence is always a legal determination and is always
based on the existing record developed below. Unlike a claim of lack of
voluntariness, there is no requirement of fact-finding that an appellate
court would be ill equipped to make. In cases involving challenges to plea
bargains for insufficient evidence, there is no point in sending such a case
off to a trial court for a postconviction-relief proceeding. Such a move
would waste judicial resources, not conserve them, and likely inject
needless delay into the criminal justice system. We should not lightly
assume that the legislature intended to inject a burdensome and
completely unnecessary and time-consuming review of sufficiency of the
evidence challenges to guilty pleas by a postconviction-relief trial court;
indeed, a good cause escape valve from such a pointless referral seems a
workable and very reasonable interpretation. See State v. Iowa Dist. Ct.,
889 N.W.2d 467, 473 (Iowa 2017) (holding statutes should be interpreted
in a manner that are reasonable and workable).
It is true that challenges to plea bargains based on insufficiency of
the evidence have sometimes been couched in terms of ineffective
assistance. Under S.F. 589, ineffective-assistance claims may not be
considered in direct appeal but must instead be filed in a postconviction
action in district court. The majority believes that because of the
prohibition of consideration of ineffective-assistance claims on direct
appeal, Treptow’s attack on his guilty plea for lack of evidence must also
be barred.
There are three responses. First, as indicated above, the interplay
between the unqualified bar of ineffective-assistance claims on direct
appeal and the provision permitting direct appeal of certain guilty pleas
upon a showing of good cause is not at all clear but rather gives rise to
27
ambiguity. State v. Nall, 894 N.W.2d 514, 518 (Iowa 2017) (holding that
where a statute is ambiguous, the court may utilize tools of statutory
construction). The good cause exception can certainly be read as a specific
standalone provision for guilty pleas that is not overridden by the general
bar against claims based on ineffective assistance of counsel, particularly
if efficiency is seen as the overriding purpose of the statute.
Secondly, however, a challenge to a guilty plea based upon
insufficient evidence, though often based on a claim of ineffective
assistance of counsel, is also based upon our supervisory powers over
inferior courts implemented through Iowa Rule of Criminal Procedure
2.8(2)(b). See Hutchins v. City of Des Moines, 176 Iowa 189, 213, 157 N.W.
881, 889 (1916) (noting that our supervisory authority of inferior tribunals
“is hampered by no specific rules or means for its exercise. It is so general
and comprehensive that its complete and full extent and use have
practically hitherto not been fully and completely known and exemplified”
(citing State v. Johnson, 79 N.W. 1081 (Wis. 1899))). Notably, a number of
cases dealing with consideration of unpreserved sufficiency-of-the-
evidence claims do not mention ineffective assistance but focus solely on
the violation of the underlying rule related to the taking of plea bargains.
See, e.g., United States v. Vonn, 535 U.S. 55, 74–76, 122 S. Ct. 1043,
1054–55 (2002) (applying plain error in context of unpreserved claim of
insufficient evidence to support plea bargain without mention of ineffective
assistance of counsel); United States v. Garcia-Paulin, 627 F.3d 127, 131
(5th Cir. 2010) (same); Kiet Hoang Nguyen v. State, 299 P.3d 683, 686
(Wyo. 2013) (same). As a matter of upholding the integrity of our judicial
system, we simply do not tolerate convictions where there is no substantial
evidence on the record to support them, regardless of whether a
constitutional violation is present. Thus, good cause may be shown when
28
we engage in review of a guilty plea pursuant to our supervisory powers
without offending the provision of S.F. 589 that seeks to prohibit direct
appeals based upon ineffective assistance of counsel.
Third, by diverting the challenge to the sufficiency of the evidence to
postconviction relief, the defendant will be deprived of the assistance of
counsel in his first appeal as a matter of right. Most persons seeking to
challenge the sufficiency of the evidence on a guilty plea will be
incarcerated. From within the prison walls, unskilled defendants are
required to prepare a postconviction-relief petition. They have no right to
the assistance of counsel. In my view, where the postconviction-relief
petition amounts to a first appeal as a matter of right, the defendant is
entitled to counsel. My reasoning on the right to counsel issue is laid out
in Tucker, ___ N.W.2d at ___, and is not repeated here. But it is clear that
Treptow will be required to prepare a petition without the assistance of
counsel even though the filing will be his first appeal. By finding good
cause in this case, the constitutional infirmity would be avoided.
Based on the above, I would conclude that there is good cause to
handle this claim on direct appeal rather than delay matters by sending
the case off for a completely unnecessary postconviction-relief action.
D. Incorporation of “Plain Error” in “Good Cause.”
1. Introduction. A second, relatively clean, straightforward answer
to good cause is to incorporate under the statutory rubric of good cause a
version of plain error doctrine that has been adopted by the vast majority
of courts throughout the country. As will be demonstrated below, the plain
error doctrine is broad enough to permit this court to consider on direct
appeal the strictly legal claim including challenges to guilty pleas based
upon insufficient evidence. By utilizing our supervisory powers to adopt
plain error and incorporating it within the good cause requirement of
29
S.F. 589, we would achieve a desirable degree of harmony between the
legislative directive and the power of the judicial branch to supervise
inferior tribunals. Because the court has the power to create a plain error
exception, and has the duty to confirm that guilty pleas have a factual
basis, Treptow argues the court must now adopt a plain error exception to
effectuate that duty in the wake of S.F. 589.4
The State urges us not to adopt a plain error approach. The State
claims that Iowa courts “have been persistent and resolute in rejecting
[plain error], and are not at all inclined to yield on the point.” State v.
Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (citing State v. McCright, 569
N.W.2d 605, 607 (Iowa 1997)). The State also argues that Treptow has not
satisfied the requirements of “highest possible showing” to overcome court
precedent. See State v. Brown, 930 N.W.2d 840, 854 (Iowa 2019).
2. Development of plain error safety valve in federal courts. The
general rule is that legal error must be preserved below in order to be
raised on appeal. Beginning over a hundred years ago and continuing into
the twentieth century, however, federal and state court caselaw developed
what has been called the plain error rule. The notion was that while
ordinarily error should be preserved, there should be some safety valve to
allow substantial justice to be done even where error was not preserved.
4Plain error doctrine is not based upon the theory of ineffective assistance of
counsel but is instead based upon the proposition that a jurisdiction’s highest court may
exercise supervisory power over inferior tribunals and that they may waive preservation
requirements in order to ensure fundamental fairness and preserve the integrity of the
judicial system. See, e.g., State v. Thomas, 427 So. 2d 428, 433 (La. 1983) (citing
supervisory, rulemaking, and inherent judicial power supporting plain error). And, as
mentioned above, the leading cases dealing with consideration of unpreserved insufficient
evidence claims in the plea bargaining context do not mention ineffective assistance but
focus solely on the violation of the underlying rules related to plea bargaining. Therefore,
there can be no argument that the provision of S.F. 589 that seeks to prevent unpreserved
claims of ineffective assistance of counsel from being presented on direct appeal is no
obstacle to adoption of plain error.
30
For instance, in Wiborg v. United States, the Supreme Court declared
that “if a plain error was committed in a matter so absolutely vital to
defendants, we feel ourselves at liberty to correct it.” 163 U.S. 632, 658–
59, 16 S. Ct. 1127, 1137 (1896). A few years later, the Supreme Court
reviewed the qualification of a juror even though review exceeded the scope
of the objection. Crawford v. United States, 212 U.S. 183, 192–97, 29
S. Ct. 260, 264–65 (1909). The following year, in Weems v. United States,
the Supreme Court emphasized the right of the court to review
unpreserved errors involving constitutional issues. 217 U.S. 349, 362, 30
S. Ct. 544, 547 (1910). Throughout the 1920s, the Court further expanded
the exception to include error involving a judge’s inappropriate questioning
of the jury’s numerical division and passion and emotion from jury
members. See N.Y. Cent. R. v. Johnson, 279 U.S. 310, 318–19, 49 S. Ct.
300, 303–04 (1929) (holding that the failure of counsel to particularize an
exception will not preclude the court, on its own motion, from protecting
suitors in their right to verdict uninfluenced by opposing counsel’s appeal
to passion and prejudice); Brasfield v. United States, 272 U.S. 448, 450,
47 S. Ct. 135, 135–36 (1926) (reviewing unpreserved error involving
relationship of court to jury). By the mid-twentieth century, the plain error
doctrine had a firm footing in federal caselaw. See generally Jon M.
Woodruff, note, Plain Error By Another Name: Are Ineffective Assistance of
Counsel Claims a Suitable Alternative to Plain Error Review in Iowa, 102
Iowa L. Rev. 1811, 1815–16 (2017) (describing the development of the
Supreme Court’s plain error jurisprudence) [hereinafter Woodruff, Plain
Error].
The federal doctrine was summarized in United States v. Atkinson.
297 U.S. 157, 159–60, 56 S. Ct. 391, 392 (1936). In Atkinson, the court
emphasized the availability of plain error in criminal cases where “errors
31
are obvious, or if they otherwise seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 160, 56 S. Ct. at 392.
When the federal rules of criminal procedure were adopted in 1944,
Federal Rule of Criminal Procedure 52(b) incorporated the prior plain error
caselaw by providing that “a plain error that affects substantial rights may
be considered even though it was not brought to the court’s attention.”
According to the commentary, the rule “was drafted as a restatement of
the common law.” Jeffrey L. Lowry, Plain Error Rule—Clarifying Plain Error
Analysis Under Rule 52(b) of the Federal Rules of Criminal Procedure, 84 J.
Crim. L. & Criminology 1065, 1066 (1994).
In United States v. Olano, the Supreme Court elaborated on the plain
error concept. 507 U.S. 725, 731–35, 113 S. Ct. 1770, 1776–78 (1993).
In Olano, the Court stated that in order to qualify for plain error, the error
must occur at the trial level, the error must be plain, and the plain error
must “affect substantial rights.” Id. Similarly, in Henderson v. United
States, the Supreme Court emphasized that plain error may not be plain
to the trial court but may become clear when a case is pending on appeal.
568 U.S. 266, 273, 133 S. Ct. 1121, 1127 (2013).
3. Development of plain error safety valve in state courts. In addition
to adoption in caselaw and subsequent rule by the federal courts, the plain
error doctrine in one form or another has been adopted in forty-eight
states.5 Iowa and Pennsylvania appear to be the two outliers.6
The development of plain error in the state courts is not unlike the
federal path. For example, the Wisconsin Supreme Court early in the
twentieth century declared that “[a]ny rule the enforcement of which
5See Woodruff, Plain Error, 102 Iowa L. Rev. at 1816 n.19.
6See, e.g., Rutledge, 600 N.W.2d at 325; Commonwealth v. Clair, 326 A.2d 272,
273–74 (Pa. 1974).
32
results in a failure of justice should be carefully scrutinized and not blindly
adhered to unless the abandonment of it will work more injustice than will
follow if it be adhered to.” Cappon v. O’Day, 162 N.W. 655, 657 (Wis.
1917).
Although the vast majority of states have adopted plain error, the
precise test for determining whether to invoke the doctrine shows
variation. In order to be within the scope of the doctrine, it has been said
that the error must: be “fundamental error,” Davis v. State, 661 So. 2d
1193, 1196–97 (Fla. 1995), disapproved of on other grounds by Mack v.
State, 823 So. 2d 746 (Fla. 2002); be “affecting fundamental constitutional
rights,” Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995) (quoting Luckett
v. State, 582 So. 2d 428, 430 (Miss. 1991), overruled on other grounds by
Bester v. State, 188 So. 3d 526 (Miss. 2016)); State v. Hanson, 940 P.2d
1166, 1169 (Mont. 1997); involve “substantial rights,” Hasty v. United
States, 669 A.2d 127, 134 (D.C. 1995) (quoting Olano, 507 U.S. at 732,113 S. Ct. at 1776); be “of law” and be apparent “on the face of the record,”
State v. Blasingame, 341 P.3d 182, 187 (Or. Ct. App. 2014) (quoting State
v. Brown, 800 P.2d 259, 355 (Or. 1990) (en banc)); or involve a claim
concerning only a question of law “or admitted facts [that] is determinative
of the case” or “is necessary to serve the ends of justice or to prevent the
denial of fundamental rights.” State v. Spotts, 206 P.3d 510, 512 (Kan.
2009). In one case, it was suggested that plain error could be invoked “if
good cause exists or if the ends of justice require consideration of the
issue.” Johnson v. Commonwealth, 458 S.E.2d 599, 602 (Va. Ct. App.
1995). That sounds a lot like S.F. 589’s good cause provision. Other states
have rather narrow formulations.
4. Safety valve of direct appeal of ineffective-assistance claims in lieu
of plain error in Iowa. In Iowa, we have rejected in conclusory fashion the
33
plain error doctrine. Rutledge, 600 N.W.2d at 325. Yet, our caselaw
rejecting plain error cannot be evaluated in a vacuum but must be
considered in its larger legal context. If one looks at the broader legal
landscape, Iowa has not been inhospitable to considerations of
unpreserved error on appeal. Specifically, although we have rejected what
has been labeled as plain error in the past, we have permitted a defendant
to raise on direct appeal unpreserved claims under the rubric of ineffective
assistance of counsel. See, e.g., State v. Lucas, 323 N.W.2d 228, 232 (Iowa
1982) (en banc). The access to direct appeal afforded by claims of
ineffective assistance of counsel in Iowa has generally been broader than
plain error in most jurisdictions.
As observed in a note in the Iowa Law Review, the relationship
between plain error and ineffective assistance of counsel may be seen by
comparing caselaw in the area of prosecutorial misconduct in closing
arguments at a criminal jury trial. Woodruff, Plain Error, 102 Iowa L. Rev.
at 1830–31. In State v. Rutledge, the court concluded that the prosecutor’s
closing was “plainly out of bonds” but held that the claim was not
preserved because counsel did not object. 600 N.W.2d at 325. No
ineffective-assistance-of-counsel claim was made in that case. No relief
was provided. Id. at 327.
Four years later, this court decided State v. Graves. 668 N.W.2d
860, 867–68 (Iowa 2003). In this case, very similar prosecutorial
misconduct occurred. Id. In Graves, however, the defendant brought his
challenge as a claim of ineffective assistance for failure to object. Id. at
868. The Graves court reached the unpreserved error and provided the
defendant with relief. Id. at 884. Graves shows that an unpreserved “plain
error” can be reached on direct appeal if couched as a claim based on
34
ineffective assistance of counsel and if further factual development is not
necessary to address the claim.
Under S.F. 589, however, claims of ineffective assistance of counsel
can no longer be considered on direct appeal. If so, the need for a plain
error rule is greater than it has been in the past. Plain error would no
longer be redundant. With the enactment of S.F. 589, the Iowa legal
landscape for direct appeal of unpreserved error has fundamentally shifted
from prior years when ineffective-assistance claims provided the needed
safety valve for review of fundamental errors on direct appeal.
5. Application of plain error doctrine to attacks on convictions for
insufficient evidence. I now turn to the question of whether the plain error
rule applies to unpreserved claims that a criminal conviction is not
supported by sufficient evidence. According to a catalogue of cases
compiled in 1990, at least twenty-five state jurisdictions had expressly
held that appellate courts could consider sufficiency of evidence claims for
the first time on appeal. See State v. McAdams, 594 A.2d 1273, 1275–76
(N.H. 1991) (Batchelder and Johnson, JJ., concurring specially) (listing
cases); see also Horton v. State, 758 P.2d 628, 632 (Alaska Ct. App. 1988);
State v. Govan, 744 P.2d 712, 717 (Ariz. Ct. App. 1987); State v. Payne,
530 A.2d 1110, 1111–12 (Conn. App. Ct. 1987); Fields v. United States,
484 A.2d 570, 576 (D.C. 1984); People v. Foster, 547 N.E.2d 478, 483 (Ill.
App. Ct. 1989); Mftari v. State, 537 N.E.2d 469, 474 (Ind. 1989); Knox v.
Commonwealth, 735 S.W.2d 711, 712 (Ky. 1987), overruled on other
grounds by Lane v. Commonwealth, 956 S.W.2d 874 (Ky. 1997); State v.
Lubrano, 563 So. 2d 847, 849 (La. 1990) (per curiam); State v. Hanson,
331 A.2d 375, 378 (Me. 1975); People v. Patterson, 410 N.W.2d 733, 738
(Mich. 1987); Walker v. State, 394 N.W.2d 192, 196 (Minn. Ct. App. 1986);
Medious v. State, 375 So. 2d 405, 406 (Miss. 1979); State v. Fosdick, 776
35
S.W.2d 54, 56 (Mo. Ct. App. 1989); State v. Doe, 583 P.2d 464, 466 (N.M.
1978); People v. White, 561 N.Y.S.2d 756, 757–58 (N.Y. App. Div. 1990);
State v. Kopp, 419 N.W.2d 169, 172–73 (N.D. 1988); State v. Gardner, 536
N.E.2d 1187, 1187–88 (Ohio Ct. App. 1987); State v. Hitz, 766 P.2d 373,
375–76 (Or. 1988); State v. Larocco, 665 P.2d 1272, 1273 n.4 (Utah 1983)
(per curiam); State v. Bressette, 388 A.2d 395, 396 (Vt. 1978); Jimenez v.
Commonwealth, 402 S.E.2d 678, 680–81 (Va. 1991); City of Seattle v.
Slack, 784 P.2d 494, 499 (Wash. 1989) (en banc); Beamon v. State, 286
N.W.2d 592, 594 (Wis. 1980); Marshall v. State, 646 P.2d 795, 797 (Wyo.
1982).
There are many cases applying plain error analysis to claims that
convictions were not supported by substantial evidence after a trial. The
fountainhead federal plain error case, Wiborg v. United States, involved an
unpreserved claim of insufficient evidence at trial. 163 U.S. at 658, 16
S. Ct. at 1137. The principle was reaffirmed in Clyatt v. United States, 197
U.S. 207, 222, 25 S. Ct. 429, 432 (1905), and in a number of subsequent
federal cases. See, e.g., United States v. McKinney, 120 F.3d 132, 134 (8th
Cir. 1997). Many state courts have followed suit. See, e.g., Herrington v.
United States, 6 A.3d 1237, 1242 (D.C. 2010); State v. Guay, 33 A.3d 1166,
1171–72 (N.H. 2011); City of Campbell v. Rosario, 101 N.E.3d 681, 686
(Ohio Ct. App. 2018).
The question arises whether plain error can also be applied where
the question is whether there was sufficient evidence to support a
conviction after a plea bargain. In other words, in the application of the
plain error rule to unpreserved substantial evidence questions, does it
matter whether the underlying conviction was based on a plea bargain
rather than a trial?
36
The answer to the question, according to the caselaw, is a
resounding no. In United States v. Vonn, the United States Supreme court
made it clear that plain error could be applied to cases involving
unpreserved insufficient evidence claims in the context of a plea bargain
where the error is “plain, prejudicial, and disreputable to the judicial
system.” 535 U.S. at 65, 122 S. Ct. at 1050. Other federal and state
authorities consistently support the proposition that unpreserved claims
of insufficient evidence supporting convictions based on guilty pleas may
be considered under the plain error rubric even where the defendant did
not move to withdraw the guilty plea or otherwise object below. See, e.g.,
Garcia-Paulin, 627 F.3d at 131; United States v. Taylor, 627 F.3d 1012,
1016–18 (6th Cir. 2010); United States v. Orozco-Osbaldo, 615 F.3d 955,
958 (8th Cir. 2010); Kiet Hoang Nguyen, 299 P.3d at 686.
In sufficiency-of-the-evidence cases, it is sometimes suggested by
the state that the availability of postconviction relief is adequate and that
direct review based on plain error is unnecessary. But as noted by the
concurring opinion in State v. McAdams: “[T]his argument ignores the
tremendous burden placed on a defendant seeking collateral review. An
indigent defendant . . . has no statutory or constitutional right to counsel
beyond a first, direct appeal.” 594 A.2d at 1279 (Batchelder and Johnson,
JJ., concurring specially). Further, the concurrence noted that
[a] defendant whose conviction was plainly based on
insufficient evidence should not be forced to spend several
months or years imprisoned while he or she attempts to
collaterally attack the conviction, whether pro se or with the
aid of counsel.
Id.
6. Inadequacy of postconviction relief. Under the majority approach,
a claim for insufficiency of the evidence to support a plea may be raised in
37
an action for postconviction relief. For the reasons expressed in Tucker,
___ N.W.2d at ___, I regard this alternative an unconstitutional impairment
of the right to counsel on the first appeal as a matter of right.
7. Discussion. So, the vast majority of states and federal courts all
embrace plain error and many cases apply plain error in contexts very
similar to this case. The legal environment has shifted if the ineffective-
assistance-of-counsel provisions of S.F. 589 are enforced. Many
jurisdictions apply plain error in the context of guilty pleas not supported
by substantial evidence because it is the most efficient approach and
avoids unnecessary delay. We should do the same.
As to the suggestion that we should engage in rulemaking before
adopting plain error, I have two responses. First, plain error originally was
not based on rules; the rules followed the caselaw. This is not unusual;
we develop doctrines through the caselaw method all the time. Further,
we can narrowly declare that whatever the confines of plain error, it is
broad enough to include challenges to sufficiency of the evidence and
reserve further elaboration to rulemaking or case-by-case development.
Second, it is our obligation, in this case, to interpret the term “good
cause.” We cannot decline to fill in the blank of what the statute contains
pending rulemaking. Treptow is entitled to a determination of whether his
case amounts to good cause. We must address the issue, now, in his case.
If desirable, rulemaking can come later, but a decision for Treptow cannot
wait.
Applying plain error, based on my review of the record, there was
not substantial evidence to support Treptow’s plea of guilty to the crime of
gathering. As a result, I would reverse and remand to the district court.
Gines, 844 N.W.2d at 442. On remand, the parties may seek to establish
38
a factual basis for the plea, engage in further plea bargaining, or bring the
matter to trial.
II. Conclusion.
For all of the above reasons, I would reverse and remand the case to
the district court.