Have Your Cake and Eat it Too?

The new Iowa Court of Appeals decisions are up.

I like the nerve of this guy:

Originally defendant was charged with four crimes. He entered a plea agreement with the State by which the robbery in the first degree charge was eliminated in consideration of defendant’s testifying truthfully in a murder case involving Laviel Harper. Defendant later claimed he knew nothing about the Harper case. When this happened the State filed a motion to withdraw the plea agreement; the court granted the motion and defendant stood trial for robbery in the first degree. Defendant now claims the court erred in granting the State’s motion . . . . The district court aptly observed that defendant did a complete about-face and breached his agreement with the State. The court was right; there is no abuse of discretion.

Yet with a similar philosophical vein, the State tries to get the benefit of an unplead enhancement in this case:

Count III of the State’s trial information charged Baumann with possession of a controlled substance (marijuana) in violation of section 124.401(5). The trial information describes the offense as a serious misdemeanor. . . . section 124.401(5) provides as follows: . . . It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense . . . . Baumann concedes the State could have sought to enhance his sentence on Count III to an aggravated misdemeanor or class D felony based on his prior convictions; however, he argues that because the State failed to do so the district court erred in sentencing him to a term of incarceration which exceeded six months. . . . The State argues that “the defendant is charged as a subsequent offender although not explicitly on this count.” This fact only makes Baumann’s argument stronger. In Count I, the State specifically alleged Baumann had prior offenses in order to subject him to an enhanced sentence for Count I. The record reveals the State made no allegation that Baumann was subject to an enhanced sentence for Count III either in the trial information or at the time that Baumann was sentenced. Because we find that the district court erred in sentencing Baumann to a term of incarceration which exceeded six months for Count III, we vacate Baumann’s sentence on that count and remand to the district court for resentencing on that count only.

The prosecution was also asleep at the switch in this case:

As set forth above, Shirbroun claims his counsel was ineffective for failing to ensure Shirbroun made a valid waiver of his right to jury trial by not making an adequate record as required under Iowa Rule of Criminal Procedure 2.17(1) and the holdings in State v. Stallings, 658 N.W.2d 106 (Iowa 2003), and State v. Liddell, 672 N.W.2d 805 (Iowa 2003). Shirbroun is correct that no written waiver of jury trial may be found in the record, nor does the record reflect an in-court colloquy which would have enabled the district court to determine whether Shirbroun’s waiver was knowing, voluntary, and intelligent. See Stallings, 658 N.W.2d at 110-11. Based on the lack of either a written waiver or in-court colloquy the State concedes the requirements of rule 2.17(1) and the relevant case law were not met here and thus counsel breached an essential duty in failing to make a proper record on the waiver. However, the State argues Shirbroun failed to prove he was prejudiced by this failure and here, unlike in Stallings, prejudice should not be presumed. See Stallings, 658 N.W.2d at 112. We conclude that based on our supreme court’s holding in Stallings prejudice must be presumed when an important right such as a defendant’s right to jury trial is at issue, and the trial court’s judgment must be reversed and this case remanded.

I can see how you would miss the lack of a waiver, plea recitations are long, boring snooze-fests. But did you really think you'd get the whole waiving the jury trial bit in under the "no harm, no foul" rule?

Finally, I really can't comment on this case, as I'm supervising the ongoing file. But nice job to Janice on the appeal. And read the facts, they're interesting.