Case Number: 17-0278
Judge: Mary E. Tabor
Court: COURT OF APPEALS OF IOWA
Plaintiff's Attorney: Thomas J. Miller
Sharon K. Hall
Assistant Attorney Generall
Defendant's Attorney: Susan R. Stockdale
Description: On December 28, 2016, Hellberg took her mother’s Ford F150 truck without
her mother’s permission. The mother reported the missing truck to the Decatur
County Sheriff’s Office. Officers recovered the truck from Hellberg several days
later. The State charged Hellberg with first-degree theft, a class “C” felony, in
violation of Iowa Code sections 714.1(2) and 714.2(1) (2016).
Hellberg pleaded guilty to operating a vehicle without the owner’s consent,
an aggravated misdemeanor, in violation of Iowa Code section 714.7. In
exchange, the State agreed to recommend a sentence of sixteen days
imprisonment with credit for sixteen days served, as well as a suspended fine of
$625 with a thirty-five percent surcharge. Hellberg agreed to pay other applicable
surcharges, court costs, restitution, and fees. Hellberg entered a written plea. The
written form informed Hellberg that any challenge to the guilty plea must be made
by motion in arrest of judgment, but the form did not include the appeal
consequences arising from a failure to file a motion in arrest of judgment. The
form also made no mention of possible immigration consequences that could result
from a guilty plea. The district court accepted the plea, sentenced Hellberg to time
served, suspended the fine, and ordered her to pay other related costs.
Hellberg now appeals, contending her written guilty plea was deficient
because the court did not advise her that a conviction could result in adverse
immigration consequences. The State filed a motion to affirm Hellberg’s
conviction, arguing this appeal is “frivolous” because nothing in the minutes of
evidence or her appellate brief suggests Hellberg is not a United States citizen or
that the immigration advisory “would have affected her decision to plead guilty.”
Our supreme court denied the State’s motion and, after full briefing, transferred the
appeal to us.
II. Scope and Standards of Review
We will review Hellberg’s challenge to her guilty plea for the correction of
errors at law. See State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004). To
determine whether her plea satisfies Iowa Rule of Criminal Procedure 2.8(2)(b),
we look for substantial compliance. See State v. Weitzel, ___ N.W.2d ___, ___,
2017 WL 6545937, at *7 (Iowa 2017) (noting preference for strict compliance, but
acknowledging caselaw has excused technical violations).
III. Error Preservation
Generally, a defendant must challenge a defect in the guilty-plea
proceeding by filing a motion in arrest of judgment. See Iowa R. Crim. P.
2.24(3)(a); State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016). The district court
must advise a defendant of this requirement. Iowa R. Crim. P. 2.8(2)(d). For
indictable misdemeanors, a written plea form may supply the necessary advisory
concerning the motion in arrest of judgment. See Fisher, 877 N.W.2d at 681. But
if the written plea does not sufficiently inform the defendant of the necessity to file
a motion in arrest of judgment and the consequences of failing to do so, then the
defendant may challenge the guilty plea on direct appeal. Id.
The written plea form used in Hellberg’s case did not advise her that failing
to file a timely motion in arrest of judgment would waive any challenge to her guilty
plea on appeal. The State agrees the written plea did not substantially comply with
rule 2.8(2)(d). Because her written plea was deficient in this respect, Hellberg may
attack her guilty plea in this direct appeal.
IV. Analysis: Is Omission of the Immigration Advisory from the Written Plea Reversible Error?
Before accepting a plea of guilty, the district court must inform a defendant
and determine she understands a criminal conviction may affect her status under
federal immigration laws. Iowa R. Crim. P. 2.8(2)(b)(3). In misdemeanor pleas,
with the approval of the defendant, the court may waive the in-person colloquy.
Iowa R. Crim. P. 2.8(2)(b). If that waiver occurs, “the defendant shall sign a written
document that includes a statement that conviction of a crime may result in the
defendant’s deportation or other adverse immigration consequences if the
defendant is not a United States citizen.” Id.
Hellberg argues her guilty plea was defective because the written form did
not contain any statement regarding possible federal immigration consequences
of the state conviction. She points out due process requires guilty pleas to be
knowing, voluntary, and intelligent, and rule 2.8(2(b) codifies the due process
mandate. See State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). In light of the
omission from the written plea, she contends her conviction must be reversed and
the case remanded to the district court. In her appellant’s brief, Hellberg does not
reveal her citizenship status. Instead, she offers the following position:
It might be argued that Ms. Hellberg is a U.S. citizen so that there will be no immigration consequences for her so that even if the guilty plea is deficient because she was not informed of possible immigration consequences any error is harmless error. The problem with that argument is twofold: (1) there is nothing in the record which shows whether or not Ms. Hellberg is a U.S. citizen and (2) Iowa law does not differentiate between citizens and noncitizens regarding the requirement that a defendant be informed of possible immigration consequences.
The State does not point to anything in the record that indicates whether
Hellberg was a citizen or noncitizen. Instead, the State contends that to be entitled
to relief based on the missing immigration advisory, Hellberg must assert she is
“not a legal citizen and, more importantly that such information would have been
material to her decision to plead guilty rather than go to trial.” In support of its
contention, the State focuses on the last phrase of the advisory language
contained in rule 2.8(2)(b) and argues the immigration information is only required
“if the defendant is not a United States citizen.”
Hellberg refutes the State’s construction of the rule: “The inclusion of the
phrase ‘if the defendant is not a United States citizen’
is properly interpreted as a phrase that must be included in the written statement
of this warning rather than a qualifier as to when the written warning should be
given.” Hellberg offers a practical justification for requiring the district court to
inform all defendants about possible immigration consequences of their guilty
This requirement makes sense as it is not uncommon for persons in the county illegally to lie about their status and claim they are citizens or that they have papers legally allowing them to live in the
United States. Consequently, if the rule stated only those defendants who admit to being in the country illegally are to be informed that there may be immigration consequences of a guilty plea, it is quite possible that defendants who might be deported because of a guilty plea will not be informed of this possibility.
We conclude Hellberg has the better argument. When the plea colloquy is
performed in open court, all defendants must be told “[t]hat a criminal conviction,
deferred judgment, or deferred sentence may affect a defendant’s status under
federal immigration laws.” Iowa R. Crim. P. 2.8(2)(b)(3). The rule does not direct
district courts to inquire into a defendant’s citizenship status and provide the
immigration advisory only to noncitizens. Likewise, when the in-court colloquy is
waived, the written guilty plea document should inform all defendants of possible
immigration consequences. In Hellberg’s case, by omitting the immigration
advisory the written plea did not comply with rule 2.8(2)(b), substantially or
We next turn to the remedy question. In Weitzel, our supreme court
determined the proper remedy for “the district court’s violation of rule 2.8(2)(b)(2)
is mandatory, automatic reversal.” 2017 WL 6545937, at *9 (analyzing omission
of information about surcharges from plea colloquy). The majority decided: “For
practical reasons, we believe a bright-line rule is more appropriate than an
inconsistent harmless-error analysis based on the totality-of-the-circumstances
test that could lead to endless permutations.” Id. at *11.
Arguably, immigration consequences may be a different animal than
surcharges. Applicable surcharges are an additional punishment and, therefore,
a direct consequence of a guilty plea for all defendants. Id. at *9. Whereas
“knowing about the immigration consequences of a guilty plea would have no
impact on the citizen defendant.” See VanNortrick v. State, 227 S.W.3d 706, 713
(Tex. Crim. App. 2007). But where the record is silent on the defendant’s
citizenship status, as in Hellberg’s case, we may not infer she was aware of the
consequences of her guilty plea. See id. at 712. Under these circumstances,
Weitzel’s bright-line rule requires reversal.
Outcome: We set aside Hellberg’s guilty plea to operating without the owner’s consent
and remand the case to the district court where the State may reinstate any
charges dismissed in contemplation of a valid plea bargain.
REVERSED AND REMANDED