IN THE COURT OF APPEALS OF IOWA

No. 15-0308

Filed June 29, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ANDRE LETROY ANTWAN HARRINGTON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mary E. Howes, 

Judge.

Andre Harrington appeals from his conviction and sentence for seconddegree robbery, habitual offender, following a jury trial. AFFIRMED. 

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Mary A. Triick and Kevin R. 

Cmelik, Assistant Attorneys General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2

MULLINS, Judge.

Andre Harrington appeals from his conviction and sentence for seconddegree robbery, habitual offender, following a jury trial. He asserts the district 

court erred in accepting his stipulation to prior felony convictions for the purpose 

of the habitual-offender enhancement. He further contends the district court 

abused its discretion by refusing to allow him to withdraw his admission to his 

prior felony convictions after he requested a jury trial on his habitual-offender 

status. We affirm.

I. Background Facts and Proceedings

On December 4, 2013, Harrington selected a cart full of merchandise 

totaling almost $900 and walked out of a store without paying, intending to 

commit a theft. As Harrington was leaving the store, a manager stopped him and 

asked about the items in his cart. Harrington responded by turning around and 

hitting the manager in the face. He then tried to recover the cart that had rolled 

away from him, and when he was unable to recover it, he fled. 

On December 31, the State filed a trial information charging Harrington 

with second-degree robbery, as an habitual offender, in violation of Iowa Code 

sections 711.3, 902.8, and 902.9(3) (2013). The State alleged he had a felony 

conviction for going armed with intent entered on June 12, 2000, and a felony 

conviction for possession of a controlled substance with intent to deliver entered 

on March 5, 2009. 

On December 3, 2014, a jury found Harrington guilty of robbery in the 

second degree. During trial, Harrington testified he had at least two prior felony 

convictions. Following the verdict, Harrington stipulated in open court to the two 
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predicate felonies alleged by the State. However, when asked whether he was 

giving up his right to a hearing on the matter, Harrington stated he was not and 

that he wanted the jury to make a decision on the matter. The district court told 

Harrington he would receive a hearing only if he denied he was the same person 

who was previously convicted of the predicate felonies, and Harrington again 

admitted he was the same person previously convicted of the felonies. 

The court sentenced Harrington to an indeterminate term for no more than

fifteen years, carrying a mandatory minimum of seventy percent, to run 

consecutive to another sentence Harrington was then serving. Harrington 

appeals. 

II. Standard of Review

We review claims involving the interpretation of a statute or rule for 

correction of errors at law. See Iowa R. App. P. 6.907; State v. Kukowski, 704 

N.W.2d 687, 690–91 (Iowa 2005). We review the denial of a defendant’s motion 

to withdraw admissions to prior felony convictions for purposes of habitualoffender enhancements for an abuse of discretion. See Kukowski, 704 N.W.2d 

at 691. 

III. Analysis

Harrington claims the district court erred in accepting his stipulation to two 

prior felony convictions for the purpose of the habitual-offender enhancement. 

He contends the district court failed to engage in a sufficient colloquy under Iowa 

Rule of Criminal Procedure 2.19(9) to ensure his stipulation was entered 

voluntarily and intelligently and to establish on the record that he was 

represented by counsel or knowingly waived counsel when his previous 
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convictions were entered. The State contends Harrington did not preserve error 

on his claims because he did not object at the time of the stipulation and did not 

file a motion in arrest of judgment. Harrington does not allege ineffective 

assistance of counsel but rather argues he is not precluded from challenging the 

issue on direct appeal because the court did not inform him that he must file a 

motion in arrest of judgment in order to bring his challenge on appeal. 

When it is alleged a defendant is an habitual offender, the defendant must 

first be convicted of the current offense, then, if found guilty, a second trial is 

conducted on the prior convictions. Kukowski, 704 N.W.2d at 691. The State is 

held to the same burden of proof, and this burden can be sustained by 

“introducing certified records of the convictions, along with evidence that the 

defendant is the same person named in the convictions.” Id. “The State must 

also establish that the defendant was either represented by counsel when 

previously convicted or knowingly waived counsel.” Id. 

Rule 2.19(9) provides an opportunity for the defendant to affirm or deny 

the previous convictions. Id. at 692. “The inquiry providing this opportunity must 

be conducted in open court.” Id. “If the defendant denies ‘being the person 

previously convicted,’ or asserts that the prior convictions were obtained without 

counsel and counsel was not waived, then the case proceeds to the second trial.”

Id. (quoting Iowa R. Crim. P. 2.19(9)). “On the other hand, if the defendant 

affirms the validity of the prior convictions, then the case proceeds to 

sentencing.” Id. However, providing an affirmative response to the court’s 

inquiry “does not necessarily serve as an admission to support the imposition of 

an enhanced penalty as a multiple offender.” Id. Rather, “[t]he court has a duty 
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to conduct a further inquiry, similar to the colloquy required under rule 2.8(2), 

prior to sentencing to ensure that the affirmation is voluntary and intelligent.” Id.; 

see also State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989) (“Rule [2.8(2)(b)]

governs guilty pleas and does not expressly apply to a case in which a defendant 

is asked to admit or deny prior convictions for habitual offender purposes under 

rule of criminal procedure [2.19(9)]. . . . Nevertheless, a defendant’s admission 

of prior felony convictions which provide the predicate for sentencing as an 

habitual offender is so closely analogous to a plea of guilty that it is appropriate 

to refer to our rules governing guilty pleas, specifically, rule [2.8(2)(b)] . . . .”); 

State v. McBride, 625 N.W.2d 372, 374–75 (Iowa Ct. App. 2001) (“[T]rial courts 

have a duty to ensure that defendants knowingly and voluntarily stipulate to 

having prior convictions. In order to knowingly stipulate, a defendant should 

have an adequate grasp of the implications of his or her stipulation.” (citation 

omitted)). Rule 2.8(2) outlines the issues the district court must address with a

defendant prior to accepting a guilty plea, which include, among other things,

“[t]he nature of the charge to which the plea is offered,” “[t]he mandatory 

minimum punishment, if any, and the maximum possible punishment,” and the 

defendant’s trial rights. 

Here, Harrington did not object to the sufficiency of the court’s colloquy

during the habitual-offender proceeding. On appeal, Harrington does not raise a 

claim of ineffective assistance of counsel in failing to object to the court’s 

colloquy or in failing to file a motion in arrest of judgment to preserve error on the 

sufficiency claim. Instead, Harrington argues the district court failed to advise 

him pursuant to rule 2.8(2)(d) of the obligation to file a motion in arrest of 
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judgment and the consequences of failing to file the motion, and therefore, he is 

not precluded from challenging the sufficiency of the colloquy on appeal. See

Iowa R. Crim. P. 2.8(2)(d) (“The court shall inform the defendant that any 

challenges to a plea of guilty based on alleged defects in the plea proceedings 

must be raised in a motion in arrest of judgment and that failure to so raise such 

challenges shall preclude the right to assert them on appeal.”). 

Rule 2.24(3) sets forth the rule for a motion in arrest of judgment, and 

provides in part: “A motion in arrest of judgment is an application by the 

defendant that no judgment be rendered on a finding, plea, or verdict of guilty.” 

Iowa R. Crim. P. 2.24(3)(a). Our supreme court has previously allowed a 

defendant to file a motion in arrest of judgment pursuant to rule 2.24(3) as a 

means of challenging a stipulation to prior felony convictions for the purpose of 

the habitual-offender enhancement. See Kukowski, 704 N.W.2d at 690 (allowing 

defendant to challenge the district court’s interpretation of rule 2.19(9) through a 

motion in arrest of judgment but ultimately deciding the issue on grounds raised 

in the defendant’s motion to withdraw admission); see also State v. Kohlmeyer, 

No. 15-0135, 2016 WL 1133730, at *1–2 (Iowa Ct. App. Mar. 23, 2016)

(preserving for possible postconviction-relief proceedings defendant’s claim “his 

trial counsel rendered ineffective assistance in failing to challenge a defect in the 

habitual-offender proceeding by failing to file a motion in arrest of judgment”); 

State v. Davenport, No. 09-1699, 2010 WL 3503969, at *1 (Iowa Ct. App. Sept. 

9, 2010) (concluding defendant’s trial counsel breached an essential duty in 

failing to file a motion in arrest of judgment as a means of challenging the 

habitual-offender-enhancement procedure but preserving defendant’s claim on 
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the issue of prejudice); State v. Fishburn, No. 06-1148, 2007 WL 1062952, at *1 

(Iowa Ct. App. Apr. 11, 2007) (preserving defendant’s claim his trial counsel was 

ineffective in failing to file a motion in arrest of judgment challenging the 

adequacy of the court’s inquiry into whether defendant knowingly and voluntarily 

stipulated to his prior convictions for the purposes of the habitual-offender 

enhancement). Thus, a motion in arrest of judgment would have been an 

appropriate vehicle to challenge the enhancement proceedings in this case. 

However, although our supreme court requires an inquiry “similar to the 

colloquy required under rule 2.8(2),” Kukowski, 704 N.W.2d at 692 (emphasis 

added), it has never required strict compliance with all of rule 2.8(2)(d) when 

reviewing a district court’s inquiries of a defendant pursuant to rule 2.19(9). The 

prior-convictions inquiry under rule 2.19(9) is for sentencing-enhancement 

purposes only and requires procedural safeguards but does not require the full 

panoply of protections required for a guilty plea. The Kukowski case only 

requires a similar colloquy. The line of cases outlined above demonstrate a 

motion in arrest of judgment may be used to challenge a defective colloquy under 

rule 2.19(9), but the availability of that remedy does not mandate the district court 

provide a warning similar to rule 2.8(2)(d) that a failure to file a motion in arrest of 

judgment precludes the right to assert a challenge on appeal of a defect under 

rule 2.19(9).1Thus, Harrington’s claim the court erred in failing to inform him of a 

 

1

In the case of State v. Peterson, No. 11-1409, 2012 WL 3860730, at *4–5 (Iowa Ct. 

App. Sept. 6, 2012), a panel of our court concluded a motion in arrest of judgment would 

have been proper to challenge the enhancement colloquy and reached the merits of the 

issue, noting the court had provided the defendant with insufficient notice of the 

requirement to file a motion in arrest of judgment during the course of the guilty-plea 

proceedings, which had integrally included a colloquy concerning the defendant’s 

habitual-offender status. 
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right to file a motion in arrest of judgment fails. Harrington did not object during 

the habitual-offender proceeding and did not file a motion in arrest of judgment. 

He does not claim his counsel was ineffective. See State v. Fountain, 786 

N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are an 

exception to the traditional error-preservation rules.”). Thus, Harrington did not 

preserve error for our review on this issue. See Meier v. Senecaut, 641 N.W.2d 

532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that 

issues must ordinarily be both raised and decided by the district court before we 

will decide them on appeal.”). 

Harrington also contends the district court abused its discretion by 

refusing to allow him to withdraw his admissions to the prior felony convictions 

after he requested a jury trial on his habitual-offender status. The State asserts 

Harrington did not request a withdrawal of his admissions, but rather, he 

requested a jury trial be held on his habitual-offender status regardless of his 

admissions. 

“We do not find an abuse of discretion unless the defendant shows it was 

exercised on grounds or for reasons clearly untenable or to an extent clearly 

unreasonable.” State v. Blum, 560 N.W.2d 7, 9 (Iowa 1997). “Notwithstanding, 

‘[e]ven if an abuse of discretion is found, reversal is required only when the 

abuse is prejudicial.’” Kukowski, 704 N.W.2d at 693–94 (alteration in original) 

(citation omitted). “An abuse is prejudicial ‘when the rights of the defendant 

“have been injuriously affected” or the defendant “has suffered a miscarriage of 

justice.”’” Id. at 694 (citation omitted). 
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Here, Harrington admitted to what the State was ready and able to prove. 

At trial for the underlying offense, Harrington testified he had at least two prior 

felony convictions. The minutes of testimony included the proposed testimony of

the Scott County Clerk of Court regarding Harrington’s two prior felony 

convictions, his identity, and his prior representation by counsel—demonstrating 

the State could prove the underlying habitual-offender allegations. During the 

stipulation proceedings, the State introduced certified records of the prior felony 

convictions, and Harrington again admitted he was the same person named in 

the convictions. Even if we were to find the court abused its discretion when it 

accepted Harrington’s admissions after he stated, “I would rather have the jury 

make a decision whether or not they find me an habitual offender,” any error was 

not prejudicial. 

We affirm Harrington’s conviction and sentence for second-degree 

robbery, habitual offender.

AFFIRMED.