### IN THE SUPREME COURT OF IOWA

No. 18

– 0184
Filed March 8 , 2019

STATE OF IOWA , Appellee,

vs.
BERNARD ANTHONY SMITH , Appellant.

Appeal from the I owa District Court for Story County, Timothy J.
Finn , Judge.

A defendant challenges his sentence as a habitual offender and the imposition of restitution and a fine. AFFIRMED IN PART , REVERSED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg , As sistant Appellate Defender , for appellant.

Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Jessica Reynolds , County Attorney , and Timothy C. Meals and Shawna Johnson, Assistant County Attorneys, for appellee.2

WIGGINS , Justic e. The defendant was convicted of second

- degree burglary and stipulated to being a habitual offender. T he court sentenced the defendant as a habitual offender, ordered restitution, and imposed a fine. On appeal, we conclude the stipulation was not knowingly and voluntarily made because the stipulation proceedings did not comply with the requirements
of State v. Harrington , 893 N.W.2d 36 (Iowa 2017). Accordingly, we must reverse the habitual offender judgment , the defendant’s sentence , and
remand t he case for further proceedings consistent with Harrington

. See
id. at 45

– 46. We affirm the uncontested judgment of guilt on second

degree burglary.
I. Facts and Proceedings. On September 27, 2017, the State charged Smith with burglary in the second deg ree in violation of Iowa Code sections 713.1 and 713.5 (2017), a class “C” felony, and being a habitual offender in violation of section 902.8. Following Smith’s not

- guilty plea, a bifurcated trial on the burglary charge began on November 28.
W hile the jury was in deliberations, Smith’s counsel informed the court that Smith would stipulate to the predicate priors for the habitual offender charge. The following exchange occurred: [DEFENSE COUNSEL]: Your Honor, I just discussed with my client about the se ntencing enhancement charge on the Trial Information of offense of habitual offender and my client has decided that he will withdraw his request for a bifurcated trial and will stipulate to the priors for that particular section should the jury return a gu ilty verdict that it would be applicable to. THE COURT: Okay. Very well. Mr. Smith, is that correct? THE DEFENDANT: Yes, sir.3 THE COURT: I told you earlier about the ramifications of doing that. It’s your decision and you voluntarily decided that you wi ll stipulate to the habitual offender element of the trial?
THE DEFENDANT: Yes. THE COURT: Okay. All right. Thank you. Anything further on behalf of the State? [PROSECUTOR]: No, Your Honor. THE COURT: Thank you. [DEFENSE COUNSEL]: Thank you, Your Honor. Subsequently , the jury returned a verdict finding Smith guilty of burglary in the second degree. After the court scheduled sentencing, further discussion regarding Smith’s stipulation occurred: [DEFENSE COUNSEL]: Your Honor, [the prosecutor] brought to m y attention a case State v. Harrington , 893 N.W.2d 36. It concerns a Defendant making admissions to the habitual offender without the State having to prove it up and the issue of bringing it up in a motion in arrest of judgment or making an adequate recor d. I believe we probably have an adequate record but just to be safe, it probably would be best to maybe supplement the record a little bit at this time, that the Defendant did freely voluntarily stipulate to the priors of the habitual offender.
THE COURT: All right. I think we did that. But you’re in agreement on that; aren’t you?
THE DEFENDANT: Yes. THE COURT: All right. Thank you. I appreciate that. You understand that’s voluntary on your part and you elected to go along with that?
THE DEFENDANT: Co rrect. THE COURT: Okay. I have one last thing I need to tell you about. You have the right to file what’s called a motion in arrest of judgment. The motion has to be filed at least I think it’s five days or three days? [THE PROSECUTOR]: Five days, Your Honor.4 THE COURT: Five days before the date of sentencing. I set your sentencing on January 16th. So if you want the Court to consider that, it has to be filed at least five days before January 16th. Do you understand that? (At this time there is an off

- the

- record discussion between [defense counsel] and the Defendant.) (We are now back on the record.) [THE PROSECUTOR]: Your Honor, I think it’s forty

- five days but no less than five days before sentencing. THE COURT: Okay. [DEFENSE COUNSEL]: That is corre ct. THE COURT: All right. Got that?
THE DEFENDANT: Yes. THE COURT: Okay. All right. That will conclude the hearing. Thank you. The court gave no other information on the motion and had no further conversation about Smith’s stipulation to the prior convi ctions. Smith did not file a motion in arrest of judgment challenging the habitual offender stipulation proceedings. On January 16, 2018, the district court sentenced Smith as a habitual offender to incarceration not to exceed fifteen years. The court also imposed a fine of $1 000, ordering, “The Defendant should be and is hereby fined in the sum of $1,000 plus a 35 percent surcharge. This fine and surcharge are hereby SUSPENDED.” Regarding resti tution, the order said, [T]he Defendant shall be required to pay the costs of this action, the $125 law enforcement initiative surcharge, and that he reimburse the state for the reasonable fees of his court

- appointed attorney. The Defendant’s attorney is given 10 days within which to file a statement of the legal services he has provided for the Defendant. All costs, surcharges, and5 fees are due immediately and shall be considered delinquent if n ot paid within 30 days of today’ s date. On January 25, Smith appealed the court’s final order. The d istrict c ourt filed a restitution plan on March 20, ordering Smith to pay a total of $1434.60.
II. Issues. On appeal, Smith raises three issues. First, he claims the district court failed to comply with the Harr ington requirements in accepting his habitual offender stipulation. Second, he claims the district court erred in ordering him to pay restitution in the form of attorney fees. T hird, he claims the district court erred in imposing a fine.
We need not re ach Smith’s second or third claim because our resolution of the first issue will require resentencing.
I II. Standard of Review. “Claims involving the interpretation of a statute or rule are usually
reviewed for errors at law.” Harrington , 893 N.W.2d at 4 1 (quoting State v.
Kukowski , 704 N.W.2d 687, 690

– 91 (Iowa 2005)); see Iowa R. App. P.
6.907.
I V
. Compliance with the Harrington Requirements. On appeal, Smith first claims the district court failed to comply with the habitual offender stipulation requi rements from Harrington and, therefore, his stipulation could not have been voluntarily and intelligently given. See 893 N.W.2d at 45

– 46. Alternatively, he contends that if he failed to preserve error on his Harrington challenge, his trial counsel provided ineffective assistance.
A. Error Preservation. In Harrington we held that “o ffenders in a habitual offender proceeding must preserve error in any deficiencies in the proceeding by filing a motion in arrest of judgment.” Id. at 43. However,6

we elected to apply that rule of law prospectively such that it did not apply
in Harrington and in other cases that preceded our Harrington decision.
Id. ; see, e.g. , State v. Brewster , 907 N.W.2d 489, 493 n.3 (Iowa 2018) (excusing failure to comply with erro r preservation rule because the case was already on appeal at the time of the Harrington decision); State v. Steiger , 903 N.W.2d 169, 170 (Iowa 2017) (per curiam) (excusing failure to comply with error preservation rule because the rule was not in existenc e at the time). Smith’s habitual offender proceedings occurred several months after

our Harrington decision, but he failed to file a motion in arrest of judgment to challenge those proceedings. Accordingly, this case presents the first opportunity, post

- Harrington , for us to consider the consequences of failing to file a motion in arrest of judgment to challenge the habitual offender proceedings.
Smith claims the Harrington error preservation requirement does not apply here because the district court fai led to adequately advise him, as required by Iowa Rule of Criminal Procedure 2.8(2)( d ) for guilty plea proceedings, of his right to file a motion in arrest of judgment and of the consequences of failing to do so. See, e.g. , State v. Meron , 675 N.W.2d 537,
541 (Iowa 2004) (noting court’s failure to inform the defendant entering guilty plea of those two pieces of information as required by rule 2.8(2)( d ) excuses the defendant’s failure to challenge the guilty plea proceedings by filing a mo tion in arrest of judgment). Smith contends the requirement in rule 2.8(2)( d ) and the error preservation exception noted in Meron should apply to habitual offender proceedings. See id. We agree. We have consistently acknowledged that stipulating to prior offenses for pur poses of sentencing enhancement is “comparable to a plea of guilty to support sentencing for the crime identified in the plea.” Harrington , 8937
N.W.2d at 42; accord, e.g. , Kukowski , 704 N.W.2d at 692; State v. Brady , 442 N.W.2d 57, 58 (Iowa 1989). We have relied on this similarity to conclude it is appropriate to refer to our guilty plea rules when resolving challenges to stipulation proceedings. E.g. , Harrington , 893 N.W.2d at 45 (referring to guilty plea rules to identify the specific topics that must be part of the stipulation colloquy for the stipulation to be voluntary and intelligent); Brady , 442 N.W.2d at 58. We also relied on that similarity in holding that a motion in arrest of judgment must be filed to pr eserve those challenges for appeal. See Harrington , 893 N.W.2d at 42

– 43. Thus, we find it logical for us to consider the instant error preservation issue in light of our jurisprudence regarding error preservation in the guilty plea

context. Moreover, w e find the rationale for the error preservation exception in the guilty plea context equally applicable to the prior

- offenses stipulation context. In State v. Worley , we first recognized the error preservation excepti on when a defendant failed to file a m otion in arrest of judgment to challenge his guilty plea proceedings. 297 N.W.2d 368, 370 (Iowa 1980). We noted then

- rule 23(3)( a )

— now rule 2.24(3)( a )

— precluded appellate challenges to guilty plea proceedings if the defendant did not first challenge that proceeding in a motion in arrest of judgment. Id. But we also explained that now

- rule 2.24(3)( a ) “must be read in conjunction with”
then

- rule 8(2)( d )

— now rule 2.8(2)( d )

— which requires the court inform the defendant that challenges to the guilty plea pro ceedings 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.” Id. (quoting Iowa R. Crim. P. 8(2)( d ) (1979)). We held, No defendant, however, should suffer the sanction of rule [2.24(3)( a )] unless the court has complied with rule [2.8 (2)( d ) ] during the plea proceedings by telling the defendant that he8 must raise challenges to the plea proceeding in a motion in arrest of judgment and that failure to do so preclude s challenging the pro ceeding on appeal.
Id.
As in the guilty plea context, the offender challenging the habitual
offender stipulation proceeding must do so in a motion in arrest of judgment in order to preserve error on that challenge. Harrington , 893 N.W.2d at 43. Also like in the guilty plea context, the district court is required to “inform the offender that challenges to an admission based on defects in the habitual offender proceedings must be raised in a motion in arrest of judgment” and “that th e failure to do so will preclude the right to assert them on appeal.” Id. at 46. As in Worley , we must read these two requirements in conjunction. See 297 N.W.2d at 370. Accordingly, no
offender in a habitual offender stipulation proceeding should suff er Harrington ’s error preservation sanction unless the court has complied with its duty under Harrington to inform the offender that challenges to the stipulation proceedings must be raised in a motion in arrest of judgment and the failure to do so preclud es raising those challenges on appeal. See Harrington , 893 N.W.2d at 45

– 46. In assessing whether the district court complied with this Harrington duty, we adopt the substantial compliance standard we use “in determining whether a trial court has discharged its duty under rule 2.8(2)( d )” in the guilty plea context. State v. Straw , 709 N.W.2d 128, 132 (Iowa 2006); see also State v. Fisher , 877 N.W.2d 676, 680 (Iowa 2016). “The court must ensure the [offender] understands the necessity of filing

a motion to challenge a [prior

- offenses stipulation] and the consequences of failing to do so.” Straw , 709 N.W.2d at 132. The court’s statement that Smith had a right to file a motion in arrest of judgment was insufficient to comply with its duty under9

Harr ington . The court’s statement did not tie that right to the method of challenging the stipulation proceedings, nor did it ensure Smith understood that the failure to file such a motion would preclude him from challenging the proceedings on appeal. Cf. St raw , 709 N.W.2d at 132 (find ing substantial compliance when the court informed the defendant that if he wished to appeal or challenge any of the guilty plea proceedings,
he was required to file a motion in arrest of judgment). Moreover, there
was no writt en and signed stipulation to the prior offenses that otherwise
informed Smith of this information. Cf. Fisher , 877 N.W.2d at 682 (finding written and signed guilty plea form failed to substantially comply with rule 2.8(2)( d ) ’s requirement s when it did not indicate failing to challenge the guilty plea proceedings in a motion in arrest of judgment waived such a challenge on appeal); State v. Oldham , 515 N.W.2d 44, 46

– 47 (Iowa 1994) (finding substantial compliance when the court’s otherwise insufficient
oral colloquy was considered together with the defendant’s written and signed application to withdraw his not

- guilty plea). Therefore, Smith is not precluded from challenging his prior

- offenses stipulation on appeal.
B. The Sentencing Court Failed to Comply with Harrington
. The district court failed to comply with Harrington ’s requirements to ensure Smith’s prior

- offenses stipulation in the habitual offender proceeding w as voluntary and intelligent. Although Smith a ffirmatively responded to the court’s inquiry that Smith’s decision to stipulate to the habitual offender charge was voluntary, “[a]n affirmative response by the defendant . . . does not necessarily serve as an admission to support the imposition of an enh anced penalty as a multiple offender.” Harrington , 893 N.W.2d at 45 (alteration in original) (quoting Kukowski , 704 N.W.2d at 692). Rather, before sentencing, the court must engage in a colloquy10

with the offender “to ensure that the affirmation is volunt ary and intelligent.” Id. (quoting Kukowski , 704 N.W.2d at 692).
In Harrington , we clarified the scope of this stipulation colloquy. Our
clarification in Harrington specifically addressed prior

- offense s stipulations for habitual offender enhancement purposes, but we have subsequently extended the Harrington colloquy requirements to other

sentence

- enhancement, prior

- offense s stipulations that occur pursuant to Iowa Rule of Criminal Procedure 2.19(9). E.g

. , Brewster , 907 N.W.2d at 494 (applying Harrington to rule 2.19(9) “proceedings in which repeat

- OWI

offender enhancements are at issue”); State v. Coleman , 907 N.W.2d 124, 147 (Iowa 2018) (applying Harrington to rule 2.19(9) proceedings involving
“a secon d offense enhancement under Iowa Code section 692A.111”). The stipulation colloquy here fell short of the Harrington standard. First, the court failed to inform Smith “of the nature of the habitual offender charge,” “if admitted, that it will result in sentencing as a habitual offender for having ‘twice before been convicted of a [ny] felony,’ ” and that the “prior felony convictions are only valid if obtained when [Smith] was represented by counsel or knowingly and voluntarily waived the right to
counsel .” 893 N.W.2d at 45 (quoting Iowa Code § 902.8 (2017)). The record is silent as to any determination by the court that “a factual basis exists to support the admission to the prior convictions.” Id. at 45

– 46. Second, the court failed to inform Smith “of the maximum possible punishment of the habitual offender enhancement, including mandatory minimum punishment.” Id. at 46. Specifically, in this case, that he would “be sentenced to a maximum sentence of fifteen years” and that he “must serve three years . . . before being eligible for parole.” Id. Third, the court did not inform Smith of the applicable trial rights enumerated in rule 2.8(2)( b )(4) and that no trial on the habitual offender11 charge would take place if he admitted to the prior convictions. 1 Id. Nor did it indicate “that the state is not required to prove the prior convictions were entered with counsel if [Smith] does not first raise the claim.” Id. Finally, the court did not adequately inform Smith that “challenges
to an admission based on defects in the habitual offender proceedings must be raised in a motion in arrest of judgment” and that the “failure to do so will preclude the right to assert them on appeal.” Id. It is undisputed
th at the court advised Smith he had the right to file a motion in arrest of judgment. Nonetheless, the court did not tie the filing of such a motion with challenging the stipulation proceedings, and it made no indication that such a motion is a prerequisite to challenging the proceedings on appeal.
As in Ha rrington , the habitual offender colloquy here leaves us “unable to conclude [Smith’s] admission was knowingly and voluntarily
made.” I d. at 47. Accordingly, we affirm Smith’s uncontested judgment of guilt for second

- degree burglary, but we reverse the ju dgment and sentence of the district court and remand for further proceedings consistent with the stipulation requirements of Harrington , or if Smith denies the prior convictions or their validity, for trial on whether he qualifies as a habitual offender. See id. at 48.
V. Conclusion. Smith did not file a motion in arrest of judgment to challenge his habitual offender stipulation proceedings as required by Harrington

. However, the district court failed to substantially comply with its duty
under Harrington to ensure that Smith understood the necessity of filing

1 When Smith initially indicated he would stipulate to the prior offenses, the court responded by noting it had told Smith “earlier about the ra mifications of doing that.” Yet, the record does not contain or otherwise reveal the substance and scope of that earlier advisement.12 such a motion and that the failure to so file would preclude challenging the proceedings on appeal. Therefore, we excuse Smith’s failure to

preserve error. On the merits of Smith’s challen ge to the stipulation proceedings, we find that his prior

- offenses stipulation was not knowingly and voluntarily made because the stipulation proceedings fell short of Harrington ’s requirements. Thus, we reverse the habitual offender judgment and Smith’s sentence and remand the case for further proceedings consistent with Harrington . We affirm the uncontested judgment of guilt on second

- degree burglary.
AFFIRMED IN PART , REVERSED IN PART , AND REMANDED. All justices concur except McDonald, J., who takes no part.