cedar rapids / iowa city criminal and OWI-DUI defense

Iowa Supreme Court AFFIRMS LOWER COURT REVERSAL OF FAULTY ASSAULT GUILTY PLEA

Written guilty plea did not have a reference to the required 35% surcharge

by David A. Cmelik Law PLC

Friday, December 22, 2017—On further review requested by the State of Iowa following appellate court reversal in State of Iowa v. THIERNO YAYA DIALLO, the Iowa Supreme Court agreed with defendant-appellant that a written guilty plea omitting notice of a 35% mandatory surcharge rendered the guilty plea involuntary.

In Diallo, Defendant pled guilty to assault causing bodily injury, a serious misdemeanor, pursuant to a written guilty plea and agreement with the State of Iowa. The defendant, defense counsel, and prosecutor signed off on the guilty plea.

The Diallo appellant argued that neither the 35% surcharge nor specific immigration consequences were fully explained. However, the Iowa Court of Appeals and the Iowa Supreme Court found the surcharge issue sufficient to reverse without reaching the constitutional immigration consequences issue.

Writing for the court, Justice Wiggins stated, “we hold the district court did not substantially comply with rule 2.8(2)(b)(2) because the written guilty plea form failed to inform the defendant about the mandatory thirty-five percent criminal penalty surcharge.” Rule 2.8(2)(b)(2) requires:

“The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must . . .  determine that the defendant understands, the following:



 (2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.”

Iowa R. Crim. Pro. 2.8(2)(b)(2).

In a special concurrence, Justices Mansfield, which Justice Waterman also joined, wrote (1) the written plea failed to comply substantially with the criminal rules and (2) substantial compliance with the rules wasn’t enough for a written plea agreement to pass muster with the court—strict compliance is required to enforce plea agreements. Because the plea agreement called for a $315 fine with no surcharge, strict compliance with the plea agreement was impossible because the law required a combined fine and surcharge of $425. Therfeore, Justices Mansfield and Waterman concurred with the judgment.


NOTE: David A. Cmelik Law PLC has no affiliation to the Diallo case. 


If you or a loved one has been arrested for OWI (DUI) in Cedar Rapids, Iowa City, Anamosa, Vinton, Waterloo, or anywhere else in Linn, Johnson, Jones, Benton, Black Hawk, or other Iowa counties, please contact David A. Cmelik Law PLC, 319-389-1889, http://www.daclawfirm.com, for a free ½ hour initial consultation today. Remember that a blog is not legal advice and no attorney-client relationship is established by reading a blog or sending unsolicited information to an attorney over the Internet.  


Hand holding a sharpened yellow pencil put to a blank sheet of paper

Check your work.  ​The Iowa Supreme Court affirmed an earlier Iowa Court of Appeals reversal of a written guilty plea that omitted a required reference to a 35% surcharge on every Iowa fine. The defendant-appellant also challenged the guilty plea on the basis that it omitted constitutionally required notice of specific immigration consequences. The Court found, however, that the written guilty plea, which included check marked boxes and the signatures of prosecutor, defense attorney, and defendant, did not properly comport with the Iowa Rules of Criminal Procedure on the basis of the 35% surcharge. If you or a loved one has been arrested in Cedar Rapids or other Iowa community for OWI (DUI), a drunk driving offense,, contact David A. Cmelik Law PLC today for an initial consultation.


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