STATE v. GOODWIN, 03-0312 (Iowa App. 11-17-2003)

VOGEL, P.J.

Donette Goodwin appeals the judgment and sentence following her guilty pleas to two counts of delivery of a controlled substance: to-wit, methamphetamine, and one count of possession of a controlled substance: to-wit, methamphetamine. We reverse and remand to the district court with directions.

Background Proceedings. On August 30, 2001, Goodwin pled guilty to two counts of delivery of a controlled substance, a class C felony, and one count of possession of a controlled substance, a serious misdemeanor. Goodwin pled guilty with the knowledge that she would be sent to "drug court" to participate in a treatment program for eighteen months. If she completed the program, the charges against her would be dismissed; however, if she did not successfully complete the program, she would be returned to district court for sentencing. Less than a month later, on September 24, 2001, Goodwin left the treatment program. On January 30, 2003, the district court sentenced Goodwin to ten years on each of the felony charges and one year on the possession charge, with the sentences to be served consecutively. Goodwin appeals.

Scope of Review. We review the validity of a guilty plea for errors of law. Iowa R.App.P. 6.4.

Waiver of Appeal. To begin with, Goodwin contends that she did not intelligently, knowingly, and voluntarily waive her right to appeal her conviction. The State, however, asserts that by agreeing to enter the drug court program at the plea colloquy, Goodwin has waived her right to appeal.

There is no documentation in the record of a written plea agreement between Goodwin and the State, nor did the judge refer to any such agreement. The only discussion on the record of Goodwin's right to appeal occurred during the plea proceeding as follows,

THE COURT: And we want you to enjoy a life that's free of drugs so, again, you give up rights of confidentiality; you give up the right to appeal your case to the Supreme Court of Iowa for whatever reason. You give up your right to have a — — a hearing on termination of your drug court program if we should choose to do that and send you to prison.

Any questions thus far?

THE DEFENDANT: (Moves head in negative manner.)

(emphasis added). Goodwin subsequently pled guilty and entered the drug court treatment program.

A defendant may expressly waive his or her right to appeal as long as the defendant voluntarily, knowingly, and intelligently waives such right. State v. Hinners, 471 N.W2d 841, 845 (Iowa 1991). The right to appeal is waived if defendant knows of the right and intentionally relinquishes that right. Id. (citing Kyle v. State, 364 N.W.2d 558, 561 (Iowa 1985)). In a recent Iowa Supreme Court decision involving similar facts, the court held the defendant did not voluntarily, knowingly, and intelligently waive her right to appeal. State v. Loye, ___ N.W.2d ___ (Iowa 2003). In State v. Loye, the court determined there had been no waiver on two grounds. First, there was no evidence of a plea agreement that included an express waiver of Loye's right to appeal. Second, the colloquy between the court and Loye was deficient as "the court made no inquiry as to whether the defendant knew she had the right to appeal, whether she voluntarily waived that right, and whether she knew the consequences of giving up that right." Id. at ___.

In the present case, the district court only mentioned Goodwin's right to appeal once in the plea proceeding and did not ask her if she knew she had the right, whether she waived her right to appeal, or whether she understood the consequences of giving up such right. In accordance with State v. Loye, we hold Goodwin did not voluntarily, knowingly, and intelligently waive her right to appeal and thus this appeal may go forward on the merits. Validity of Guilty Plea. Goodwin next asserts several issues on appeal claiming the district court 1) failed to inquire into the terms of the plea agreement as required by Iowa Rules of Criminal Procedure 2.8(2)( c) and 2.10(2), 2) failed to advise her of the maximum possible sentence pursuant to rule 2.8(2)( b), 3) failed to advise her of her right to a jury trial pursuant to rule 2.8(2)( b), 4) failed to give reasons for its sentence as required by rule 2.22(3)( d), and 5) failed to order and use a presentence investigation report pursuant to Iowa Code section 901.2 (1999). The State concedes that the district court failed to do the above as required by the Iowa Rules of Criminal Procedure. As such we need not address the issues.

We conclude that Goodwin's guilty plea was invalid and must be set aside. See Loye, N.W.2d at ___. We therefore vacate Goodwin's conviction and sentence and remand to the district court where Goodwin shall be given the opportunity to plead anew to the charges.