2014 Basic Skills Course Presented by the Iowa Bar Review School

2014 Basic Skills Course Presented by the Iowa Bar Review School and The Iowa State Bar Association. Tuesday September 23, 2014 Iowa Criminal Law & Criminal Procedure 9:00 a.m. - 10:00 a.m. Materials by Eric D. Tindal Nidey Erdahl Tindal & Fisher, PLC 600 Court Street P.O. Box 656 Williamsburg, Iowa 52361 Phone: (319) 668-1323

CRIMINAL PROCEDURE OUTLINE I. Initiation of a Case A. Cases generally start after an arrest. There are exceptions to this, however, for purposes of this outline I will only be discussing the procedure subsequent to arrest B. Arrest 1. Arrests can occur in one of two ways. The first is based upon probable cause. The second is pursuant to a warrant. a. Probable cause arises when there is a reasonable grounds for a belief that a person has committed a violation of the law. The case law is replete with cases arguing what is and is not probable cause. I will not go into them here. i See State v. Harris 490 N.W.2d 561(Iowa 1992) for a discussion. ii Arrests based upon probable cause usually occur at a time and location near where the offense occurred. Operating While Intoxicated arrests are a text book example b. Arrest Warrants i Arrest Warrants usually arise after there is a period of investigation. ii Arrest warrants are signed by a judge, usually a magistrate, when the judge is convinced that a complaint or affidavit reveals probable cause that an offense has been committed. Iowa Code 804.1 iii Any peace officer may serve the warrant in any county within Iowa. Iowa Code 804.4 1

2. Law Enforcement also has the authority to issue a citation in lieu of arrest. The citation will command the place and time of the initial appearance. 3. In certain cases there may be an issue over whether a person is arrested or not. In State v. Wing 791 N.W.2d 243 (Iowa 2010) the Iowa Supreme Court sought to clarify what is an arrest. In sum the Iowa Supreme Court defined an arrest as occurring when a reasonable person in the defendant s position would believe they are under arrest. Whether a person is under arrest is determined on a case by case basis without the assistance of any bright-line rule or test. State v. Robinson, No. 11-0963 Iowa Court of Appeals, May 9, 2012. B. Initial Appearance 1. A defendant is entitled to be brought before a judge within 48 hours of arrest. County of Riverside v. McLaughlin, 500 U.S. 44 (1991) 2. Iowa R. Crim P. 2.2 sets forth the requirements for initial appearance a. When a person is arrested without warrant a complaint shall be filed forthwith. (Iowa R. Crim P. 2.2(1)) b. The magistrate has two primary jobs at this hearing. First, advise the defendant of the charge, the minimum and maximum penalties of the charge, and various rights. And second, the magistrate shall advise the defendant on how they can secure pretrial release. (usually this means the right to post bond - or alternatively the release of a defendant on conditions of release or under his own recognizance [ ROR]). (Iowa R. Crim P.2.2(2)) c. Generally - at this point in time the Court will set bond/release/ and schedule a Preliminary Hearing. (See attached Order [Exibit A] 2

d. An initial appearance can be waived. Any deficiencies in the initial appearance are subject to harmless error analysis. State v. Brendeland, 402 N.W.2d 444 (Iowa 1987). i See also Iowa Code 804.21 b. Often a Magistrate will appoint counsel at this time, if the individual qualifies for court appointed counsel. See Iowa Code 815.9 and Exhibit B (financial affidavit) i I will discuss the court appointment process later in the outline B. Preliminary Hearing/Trial Information 1. At the initial appearance the magistrate will set a preliminary hearing. (Iowa R. Crim P. 2.2(4)). The preliminary hearing is scheduled to provide the state with the opportunity to prove there is probable cause to proceed on the charge or charges. 2. A preliminary hearing must be held within 10 days following the initial appearance if the defendant is in custody and no later than 20 days if the defendant is not in custody. (Iowa R. Crim P. 2.2(4)(1)). a. Practice Tip: Theoretically a "Rule 2" violation can result in the dismissal of the charges without prejudice. In reality that rarely happens. What tends to occur is that if your client is held in custody beyond 10 days without the filing of a trial information, then a court will usually order that Defendant's release. Procedures and outcomes will vary by jurisdiction. I do not usually get concerned in a case where my client is already released until much later (45 days) - but where my client is in custody and no preliminary hearing has taken place within 10 days I will act immediately to try and secure their release. 3

3. At this stage the State has the option of proceeding in one of two ways. First, the State can hold a preliminary hearing, and present witnesses to prove there is probable cause to proceed. The second, is to file a trial information. The vast majority of the time the State will elect to file a trial information. For purposes of "Rule 2" a trial information must be on file and approved by a judge not later than 10 days (if client is in custody) or a preliminary hearing must be held. a. Preliminary Hearing i For reasons I have never understood, many attorneys advise their client's to waive their right to preliminary hearing. I assume this is perceived as a courtesy to the court and the prosecutor. I disagree with the practice. If you can force a preliminary hearing force it. a At a preliminary hearing the State will call at least one witness. The witness can present hearsay evidence, but the Defendant has the right to cross-examine the witness. In a decade of practice I have done 4 or 5 preliminary hearings. You can gain some advantage in discovery by utilizing cross-exam early on in the procedure. b No matter what keep in mind that it is the defendant's right to waiver preliminary hearing not the attorney's b. Trial Information ii Iowa R. Crim P. 2.5 sets forth the grounds for Prosecution on Information. a Once a trial information is filed there is no right to a preliminary hearing; and no need for a grand jury indictment. Furgison v. State, 217 N.W.2d 613 (Iowa 1974) 4

i There is no right to be indicted by grand jury as opposed to a trial information. State v. Lint, 270 N.W.2d 598 (Iowa 1978) iii In short, a trial information sets forth the charges, the code sections applicable to the charges, and attaches "minutes of testimony" a The minutes are usually a dictation of the police and/or lab reports and witness statements. b "If the judge or magistrate finds that the evidence contained in the information and the minutes of evidence, if unexplained, would warrant a conviction by the trial jury, the judge or magistrate shall approve the information which shall be promptly filed. If not approved, the charge may be presented to the grand jury for consideration." Iowa R. Crim P.2.5(4). i This language has been interpreted to mean a "probable cause" finding. State v. Epps, 322 N.W.2d 288 (Iowa 1982) iv After a trial information is approved and filed, the Court will schedule an arraignment. Typically this is within a week or two after the trial information is approved. c. Some time frames to keep in mind i 10 days Iowa Rule of Criminal Procedure 2.2(4)(a) states that a preliminary hearing or trial information must be held/filed no later than 10 days after initial appearance if the defendant is in custody or 20 days after initial appearance if a defendant is not in custody. The failure to do so could lead to dismissal of the charges "without prejudice" but more likely the release of the defendant from custody. 5

a Technically the proper remedy is to file a habeas corpus action. See State v. Rouse, 290 N.W.2d 911, 913 (Iowa 1980) and State v. Montgomery, 232 N.W.2d 525 (Iowa 1975). ii 45 days- Rule 2.33 requires that a charge be dismissed if an indictment is not found within 45 days of the date of arrest. a Speedy indictment begins running at the time of arrest, which is defined, on a case-by-case basis. See State v. Wing 791 N.W.2d 243 (Iowa 2010). b Note there are a number of cases that distinguish whether the defendant is actually arrested for the charge which is the subject of the indictment. See State v. Huffman, 2008 WL 2039300 (Iowa Ct. App. May 14, 2008) for an example. iii 90 days - Rule 2.33(2)(b) sets forth that a defendant has the right to a speedy trial and must be brought to trial within 90 days after the indictment (trial information) is found. a State v. McCullough 2010 WL 3662749 (Iowa Ct. App. 2010) time can be tolled where a defendant is the party seeking the delay. In this case, requesting a competency evaluation on the eve of trial. iv 1 year - Rule 2.33(2)(c) all criminal prosecutions must be brought to trial within one year after the defendant's initial arraignment. a Note that all of these are subject to waiver and/or findings of good cause. b If you have a case that may violate any of these time frames - do your research to make sure you actually have a violation. 2. Arraignment (Iowa R. Crim P.2.8) 6

a. At the outset - there is no right to speedy arraignment. Practically speaking, however, since the 90 day speedy trial rule runs from the indictment the Arraignment is set fairly quickly. b. An arraignment is simply the formal communication between the defendant and the Court that he/she is either pleading guilty or not guilty. Alternatively a defendant can plead former conviction or acquittal if there is a double jeopardy problem i Note that there is not a "nolo contendere" plea. Some states have such a plea, but Iowa is not one. Prior to 1977 such a plea did exist in "Rule 8". It does not exist now, although some client's have heard of such a plea on television or from other states. b. In theory an arraignment is a formal proceeding in court where the indictment is read, and various rights are communicated to the defendant. In reality it is only done in open court when no attorney is involved. c. The vast majority of arraignments are completed in writing. For an example see Iowa R. Crim P. 2.37 Form 6. (See also Exhibit B) d. Following Arraignment the Court will enter a pretrial and trial date. See Iowa R. Crim P.2.9(1). i Note that arraignment is also the time and place where a defendant will either demand or waive his right to speedy trial (90 days). If a defendant elects to waive his right to 1 year speedy trial that is done by separate motion/waiver and order II. Pre-Trial Issues A. Discovery (Iowa R. Crim P. 2.14) 7

1. Obviously defendants have a right to execute their own investigation and search for witnesses. In this context I will be specifically discussing the ability to obtain evidence and materials from the prosecution. 2. There is no constitutional right to discovery. See State v. Weaver, 608 N.W.2d 797 (Iowa 2000); State v. Anderson, 410 N.W.2d 231 (Iowa 1987). With that said, Iowa's rules for discovery in criminal cases are fairly broad. 3. The two primary tools for discovery in criminal cases are a. Request for Production of Documents (See Exhibit C) b. Depositions 4. The trial courts are vested with broad discretion in regulating discovery. (Iowa R. Crim P. 2.14(6)(a)) and determining various discovery disputes. a. A good place to start in researching a discovery dispute is State v. Eads, 166 N.W.2d 766 (Iowa 1969) which discusses many of the discovery issues set forth in the rule. 5. Request for Production of Documents a. This is accomplished by requesting discovery materials from the County Attorney. I usually do this by sending the prosecutor a copy of my discovery motion. You are not required to file the request with the Court (and in fact they prefer you only file a motion if there is a dispute). b. A request for production of documents generates the right for the State to receive reciprocal discovery of documents. (Iowa R. Crim P. 2.14(3)). In select cases you may possess documents you do not want the State to discover. Discovery requests are almost always made, but they should not be made without some thought about whether the defendant wants to reciprocate the discovery. 8

6. Depositions (Iowa R. Crim P. 2.13) a. A defendant has a right to depose the witnesses named in the trial information. i once a notice of deposition is given the State may object on the grounds that the witness is a "foundation" witness, or alternatively that the witness has been adequately examined on preliminary hearing. (Iowa R. Crim P. 2.13(1)) b. The decision to depose the state's witnesses does trigger a reciprocal requirement to provide a witness list and allow the State to depose the defendant's witnesses. (Iowa R. Crim P. 2.13(3)) i This is somewhat subjective in that the requirement is to disclose witnesses "expected to be called for the defense" b. In some cases counsel may want to depose witnesses who are not listed in the trial information. The Court may allow a party to do so upon application. (Iowa R. Crim P. 2.13(2)(a) c. If you are court appointed, you may need to file an application to take depositions at state expense. (See Exhibit D1 and D2). In some jurisdictions the order allowing depositions at state expense may appear in the pretrial order. d. The rule requires that depositions be taken within 30 days after arraignment. (Iowa R. Crim P. 2.13(6)). In practice they are rarely taken within that time frame unless there is a speedy trial demand. e. Note that there is no right to depositions in Simple Misdemeanor cases. Jones v. Iowa District Ct. of Wapello, 620 N.W.2d 242 (Iowa 2000). 7. An area of growing dispute is in the area of medical records, particularly psychological records of the victim. 9

a. State v. Cashen, 789 N.W.2d 400 (Iowa 2010) i. A defendant may obtain the mental health records of a victim if a The defendant demonstrates the likelihood that mental health records contain evidence that is exculpatory b Once the showing is made, the county attorney must notify the victim that the request has been made and then notify the court whether the victim consents or does not consent to release of the records (if consent is not obtained a hearing must take place to determine whether it is likely that the records contain exculpatory evidence) c If the threshold showing is made, defense counsel must be given the opportunity to inspect the records at the courthouse, subject to a protective order prohibiting disclosure to anyone (including the defendant) without court permission d Defense counsel must notify the court and the prosecutor as to which records contain exculpatory information at which time the prosecutor may review the records at the courthouse e The court shall hold a hearing to determine whether the records contain exculpatory information upon which the exculpatory records will be provided to the parties subject to a protective order f For a discussion about how limited Cashen may be see State v. Carver, No. 11-0848 (Iowa Ct. App. April 15, 2012 unpublished) ii An exception to this procedure may apply where law enforcement has been given a release of information for purposes of investigation. State v. Randle, 484 N.W.2d 220 (Iowa Ct. App. 10

1992)( it is well settled that information communicated to a third party who is not within the scope of privilege destroys the confidential nature of the disclosures and renders them admissible. ) B. Pretrial Motions (Iowa R. Crim P. 2.11(2)) 1. There are 7 common pretrial motions a. Motions concerning a defect in the institution of the prosecution b. Motions concerning a defect in the indictment or information i This is often a Motion for a Bill of Particulars. The purpose of this motion is to give a defendant information which indictment/information and minutes of testimony by reason of their generality do not give, and should be allowed when the court, in its discretion, finds the charge and minutes do not inform defendant of specific acts of which he is accused. State v. Conner, 241 N.W.2d 447 (Iowa 1976) b. Motions to Suppress (See Exhibit F as an example) c. Requests for Discovery d. Requests for a severance of charges or defendants e. Motions for change of venue or judge i This can arise when there is a particularly notorious case. See State v. Siemer, 445 N.W.2d 857 (Iowa 1990) for a list of publicity factors. b. Motion in Limine 2. Pretrial Motions are generally required within 40 days of the date the arraignment is filed. (Iowa R. Crim P.2.11(4)). a. Typically this is a Motion to Suppress. Be cautious with this rule. It is best to file a Motion to Extend the Deadline for filing pretrial 11

motions before the 40 days has run, if you need additional time for discovery. If you do file a Motion after the 40 days you must expressly request a finding of good cause for an untimely motion. If you do not, the appellate court can deem this a waiver and deny appellate review. State v. Glessner 572 N.W.2d 562 (Iowa 1997). b. Note that the Motion in Limine must only be filed no later than 9 days prior to trial 3. Motions to Continue a. The rule states: "The date assigned for trial shall be considered firm. Motions for continuance are discouraged.". (Iowa R. Crim P.2.9) b. However, motions to continue lie within the discretion of the court. State v. Jacoby,260 N.W.2d 828 (Iowa 1977) c. With that said - motions to continue are probably the most common. Often they are achieved by consent between the parties. 4. NOTE: know your local rules concerning pretrial motions. For example, with respect to a motion to continue some districts require that you contact opposing counsel first, and that the communication be included in the pleading. If it is not, the motion may be dead on arrival with no consideration by the court. C. Notices of Defenses (Iowa R. Crim P. 2.11(11)) 1. Certain defenses must be noticed within the time for filing pretrial motions. They are as follows: a. Alibi i The notice must state where the defendant was at the time of the offense, and what witnesses the defendant intends to call to support the alibi. The address of the witnesses must be included b. Insanity and Diminished Capacity 12

i Note that insanity and diminished capacity are inherently different. Insanity is available for all offenses, but diminished capacity only applies to specific intent defenses c. Intoxication d. Entrapment e. Self Defense i Note that there are a number of possible justification defense. For example, "protection of others". However, only self defense is set forth in the rule. ii If you believe you have a self defense case please do some research first. A good place to start is with the jury instruction. Self defense is more difficult to prove than the average individual believes, and you need to know the elements. For example, there is a requirement to utilize alternative courses of action (i.e. leave) unless the defendant is on his own property. III. Resolution Prior to Trial - Guilty Pleas A. Generally 1. The vast majority of cases resolve short of trial, and usually in the form of a plea 2. Plea bargaining occurs at the discretion of the prosecutor. See Iowa R. Crim P. 2.10 and State v. Whitehead, 163 N.W.2d 899 (Iowa 1969). However, there is no obligation to plea bargain. Weatherford v. Bursey, 429 U.S. 916 (1977); State v. Reed, 252 N.W.2d 455 (Iowa 1977)(a guilty plea will not be set aside because the State refused to accept a plea to a lesser offense); State v. Iowa District Court for Jackson County, 463 N.W.2d 885 (Iowa 1990)(a court has no authority to accept a plea to a lesser-included offense over the prosecutor's objection) 13

3. A guilty plea will be upheld where "a defendant, with full knowledge of the charge against him and of his rights and the consequences of a plea of guilty, enters such a plea understandably and without fear or persuasion." State v. Blum, 560 N.W.2d 7 (Iowa 1997). B. Requirements for a Valid Guilty Plea 1. Voluntary and Intelligent a. any waiver of rights must be made voluntarily. United States v. McCarthy, 394 U.S. 459 (1969). b. to be voluntary, the defendant must know and understand the rights they are waiving. Henderson v. Morgan, 426 U.S. 63 (1976) c. The defendant should be cognizant of the constitutional protections to which he or she would otherwise be entitled. Boykin v. Alabama, 395 U.S. 238 (1969). And the nature of the crime with which he or she is charged. State v. Oberbreckling, 235 N.W.2d 121 (Iowa 1975) 2. Competence a. The standard of competency required by due process for pleading guilty is the same as the standard for standing trial. Godinez v. Moran, 509 U.S. 389 (1993) 3. The Court must be assured of these matters by going through a plea colloquy. See State v. Worley, 297 N.W.2d 368 (Iowa 1980)(an attorney's assurances cannot be substituted for the personal in-court colloquy between trial court and defendant to establish a defendant's understanding of these rights.) a. There is an exception for misdemeanors - where pleas can be done in writing. Iowa R. Crim P. 2.8(2)(b) (See Exhibit E and G attached as examples) 14

b. Felony pleas are required to be done in court. See State v. Moore, 638 N.W.2d 765 (Iowa 2002) c. Contents of the Colloquy i Mandatory minimum and maximum sentences a included in this is the defendant being advised of the possibility of consecutive sentence ii Trial Rights iii Factual Basis a The court is required to determine on the record if the plea is supported by a factual basis. State v. Fluhr, 287 N.W.2d 857 (Iowa 1980)( Iowa R. Crim P.2.8(2)(b) b Alternatively an Alford plea may be accepted. These are pleas in which the Defendant does not admit guilt, but there is an independent basis for the guilt. Farley v. Glanton, 280 N.W.2d 411 (Iowa 1979) i Please note that there are procedures for going through an Alford Plea. This includes a requirement that the Defendant is obtaining a benefit from the plea. You should never conduct an Alford Plea without first informing the court that the plea will be an Alford plea. ii Even under an Alford plea all of the elements of the offense must be present. State v. Hallock 765 N.W.2d 598 (Iowa App. 2009). iv Disclosure of the Plea Agreement by the State v There are other contents of a colloquy but these are the big ones. 15

4. If you have reached a plea agreement with the State and it is withdrawn without good reason, there can be a hearing to enforce the plea agreement. IV. Trials A. Waiver 1. All indictable offenses are presumed to be tired to the jury. However, a defendant may unilaterally waive jury up until 30 days after arraignment. Iowa R. Crim P.2.17(1) a. Note - in simple misdemeanor cases the defendant must demand a jury within 10 days of the initial appearance or it is deemed waived. 2. A waiver must be voluntary and intelligent and in writing. State v. Sinclair, 622 N.W.2d 772 (Iowa Ct. App. 2000). See State v. Stallings, 658 N.W.2d 106 (Iowa 2003)(a defendant must understand his right to a jury of 12, that the defendant may participate in the juries selection, the final decision of the jury must be unanimous, and if the defendant waives the right to jury a single judge will make the determination of guilt and innocence) a. some level of oral colloquy is required. State v. Spies, 672 N.W.2d 792 (Iowa 2003) 3. Trial on the Minutes a. One version of a bench trial is a "trial on the minutes" b. A trial on the minutes generally occurs when the court overruled a motion to suppress, and there is a subsequent plea agreement or other benefit to pleading. c. A trial on the minutes will preserve the suppression issue on appeal, whereas a guilty plea waives the right to appeal a ruling on such issues. State v. Abbas 561 N.W.2d 72 (Iowa 1997). 16

d. Note that there are certain requirements that must be followed. The trial court must (1) verify the jury waiver, (2) confirm the extent of the factual record to which the parties are stipulating, and find the facts specially and on the record, and (3) separately state its conclusion of the law and render an appropriate verdict. State v. Sayre, 566 N.W.2d 193 (Iowa 1997) B. Jury Trial 1. All of the various aspects of a jury trial exceeds the scope of this outline in large part. I suggest going to watch a few trials to see how they unfold 2. Parts of a Trial a. Voir Dire - Jury Selection b. Opening Argument c. State's Evidence d. Defendant's Evidence e. State's Rebuttal f. Defendant's Sur-rebuttal g. Closings h. Deliberations 3. If you are going to practice in the area of criminal law - I strongly encourage investing in some resources. John Burns has an excellent book published by Thomson West in the Iowa Practice Series titled Criminal Procedure. It is a good investment. There are numerous other resources out there. a. No matter what - I encourage all of you to embrace the concept of going to trial. When we advise clients we must lay out the options. But ultimately the decision to go to trial or not belongs with the 17

client and the client alone. If your client wants a trial it is your obligation to defend him at trial. b. Do not fear trial - it really isn't that bad. V. Post Trial A. Motions 1. There are a number of post trial motions a. Motion in Arrest of Judgment i A motion in arrest of judgment shall be granted when upon the whole record no legal judgment can be pronounced upon a guilty plea or verdict already rendered. (Iowa R. Crim. P. 2.24(3)(a))\ ii Grounds for arrest of judgment a Statute is inapplicable to facts. State v. Oldfather, 306 N.W.2d 760 (Iowa 1981) b Offense not a lesser included. State v. Allen, 304 N.W.2d 203 (Iowa 1981) c On a guilty plea where there is an inadequate record or procedure. State v. Worley, 297 N.W.2d 368 (Iowa 1980) iii Timing a A motion in arrest of judgment must be filed within 45 days of the date of the guilty plea or a verdict, and not later than 5 days before the date of sentencing. (Iowa R. Crim. P.2.24(3)(b) b. Motion for New Trial iv Must be filed before final judgment is entered. (Iowa R. Crim. P.2.24(2)(a)) a Absence of the Defendant b Unauthorized evidence to the jury c Jury separation/jury misconduct 18

d Verdict decided by lot e Prosecutorial misconduct f Verdict contrary to law or evidence g Refusal to properly instruct the jury h Newly discovered evidence i Denial of Fair Trial c. Nunc Pro Tunc v Allows for the Correction of Clerical Errors. State v. Hess, 533 N.W.2d 525 (Iowa 1995) B. Sentencing Orders 1. The court will enter a sentencing order and there will be 30 days to appeal. If a notice of appeal is not brought within 30 days of the date of the final order the direct appeal is barred. 2. Sentencing orders come in numerous varieties. A sample of sentencing orders is attached as Exhibit H and I. You should review each sentencing order to assure it is correct and then send to your client. Always advise them of the notice of appeal time period. IV. Parting Thoughts A. There is nowhere near enough time or space in this outline to discuss all of the issues that arise under Iowa law concerning Criminal Procedure. These points are the basics of the basic. B. Do not hesitate to seek help. 19

IOWA CRIMINAL LAW AND CRIMINAL PROCEDURE OUTLINES 2014 Eric D. Tindal Nidey Erdahl Tindal & Fisher, PLC 600 Court Street P.O. Box 656 Williamsburg, Iowa 52361 (319)668-1323 FAX: (319)668-1706 etindal@eiowalaw.com 1

I. The General Foundations of Iowa s Criminal Law System A. Constitution and Statute 1. All citizens accused of a crime are presumed innocent 2. This presumption is only overcome when the accuser proves each and every element of the crime charged beyond a reasonable doubt. a. These principles are and always will be the foundation of Iowa s system of justice 3. The Five Critical Amendments to the United States Constitution a. Fourth Amendment i. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. b. Fifth Amendment i. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the 2

same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. c. Sixth Amendment i. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. d. Eighth Amendment i. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. e. Fourteenth Amendment i. This amendment was added to the Constitution following the Civil War. The Amendment was later interpreted to make those rights in federal 3

prosecutions applicable to the states. The amendment provides: a. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive a person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 4. Iowa s Constitution is also controlling. In some cases the Iowa Supreme Court s interpretation of the Iowa Constitution can be more protective of a defendant s rights than the United States Constitution a. An example of this can be seen in State v. Cline 617 N.W.2d 277 (Iowa 2000). Under the U.S. Constitution a search conducted pursuant to a warrant will not result in exclusion of the evidence if the officer s executing the warrant acted in good faith reliance on the warrant. This exception is commonly known as the Leon good faith exception. Simply put, in a warrant case evidence will only be suppressed if the officers were 4

reckless or lied in the creation of the warrant. Iowa has refused to recognize a good faith exception to the warrant requirement under Iowa s Constitution. b. See also State v. Ochoa, 792 N.W.2d 260 (Iowa 2010). In Ochoa the Defendant was on parole when he was subjected to a warrantless search. Previous federal precedent had found that parolees had a reduced expectation of privacy and therefore no warrant was required. Although Ochoa left many questions unanswered it is clear that under Article I, Section 8 of Iowa s constitution a parolee has no such reduced expectation of privacy. i. Practice Tip: Recently the U.S. Supreme Court issued a ruling in Davis v. United States, 131 S.Ct. 2419 (2011) in which the Court pronounced that its previous ruling in Arizona v. Gant (2009) would not be enforced under virtually identical circumstances because the officer conducted the search in good faith because Gant had not yet been decided. The ruling is really a way to minimize the exculpatory rule. However, if you have a case where the facts are on par with a recently decided U.S. or Iowa Supreme Court case excluding evidence make sure you argue the Iowa s Constitutional principles because the 5

federal constitution standing alone may not help you. c. Practice Tip it is critical to always cite the United States Constitution AND Iowa s Constitution in your pleadings dealing with any constitutional principal. d. Relevant Iowa Constitutional Sections i. Iowa Const. Art. I 8 a. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized. ii. Iowa Const. Art. I 9 a. The rights of trial by jury shall remain inviolate; but the general assembly may authorize trial by a jury of a less number than twelve men in inferior courts; but no person shall be deprived of life, liberty or property, without due process of law. e. Iowa Const. Art. I 10 i. In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an 6

impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process of his witnesses; and to have the assistance of counsel f. Iowa Const. Art. I 11 i. All offenses less than felony and in which the maximum permissible imprisonment does not exceed thirty days shall be tried summarily before an officer authorized by law, on information under oath, without indictment, or the intervention of a grand jury, saving to the defendant the right of appeal; and no person shall be held to answer for any higher criminal offense, unless on presentment or indictment by a grand jury, except in cases arising in the army, or navy, or in the militia, when in actual service, in time of war or public danger. ii. The grand jury may consist of any number of members not less than five, nor more than fifteen, as the general assembly may by law provide, or the general assembly may provide for holding persons to answer for any criminal offense without the intervention of a grand jury. g. Iowa Const. Art. I 12 i. No person shall after acquittal, be tried for the same offense. All persons shall, before conviction, 7

be bailable, by sufficient sureties, except for capital offences where the proof is evident, or the presumption great. h. Iowa Const. Art. I 13 i. The writ of habeas corpus shall not be suspended, or refused when application is made as required by law, unless in case of rebellion, or invasion the public safety may require it i. Iowa Const. Art. I 17 i. Excessive bail shall not be required; excessive fines shall not be imposed, and cruel and unusual punishment shall not be inflicted j. Iowa Const. Art. I 19 i. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in case of fraud; and no person shall be imprisoned for a militia fine in time of peace. k. Iowa Const. Art. I 21 i. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed B. What is a Crime in Iowa 1. Iowa Code 701.2 states a crime/public offense is a violation of statute (or municipal ordinance) which is punishable by a fine or imprisonment 8

2. Modern crimes are creatures of statute. Practice Tip: Always read the statute concerning the crime. You can often be surprised by what you find in the language of the statute. II. Sentencing/The Classification of Crimes in Iowa: Felonies and Misdemeanors A. Disclaimer: I have not attempted to cover all of the issues concerning sentencing in this presentation. There are a number of crimes that carry a variety of secondary consequences. I have attached a copy of the Sentencing Chart created by the Honorable Michal Mullins, Judge, Iowa Court of Appeals. This chart is a comprehensive summary and as complete as any you will find in the State of Iowa. With that said I will try and provide an overview. B. Felonies 1. Under Iowa Law there are four classifications of Felonies a. Class A: Carries a sentence of Life Without Parole (Iowa Code 902.1) b. Class B: Carries a sentence of 25 Years the fine is variable (Iowa Code 902.9(2)) c. Class C: Carries a sentence of 10 Years fine of $1,000 to $10,000 (Iowa Code 902.9(4)) d. Class D: Carries a sentence of 5 Years fine of $750 - $7,500 (Iowa Code 902.9(5)) 2. Practice Tip Understanding the Indeterminate Sentences in Iowa (Iowa Code 902.3). This, in my opinion, is one of the most confusing areas of practicing in Iowa law. Defendant s always want to know exactly how much time they will serve on 9

a felony sentence. Indeterminate sentences are important to understand. a. In Iowa virtually all prison sentences are indeterminate. Pursuant to Iowa Code 902.3 a defendant sentenced to anything other than a Class A felony (and a short list of crimes with minimum and mandatory sentences) is committed to the Iowa Department of Corrections for a term not to exceed the statutory length of the sentence. In short, the Iowa Parole Board has the authority to release any offender on Parole at any point in their sentence. b. In practice, the Parole Board tends to follow a range of average lengths of sentence depending on the crime. The Defendant will have their sentence reduced for earned good time and credits. c. Practice Point: You will often be asked by your client how much time he or she will actually be required to serve. The answer is that it is unpredictable at best. I often refer to the publication put out by the Parole Board which reflects the average time served per offense. A copy of this table is attached here. 3. Mandatory Minimums a. The 70 percenters (Iowa Code 902.12) i. There are a select few crimes which require an offender to serve 70% of his or her sentence prior to parole. Those crimes are: 10

a. Second Degree Murder (50 year sentence 35 years prior to parole) b. Attempted Murder (25 year sentence 17.5 years prior to parole) c. Sex Abuse 2 nd (25 years sentence 17.5 years to parole) d. Robbery First Degree (25 year sentence 17.5 years prior to parole) e. Robbery Second Degree (10 year sentence 7 years prior to parole) ii. Other Minimum Mandatory Sentences a. Manufacturing Methamphetamine 1. If sentenced to prison the offender must serve one-third of his sentence prior to parole. The one third does get reduced for good time. b. Habitual Offender (Iowa Code 902.8 and 902.9(3)) 1. If you are convicted of a third or subsequent felony there is a sentencing enhancement. The enhancement is 15 years with a minimum mandatory 3 years prior to eligibility for parole. 2. Practice Tip: If your client picks up a third felony a prosecutor will often 11

offer to dismiss the habitual enhancement for an agreement to a prison term on the underlying charge. 3. Practice Tip 2: Particularly if the Felonies are from another state be sure you investigate the prior felonies. There are cases in which the State must prove up the out of state felony and a local law enforcement officer will often not be sufficient to do that. In short do your investigation. Whether a prior conviction constitutes a felony is a fact to be determined by the fact finder and must be proven. b. Forcible Felonies (Iowa Code 702.11) i. Forcible Felonies are defined as any felonious child endangerment, assault, murder, sex abuse, kidnapping, robbery, arson in the first degree, burglary in the first degree. ii. Exceptions to the definition of Forcible Felony a. Willful injury in violation of 708.4(2)(willful injury causing bodily injury) b. Sex Abuse Third Degree when committed between spouses. 12

c. Sex Abuse in the Third Degree if the child is 14 or 15 years old. See Iowa Code 709.4(2)(c)(4) d. Child Endangerment under Iowa Code 726.6(6) (where bodily injury occurs as opposed ot serious injury) e. Assault in violation of 708.2(4)(no intent to cause serious injury but serious injury occurred) 4. Lifetime Parole a. Certain offenses carry term of lifetime parole under Iowa Code 903B.1 b. A person convicted of a class C felony or greater offense under chapter 709, or a class C felony under section 728.12, shall also be sentenced, in addition to any other punishment provided by law, to a special sentence committing the person into the custody of the director of the Iowa department of corrections for the rest of the person s life, with eligibility for parole as provided in chapter 906 i. This was determined to be an ex post facto punishment for acts that predated the statute. State v. Lathrop 781 N.W.2d 288 (Iowa 2010) ii. Failure to advise the defendant of this consequence can result in a reversal of any plea proceeding and presumably for ineffective assistance of 13

counsel. State v. Nyabugulu 2012 WL 472875 (Iowa Court of Appeals, February 15, 2012) c. Note that 709 convictions are for some form of Sexual Abuse and a 728.12 conviction is for sexual exploitation of a minor. d. Practice Tip: In the Addendum to the Outline I have provided a copy of the relevant portions of a written guilty plea I recently drafted concerning Assault with Intent to Commit Sex Abuse. This portion of the plea advised of the secondary consequences associated with a conviction for this charge. I would recommend that in felony and misdemeanor convictions alike you engage in placing this language in written form so your client can be fully advised. C. Misdemeanors 1. Under Iowa Law there are three classifications of misdemeanors a. Aggravated: Up to 1 year in County Jail or alternatively an indeterminate prison term of 2 years; Fine of $625-6,250 (Iowa Code 903.1) b. Serious: Up to 1 year in County Jail; Fine of $315-1875 (Iowa Code 903.1) c. Simple: Up to 30 days in jail; Fine of $65-625 (Iowa Cod 903.1) d. Pursuant to Iowa code 903.4 the maximum sentence allowed in County Jail is 1 year. Any sentence north of 14

that must be served in prison. This can arise in Aggravated Misdemeanors or where there are Misdemeanors served consecutively. D. Concurrent and Consecutive Sentences 1. The issue of concurrent or consecutive sentences arises in cases where there are either multiple charges or multiple counts. Alternatively, the issue of consecutive and concurrent sentences can arise in cases where there is a single count, but a plea offer is made requiring a plea to several lesser included or lower sentence offenses. 2. If a sentence is run concurrently it is served at the same time as another offense. Example: Bob is convicted of two Class D Felonies and ordered to serve a 5 year sentence on each. If the sentences run concurrently the real result is one 5 year term of incarceration. If the sentence is run consecutively (often referred to as boxcars) Bob will effectively serve a 10 year sentence. a. Practice Tip: Consecutive sentences can have an effect on the amount of time that must be served prior to obtaining parole. It is my experience that the Department Corrections will require an offender to discharge the first sentence completely before working on the second sentence for parole. However this can be subject to the individual cases and the policies of the day. E. Suspended Sentences 15

1. In most cases a Court has the authority to suspend a sentence. A suspended sentence is a sentence which an offender is not required to serve prison or jail time pending good behavior on probation. I will set out some examples: a. Defendant is convicted of a Class D Felony and the sentence is suspended pending good behavior on probation. The defendant is not required to serve any further jail/prison time on this offense so long as he does not violate his probation. The length of time is dependent upon the classification of the crime. b. Defendant convicted of OWI First Offense. The Defendant is sentenced to 30 days with all but 2 days suspended with 1 year of probation. The Defendant will need to complete the 2 day jail sentence, the remaining 28 days will be suspended (not served) pending good behavior on probation. 2. Deferred Sentences are a rarely used but available tool. Seee Iowa Code 907.3(2). With a deferred sentence the Court accepts a plea and enters conviction but defers sentence for a specific period of time. With a deferred sentence there is technically a conviction, however, the record of that conviction is produced to a limited number of administrative bodies or individuals. This can be useful in cases where a person may not be eligible for a deferred judgment. a. There are limitations on the cases in which the Court can defer a sentence. The power to defer a sentence is a 16

creature of statute. State v. Iowa Dis. Court for Shelby County, 308 N.W.2d 27 (Iowa 1981). F. Miscellaneous Issues Concerning Sentencing 1. Probation a. Probation can be either supervised (formal) or unsupervised (informal) b. Probation in most Felony Cases is supervised and usually supervised by the Department of Corrections c. Probation is sometimes supervised and sometimes unsupervised in misdemeanor cases. This really depends on the practices of the County Attorney or Judicial District you are in. d. If Probation is unsupervised the terms can vary. However the primary term is do not acquire any further criminal offenses e. A supervision fee of $300 is always ordered in cases where probation is supervised. The fee is ordered for unsupervised probation in some Counties on the basis that there is someone from the Department of Corrections who checks records a couple of times during the term of probation. See Iowa Code 905.14. f. Anderson v. State 801 N.W.2d 1 (Iowa 2011) i. Anderson has caused some stir. Anderson held that under Iowa s present statutory scheme an offender should receive credit for time served while on probation to the supervision of the 17

Department of Corrections. Iowa Code 907.3(3) was cited as the legislature requiring such credit. ii. The legislature amended 907.3(3) in 2012 to change the language from, a person so committed who has probation revoked shall be given credit for such time served to A person so committed who has probation revoked shall not be given credit for such time served. However, a person committed to an alternate jail facility or a community correctional residential treatment facility who has probation revoked shall be given credit for time served in the facility. iii. You may run into cases where the individual was sentenced before the code was amended. If that is the case you should consider arguing for Anderson credit and that the change in the statute was unconstitutional as applied as ex post facto. This cases are becoming fewer and fewer all the time. iv. Alternatively many Prosecutors and Courts are treating probation violations as Contempt of Court type sanctions and also extending the time individuals will be on probation. 2. Secondary/Collateral Consequences a. There are numerous secondary or collateral consequences of a plea. In practice you will learn what these are. You are not required to advise clients of secondary or 18

collateral consequences. Stevens v. State 573 N.W.2d 727, 728 (Iowa Ct. App. 1994). However, if you advise a client of collateral consequences you must be accurate. Meier v. State 337 N.W.2d 204, 207 (Iowa 1983). You are required to advise a defendant whether his plea carries a risk of deportation. Padilla v. Kentucky, 130 S.Ct. 1473 (2010) 3. The issues that appear most commonly are Immigration, Gun Rights, and Drivers License issues. Perhaps the most important collateral consequences are associated with the Sex Offender Registry and/or Special Sentences/Parole. Be sure to educate yourself if you should have a client charged with any level of sex offense. It is good practice to learn the collateral consequences so you can accurately advise your client of them. 4. I will deal with some collateral consequences under the appropriate specific crimes. However, be advised that you should be sure to conduct your own separate research and investigation, particularly in crimes that are classified as sex offenses 5. Surcharges a. Iowa Code 911.1 provides that a surcharge of 35% assessed in addition to the fines. A surcharge cannot be suspended even if the fine itself is. In felonies many times the fines are suspended. 19

b. There are numerous other surcharges in Iowa Law (DARE, Law Enforcement etc ) for further information please consult Judge Mullins chart. 6. Deferred Judgments a. Under Iowa Code 907.3 a court may defer judgment or sentence with the consent of a defendant. b. To summarize if judgment is deferred the Court places a defendant on probation and defers entering conviction against the defendant. If probation is completed the defendant may seek an order expunging and sealing the file. c. The defendant who receives a deferred judgment can honestly say they have never been convicted of the crime.because legally they have not been. d. A deferred judgment is not available to the following: i. An offense in violation of section 709.8 where the child is twelve or under ii. Where the defendant has previously been convicted of a felony. iii. Prior to the commission of the offense the defendant had been granted a deferred judgment or similar relief, two or more times anywhere in the United States iv. Prior to the commission of the offense the defendant had been granted a deferred judgment or 20

similar relief in a felony prosecution anywhere in the United States v. The defendant committed an assault as defined in section 708.1 against a peace officer in the performance of the peace officer s duty vi. The defendant is a corporation vii. The offense is an OWI and any of the following apply a. Defendant BAC exceed.15 b. Defendant has a prior OWI conviction c. Defendant refused to consent to testing d. There was bodily injury arising out of the OWI (other than the defendant) viii. A section 707.6A or 707.6A subsection 4 offense involving operation of a motor vehicle while intoxicated ix. The offense is a violation of section 124.401(1)(a) or (b) and the substance is methamphetamine x. The offense is a violation section 462A.14 and a mandatory minimum sentence must be served or mandatory minimum fine must be paid xi. The offense is violation of chapter 692A e. A violation of probation can result in either a contempt sanction or a revocation of the deferred and entry of conviction (but not both). State v. Keutla, 798 N.W.2d 731 (Iowa 2011) 21

f. Where the conviction results in the loss of firearms rights, one does not regain their firearms rights until successful completion of probation. State v. Deng Kon Tong, 805 N.W.2d 599 (Iowa 2011). g. Practice Tip: Two things. First, deferred judgments are not perfect. Although the court records are sealed evidence of the plea can be located by anyone who orders a criminal history from the Department of Criminal Investigations for $15.00. Second, you may want to follow up after probation and obtain an order expunging the defendant s record and sealing the file. The real problem arises when the person receives a deferred judgment and is placed on self supervised probation. In those scenarios no one provides an order to the Court to discharge and expunge the file. Therefore if expungment is critical to your client you should follow it up with a formal order expunging the charge or alternatively advise your client at the time of the sentencing order that it will be his/her obligation to do so. 7. Restitution a. Technically all financial obligations are considered restitution. Generally speaking, however, when an attorney or court refers to restitution they are usually referring to the compensation to a victim for financial loss associated with the crime. 22

b. Iowa Chapter 910 covers restitution. Generally the State will request restitution on behalf of a victim by filing a statement of pecuniary damages. The Defendant has a right to a hearing on the issue. c. Insurance providers are not eligible for restitution. In short there is an offset for restitution covered by insurance. There can also be an offset for restitution covered by a civil claim or judgment. State v. Paxton 674 N.W.2d 106 (Iowa 2004). d. There is an automatic restitution order for pecuniary damages in the amount of $150,000 to the victim s family in any felony case involving a death. This has been found constitutional. State v. Izzolena, 609 N.W.2d 541 (Iowa 2000). i. Civil settlements can offset this amount. State v. Driscoll, 839 N.W.2d 188 (2013) e. Restitution to the Crime Victim Compensation Program is mandatory under Iowa Code 910.2, however the district court has discretion to determine whether the losses for which restitution is sought were caused by the defendant s criminal activity. State v. Jenkins 788 N.W.2d 640 (Iowa 2010). III. Elements of a Crime A. It is the State's burden to prove the essential elements of a charge. State v. Gray, 216 N.W.2d 306, 307 (Iowa 1974). 23

IV. B. Not all elements can be proven by direct proof. In certain cases the State is permitted to prove its case by inference. State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992). An inference is to "derive by reasoning or implication or conclude from facts or premises." Henderson v. Scurr, 313 N.W.2d 522, 525 (Iowa 1981). C. I encourage you to do two things upon receiving a case. First, look at the statute. Understand what the statute requires. Second, look at the jury instructions. 1 Iowa presents a set of standard jury instructions. These jury instructions are often referred to as "stock" instructions. They are often a good starting point for evaluating the facts of a case. D. The elements for specific crimes will be discussed in more detail under Section V of this outline Crimes You Will Commonly See Early in Your Practice A. Alcohol Offenses 1. Supplying Alcohol to Minors (Iowa Code 124.47(1)) a. Elements a. Sell, give, or otherwise supply alcoholic liquor, wine or beer b. Knowledge or reasonable cause to believe the recipient to be under the legal age b. Penalties a. Generally a Serious misdemeanor. Punishable by a fine of $500.00. 1 Note that the model jury instructions may be the beginning of your analysis but they should certainly not be the end. Some of the best law is made by challenging the stock jury instructions as inadequate or erroneous. 24

c. If serious injury results from the supply of alcohol it is elevated to an aggravated misdemeanor d. If the supply of alcohol results in death it is elevated to a Class D Felony e. May result in loss of liquor license (see Iowa Code 123.50) c. Some pertinent case law a. Knowledge of minority of person buying beer is an essential element of the crime. State v. Lelchook, 186 N.W.2d 655 (Iowa 1971) b. Applies to social hosts. Bauer v. Dann, 428 N.W.2d 658 (Iowa 1988) 2. Purchase, Attempt to Purchase, or Possession by Minor (Iowa Code 124.47(2)) a. Elements 1. A person under the legal age 2. Purchases, attempts to purchase, or individually or jointly has alcoholic liquor, wine, or beer in their possession or control b. Defenses 1. Within a private home with consent of a parent or guardian 2. Handling an alcoholic beverage during the regular course of the persons employment c. Penalties 1. First Offense - Simple Misdemeanor - scheduled fine 25

2. Second Offense - Simple Misdemeanor - $500.00 fine and the defendant shall choose between getting a substance abuse evaluation or a driver's license suspension of up to one year 3. Third Offense - Simple Misdemeanor - $500.00 fine and a driver's license suspension of up to one year d. Expunging the Offender's Record (Iowa Code 123.47(7)) 1. two years after entry of conviction, the defendant can petition the court to expunge the conviction. The court shall expunge the conviction from the defendant's record if there are no other convictions in the last two years other than simple traffic violations. The Court shall order the defendant's criminal history data files maintained by the department of public safety. An expunged conviction shall not count for enhancement purposes unless the new violation occurs prior to the entry of the order expunging the defendant's record. e. Some Pertinent Case Law 1. The State must prove actual or constructive possession based upon facts which permit the inference of an intent to possess or control alcoholic beverages. In re W.B., 641 N.W.2d 543 (Iowa Ct.App. 2001). 3. Public Intoxication (Iowa Code 123.46(2)) a. Elements 26

1. Use or consumption of alcoholic liquor, wine or beer or intoxication 2. In any public place not covered by a liquor control license 3. Alternatively - the simulation of intoxication can result in a public intoxication charge (Iowa Code 123.46(2A)) b. Penalties 1. First offense - simple misdemeanor 2. Second offense - serious misdemeanor (Iowa Code 123.91(1)) 3. Third offense - aggravated misdemeanor (Iowa Code 123.91(2)) c. Expunging the Offender's Record 1. Same expunging provisions as set forth in 123.47 above - see Iowa Code 123.46(4). Once again an expunged conviction cannot be used for enhancement purposes. State v. Simmons, 500 N.W.2d 58 (Iowa 1993) d. Some Pertinent Case Law a. a private vehicle is not a public place even if located on a public street or in a public parking lot. State v. Lake, 478 N.W.2d 55 (Iowa 1991) b. Note - under Iowa Code 126.46(3) an defendant has a right to a chemical test at the defendant's expense. The defendant need only be offered a chemical test approved by the Commissioner of Public Safety. 27

According to the rules set forth by the Commission of Public Safety - a PBT is an approved chemical test 4. Operating While Intoxicated Iowa Code 321J a. This is a very very common offense. You should familiarize yourself with all aspects of this code section. There could be a separate outline on this offense alone. b. In particular familiarize yourself with implied consent procedures and IDOT procedures. Most people prioritize their driver s license over the criminal ramifications. This is why you need to know how the Iowa Department of Transportation handles license suspensions and the related issues such as appeals and work permits. c. Penalties 1. First Offense Serious Misdemeanor (2 day minimum mandatory) 2. Second Offense Aggravated Misdemeanor (7 day minimum mandatory) 3. Third Offense Class D Felony (30 day minimum mandatory) 4. These penalties are simply stated here but there are also requirements in order to re-obtain your unrestricted license. These are nuanced as well. I would point out one common mistake concerning second offenses. If the defendant elects not to install an ignition interlock device and wants to wait out the period of ineligibility to get his/her unrestricted license returned; the Defendant will 28

have a period of one (1) year where his license is unrestricted but he/she must have an interlock device installed. For what it s worth I learned this one the hard way. c. Quick Points 1. Elements: a. Defendant was operating a motor vehicle in this state 1. person must be in immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running. State v. Boleyn, 547 N.W.2d 202, 204 (Iowa 1996); State v. Murray, 539 N.W.2d 368, 369 (Iowa 1995)( operating encompasses an intoxicated person sleeping behind the wheel of a disabled car that has its engine running); 2. Operating extends to private property. State v. Rosentstiel, 473 N.W2d 59, 62 (Iowa 1991) 3. Operating may be proved by circumstantial evidence. State v. Braun, 495 N.W.2d 735 (Iowa 1993). b. While. 1. Under the influence of an alcoholic beverage or other drug or a combination of such substances 2. While having an alcohol concentration of.08 or more 29

3. While any amount of a controlled substance is present in the person, as measured in the person s blood or urine. 2. There are numerous issues relating to OWI that are too voluminous to address. These issues include but are not limited to a) probable cause for the stop; b) reasonable grounds to invoke implied consent; c) scientific issues concerning the level of intoxication at the time of driving; d) proper invocation of implied consent procedure; e) presumptions and time frames for invoking implied consent; f) whether the defendant has a commercial drivers license; g) and you get the point the issues are never ending 3. Practice Tip: understand the specific facts of your case and consider them in order. For example 1) was the grounds for the stop; 2) was there grounds for invoking implied consent; 3) did law enforcement follow the very specific implied consent procedures; 4) is there an argument that the defendant was below.08 at the time driving; 5) is there any defense to any element. This is of course a non-exhaustive list. d. Firearms and OWI s as many of you may know, in the last few years Iowa has loosened the requirements for obtaining a conceal carry permit. Specifically Iowa Code 724.7(1) state in relevant part: Any person who is not disqualified under section 724.8, who satisfies the training requirements of section 30

724.9 and who file an application in accordance with section 724.10 shall be issued a nonprofessional permit to carry weapons.. (emphasis added). 1. The result of this is that many people now have conceal carry permits. That results in the following scenario Mr. Smith has a permit to carry firearms; Mr. Smith is pulled over for OWI; Mr. Smith s carry permit says that it is (in addition to the OWI) is charged with Carrying Weapons in violation of Iowa Code 724.4 because the firearm was loaded or otherwise transported outside a closed and fastened container 2. This is a bad day for Mr. Smith. Now many people assume that Iowa law only prohibits felons from possessing firearms. However, under Iowa Code 724.25(1) a felon is defined as any offense punishable in the jurisdiction where it occurred by imprisonment for a term exceeding one year, but does not include any offense, other than an offense involving a firearm or explosive, classified as a misdemeanor under the laws of the state and punishable by a term of imprisonment of two years or less. 3. Well carrying weapons is an offense involving firearms and is punishable by a term of imprisonment exceeding one year. In other words a conviction for Carrying Weapons is defined as a felony for purposes of possessing firearms. 31

B. Assault Offenses 1. Some notes about assault offenses i. They are some of the most common charges you will see in your practice ii. They are some of the most unpredictable charges at trial iii. In order to avoid confusion - I have embedded some of the pertinent case law in the section itself 2. Simple Assault (Iowa Code 708.1) a. Elements 1. Without justification, a person commits any act 1. The state does not have to prove the absence of justification. Rather, justification is an affirmative defense which must be proven by the defendant. State v. Delay, 320 N.W.2d 831 (Iowa 1982) 2. Which is intended to either a. cause pain or injury OR b. result in physical contact which will be insulting or offense to another i. Personal injury is not required. "An assault may be committed without doing any personal injury." State v. Myers, 19 Iowa 517 (1865) ii. Assault is a specific intent crime. State v. Fountain, 786 N.W.2d 260 (Iowa 2010). Note that the statute states assault is a general intent crime. Iowa Code 708 introductory paragraph. However, the Iowa Supreme Court has said that 32

the elements of Assault require a specific intent instruction. c. coupled with the apparent ability to execute the act b. Alternative charging options a. Threats (Iowa Code 708.1(2)) 1. Any act 2. Which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive 3. Coupled with the apparent ability to execute the act b. Firearm (Iowa Code 708.1(3)) 1. Intentionally pointing any firearm toward another OR 2. Displaying in a threatening manner any dangerous weapon toward another c. Defenses a. There are a number of affirmative defenses available. The most common is Self Defense. If the case you have before you appears to have an argument concerning self defense be sure to view the jury instruction. Self Defense requires a number of elements to be shown by a defendant including but not limited to a requirement that there was no reasonable opportunity to retreat, and that the force was reasonable under the circumstances. 33

4. Penalties (Iowa Code 708.2) a. Assault causing bodily injury - Serious Misdemeanor 1. Bodily Injury is defined as "physical pain, illness, or any impairment of a physical condition". State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997) (a red mark or bruise is an impairment of a physical condition) b. Assault with intent to commit serious injury - Aggravated Misdemeanor 1. Serious injury is defined as an injury that could cause death or a substantial risk of death, serious permanent disfigurement, or a protracted loss of a bodily function. Iowa Code 702.18 c. Assault using or displaying a dangerous weapon - Aggravated Misdemeanor d. Assault without intent to commit serious injury, but who commits serious injury (Commonly referred to as assault causing serious injury) - Class D Felony e. Assault with intent to cause serious injury- Willful injury (Iowa Code 708.4) 1. Class D Felony - if it results in bodily injury (note this is a non-forcible offense) 2. Class C Felony - if it results in serious injury (this is a forcible offense) 2. Domestic Abuse Assault (Iowa Code 708.2A) a. Elements 34

a. An assault as defined in Iowa Code 708.1 b. Between the following individuals 1. Family or household members who resided together at the time of the assault 2. Separated spouses or persons divorced from each other and not residing together at the time of the assault 3. Persons who are parents of the same minor child, regardless of whether they have been married or have lived together at any time 4. Persons who have been family or household members residing together within the past year and are not residing together at the time of the assault b. Penalties a. A simple misdemeanor if it is a simple assault and is a first offense b. A serious misdemeanor if 1. Caused Bodily Injury 2. OR it is a second offense (and it would otherwise be a simple misdemeanor) c. Aggravated misdemeanor if 1. Committed with the intent to inflict a serious injury or if the person displays a dangerous weapon in connection with the assault 2. OR if the assault is a second domestic assault and was classified as a simple or aggravated 35

misdemeanor and the second offense would otherwise be classified as a serious misdemeanor 3. OR if assault constitutes second domestic assault, if the first offense was classified as a serious or aggravated misdemeanor and the second offense would otherwise be classified as a simple or serious misdemeanor d. Class D Felony if it is a third or subsequent offense 1. Note - convictions that are more than 12 years old do not count as a prior offense for enhancement purposes. (708.2A(5)(a)) 2. Note - enhancements do not require it to be the same victim. (Iowa Code 708.2A(5)(c)) e. Mandatory Sentences (Iowa Code 708.2A(6)(a)) 1. First Offense - Mandatory 2 days in jail 2. Second Offense - Mandatory 2 days in jail 3. Third Offense - Forcible Felony with a minimum mandatory 1 year sentence (Iowa Code 708.2A(6)(b)) 4. The convicted offender must complete Batterers Education Program (16 weeks) (Iowa Code 708.2A(9)) c. Secondary Consequences Firearms Rights and No Contact Orders 36

a. If an individual violates a no contact order it is a mandatory arrest and subject to either criminal or contempt sanctions b. Firearms 1. Although Iowa law does not create a lifetime ban from firearms - Federal law does 2. A deferred judgment does not protect firearms rights nor does a plea to a non-domestic assault charge. Federal Prosecutors and Courts will look to the factual basis of the charge 3. There is a potential argument that is untested as of yet concerning a plea to a simple assault pursuant to Iowa Code 708.1(2) 4. Practice Pointer - always advise the client of this collateral consequence and do so by correspondence 5. Also note that firearms rights in a deferred judgment scenario are barred until after the probation is complete. State v. Deng Kon Tong, 805 N.W.2d 599 (Iowa 2011) 3. Harassment (Iowa Code 708.7) a. Elements 1. With intent to intimidate, annoy, or alarm another person, the defendant does ANY of the following: a. Communicates with another by telephone, telegraph, writing, or electronic communication 37

without legitimate purpose and in a manner likely to cause the other person annoyance or harm b. Places a simulated explosive or simulated incendiary device in or near a building, vehicle, airplane, railroad engine or railroad care, or boat occupied by another person. c. Orders merchandise or services in the name of another, or to be delivered to another, without the other person's knowledge or consent. d. Reports or causes to be reported false information to a law enforcement authority implicating another in some criminal activity, knowing that the information is false, or reports the alleged occurrence of a criminal act, knowing the act did not occur 2. There is a personal contact alternative. A person can commit harassment by having personal contact with another person with the intent to threaten, intimidate, or alarm a. Personal contact means an encounter between two or more people in visual or physical proximity b. Touching or oral communication is not required 3. This is a specific intent crime - the defendant must intend to threaten, intimidate and/or alarm the alleged victim. State v. Evans, 672 N.W.2d 238 (Iowa 2003) b. Penalties (Iowa Code 708.7(2), (3) and (4)) 38

1. Harassment in the First Degree - Aggravated Misdemeanor a. Harassment in the First Degree arises when the defendant threatens to commit a forcible felony OR has been convicted of harassment (or any similar statute) three or more times in the previous 10 years 2. Harassment in the Second Degree - Serious Misdemeanor a. Harassment in the Second Degree arises when the defendant threatens to commit a bodily injury OR has been convicted of harassment (or any similar statute) two times in the previous 10 years 3. All other harassments are simple misdemeanors C. Theft (Iowa Chapter 714) 1. General Theft a. Theft by Taking Elements i. The defendant took possession or control of the property (Iowa Code 714.1(1)) a. Possession does not require actual physical possession of the property. It requires the exercise of control which is inconsistent with the Defendant s authority. State v Donaldson, 663, N.W.2d 882 (Iowa 2003). 39

ii. The defendant did so with the intent to deprive the owner of the property (Iowa Code 714.1(2)) a. The deprivation needs to be more than temporary but not necessarily permanent. State v. Berger, 438 N.W.2d (Iowa Ct. App. 1989). iii. At the time of the taking, the property belonged to or was in the possession of the owner (Iowa Code 714.1(3)) a. This element really goes towards the defense of claim of right 1. A defense is available to a defendant who can establish a reasonable belief that they had a possessory right to the property. This must be a reasonable belief and not a belief due to carelessness or negligence. State v. Freeman, 267 N.W.2d 69 (Iowa 1978). b. Theft by Misappropriation i. The defendant has possession of property through a trust, or has possession or control of property that belongs to another ii. The defendant intentionally misappropriated the property by using it or disposing of it inconsistent with the trust or the owners rights OR 40

iii. The defendant conceals or appropriates property that the defendant found when the owner of the property is known by the defendant a. This can occur in contractor cases where a contractor receives a down payment and then doesn t perform the work. State v. Galbreath, 525 N.W.2d 424 (Iowa 1994) b. Alternatively it can arise in cases where there is a failure to return rented property. State v. Bugely, 408 N.W.2d 394 (Iowa Ct. App. 1987) c. Theft by Deception i. There are six different ways that deception can arise a. Creating or confirming another s belief or impression as to the existence or nonexistence of a fact or condition which is false and which the actor does not believe to be true. (Iowa Code 702.9(1) b. Failing to correct a false belief or impression as to the existence of nonexistence of a fact or condition which the actor previously has created or confirmed. (Iowa Code 702.9(2)) c. Preventing another from acquiring information pertinent to the disposition of 41

the property involved in any commercial or noncommercial transaction or transfer. (Iowa Code 702.9(3)) d. Selling or otherwise encumbering property and failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of the property. (Iowa Code 702.9(4)) e. Promising payment, the delivery of goods, or other performance which the actor does not intend to perform or knows the actor will not be able to perform. (Iowa Code 702.9(5)) 1. The failure to perform is in and of itself insufficient to prove the case. There must be evidence of intent or knowledge that the act would not be performed. State v. Williams, 674 N.W.2d 69, 72 (Iowa 2004) f. Inserting anything other than lawful money or authorized token into the money slot of any machine which dispenses goods or services. Iowa Code 702.9(6) d. Receiving or exercising control over stolen property i. The property in question was stolen ii. The defendant exercised control over the property 42

iii. At the time the defendant exercised control, the defendant knew the property was stolen iv. The defendant did not intend to promptly return the property to the owner or deliver it to an appropriate public officer e. Penalties i. By and large the degree of theft is determined based upon the value of the property stolen. a. First Degree class C Felony value exceeds $10,000 b. Second Degree Class D Felony value exceeds $1,000 but not more than $10,000 OR 1. The theft of any automobile not exceeding a value of $10,000. (Iowa Code 714.2(2)) c. Third Degree Aggravated Misdemeanor value exceeds $500 but not more than $1,000 OR 1. When a person has twice previously been convicted d. Fourth Degree Serious Misdemeanor value exceeds $200 but not more than $500 e. Fifth Degree Simple Misdemeanor value less than $200. 43

ii. Value a. Value is determined by assigning the property the highest value by any reasonable standard at the time that the property was stolen. Reasonable standard includes but is no limited to market value within the community, actual value or replacement value. Iowa Code 714.3 b. Value can be aggregated so long as the state can prove that: 1. The thefts are the result of a single scheme, plan, or conspiracy 2. The money or property is stolen from the same person by two or more acts, or the money or property is stolen from different persons 3. The acts took place within the same location or time period. (Iowa Code 714.3). See also State v. Parker 342 N.W2d 882 (Iowa 1981). f. There are numerous other types of thefts dealing with specific types of property. Whenever you are reviewing a case you should review the code to assure that the type of property is (or is not) specifically defined and assigned an offense level based upon the type of property rather than value. 44

D. Burglary 1. Elements (Iowa Code 713.1) a. The defendant enters or breaks 1. Entry occurs when any part of the individuals body breaks the plane of the occupied structure. State v. Pace, 702 N.W.2d 764 (Iowa 1999). Entry can also include instruments used in the act of committing the burglary. State v. Nichols, 572 N.W.2d 163 (Iowa Ct.App. 1997) b. An occupied structure 1. A fenced enclosure next to a business is an occupied structure where it is incidental to and connected with the business, some business activities are carried on there; and it is used to store items of value. State v. Hill, 449 N.W.2d 626 (Iowa 1989) 2. You will find that virtually any structure or vehicle (or even parts of structures) are considered occupied structures. Note that the structure does NOT actually need to be occupied. c. Not open to the public d. Or after the person's right, license or privilege to be there has expired e. Having the intent to commit a felony, assault or theft therein 1. Intent is an essential element. State v. Reaves, 254 N.W.2d 488 (Iowa 1977) 2. Intent is an element that is usually inferred. State v. Lambert, 612 N.W.2d 810 (Iowa 2000); intent can be 45

inferred when a perpetrator breaks and enters any structure containing removable property of value. State v. Clay, 213 N.W.2d 473 (Iowa 1973) 3. Intent must be formed prior to entry. U.S. v. Thomas, 565 F.3d 438 (8th Cir. 2009) 4. An individual can be too intoxicated to formulate an intent to commit a crime. State v. Bell, 29 Iowa 316(Iowa 1870); this is a question for the jury. State v. Conners, 64 N.W. 295 (Iowa 1895) 2. Issues Concerning Degree a. The difference between First, Second and Third Degree Burglaries a. First Degree Burglary (Iowa Code 713.3) 1. A defendant perpetrates a burglary in or upon an occupied structure in which one or more persons are present, and the defendant either a. has possession of an explosive or incendiary device/material or a dangerous weapon or 1. The possession of the dangerous weapon can arise after entry. State v. Olsen, 482 N.W.2d 452 (Iowa 1985) b. Intentionally or recklessly inflicts bodily injury on any person 46

c. The person participates or performs a sex act which constitutes sexual abuse under Iowa Code 709.1 b. Second Degree Burglary (Iowa Code 713.5) 1. A defendant perpetrates a burglary in or upon an occupied structure in which no persons are present and a. The person possess an incendiary or explosive device or materials or a dangerous weapon 2. Penalties a. Burglary in the First Degree - Class B Felony (Forcible) b. Burglary in the Second Degree - Class C Felony c. Burglary in the Third Degree - Class D Felony d. Burglary in the Third Degree (Vehicle) - An aggravated misdemeanor unless it is a second or subsequent offense in which case it is a Class D Felony e. Attempted First Degree Burglary - Class C Felony f. Attempted Second Degree Burglary - Class D Felony g. Attempted Third Degree Burglary - Aggravated Misdemeanor h. Attempted Third Degree Burglary (Vehicle) - Serious Misdemeanor unless it is a second or subsequent offense in which case it is an Aggravated Misdemeanor 47

i. Attempt is satisfied if the State proves "slight acts in furtherance of the crime that render voluntary termination improbable...the act needed for attempt [is] one that would reach far enough towards the accomplishment, toward the desired result, to amount to the commencement of the consummation, not merely preparatory. It need not...be the last proximate act to the consummation of the offense..." State v. Erving, 346 N.W.2d 833 (Iowa 1984) E. Damages and Trespass to Property 1. Criminal Mischief (Iowa Code 716.1) a. Elements a. Damage, defacing, alteration or destruction of property b. Done intentionally 1. The statute requires that the defendant have a specific intention to do damage - not a specific intention to do the act. State v. Chang, 587 N.W.2d 489 (Iowa 1999) c. Without the right to do so 1. Co-ownership is not a defense. One spouse can be charged with damaging marital property. State v. Zeien, 505 N.W.2d 498 (Iowa 1993) b. Penalties a. First Degree - Class C Felony (Iowa Code 716.3) 48

1. If the cost of replacing, repairing, or restoring the property so damaged, defaced, altered, or destroyed is more than $10,000 OR 2. If such acts are intended to or do in fact cause a substantial interruption or impairment of service rendered to the public by a gas, electric, steam or waterworks corporation or utility b. Second Degree - Class D Felony (Iowa Code 716.4) 1. If the cost of the property exceeds $1,000 but not $10,000 c. Third Degree - Aggravated Misdemeanor (Iowa Code 716.5) 1. The cost of the property exceeds $500 but not $1,000 2. The property is a deed, will, commercial paper or any civil or criminal process or other instrument having legal effect 3. The act consists of rendering substantially less effective than before any light, signal, obstruction, barricade, or guard which was placed or erected for the purpose of enclosing any unsafe or dangerous place or alerting persons to an unsafe or dangerous condition 4. The defendant disinters human remains from a burial site without lawful authority. 49

5. The act is one of intentional disinterment of human remains that have historical or scientific importance without the permission of the state archaeologist d. Fourth Degree - Serious Misdemeanor 1. The cost of the property exceeds $100 but not $500 2. The defendant displaces survey markers e. Fifth Degree - Simple Misdemeanor 1. The cost of the property does not exceed $100 2. Criminal Trespass (Iowa Code 716.7(a)) a. Elements a. Entering upon or in property b. Without express permission of owner, lessee, or person in lawful possession c. With the Intent to commit public offense; to use, remove alter, damage harass, or place anything thereon; or to hunt, fish or trap b. Penalties (Iowa Code 716.8) a. Generally a Simple Misdemeanor b. Serious Misdemeanor if 1. The trespass results in injury to any person or damage in an amount more than one hundred dollars a. damage is limited to the destruction of property. Loss by theft does not constitute 50

damage. State v. Chase, 335 N.W.2d 630 (Iowa 1983) 2. Trespass to Commit a hate crime as defined in Iowa Code 729A.2 c. Aggravated Misdemeanor if 1. Trespass occurs with the intent to commit a hate crime which results in injury to any person or damage in an amount more than $100 (Iowa Code 716.8(4) c. Defenses a. Retrieval of Personal Property. It is not trespass to retrieve personal property if: (1) entry was for the sole purpose of retrieving an item of personal property; (2) the item had accidentally or inadvertently ended upon on property of another; (3) the retriever took the most direct and accessible route in retrieving; (4) retriever exited as quickly as possible; and (5) retriever did not unduly interfere with lawful use of property entered upon. (Iowa Code 716.7(3)) b. Hunter retrieval. Hunters are permitted to enter upon property without their weapons to retrieve game or animals that have been wounded or killed and have come to rest on, or escape to, that property. (Iowa Code 716.7(2)(a) F. Drug Crimes (Iowa Code 124.401) 51

1. The list of drug crimes is massive. There are a number of nuances to the various types of drug involved and quantities. You should be familiar with the evidentiary requirements and sentencing factors for the particular drug you are dealing with. This outline and presentation would be many times longer. Be familiar with the law the effects your case. With that said I will attempt to outline some common issues. a. When discussing various elements I will utilize marijuana since it is very common. However, that 2. Possession a. Elements (Iowa Code 124.101(16)) i. Did the defendant knowingly or intentionally possessed marijuana ii. The defendant knew that the substance they possessed was marijuana b. Actual or Constructive Possession. i. When discussing possession of controlled substances, possession can be actual or constructive. State v. Maghee, 573, N.W.2d 1,10 (Iowa 1997) ii. Actual possession arises when the defendant has direct physical control over the drug. Maghee at 10 (Iowa 1997) iii. Constructive possession arises when a defendant has knowledge of the drug s presence and the 52

authority or right to maintain control of the drug(s). Maghee at 10 (Iowa 1997) a. This is generally the fighting issue in possession cases. What is the defendant s authority or right to maintain control. Knowledge and proximity is insufficient alone to prove the necessary element. State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003) and related cases. iv. Cashen, 666 N.W.2d 566, 572 (Iowa 2003)(citing State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002)) lists factors which can support a finding of constructive possession include, but are not limited to: a. Incriminating actions or statements by the defendant b. The discovery of drugs among or near the defendant s personal belongings c. The defendant s fingerprints on the packages containing drugs, d. And other circumstances linking the defendant to the drugs. v. See also the additional factors in State v. Atkinson, 620 N.W.2d 1, 4 (Iowa 2000) a. Was the contraband in plain view 53

b. Were the drugs found in the defendant s personal effects c. Were the drugs found on the same side of the car seat as the defendant or immediately next to him or her d. Was the defendant the owner of the vehicle e. And finally, was there suspicious activity by the defendant. 3. Possession with Intent to Deliver (Iowa Code 124.401(1)(d)) a. Elements i. The defendant knowingly possessed a controlled substance ii. The defendant knew the substance was a controlled substance iii. The defendant possessed the substance with the intent to deliver a controlled substance to another b. The most common issues in these cases are twofold. First, possession (see above). And second, delivery. i. In order to deliver the defendant must have actually, constructively, or attempted transfer of a substance from one person to another. The evidence of intent is often circumstantial. State v. Adams, 554 N.W.2d 686 (Iowa 1986). ii. Delivery can be simply sharing the drug. The Iowa Supreme Court has found that an individual 54

who purchases drugs and shares them with others has delivered a controlled substance. State v. Moore, 529 N.W.2d 264, 265-66 (Iowa 1995). iii. The evidence concerning delivery can be based on such circumstantial evidence as quantity and packaging. State v. Simpson, 528 N.W.2d 627 (Iowa 1995)(later overruled by State v. Webb, 648 N.W.2d 72 (Iowa 2002) but on a separate issue). See also the unreported case of State v. Skinner, 2004 WL 144201 (Iowa Ct.App. 2004)(finding that the fact the defendant was on a bus with 4 pounds of marijuana, traveling from a source state to a destination state, was sufficient evidence) iv. Also note, that if the charge alleges a conspiracy to distribute or deliver the drug, actual delivery is irrelevant. State v. Draper, 457 N.W.2d 606 (Iowa 1990). 4. Drug Tax Stamp (Iowa Code 453B.12) a. Elements i. The defendant is a dealer ii. Who unlawfully possesses, distributes or offers to sell iii. A taxable substance iv. Without affixing a stamp, label, or other indicia evidencing that the state excise tax has been paid b. Dealer (Iowa Code 453B.1(3) 55

i. Any person who ships, transports or imports into this state or acquires, purchases, possess, manufactures, or produces in this state any of the following: a. 7 or more grams of a taxable substance other than marijuana, but including a taxable substance that is a mixture of marijuana and other taxable substances b. 42.5 grams or more of marijuana or of a substance consisting of or containing marijuana c. 1 or more unprocessed marijuana plant d. 10 or more dosage units of a taxable substance which is not sold by weight. This can include prescription drugs without a valid prescription. e. Exception: a person who lawfully ships, transports, or imports into this state or acquires, purchases, possesses, manufactures, or produces a taxable substance in this state is not considered a dealer c. Warning a dismissal of the case or a plea which results in a dismissal of the Drug Tax Stamp charge does not mean that there is no Tax. The Iowa Department of 56

Revenue can proceed to collect the tax, and has historically done so in some cases. G. Failure to Appear (Iowa Code Chapter 811) 1. Elements (Iowa Code 811.2(8) a. Release pursuant to Iowa Code 811 b. willful failure to appear before any court or magistrate c. as required by the court d. while awaiting sentence or pending appeal after conviction of any public offense 2. Willful Failure to Appear a. Willful Failure can be established by a defendant s knowledge of the hearing or trial date. State v. Johnson, 770 N.W.2d 814 (Iowa 2009). 3. Penalties a. If the underlying charge is a felony, the failure to appear is a Class D Felony b. If the underlying charge is a misdemeanor, the failure to appear is a Serious Misdemeanor c. If the individual was released as a material witness, the failure to appear is a simple misdemeanor H. Forgery (Iowa Chapter 715A) 1. There are essentially two main types of Forgery a. Forgery b. Uttering a Forged Writing 2. Elements: Forgery 57

a. The defendant, with the intent to defraud, or with the knowledge the defendant is facilitating a fraud committed by another does any of the following: i. Alters a writing of another without permission ii. Makes, completes, executes, authenticates, issues, or transfers a writing purporting to be the act of another without permission or authority iii. Makes, completes, executes, authenticates, issues, or transfers a writing purporting to have been executed at a time or place or in a numbered sequence other than in fact is the case iv. Makes, completes, executes, authenticates, issues, or transfers a writing purporting to be a copy of an original when no such original exists. 3. Elements: Forgery by Utterance a. The defendant uttered a writing i. An utterance occurs where a defendant offers a writing to another and represents it is genuine. State v. Uthe, 542 N.W.2d 810 (Iowa 1996). b. The defendant knew the writing was i. Altered without permission ii. The defendant knew the writing purported to be the act of another without that person s permission iii. The defendant knew the writing purported to be executed at a time or place or numbered sequence when it was not 58

iv. The defendant knew the writing purported to be a copy of an original when no such original exists c. The defendant intended to defraud or injure another or knew that they were helping to accomplish a fraud or injury to another 4. Penalties a. It is a Class D Felony if it involves instruments issued by the Government, checks, stock certificates or immigration materials. (Iowa Code 715A.2(2)(a) b. It is an Aggravated Misdemeanor if the instrument is a will, deed, contract, release, commercial instrument, or any other writing. (Iowa Code 715A.2(2)(b) c. If it involves a credit card, the penalty can vary depending on value. (Iowa Code 715A..6(1)) V. Miscellaneous Issues Under Iowa Criminal Law A. Aiding and Abetting 1. The commission of a public offense or aiding and abetting in its commission are charged, tried and punished the same as if all parties were principles. (Iowa Code 703.1) a. Aiding and Abetting is proven if substantial evidence shows the accused assented to or lent countenance and approval to another s criminal act either by active participation or by some manner encouraging it prior to or at the time of commission. State v. Browne, 494 N.W.2d 241 (Iowa 1992) A jury can find a defendant guilty of aiding and abetting when a defendant was 59

shown to associate himself with the venture, that he participated in it as something he wished to bring about, that he sought by his action to make it succeed. State v. Galvan, 297 N.W.2d 344 (Iowa 1980) i. Knowledge of the perpetrator s crime prior to the crime occurring is an essential element. State v. Lewis 514 N.W.2d 63 (Iowa 1994); State v. Vesey, 241 N.W.2d 888 (Iowa 1976) a. Proof of knowledge can be inferred from the circumstances surrounding the act. State v. Buttoph 204 N.W.2d 824 (Iowa 1972) 1. Ex. Sufficient evidence existed that defendant aided and abetted his principal in the robbery and murder of the victim. He took an active part in the planning, he drove the others to and from the murder scene, and he knew that the principal took a gun with him and was going to beat the victim. State v. Ramirez, 616 N.W.2d 587 (Iowa 2000) ii. Although knowledge is an essential element, neither knowledge or presence alone are sufficient to support an aiding and abetting conviction. After knowledge is proven, the state must show either 60

active participation in the crime, or alternatively, encouragement in some manner (albeit a passive manner) prior to or at the time of its commission. State v. Hustead, 538 N.W.2d 867 (Iowa Cr. App. 1995) iii. The reach of an aiding and abetting theory can be far. See the application of the theory in two vehicular manslaughter cases. State v. Dalton 674 N.W.2d 11 (Iowa 2004) ( The State need only prove [defendant] assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission; State v. Satem, 5216 N.W.2d 839, 842-45 (Iowa 1994)( One need not drive a vehicle or physically assist the driver in doing so in order to actively participate or encourage a crime which requires operating a motor vehicle at the time of its commission. B. Joint Criminal Conduct 1. Joint Criminal Conduct is used by the prosecution when a defendant is being prosecuted for an offense other than one which the defendant agreed to aid and abet. (Iowa Code 703.2) 2. Elements 61

a. The defendant was acting in concert with another to commit a public offense; b. The defendant was knowingly participating in a public offense; c. A secondary offense was committed by another participant in furtherance of the primary offense; d. The commission of the secondary offense was reasonably foreseeable C. Accessory After the Fact (Iowa Code 703.3) 1. Any person having knowledge that a public offense has been committed and that a certain person committed it, and who does not stand in the relation of husband or wife to the person, who committed the offense, who harbors, aids or conceals the person who committed the offense, with the intent to prevent the apprehension of the person who committed the offense, commits an aggravated misdemeanor if the public offense committed was a felony, or commits a simple misdemeanor if the public offense was a misdemeanor. a. Requires more than failing to report a known criminal State v. Bosworth, 152 N.W. 581 (Iowa 1905) b. The State must show knowledge and an act with the specific intent to prevent the arrest of the individual who committed the crime. D. Conspiracy (Iowa Chapter 706) 62

VI. 1. Conspiracy is a distinct crime, not a method of proving the completed offense. This is what distinguishes conspiracy from aiding and abetting. 2. Elements a. An agreement between two or more to commit an offense, either a felony or aggravated misdemeanor b. an intent to promote the offense at the time of the agreement c. an overt act in furtherance of the agreement d. the alleged co-conspirator is not law enforcement agents investigating the offense or assisting law enforcement agents when the conspiracy began 3. Conspiracy changes the rules to a degree. For example, a coconspirator s out of court statements are admissible against the defendant without violating hearsay or confrontation rules. a. The question is usually whether or not the statement was in furtherance of the conspiracy. The time at which the conspiracy ends depends upon the particular facts of the case. State v. Beckett, 383 N.W.2d 66 (1985). Generally the conspiracy does not extend to a point after arrest. 4. If you have a conspiracy case get help and do your homework they are a unique beast. Three current hot issues to keep in mind A. Plea offers 63

1. In 2012 the United States Supreme Court found that counsel s failure to convey a plea offer was ineffective assistance of counsel. Prejudice will arise where a Defendant can show a reasonable probability that he would have accepted the plea and that the plea would have been entered without the prosecution canceling or the trial court refused to accept it. Missouri v. Frye, 132 S.Ct. 1399 (2012). This case law is relatively undeveloped in Iowa to date B. Multiple Counts 1. There have been a number of cases recently which address when an action or actions can result in multiple counts of an offense. In State v. Velez, 829 N.W>2d 572 (Iowa 2013) the Supreme Court addressed a scenario where an assault on a single victim can result in multiple counts. a. The Court applied three tests. The separate acts test; the break-in-the-action test, and the completed-acts test. The goal being to determine whether a fact finder could determine whether two separate and distinct acts of assault occurred or whether it was a continuous act. 2. In State v. Ross, March 21, 2014 N.W.2d (Iowa 2014) the Iowa Supreme Court examined this same issue where a defendant fired multiple shots in the air around multiple citizens. In Ross the Court found that two sets of separate multiple shots justified conviction of two counts but not five. 3. In State v. Copenhaver, 844 N.W.2d 442 (Iowa 2014) the Supreme Court found that a defendant who approached two 64

separate bank tellers during the course of a robbery could be convicted of two separate robberies. C. Juvenile Sentences 1. A number of cases recently have discussed mandatory minimum sentences for defendants who were juveniles at the time of the offense but convicted as adults. For further discussion please see State v. Null, 836 N.W.2d 41 (Iowa 2013); State v. Pearson, 836 N.W.2d 88 (Iowa 2013); and State v. Ragland, 836 N.W.2d 107 (Iowa 2013) VII. Some Ethics Issues A. Avoiding Conflicts in Representation 1. Conflicts can arise during a case. For example, the complaint may set forth a generic set of facts without the identity of any witnesses. Once you receive the trial information (or copies of police reports) other witnesses may be identified that create a conflict. 2. Rule 32.EC5-1 The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of other clients, nor the desires of third persons should be permitted to dilute a lawyer s loyalty to a client 3. 32.DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer a. (B) A lawyer shall decline proffered employment if the exercise of independent professional judgment on 65

behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment except to the extent permitted under Rule 32.DR 5-105(D) b. (C) A lawyer shall not continue multiple employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the representation of another client, to the extent permitted under Rule 32.DR 5-105(D) c. (D) In situations covered by Rule 32.DR 5-105(B) and Rule 32.DR 5-105(C), a lawyer may represent multiple clients if it is obvious that the lawyer can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer s independent professional judgment on behalf of each. d. (E) If a lawyer is required to decline employment or to withdraw form employment, no partner or associate of the lawyer or the lawyer s firm may accept or continue such employment. 4. State v. Watson, 620 N.W.2d 233 (Iowa 2000) a. This is a case where two public defenders were assigned to represent Watson in a murder case, but one of the defenders had represented the State s star witness. While the representation of the witness was over at the time of trial, there was an overlap between the cases. 66

b. The Supreme Court found that the defender had a duty to zealously represent Watson. (then rule) EC 7-1. The Supreme Court also found that the defender had a duty to the witness to refrain from revealing confidences. (Then rule) DR 4-101(A). Based upon this conflict the Supreme Court reversed the conviction and remanded the case for new trial. c. Since Watson, there has been a growing trend to require evidence of prejudice before reversal is required. Mickens v. Taylor, 535 U.S. 162 (2002). d. Compare Watson with State v. Smitherton, 733 N.W.2d 341 (Iowa 2007). Smitherton leaves open the possibility that under Iowa s constitution prejudice can still be presumed. e. Remember there is also a duty of loyalty to your client as well. In the recent case of State v. Vaughan, 13-0224 (May 14, 2014) the Iowa Court of Appeals reversed a conviction in which trial counsel was told by one client that he wished to speak to the County Attorney about the case in which the attorney was representing Mr. Vaughan. Mr. Vaughan s attorney informed the prosecutor of this and continued to represent Mr. Vaughan. This was found to result in presumed prejudice. He attorney s torn allegiance during a critical stage of pretrial proceedings constitutes circumstances of such magnitude allowing us to presume prejudice. (Id. 67

at 10). Further, Vaughan has shown a particularized instance where his attorney s divided loyalties worked to his detriment. [Counsel] told the State about Cline s information an act which may have benefitted Cline but hurt Vaughan s case. Id. at 10. f. The bottom line is that if this scenario arises for you the conservative and my suggested approach is to withdraw from both cases immediately and have separate counsel appointed to both defendants. At a minimum withdraw from the case of the client who you have the least familiarity with and seek judicial relief concerning the remaining client. B. When Your Client Changes his Story 1. Rule 32.DR 7-102 Representing a Client Within the Bounds of the Law. a. (A) In the representation of a client, a lawyer shall not: i. (4) Knowingly use perjured testimony or false evidence b. (B) A lawyer who receives information clearly establishing that: i. (1) A client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal in all circumstances except when barred 68

from doing so by Iowa Code section 622.10. If barred from doing so by Iowa Code section 622.10, the lawyer shall immediately withdraw from representation of the client unless the client fully discloses the fraud to the person or tribunal. 2. Iowa Code 622.10 Communications in professional confidence a. A practicing attorney, or the stenographer or confidential clerk of any such person, who obtains information by reason of the person s employment, shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person s professional capacity, and necessary and proper to enable the person to discharge the functions of the person s office according to the usual course of practice or discipline. b. The prohibition does not apply to cases where the person in whose favor the prohibition is made waives the rights conferred. 3. Iowa Code 720.3 a. A person who procures or offers any inducement to another to make a statement under oath or affirmation in any proceeding or other matter in which statements under oath or affirmation are required or authorized, with the intent that such person will make a false 69

statement, or who procures or offers any inducement to one who the person reasonably believes will be called upon for a statement in any such person, commits a class D Felony. 4. Nix v. Whiteside, 470 U.S. 157 (1986) a. A defendant s Sixth Amendment right to counsel is not violated by his attorney s refusal to cooperate with defendant in presenting perjured testimony. VIII. Some Final Thoughts A. The best practice is to do 80% of your work in the first 20% of the case 1. If you are able to identify the elements of the crime, locate and interview witnesses, and identify the strengths and weaknesses of the case early it goes a long way to: a. identify discovery issues b. prepare for discovery depositions c. filing pretrial motions d. plea negotiations e. not to mention communicating with your client B. Some words to remember 1. Always have a little disbelief in your own client. Do not presume the evidence will support your client s version of events. In short, do your due diligence and discovery. 2. Don t be afraid to utilize all the tools of discovery, including but not limited to, requesting court approval for the payment of experts and investigators. 70

3. Don t be afraid to go to trial if that is your client s desire. C. Where to go for help 1. Join organizations that have an emphasis in Criminal Law (ISBA, NACDL, Iowa Association for Justice) a. List services and blogs are a gift from heaven. The generosity of other attorneys never ceases to amaze me. 2. Discuss cases with other attorneys. a. This is called the practice of law for a reason. We are always learning. Often other lawyers can spot issues and ask questions about the case that you either haven t thought of or were too close to see. 3. If nothing else feel free to email or call me. I may not be able to help, but the odds are high that I can get you to someone who can. 71

Eric D. Tindal Nidey Erdahl Tindal & Fisher, PLC 600 Court Street P.O. Box 656 Williamsburg, Iowa 52361 (319)668-1323 etindal@eiowalaw.com

The outline is divided into criminal law and criminal procedure. These are artificial lines in practice. The categories are intrinsically intertwined The structure of the discussion will be to use a basic criminal appointed case as an example of how to manage a court appointed case I will be discussing ancillary issues as they arise and leave some time for questions at the end to answer any specific questions

There are always cases where you find yourself over your head Remember it is called the PRACTICE OF LAW and it is called that for a reason Always feel free to ask others for help Iowa State Bar Association Criminal Defense Division Iowa Association of Justice Criminal Core Group Other attorney s practicing in your county or jurisdiction Feel free to call or email me

You want to pay close attention to a couple of issues immediately: Conditions of Release Preliminary Hearing Date Conflict Analysis [if possible at this stage] If it is an OWI you may want to file a DOT appeal if within 10 days of arrest

In all likelihood you will have been hired or appointed to represent a defendant after the initial appearance This means that the first scheduled court date will be a preliminary hearing Iowa R. Crim. P. 2.2(4)(1) requires that a preliminary hearing take place within 10 days (if the defendant is in custody) or 20 days (if the defendant is not in custody) Virtually always a trial information is filed in lieu of actual hearing. See I.R.Crim.P. 2.5

The State calls a witness or witnesses to show probable cause to proceed on the charges The witness can present hearsay You, as defense counsel, have the right to cross-examine the witness My advice, however, is never waive the preliminary hearing if you have the opportunity to have one

If the defendant is in custody file a motion (similar to the one pictured) to have the defendant released from custody Note: Dismissal is not really an option See State v. Rouse, 290 N.W.2d 911 (Iowa 1980) If the defendant is not in custody my advice is to wait quietly and see if the 45 day period runs pursuant to Iowa R. Crim. P. 2.33 Note: The 45 days starts the day after arrest See State v. Sheets, 333 N.W.2d 886 (Iowa 1983)

Pretrial release procedures will vary by jurisdiction should be evaluated immediately if the defendant is detained Get familiar with your jurisdictions procedures quickly. Often the most important act you will do is to secure the defendant s release Helps with sentencing Builds client/attorney rapport and trust

Arraignment generally happens two weeks after approval of the trial information The most important element is whether your client waives or demands speedy trial Iowa R.Crim.P. 2.33(2)(b) states that trial must be brought to trial within 90 days of the date the trial information is approved if speedy trial is demanded If you waive speedy trial there is still a requirement to hold trial within 1 year of the date the arraignment is filed.

One of the initial steps you will take is to identify the charge and the level of charge identified quick review of the facts as they relate to the law Misdemeanor Felony Minimum Mandatory/Collateral Consequences Jury Instructions Elements Suppression Issues

Felonies Class A Class B Class C Class D Misdemeanors Aggravated Serious Simple See Judge Mullins Sentencing Chart Exhibit A following Criminal Law Outline Be sure to consider collateral consequences ex. Immigration, Sex Offender Registry, and Drivers License

Discovery tools include a request for production of documents and depositions You should consider the use of discovery tools and the ramifications for exercising discovery tools example if you take depositions then you are required to provide the state with a witness list

IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY STATE OF IOWA, ) Plaintiff, ) NO. FECR089277 ) vs. ) ) MOTION TO APPOINT EXPERT ) Defendant. ) COMES NOW the Defendant, by and through his counsel, and requests the Court appoint an expert to assist the Defense in preparing for trial. In support of this motion the Defendant states as follows: 1. That in reviewing the discovery in this case there are a number of medical specific issues. These include the presentation of certain symptoms and multiple psychological diagnoses of the alleged victim including but not limited to post-traumatic stress disorder. 2. That the undersigned has no background in these fields and would like to consult with an expert for purposes of trial preparation and discovery analysis. That in order to prepare a competent and effective defense the undersigned believes this consultation is necessary. 4. That the Defendant has been found indigent as shown by the Defendant s financial affidavit filed in this case. Defendant is currently unemployed and has no way of paying for this expert himself. 1 5. When an accused person is indigent and cannot afford expert services necessary to his defense in a criminal case, statutory and constitutional law requires that the State provide him with funds sufficient to retain the expert. See Rule 5.706 of the 6. The accused defendant has a right to the effective assistance of counsel, including expert assistance necessary to render his counsel effective. United States Constitution, Sixth and Fourteenth Amendments; Iowa Constitution, Article 1, Section 10. Although trial court should prevent random fishing expeditions undertaken in search of rather than in preparation of a defense, see State v. Aguilar, 325 N.W.2d 100, 102 (Iowa 1982), it should not withhold appointment of an expert when the facts asserted by counsel reasonably suggest further exploration may prove beneficial to defendant in the development of his or her defense. United States v. Schultz, 431 F.2d 907, 911 (8th Cir.1970). When trial court, upon its independent review of the record made when the motion is submitted, concludes counsel's request is reasonable under the circumstances and may lead to development of a plausible defense, counsel's request should be granted. State v. Coker, 412 N.W.2d 589, 592 (Iowa 1987). testimony of 7. Here counsel considers it necessary to have assistance in evaluating the, and evaluating many aspects of the alleged victim s statements and testimony for purposes of preparing informed and effective cross-examination questions. WHEREFORE, Defendant prays that the Court will authorize him to employ Dr. purposes of consultation and guidance in an amount not to exceed $1,000.00. Respectfully Submitted, for Eric D. Tindal AT0007950 Nidey Erdahl Tindal & Fisher, PLC 600 Court Street, P O Box 656 Williamsburg, IA 52361 Tele: 319-668-1323 Fax: 319-668-1706 etindal@npetlaw.com ATTORNEY FOR DEFENDANT 1 Counsel notes that a relatively recent filing reflected that the Defendant had gained new employment since his last financial affidavit. The Defendant has since lost that employment Copy to: Johnson County Attorney Motion for Appointment of Expert

Often depositions will be a discovery deposition During a discovery deposition all objections with the exception of privilege and form of the question will be reserved for trial In other words, you can ask almost anything that is relevant or is reasonably likely to lead to evidence that is relevant to your defense

Grand Jury Transcripts Hearing Transcripts (Hearing on a Motion to Suppress) IDOT Hearing Tapes which can later be transcribed Trial of a Co-Defendant

Affirmative Defenses Motion to Suppress

The other primary motion to file on a pretrial basis is a motion in limine A motion in limine is intended to resolve evidentiary disputes that either party believes may be presented by opposing counsel and which presentation may poison the right of the parties to fair trial Use motions in limine frequently

This is what being an attorney is all about Even if you are scared of trial go for it I promise it is not as bad as your imagination leads you to believe I hate trial before it begins I like trial while its going I love trial after I can look back at it

Critical Part of Trial Prepare Know Your Case Know Your Theory of Defense Know What type of juror you want to serve Know your Panel Don t be afraid to discuss what you are most afraid of

I know it s cliché but you should rarely ask a question that you do not already know the answer to Important to understand your theory of defense or prosecution in crafting your cross-examination Know our rules of evidence it is amazing what you can learn when you read the rules and the statutes

In both opening statement and closing argument you need to understand the theme of your defense or prosecution Use the facts in opening Bring the arguments home in closing

Be prepared for sentencing Call witnesses or alternatively gather witnesses statements Know your judge Know your arguments Review the Presentence Investigation Report (usually only with felonies) Know your prosecutor

The vast majority of your cases will result in a plea bargain and subsequent guilty plea Misdemeanors can be written only Felonies usually I try to have a written plea but there must also be a plea in open court In Iowa the primary purpose of the plea hearing is to assure the defendant understands his/her rights; is knowingly waiving those rights; and that there is a factual basis to support the plea

The Court has sole discretion to determine a sentence However, under Iowa Rule of Criminal Procedure 2.10 the State and the Defense can agree to bind the court If the court chooses not to be bound, the Defendant is given the opportunity to withdraw his guilty plea The use of 2.10 is more common in misdemeanors but this may depend on the jurisdiction Alford Plea Iowa R.Crim.P. 2.10

Probation Revocation is unique Burden of Proof is a preponderance Can rely on hearsay Disposition Contempt and or imposition of suspended sentence

You will usually be retained or appointed shortly after a petition to revoke is filed The burden is on the state however the normal rules of evidence are inapplicable and the burden is limited to a preponderance of evidence Options Contempt Revocation and either a sentence (if underlying sentence was deferred) or imposition of the balance or some portion of the sentence previously imposed

Appeal is important You have 30 days from final judgment to file your Notice of Appeal Know the rules of appellate procedure 1. Deadlines 2. Page Limits 3. Appendix

Some of you may be appointed early on to a post-conviction relief case Identify the issues Gather the necessary information Talk to your client meet them personally if possible but at a minimum schedule a telephone conference(s)

Make sure you understand the rules what you are reimbursed for and what you are not Attention to File is not sufficient Mileage paid but not travel time Make sure you understand the fee limitations File a Motion to Exceed and Order Early Do not be afraid to appeal to the district the rules are meant to be a shield against abuse, not a sword to slash otherwise reasonable fees

OWI: Implied Consent and Experts PCS: Defining Possession See State v. Thomas (May 30, 2014) Domestic Assault: Gun Rights OWI: IDOT Hearings Preserving the Record: Offer of Proof and Voire Dire of Witness for Objection