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Description: Davenport, Iowa criminal law lawyer represented Defendant charged with criminal gang participation, a class "D" felony.

On April 28, 2021, Davenport police detectives were conducting surveillance at an apartment on Emerald Drive following a gang-related homicide. The detectives observed a suspect leave the apartment, meet briefly with the occupants of an older model Cadillac sedan at a nearby gas station, and return to the apartment. A detective in an unmarked vehicle tailed the sedan as it drove off and observed the driver make an illegal turn. A marked patrol car then initiated a traffic stop. A man later identified as John Eddie Hanes III exited the passenger front seat door and fled on foot. A backseat passenger also fled on foot. Police arrested both men nearby and detained the driver and another occupant in the sedan. Police found a loaded handgun in a bag on the front seat of the passenger side of the vehicle where Hanes had been seated and a loaded rifle with a pistol grip on the rear seat floor.

Police determined that Hanes and other men in the sedan were affiliated with a local street gang known as the Mad Max Gang (MMG). Hanes had previously been convicted of third-degree burglary, a class “D” felony, in 2018, and had multiple prior juvenile adjudications for burglary, possession of firearms by a felon, theft, and assault. On June 10, the State charged Hanes by trial information with one count of criminal gang participation in violation of Iowa Code sections 703.1, 706.1, 706.3, and 723A.2 (2021), a class “D” felony, and a second count of possession of a firearm by a felon in violation of section 724.26(1), a class “D” felony.

On July 9, Hanes entered into a plea agreement in which he agreed to plead guilty to criminal gang participation in exchange for dismissal of the felon-in-possession count. The written plea agreement identified an additional sentencing concession: “The State recommends that the Defendant be granted supervised probation conditioned on his successful completion of the RCF [(residential correctional facility)]. If the Defendant is not deemed appropriate for the RCF, then this becomes an open plea and the State may make any recommendation at sentencing.” The same day, as permitted by COVID-19 supervisory orders, a written plea of guilty was filed, signed by defense counsel, and signed and initialed by Hanes.2 He “expressly waive[d] [his] right to be present and participate in an in-court plea colloquy.” The written plea stated in part:

7. I understand that in order to establish my guilt[] of the crimes charged, the State would have to prove beyond a reasonable doubt all of the following elements:

1. On or about . . . April 28, 2021 in Scott County[,] Iowa, John Hanes III actively participated in or was a member of a criminal street gang.

2. On that date and place, the defendant willfully aided and abetted a criminal act, that is, felon in possession of a firearm.

3. On that date and place the criminal act was committed . . . [in association with] the criminal street gang.

8. By pleading guilty, I am asking the Court to accept my guilty plea. I waive all the rights set forth herein with the exception of the right to counsel. I am admitting there is a factual basis for the charge(s), and I admit at the time and place charged in the Trial Information:

I was an active participant in a criminal street gang and I possessed a firearm unlawfully as a felon and did so for the benefit and in association with that same criminal street gang on April 28, 2021 in Scott County[,] Iowa.
Hanes placed his initials next to his admission typed in paragraph 8. Paragraph 9 stated, “I accept the minutes of testimony as substantially true as to the elements of these charges.” The minutes recounted the facts set forth above.
On July 12, the district court entered a written order accepting Hanes’s guilty plea. The order noted Hanes “has filed a signed Consent to Waive Presence. The Court, in its discretion, finds that there is no necessity for a full in-court colloquy and accepts Defendant’s waiver of the same.” The court expressly advised Hanes of the requirement to file a motion in arrest of judgment in order to appeal his guilty plea. The order stated:

MOTION IN ARREST OF JUDGMENT

Defendant has a right to contest the adequacy of the guilty plea by filing a motion in arrest of judgment pursuant to Iowa R. Crim. P. 2.24(3). A motion in arrest of judgment must be filed no later than 45 days after the guilty plea but no later than five (5) days prior to sentencing (whichever occurs first). If Defendant fails to file a motion in arrest of judgment in a timely manner, Defendant will be precluded from challenging the plea, based upon any alleged defects or mistakes in the plea proceeding, in an appeal to the Iowa Supreme Court.
Hanes never filed a motion in arrest of judgment.

On August 20, the court conducted a virtual sentencing hearing by Zoom pursuant to the then-existing COVID-19 supervisory orders. Hanes and his attorney participated remotely by video. The following colloquy ensued:
[DEFENSE COUNSEL]: Your Honor, I -- I spoke with Mr. Hanes prior to us being on the record here. Could I have a brief colloquy with him, if the Court’s fine with that?

THE COURT: Go ahead.

[DEFENSE COUNSEL]: Mr. Hanes, in your PSI you -- you made some statements about the events that I just want to clarify with what you said in the plea. Do you agree that in the plea, when you signed off on the factual basis for Criminal Gang Participation, that that was a truthful signature, that you agree to the factual basis in your plea?

[HANES]: Yes.

[DEFENSE COUNSEL]: And you agree that you were participating with a criminal street gang and possessed a firearm for the benefit of -- of the gang on that day?

[HANES]: Yes.

[DEFENSE COUNSEL]: Okay. And you -- do you wish to withdraw your plea, or attempt to withdraw your plea at this time?

[HANES]: No.


The court offered Hanes the option of continuing the hearing so he could attend in person; Hanes elected to proceed remotely by Zoom. The court noted that Hanes was “deemed inappropriate for RCF” due to his assault on a female staffer in RCF, which made it an “open plea.” Hanes and his counsel still declined to withdraw his guilty plea. The prosecutor recommended incarceration. Defense counsel argued for a suspended sentence and probation. The court ultimately imposed a prison sentence of up to five years for criminal gang participation “because of Mr. Hanes[’s] disturbing and significant criminal history even at his young age and for purposes of protection of the community.” Pursuant to the plea agreement, the court dismissed the felon-in-possession charge, another class “D” felony. Three days later, Hanes filed a notice of appeal.

On appeal, Hanes argues his conviction and guilty plea should be vacated because his plea lacked a factual basis. Specifically, he argues he cannot “aid and abet” his own possession of a firearm and that the district court should have rejected his plea on the court’s own motion. The State moved to dismiss the appeal on grounds Hanes never filed a motion in arrest of judgment as required by rule 2.24(3)(a) and Treptow. On the merits, the State argues a factual basis exists based on Hanes’s admissions and because Iowa law allows an aider and abettor to be charged as a principal, citing State v. El-Amin, 952 N.W.2d 134, 139 (Iowa 2020). We ordered the State’s motion submitted with the appeal and retained the case.

* * *

Iowa Rules of Criminal Procedure 2.8(2)(d) and 2.24(3) govern motions in arrest of judgment. Rule 2.8(2)(d) requires the court to “inform the defendant that any challenges to a plea of guilty based on alleged defects in the plea proceedings must be raised in a motion in arrest of judgment and that failure to so raise such challenges shall preclude the right to assert them on appeal.” Iowa R. Crim. P. 2.8(2)(d). Rule 2.24(3)(a) in turn states, “A defendant’s failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of judgment shall preclude the defendant’s right to assert such challenge on appeal.” Id. r. 2.24(3)(a). Hanes concedes he was properly advised of the requirement that he file a motion in arrest of judgment in order to challenge his plea on appeal. We reiterate that a “purpose of these two rules is to allow the district court to correct defects in guilty plea proceedings before an appeal and therefore eliminate the necessity for the appeal.” State v. Gant, 597 N.W.2d 501, 503–04 (Iowa 1999). This “admirable purpose would be thwarted” by allowing Hanes’s appeal to proceed “after [he had been properly] advised of his right to [file a motion in arrest of judgment] and the consequences for not doing so.” Wenman v. State, 327 N.W.2d 216, 218 (Iowa 1982).

Outcome: Appeal dismissed.

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