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A DEFENDANT’S GUIDE TO IOWA CRIMINAL PROSECUTION

By John O. Moeller, Esq. Davenport, Iowa

 

Introduction - The Assumption of Guilt.

            The officer who arrested you and virtually everyone else involved in the “criminal justice” system assumes you are guilty.  They plan to “process” your case to the standard conclusion for the offense charged and your criminal history.  Every month somewhere in this country an innocent person is released after serving time for a crime they did not commit.   Occasionally I am pleasantly surprised to see a police officer or prosecutor admit a mistake or dismiss a case for lack of evidence.  No system is perfect.  If you are guilty then you should minimize the adverse consequences.  If you are innocent, you need to defeat the charge if you can.  You will have opportunities to make many decisions concerning the investigation and defense of the charge against you.   If you don’t make them the system will make them for you. This guide will describe the typical sequence of Iowa State court appearances and decisions to be made during the defense of any criminal charge.  

Initial Appearance.

            At your initial appearance, the judge will tell you that any statements you make might be used against you.  The judge will consider if a court-appointed attorney is necessary.  The judge will set bond if bond is not already set.  If pretrial release has completed their investigation, they might make a recommendation concerning bond to the judge.  The prosecutor can make a recommendation concerning bond to the judge.  The judge can review the bond and increase or reduce the bond.

            If an attorney is representing you, the court will ask if you request or waive (give up) a preliminary hearing. If a preliminary hearing is waived the arraignment will be scheduled.  Otherwise, a preliminary hearing will be scheduled and possibly a follow up date to allow you to hire an attorney.

            If the offense is a simple misdemeanor offense, you can enter a plea of guilty without an attorney at the initial appearance.  I don’t recommend entering a plea of guilty to even a simple misdemeanor without consulting an attorney.  That plea of guilty to a traffic ticket for speeding might be the basis to suspend your license.  If you are not a citizen, that plea might be the basis to deport you.   Even if the judge indicates that you will be released from jail if you plead guilty you might regret that conviction on your record at a later date if there is a consequence you did not anticipate.

Bond Review.

            If you remain in jail after the initial appearance, you can request a bond review.  Do not assume that the bond will necessarily be reduced.  Sometimes it is a good idea not to request a bond review.

Preliminary Hearing.

            In some states, the preliminary hearing is an important event.   If you request a preliminary hearing in Iowa, it is likely the prosecutor will file the Trial Information prior to that hearing and cancel the hearing. Do not expect the charges to be dismissed if you do get a preliminary hearing.  All the prosecutor has to do is show that there is probable cause to believe that a crime has been committed, and that you committed it.   Generally, probable cause is proven by having a police officer come and explain why you were arrested.  The police officer can repeat hearsay evidence.   If you waive the preliminary hearing at the initial appearance, an arraignment will be scheduled. 

Arraignment.

            When a grand jury indictment is returned or a trial information is approved by the judge and filed by the prosecutor an arraignment occurs.  At the arraignment, the formal charges are read to you.  If you are not charged in your proper name that mistake can be corrected at this time.  You will receive a list of the witnesses the prosecutor intends to call to testify against you, and you should be provided a summary of the expected testimony and physical evidence against you.  Almost always a plea of not guilty will be entered.  In most communities in Iowa, this is conducted by filing a written form.  You will be asked whether you demand or waive speedy trial.  Iowa law requires that the prosecutor commence the trial within 90 days from the date the trial information or indictment is filed. If you are in jail, it is unlikely you should waive speedy trial.  You should discuss with your attorney whether to waive speedy trial. 

 

            The indictment or trial information should be filed within 45 days of your arrest.  The failure to file within 45 days is a basis for a dismissal of the charge for failure to comply with speedy indictment rules.  If you were detained and released by the police before your formal arrest discuss this with your attorney.  Your “arrest date” for speedy indictment might be earlier than you think.

            At the arraignment, a pretrial conference will be scheduled and a trial date tentatively scheduled.  The arraignment begins deadlines for the prosecution and the defense.  Challenging the sufficiency of the indictment or trial information by filing a Bill of Particulars must be done within ten days of the arraignment.  Depositions, that is, an opportunity to ask questions to the State’s witnesses under oath, are to be taken within 30 days of the arraignment.  Motions to suppress evidence generally need to be filed within 40 days of the arraignment.  Shortly after your arraignment you should meet with your attorney to make informed decisions about the investigation and defense of the charges against you.  

 

The Speedy Trial Decision.

            Depending upon the type of case, the witnesses, the evidence and your personal situation it may be advantageous to waive speedy trial or insist upon a speedy trial.  Generally, if you are not able to be released on bond, then you should insist upon a speedy trial.  Being confined in a county jail is an emotionally draining experience that will cause you to give up hope and accept any plea agreement offered.  Unless there are good reasons to delay the trial, you should insist on a speedy trial whenever you are unable to be released on bond.  It is a common practice to waive speedy trial whenever a defendant is released on bond.  This is an understandable feeling.  Trying to avoid or delay a bad outcome is all you might hope for.  Sometimes the delay can be used to improve your chances at sentencing.  For example, completing substance abuse treatment and getting a full-time job prior to sentencing might make the difference between prison and probation.  The additional delay might be harmful if you are charged with new offenses.  The delay might allow the state to gather more informants, witnesses or evidence to present at a trial.  If the initial evaluation of the case is that you should go to trial, then the sooner the government is compelled to prove its case the greater the likelihood is the government presentation will be lacking in some respect.

Pretrial Conference.

            In most communities, a pretrial conference will be scheduled a few weeks after the arraignment.  Motions on file can be set for hearing and the trial date is likely to be rescheduled.  The pretrial conference might need to be continued, or you might obtain a plea date at or before the pretrial conference.

Pretrial Motions.

            Many prosecutors are willing to disclose police reports, witness statements, physical evidence and test results to defense counsel without the need for formal discovery motions. Occasionally it is necessary to file a formal motion to obtain evidence or reports.  In virtually every case, defense counsel should consider whether a motion for a bill of particulars, for discovery, to suppress evidence or to dismiss is appropriate.  When there are co-defendants or multiple charges, it is necessary to consider whether a motion to separate the defendants or charges for separate trials is appropriate.  The decisions made concerning these motions and the rulings on these motions will determine your trial strategy and perhaps provide the basis for a successful trial or appeal.  Prior to the trial, a motion in limine to prevent the presentation of evidence that might be subject to objection should also be considered.

Status Conferences, Final Pretrial or Scheduling Conference.

            It is likely one or more additional appearances to review the status of the case and then a final review before summoning the jury panel for trial will occur.  Local custom will determine these events.

Plea Negotiations.

            In most communities, there are “standard” plea arrangements for offenses and the criminal history of the offender.   Even if you think you are guilty, you probably won’t know if the prosecutor has admissible evidence to prove your guilt beyond a reasonable doubt or what the typical punishment is unless you employ a competent attorney to review your case and give you advice concerning the probability of a successful defense, the probability of helpful plea negotiations and the possible consequences of your conviction. 

Rejecting the Plea Agreement.

            “The judge will give a more severe sentence if you reject the plea bargain and go to trial.”  Defendants and attorneys that want to convince the client to take whatever plea bargain is offered claim this will occur.  I have never heard a judge state that they sentenced a defendant to a more severe sentence because the defendant exercised his or her constitutional right to a trial. (In a federal prosecution proceeding to trial might result in an increased guideline sentence.) The prosecutor may recommend a more severe sentence than was proposed in the rejected plea agreement.  The prosecutor may claim the defendant has refused to accept responsibility for the offense.  The prosecutor might even argue the defendant tried to obstruct justice or committed perjury during the trial.  The judge who presides over a trial is likely to learn more about the case than he or she would in a negotiated plea.  Will the additional information learned by the judge presiding over a trial be the basis for a more serious sentence?  Will the trial judge necessarily be the sentencing judge?  Will the claim that the defendant has not accepted responsibility seriously affect the sentencing?  Is the potential benefit of going to trial – a not-guilty verdict or a verdict to a lesser offense – worth the risk of rejecting the plea agreement?  Just how favorable is the plea agreement?  This is always a difficult decision that needs to be carefully considered by the client and the attorney and the decision to plead guilty or proceed to trial needs to be made for the right reasons.  Not because the client is threatened by his attorney that the judge will impose a more severe sentence after a trial because the attorney doesn’t like trials. The judge can’t impose any sentence if you are found not guilty.   

Plea of Guilty.

            Before entering a plea of guilty you and your attorney should have reviewed the evidence in sufficient detail to have a good understanding of the witnesses and evidence against you.  At the plea, the judge will ask a series of questions to be certain you understand the constitutional rights that you are giving up if you enter a plea of guilty.  The judge will ask if you understand English, your level of education and whether you are under the influence of alcohol or drugs or being treated by a doctor.  The judge will advise you that by pleading guilty you are giving up your right to a speedy and public trial to a jury of twelve persons selected from the community or a trial to the judge if you prefer.  You are presumed to be innocent unless and until the State proves you guilty to all twelve members of the jury beyond a reasonable doubt.  To obtain a guilty verdict the State is required to call witnesses to testify under oath and you have a right to confront them – to see and ask them questions.  You have the right to present your own witnesses, testimony and evidence at the trial and the court can issue subpoenas to require persons to come to court on your behalf.  You may testify at your trial if you wish but you are not required to testify and if you do not testify then the State cannot make any comment about your failure to testify or your failure to produce evidence on your behalf to the jury.  You have the right to the assistance of an attorney, court appointed if need be.   The judge may ask if you are happy with the assistance provided by your attorney and the judge may remind you that have a right to take depositions of the State’s witnesses and to have experts to assist the evaluation of the State’s evidence and to prepare your defense. 

            After explaining your trial rights, the judge will explain the legal elements of the offense.  The judge will advise you concerning the maximum and minimum sentences involved.  The judge will review the plea agreement if there is one.  The judge will request a factual basis why you believe you are guilty of the offense charged and accept or reject your plea.  If there is a plea agreement it should be in writing and reviewed by the judge with you to be sure you understand it.  The judge will ask if there are any threats or promises causing you to plead guilty other than the written plea agreement. The judge might accept or reject or defer acceptance of the plea agreement until a presentence report is prepared and reviewed. The plea agreement may allow you to withdraw your plea of guilty if the plea agreement is not accepted by the court.  Read it carefully.  If the offense is a misdemeanor, the plea might be completed by signing a written form and submitting it to the court.

Motion in Arrest of Judgment.

             After a plea of guilty, if for any reason you think you should not have entered a plea of guilty, you are required to file a motion in arrest of judgment at least five days before the sentencing date and not more than forty-five days after the plea date.  Withdrawing a plea of guilty is not automatically or routinely allowed in Iowa.  If you do not file a motion in arrest of judgment, it is not likely the Iowa appellate courts will consider any complaint you have concerning your plea proceeding unless there was ineffective assistance of defense counsel.

Trial – Jury or Non-Jury.

            You have the right to waive or give up a jury trial, without the prosecutor’s consent within forty days after the arraignment.  This deadline can depend upon other pretrial investigations and proceedings.  Sometimes the prosecutor will allow you to waive a jury trial even if the deadline for you to make a unilateral waiver has passed.  There are some types of cases, and some factual situations where a trial to the court might be preferred.  There are other offenses and factual situations where a trial to a jury is necessary and a trial to a judge almost certainly a verdict of guilty. 

            In many cases and communities, a person charged for a crime will have a better chance to be found not guilty by a jury than they will in a trial decided by a judge.  In many communities, judges tend to be former prosecutors.  In some communities, the jury panel may not trust the local police.  However, in some communities, the jury panel will favor the local police and prosecutor and be very suspicious of anyone charged for a crime.  The attorney and client must decide whether the case is better presented to a judge or a jury.

Presentence Investigation.

            A presentence investigation report is prepared by the Department of Correctional Services prior to a felony sentencing.  It is not likely that a presentence investigation will be completed for a misdemeanor offense.  If you have pled guilty or been convicted of a forcible felony, then a prison sentence is mandatory and the presentence investigation may not have much impact on the court’s sentencing decision.  The presentence investigation is provided to the prison and the parole board so it is important even for a forcible felony. 

            When the judge has discretion concerning the sentence to be imposed the presentence investigation may be the most significant factor influencing the judge’s decision.  The presentence investigator prepares reports and supervises persons convicted of offenses as an employee of the Department of Correctional Services.  He or she was not personally involved in the prosecution or defense of the case.  The investigator is likely to be more neutral about the case than the prosecutor, police or victim of the crime.  A favorable recommendation from the presentence investigator may be more persuasive to the judge than a negative recommendation from the prosecutor.  It is important to cooperate with your attorney to prepare for and provide information to the presentence investigator, whether you have pled guilty to the offense or were found guilty.  If you intend to appeal the conviction, the preparation of the investigation can get very complicated.  Remember, if you get a new trial, the statements and information you provide the investigator might be used against you.

Sentencing.

Sentencing for a misdemeanor might occur immediately after the plea is entered.

Iowa law allows a minimum of fifteen days between plea and sentencing for indictable misdemeanors and felony offenses. Iowa law requires a presentence investigation to be completed prior to sentencing for most felony offenses.  It is likely the sentencing in a felony case will be a month or more after the plea.

 

            At sentencing the judge will consider the presentence investigation, the plea agreement, the evidence presented, your statement and the arguments of the attorneys and pronounce the sentence of the court.  The judge is to explain the reasons for the sentence selected.  Depending upon the offense this might be prison, county jail time, a suspended prison or jail term, a fine, a suspended fine, orders for victim restitution, restitution for court-appointed attorney fees, payment of court costs, substance abuse treatment and any other terms allowed by the sentencing law for the offense that you have pled guilty to or been convicted of.   For some offenses, a deferred judgment or sentence is possible so that formal entry of judgment is delayed and if you complete the conditions ordered without further violations, a formal conviction for the offense might never be entered. 

Appeal.

            Iowa law provides the right to appeal most criminal convictions.  There is a short deadline (30 days or less) to file the notice of appeal.  The judge will set an appeal bond if allowed by the offense of conviction.  An appeal bond is not allowed for forcible felonies and some other offenses.  The notice of appeal needs to be prepared and filed within thirty days of the sentencing or perhaps even less.  If you post an appeal bond the imposition of sentence is delayed until the appeal is reviewed by the appellate court.  Please understand that an appeal is not a second trial.  The appeal is a review of the proceedings in the trial court to determine if some legal error has occurred that causes the conviction to be improper.  Appellate courts almost never substitute their opinion about the facts for whatever determination has already been made by a judge or jury.   Generally, a successful appeal only results in an order returning the case to the trial court for a new trial or hearing to correct a legal error.  Occasionally a successful appeal might avoid another prosecution, depending on the issue presented.  Whether you have an issue to present on appeal that has any reasonable chance of success needs to be considered carefully by a competent appellate attorney.  

 

Post-Conviction Relief (Habeas Corpus)

 

            Iowa has a procedure to file a lawsuit to challenge your conviction.  Post-conviction relief proceedings are generally filed after the decision has been reviewed on direct appeal from sentencing.  The time to file post-conviction relief depends upon the proceedings that occur after the sentencing.  This deadline is a complicated determination that needs to be made on a case by case basis.

 

Collateral Consequences of Convictions and Deferred Sentences.

 

            When considering the defense of any charge it is important not only to consider the direct consequences of a possible conviction such as the prison, jail sentence or the fine that might be imposed but also the personal and collateral consequences to you.  What one client thinks is no big deal – a few days in jail – might be devastating for another.  If you are an elected public official, the head of the school board, or a big shot in the community, a routine conviction for drunk driving may have serious reputational consequences.  If you are a commercial truck driver, a drunk driving may force a career change.  When you are already on probation or parole, conviction of a minor misdemeanor offense might result in a prison sentence.  If your rights to possess firearms are important to you a misdemeanor domestic abuse conviction will have serious consequences.  These collateral consequences are not necessarily avoided even if you receive a deferred judgment or sentence.  For many purposes, a deferred judgment or sentence is treated as a conviction.  The deferred judgment or sentence will be reported on official law enforcement records.  Unfortunately, adverse collateral consequences from an encounter with the police can occur even if there is no arrest and even if you are found not guilty of the offense.  The publicity that occurs, and damage to your reputation might not ever be restored even if the charge is dismissed, or you are found not guilty.

 

Why do I need a good Lawyer?

 

            Hiring an attorney to investigate and defend a contested case is expensive.  Entering a plea of guilty without an investigation according to the “standard” plea proposed by the prosecutor can be completed by an inexperienced and uncaring attorney at a bargain price.  A competent attorney can make a preliminary evaluation of the strengths and weaknesses of the government’s case and make recommendations concerning further investigation, the probable plea offer from the prosecutor and perhaps even the sentence to be imposed.  It is less expensive to obtain proper representation from the beginning of the case than to try and correct mistakes years later, if they can be corrected at all.  In this country, the accused is granted many constitutional rights and protections that can help but do not guarantee an incorrect or unjust conviction will not occur.  Even if you think you are guilty that does not mean that the state can prove you guilty beyond a reasonable doubt to a jury of your peers with legally obtained evidence.  Even if you think you are guilty that does not mean that plea bargaining to a less serious offense or perhaps a deferred judgment or sentence cannot occur.  If you don’t employ a competent attorney, or if you are not fortunate enough to have an experienced and dedicated public defender appointed to represent you, then you will not be able to protect yourself from a system that assumes your guilt.

 

Additional References.

 

            The Code of Iowa is available at many websites, including the Iowa Legislative website.  www.legis.iowa.gov.  Most of the criminal code is in Chapters 700 – 732.  Most of the motor vehicle code violations are in Chapter 321.  Operating Under the Influence and license suspensions are in 321J. Most of the controlled substances offenses are in Chapter 124.

 

The Author.

 

            John O. Moeller was graduated from the University Of Iowa College Of Law with distinction and admitted to the Iowa bar in 1979.  He is also admitted to practice in the Federal District Courts in Iowa and the Central District of Illinois, the Federal Courts of Appeal for the Seventh Circuit (Chicago) and Eighth Circuit (St. Louis and St. Paul) and the Supreme Court of the United States.  He has practiced in Davenport, Iowa since 1979, representing clients in civil and criminal litigation and appeals in state and federal courts in cases ranging from arson, murder and money laundering to wrongful-death products liability cases. 

 

Explanation and Disclaimer.

           The guide is prepared for persons charged with indictable criminal offenses in Iowa Courts.  Furnishing this guide does not create an attorney-client relationship.  The information provided should not be considered as legal advice how to proceed in a particular case.  The decision how to proceed in a given case can only be determined after a careful review of the facts and the relevant law with a competent lawyer. 

 

Prepared March 2015

Attorney John O. Moeller

601 Brady Street, Ste. 303

Davenport, Iowa 52803

(563)323-3014

John@JohnMoeller.com

www.JohnMoeller.com