This webpage addresses many of the issues and concepts (criminal law timelines and procedures, pleas and sentencing, and immigration issues) confronting persons charged with criminal offenses in Iowa. I've provided some information on other webpages concerning two of the common areas that persons are affected by the law in Iowa- Operating While Intoxicated (OWI) and License Suspensions. These areas are complicated as the webpages show and I strongly encourage people with these charges to contact an attorney to protect their rights. I've also provided a webpage for crime victims and a link to a sentencing grid for Iowa convictions. For juvenile criminal proceedings see my juvenile delinquency page. For information on insanity and criminal procedure in Iowa, see my page concerning this issue.
Iowa Criminal Law Timeline (for indictable offenses-not simple misdemeanors):
Timeline starts not with crime but with arrest or citation = Day 0.
Initial Appearance occurs without unnecessary delay (usually within 24 hours after arrest). At this time, the magistrate informs the defendant of the complaint, right to retain counsel, right to have counsel appointed if indigent, circumstances of pretrial release, right to review conditions of release, right not to make a statement, reasonable time to obtain counsel, schedules or gets waiver of preliminary hearing, and provides a copy of the complaint to the defendant.
Preliminary Hearing: The defendant is entitled to a preliminary hearing unless there was an indictment or trial information filed or unless waived by the defendant. The preliminary hearing is to be held no later than 10 days after the initial appearance if the defendant is in custody or no later than 20 days if the defendant is out of custody (these limits can be extended for good cause). This is a probable cause hearing in which the magistrate determines whether there is probable cause to believe a crime was committed, and that the defendant did it. If so, the defendant is held to answer for the crime in further proceedings. If not, the charges are dismissed with prejudice (no refiling of charges). The defendant is allowed to cross examine witnesses and introduce evidence.
Trial Information or indictment (for indictable misdemeanors) must occur within 45 days after arrest or citation. Trial information is filed by the county attorney charging the defendant with a crime. Along with the trial information, minutes of testimony (or minutes of evidence) must be attached. These minutes include a full and fair statement of expected witness testimony and must be sufficient (full and fair) to alert the defendant as to the source and nature of evidence against him. Failure to file the minutes of testimony with the trial information requires dismissal of information (without prejudice) upon the motion of the defendant. If additional witnesses are needed by the State and are not in the minutes of evidence, these witnesses must be provided to the defendant no later than 10 days prior to trial. If the witnesses are listed on the minutes of evidence but the testimony is being amended, this can be amended before or during trial unless the defendant's rights are prejudiced.
Trial information or indictment can be amended before or during trial to correct errors or omissions. For any errors in trial information, it is better to point out errors after the prosecution has rested, so that the prosecution is unable correct the trial information. If the State amends the trial information and the defendant claims surprise, a continuance may be appropriate, but continuances are discretionary and won't be granted unless the defendant needs time to prepare.
The defense can file a motion for bill of particulars which must be filed on or within 10 days after arraignment. (I.R.Cr.P. 2.11(5)). This motion can be used to clarify issues in the trial information.
After Trial information/ indictment, then arraignment occurs (no specified time in rules, but trial information must be filed before arraignment and must be conducted as soon as practicable). At the arraignment, the defendant gets a copy of the trial information, a plea is entered, bond is continued, and the case set for trial.
Arraignments in most counties in Iowa are written, however in Polk County, the defendant must appear. Defendant, if represented by counsel, may waive formal arraignment and plead not guilty by submitting the written arraignment form. (I.R.Cr.P. 2.8(1)). An arraignment is a statutory pre-requisite to trial for all offenses other than simple misdemeanor. State v. Lyles, 225 N.W.2d 124 (Iowa 1975). Arraignments consist of the following:
a. If the defendant does not have counsel, he is advised of the right to counsel and one appointed if he qualifies as indigent.
b. The trial information (or indictment) is either read to the defendant or the defendant waives the reading, indicating that he has been provided a copy of the trial information and has read the trial information.
c. The defendant will state whether or not he is charged in his true and correct name.
d. The defendant is allowed to enter a plea. If the defendant does not enter a plea, a not guilty plea is entered by the court.
e. Bond conditions are requested to be continued.
f. Trial and pretrial dates are requested to be set.
Pleas in Iowa are of three forms: guilty, not guilty, and former conviction or acquittal. A guilty plea (except for simple misdemeanors) must be personally inquired into by the judge or can be waived in a serious misdemeanor. The judge must ensure that the guilty plea is voluntary, intelligently made, and has a factual basis. In some cases the plea may be accepted under circumstances where the record of factual basis shows strong evidence of guilty and where the defendant requests an "Alford plea". North Carolina v. Alford, 400 U.S. 25 (1970). With an Alford plea, the defendant is either unwilling or unable to admit participation in the acts constituting the crime, but voluntarily, knowingly, and understandingly consents to the imposition of a sentence. State v. Heinen, 252 N.W.2d 454 (Iowa 1977). The factual basis in an Alford plea must be established independent of the defendant's plea. Farley v. Glanton,, 280 N.W.2d 411 (Iowa 1979). The court has extremely broad discretion whether to accept a particular Alford plea. Id.
The court also has broad discretion to reject guilty pleas. Id. The court may also accept a plea agreement and later reject it if the defendant is not prejudiced by the court's rejection and can be allowed to withdraw the plea of guilty. State v. Tillman, 228 N.W.2d 38 (Iowa 1975). If the court rejects a plea agreement upon which the guilty plea is base, the court must allow the defendant to withdraw the guilty plea. I.R.Cr.P. 2.10(4).
The judge must inform the defendant of the nature of the charge, mandatory minimum punishment, maximum possible punishment, right to jury trial, right to counsel at trial, right to confront and cross-examine witnesses, right not to self incrimination, that trial is being waived by pleading guilty, the terms of the plea agreement, and the factual basis for the plea. The judge does not need to advise the defendant of defenses or court costs.
To later challenge a guilty plea based on defects in the plea proceedings, the defendant must file a motion in arrest of judgment. Wenman v. State, 327 N.W.2d 216 (Iowa 1982); I.R.Cr.P. 2.8(2)(d). Failure to file a motion in arrest of judgment precludes challenging the plea on appeal. State v. Taylor, 301 N.W.2d 692 (Iowa 1981); I.R.Cr.P. 2.8(2)(d). A motion in arrest of judgment must be filed not later than 45 days after the plea of guilty, or special verdict upon which the judgment of conviction is rendered, I.R.Cr.P. 2.24(3)(b), but not less than 5 days before the date set for pronouncing judgment. IR.Cr.P. 2.24(3)(b). A hearing is heard within 30 days of filing the motion, but is discretionary with the court.
Motions and Defenses: After Arraignment, the defendant has 40 days for filing pretrial motions and defenses (I.R.Crim.P. 2.11(4)). Pretrial motions that must be filed within the 40 day period include: defenses and objections based on defects in the indictment or trial information, defenses and objectes based on defects in institution of prosecution, motion to suppress evidence, requests for discovery, request for severance of charges or defendants, and motion for change of venue or judge. Motions in limine must be filed before nine days prior to trial. (I.R.Crim.P.2.11(4). Notice must be given within the 40 day period for certain defenses including alibi, insanity, diminished responsbility, intoxication, entrapment, and self-defense. One or two Pretrial Conferences usually occur before trial to discuss trial issues.
Trial must occur within 90 days of filing Trial Information or indictment (unless speedy trial waived) (45 days for trial information/ indictment + 90 days = 135 days max for trial.)
If the 45 day or 90 day limit are missed without waiver by defendant, then defendant can request dismissal with prejudice (cannot retry case).
Appeal: A notice of appeal must be filed within 30 days of pronouncement of judgment. I.R.App.P. 6.101.
Reconsideration of Sentence: A defendant may ask the court to reconsider the sentence. If the crime was a felony, the defendant must request reconsideration within 1 year of sentencing. Iowa Code 902.4 (2009). If the crime was a misdemeanor, the request must be filed within 30 days of sentencing. Iowa Code 903.2 (2009).
Post-Conviction Relief: A request for post conviction relief must be filed in most cases within 3 years of conviction, or if appealed, from the date of writ of procedenco. Iowa Code 822.3 (2009) contains the exceptions for filing outside the time limit.
Habeas corpus:
Habeas corpus is a civil proceeding to question the legality of detention. Kime v. Brewer, 182 N.W.2d 154 (Iowa 1970). Habeas corpus is a remedy for:
a. Delay in initial appearance. Brown v. State, 297 N.W.2d 101 (Iowa 1980); State v. Dowell, 297 N.W.2d 93 (Iowa 1980).
b. Delay in preliminary hearing. State v. Rouse, 290 N.W.2d 911 (Iowa 1980).
c. Defendant held indefinitely in mental institution after being found incompetent to stand trial. Keever v. Bainter, 186 N.W.2d 133 (Iowa 1971).
d. Defendant detained under an allegedly faulty extradition petition and warrant. Hughes v. Waters, 204 N.W.2d 599 (Iowa 1973).
A habeas evidentiary hearing is unnecessary and improper unless factual allegations, if proven, would require that the writ be granted. McElhaney v. Auger, 238 N.W.2d 797 (Iowa 1976). Counsel for indigent applicant is within discretion of the court. Brewer v. Bennett, 161 N.W.2d 749 (Iowa 1968).
Simple Misdemeanors: The defendant is allowed to plea and a trial is set at least 15 days after plea. There is no trial information or indictment and no arraignment.
Sentencing:
The Court orders sentencing after a guilty finding or plea in a criminal case. In a felony case, normally a presentence investigation is conducted prior to sentencing (which is conducted about 2 weeks after trial). Sentencing can consist of a term of imprisonment, which may be suspended, probation, fines, surcharges, license revocation in certain circumstances, restitution of victim costs, certain court costs and attorney fees. Surcharges consist of a 35% surcharge, DARE surcharge of $10 in certain cases, and Law Enforcement Initiative Surcharge of $125. Fines vary as to type of offense (and increase annually) (see sentencing grid).
Felonies:
Class A: life imprisonment (do not get out of prison unless sentence commuted, and commutation just makes eligible for parole so possibly still not out of prison). No death penalty in Iowa (except for Federal cases).
Class B+ felonies- hybrid B (not in code): In between A and B- Murder in Second degree- 50 yrs.maximum sentence.
B felonies: maximum 25 years.
C felonies: maximum 10 years.
D felonies: maximum 5 years.
Forcible Felonies: (Section 702.11 Iowa Code)" Sentence cannot be suspended (no court discretion). Includes murder and voluntary manslaughter, felonious child endangerment, sexual abuse (except between spouses), kidnapping, robbery, arson 1st degree, and burglary 1st degree.
Mandatory Minimums: Must serve minimum of 70% of maximum sentence. Includes Murder 2nd Degree, Sexual Abuse 2nd Degree, Kidnapping 2nd Degree, Robbery 1st and 2nd Degree, Attempted Murder, and Vehicular Homicide.
Misdemeanors:
There are 2 classifications of Indictable misdemeanors:
Aggravated misdemeanor: 2 years prison (determinate sentence), up to 365 in jail (indeterminate sentence).
Serious misdemeanor: up to 365 days in jail.
Simple misdemeanor: up to 30 days in jail.
Immigration Issues:
Arrest of a non-U.S. citizen can involve significant immigration issues. Moral character is an issue for the 10 year renewal of a green card and can be denied for the arrest or conviction (even if deferred or the record sealed) of a non-U.S. citizen. Deportation may even be involved. If the defendant is illegal, he could be deported directly from jail. Even legal residents can face problems reentering the U.S. from a vacation or business trip and can be barred reentry at the border due to a criminal record. Thus, all such immigrants should seek the immediate assistance of an immigration attorney, and all non-citizens with a criminal record should consult an immigration attorney before leaving the U.S. for any reason or applying for a change in status.
Immigration proceedings are considered civil in nature, and are not considered punishment. Convictions under criminal law can be considered for immigration purposes. (8 U.S.C. section 1101(a)(48)(A), INA section 101(a)(48).) Findings of guilty, guilty pleas, nolo contendere pleas, or even if there is admitted sufficient facts to warrant a finding of guilt and the judge ordered punishment are all considered for immigration purposes.
Additionally, non-U.S. citizens have only the rights conferred by Congress in immigration matters. Thus, they have a statutory right to counsel, but not at government expense. Ex post facto considerations do not apply to deportation proceedings, and thus, standards for deportation can be changed and made retroactive. Thus, lists of current crimes resulting in deportation or removal are not binding for future deportation and any possible criminal conviction should be analyzed carefully in view of future deportation or removal.
Conviction of a crime or even an arrest can have a significant effect on a non-U.S. Citizen. A guilty finding (which can include a deferred judgment or expungement) can lead to results that immigration can consider for deportation or other action such as denial of a renewal of a green card. Minor crimes can be considered as more serious under immigration law (may be deemed aggravating felonies (8 U.S.C. 1101(a)(43), INA 101(a)(43))) with devastating effects. Domestic abuse, child endangerment, fraud, theft (if sentence is 1 year or more), burglary (but not of a car), obstruction of justice, false documents, failure to appear (if offense punishable by punishment of 5 years or more) and crimes of violence can lead to these effects. OWI can even have devastating effects. Even arrests for crimes without convictions can be considered for immigration purposes, since moral character is also considered. The immigration status of all defendants should be determined before pleading guilty and the consequences considered.
Mere characterization as an addict or drug abuse can be grounds for deportation or removal (although there is a waiver for a one time possession of 30 grams of marijuana). Crimes of moral turpitude can have severe consequences (not defined by the code). Assault can be a crime of moral turpitude and the judge is allowed to review the entire case file including police reports, testimony, and the plea regardless of what was actually pled. Since the judge can review the entire file, it may be advisable to dismiss the charge and refile under a lesser charge, rather than simply pleading to a lesser charge. Domestic violence cases are extremely problematic.
Not all vacated sentences are considered vacated for immigration. The sentence must be vacated due to a substantive or procedural flaw to be considered vacated. A legally defective case may still be considered. Rehabilitative vacations are not considered by the Board of Immigration Appeals (BIA). Deferred sentences can be problematic for immigration. In some cases it would be better to actually serve 360 days in jail, than to have a deferred sentence with probation for 1 year. Deferred is not a vacated sentence for immigration purposes. Withheld or suspended sentences are still considered for immigration purposes. It may be preferable to give up a deferred to plead to a lower level conviction.
Cases involving possible deportation or removal should be appealed. A final judgment is not obtained until the appeal is finished, thus at least delaying removal. A Post Conviction Review does not delay removal.
Post bond quickly to get the client out of jail. Bond will often cause a delay which is often better for the client. Additionally, it is better to get the client out of jail quickly to avoid immigration review and a possible detainer to hold the client (requiring a second bond to be posted). It is advisable to post the bond at the courthouse instead of the jail (to avoid further review).
Even if the U.S. doesn't consider the defendant as a citizen, this cannot be assumed. Sometimes a person may still be a citizen and just not documented as a citizen. This should be considered in cases where a deportable offense has been committed, since deportation often accompanies the criminal proceedings.
If the defendant was not advised of the immigration consequences during the plea stage or if there were significant constitutional violations, it may be possible to reopen the criminal case. However, this could result in re-trial for the original charges.
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