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    STATE of Iowa, Appellee, v. Theresa Lynne LOYE, Appellant.
    No. 01-1456.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Richard Crowl, County Attorney, and Martha A. Heinicke, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Theresa Loye, pled guilty to possession of marijuana, two counts of possession of burglar’s tools, ongoing criminal conduct, and seven counts of third-degree burglary. After an unsuccessful effort in drug court, she was sent to prison on consecutive sentences totaling more than sixty-four years. Loye appealed, claiming her guilty plea was invalid and her sentences were illegal. The court of appeals dismissed Loye’s appeal, agreeing with the State that Loye had waived her right to appeal.

On further review, we conclude Loye did not waive her right to appeal. Proceeding to the merits, we hold that Loye’s guilty plea was invalid and, therefore, we vacate her guilty plea, reverse the judgment of conviction, and remand the case for further proceedings.

I. Background Facts and Proceedings.

On December 13, 2000, Loye was charged with possession of marijuana in violation of Iowa Code section 124.401(5) (1999). A few months later she and another woman were caught breaking into a moneybox inside a washing machine in the laundry room of an apartment complex. Not far from where they were apprehended, the police discovered a bag containing a pair of bolt cutters, a drill, drill bits, and other tools. A subsequent investigation revealed that moneyboxes in six additional laundry rooms at the same apartment complex had been opened by drilling the locks. Loye was charged with third-degree burglary in violation of Iowa Code section 713.6A (2001) and possession of burglar’s tools in violation of Iowa Code section 713.7. Another trial information subsequently filed charged Loye with six additional counts of third-degree burglary, another count of possession of burglar’s tools, and a count of ongoing criminal conduct in violation of Iowa Code sections 706A.1, 706A.2(4), and 706A.4.

On June 21, 2001, Loye submitted a guilty plea to all charges and was accepted into drug court. The district court informed Loye that if she successfully completed the drug court program, “all of these charges will be dismissed”; if she failed, the court would “stack the penalties.” In addition, the court told Loye that her agreement to be transferred to drug court meant that she waived her right to appeal. The court also engaged the defendant in a colloquy for the ostensible purpose of establishing a factual basis for Loye’s guilty plea, informing the defendant of the constitutional rights she would be giving up by pleading guilty, and informing Loye of the charges to which she was pleading and the punishment for those charges. After accepting Loye’s guilty plea, the court transferred her case from the criminal district court to drug court for future supervision.

Loye was not successful in the drug court program and was brought before the district court again on August 30, 2001. At that time, the court imposed consecutive sentences on all charges, for a total term of imprisonment of sixty-four and one-half years. Loye filed this appeal.

II. Issues on Appeal.

Loye raises several complaints concerning her conviction and sentencing. We address only one, as we find it dispositive. The defendant claims her guilty plea was not entered knowingly and intelligently because the court did not fully inform her of the nature of the charges to which she was pleading guilty and the potential penalties. As our subsequent discussion will explain, we find merit in this contention. Because this conclusion requires that Loye’s guilty plea be set aside, we need not address her other claims of error concerning her guilty plea nor the alleged illegality of her sentencing.

While denying the defendant’s plea was uninformed, the State asserts preliminarily that this court does not have jurisdiction of Loye’s appeal. The State contends a final judgment was entered on June 21, 2001, and Loye was required to appeal within thirty days from that date. Because Loye’s notice of appeal was filed beyond this thirty-day period, her appeal, claims the State, is untimely. In addition, the State claims Loye affirmatively waived her right to appeal at the June hearing. Finally the State contends Loye did not preserve her right to challenge the adequacy of her guilty plea on appeal because she did not challenge her plea in the district court. We first address the issues affecting Loye’s right to maintain this appeal, and then discuss the validity of her guilty plea.

III. Timeliness of Appeal.

The timeliness of Loye’s appeal depends on whether final judgment was imposed at the hearing on June 21, 2001, when Loye entered her guilty plea, or on August 30, 2001, when Loye was before the court after being expelled from the drug court program. The State contends the court imposed a suspended sentence at the June hearing and consequently that order constituted a final judgment from which Loye was required to appeal within thirty days. See Iowa R.App. P. 6.5(1) (stating notice of appeal must be filed within thirty days of court’s order). The August proceeding, asserts the State, was held simply to revoke Loye’s probation and execute the previously determined sentence, a ruling that is subject to challenge in a postconviction relief action. See State v. Rheuport, 225 N.W.2d 122, 123 (Iowa 1975) (holding postconviction procedures are the exclusive remedy for defendant’s challenge to revocation of probation).

The defendant disagrees with the State’s characterization of the June hearing. She alleges the court entered a deferred judgment at that time, which is not a final order. See State v. Stessman, 460 N.W.2d 461, 462 (Iowa 1990) (“An order deferring judgment is interlocutory and cannot meet the final judgment requirement.”). Final judgment, she asserts, was rendered at the August hearing when the court imposed sentence.

“Final judgment in a criminal case means sentence. The judgment is final for the purpose of appeal when it terminates the litigation.” State v. Coughlin, 200 N.W.2d 525, 526 (Iowa 1972). We recently noted the distinctions between the various sentencing options available to the court in a criminal matter:

Following a plea or verdict of guilt, a court may, subject to exceptions, defer judgment, defer sentence, or suspend sentence. When judgment is deferred, the defendant is placed on probation without entry of a judgment. If the probation is successfully completed, the defendant is discharged and no judgment is entered. If probation fails, the judgment is entered and the court is permitted to impose any authorized sentence. This option allows a defendant to avoid a record of a conviction. When the sentence is deferred, a defendant is placed on probation at or after pronouncement of judgment, but without any sentence imposed. The court enters an adjudication of guilty, but the sentence is deferred to a later time. This delay allows the court to consider sentencing in the future after the court has had an opportunity to view a defendant’s conduct on probation. The court retains the power to impose “any sentence it originally could have imposed.” Finally, when a sentence is suspended, a defendant is placed on probation following the pronouncement of the sentence. The sentence is imposed, but execution of the sentence is suspended. This option allows a defendant to avoid a known sentence of incarceration or other punishment based on successful completion of probation. Any revocation of the suspended sentence results in the execution of the sentence previously pronounced.

State v. Thomas, 659 N.W.2d 217, 221 (Iowa 2003) (citations omitted). To determine whether entry of a judgment of conviction, imposition of sentence, or execution of sentence was delayed pending Loye’s successful completion of probation, namely, the drug court program, we turn to an examination of the record.

At the June hearing, the court specifically told the defendant that upon successful completion of the drug court program, the charges against her would be dismissed. Similarly, the court informed her she had an opportunity to “expunge all of the criminal history” by completing the program. The court also advised Loye that if she decided within two weeks that she did not want to remain in drug court, she would “be transported back to district court and [would be] prosecuted through to completion.” These statements indicate the defendant was receiving a deferred judgment, certainly not a suspended sentence.

In the actual order entered by the court after this hearing, the court noted the “[defendant ... entered guilty pleas” and “[t]he [e]ourt accepted] defendant’s guilty pleas.” The court did not state what, if any, sentence had been imposed. Although this order seems to document an adjudication of guilt and a deferral of sentencing, rather than a deferred judgment, it clearly does not support the State’s contention that the court imposed a suspended sentence.

The State points out that the court “exonerated” Loye’s appearance bond at the June hearing, transferred the case to drug court, and relieved trial counsel “from further representation.” The State argues these actions indicate the court considered its involvement to be at an end, signifying a final adjudication. Regardless of these actions, however, the fact remains that the court did not impose a sentence in June, which is the determinative fact in assessing the finality of a criminal proceeding.

The record from the August hearing also supports a conclusion that Loye was sentenced in August, not June. In commencing his colloquy with Loye at the August proceeding, the court stated, “First, we’ll sentence a couple of people to go to the penitentiary.” (Emphasis added.) In addition, the court’s August 30, 2001, calendar entry states that the defendant “appeared with counsel ... for sentencing.” (Emphasis added.) The entry continues with a separate pronouncement for each charge that the “defendant is hereby sentenced ” or “is sentenced ” to a specific term in the penitentiary or the county jail. (Emphasis added.) There is no reference to any prior suspended sentence. We think this record shows the court was imposing sentence for the first time, rather than executing a previously pronounced sentence.

Based on the documentation of the June and August court proceedings, we reject the State’s contention that a final judgment was rendered on June 21, 2001. Final judgment was entered on August 30, 2001, when the court sentenced the defendant. Consequently, the defendant’s notice of appeal, filed within thirty days of final judgment, was timely.

IV. Waiver of Right to Appeal.

A. Contentions. The parties dispute whether the defendant waived her right to appeal when she pled guilty in June 2001. Loye argues the record made at the guilty plea proceeding does not establish a waiver. The State contends that Loye’s waiver of her right to appeal was part of a plea bargain she made with the county attorney. Although no written documentation of a plea agreement was submitted at the June hearing, the State claims the transcript of that proceeding reflects this agreement. In the event this court concludes the record does not show a waiver, however, the State asks that the case be remanded so the prosecutor can supplement the record with any documents executed by Loye as part of her agreement to plead guilty.

B. Discussion. We have held that a defendant may waive his or her right to appeal. State v. Dinners, 471 N.W.2d 841, 845 (Iowa 1991). Although the right to appeal is purely statutory, we indicated in Dinners that a waiver of that right would be held to the same standards as the waiver of a constitutional right. Id. at 843 (noting that although the right to appeal “is statutory and not constitutional!,] ... once the right to appeal has been established, ‘these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts’ ” (citation omitted)).

Pursuant to these standards, the State bears the burden to prove Loye has waived her right to appeal. See State v. Washburne, 574 N.W.2d 261, 265 (Iowa 1997). Although a defendant can waive the right to appeal as part of a plea bargain, any such waiver must be voluntary, knowing and intelligent. Hinners, 471 N.W.2d at 845. The problem in the present case is that the record does not show Loye waived her right to appeal, much less that she did so voluntarily, knowingly, and intelligently.

A review of the record in this case reveals the defendant’s right to appeal was mentioned only once at the plea proceeding. During its colloquy with the defendant, the court stated:

I’m going to move through these [charges] and then I’ll come back and explain your constitutional rights that you give up by pleading guilty as well as advising you at the present time that you waive all of your rights to — when you come into drug court — to appeal to the supreme court. You waive your right to complain about being rejected from drug court if you screw up and don’t follow the rules and are taken out of the drug court program. So you’re giving up a whole lot when you come in here.

No mention was made that a waiver of appeal rights was part of a bargain made by the defendant with the county attorney. To the contrary, the implication of the statements made by the court was that a defendant automatically gives up any right to appeal upon acceptance into drug court. Such an implication is, of course, untrue, and the trial court’s mere statement to that effect, even with the defendant’s apparent acquiescence, does not amount to a waiver. See State v. Kirchoff, 452 N.W.2d 801, 803 (Iowa 1990) (holding defendant’s agreement with trial court’s incorrect statement that defendant had waived his right to file a motion in arrest of judgment did not operate as a waiver of that right).

Contrary to the court’s statement, a defendant does not automatically waive the right to appeal by pleading guilty and entering drug court. The right to appeal is waived only if such a waiver is an express element of the particular agreement made by that defendant. See Hinners, 471 N.W.2d at 845 (“we hold that a defendant may expressly waive the right to appeal in a plea bargain agreement” (emphasis added)). No showing was made here that any plea agreement reached between Loye and the prosecutor included a waiver of Loye’s right to appeal. See State v. Oliver, 588 N.W.2d 412, 415 (Iowa 1998) (stating that State’s intimation that a plea agreement existed was, in the absence of further proof, without merit); see also Hinners, 471 N.W.2d at 845 (stating court will “not infer a waiver from a silent record”).

The colloquy between the court and the defendant is also deficient because the court made no inquiry as to whether the defendant knew she had the right to appeal, whether she voluntarily waived that right, and whether she knew the consequences of giving up that right. See State v. Caldwell, 828 A.2d 765, 768 (Maine 2003) (holding waiver of rights in context of drug court process, while permissible, must still be knowing, intelligent, and voluntary); cf. State v. Tovar, 656 N.W.2d 112, 116 (Iowa) (stating waivers of constitutional rights “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences”), cert. granted, — U.S. -, 124 S.Ct. 44, 156 L.Ed.2d 703 (2003). While it is true the court mentioned that the defendant would not be able to complain about being rejected from drug court, should that occur, the court did not tell Loye that another consequence of the waiver of appeal rights would be an inability to challenge her guilty pleas. Under these circumstances, we do not think the State has carried its burden to prove by a preponderance of the evidence that Loye waived her right to appeal.

C. Disposition. That brings us to the State’s request that we remand this case to permit the prosecutor to introduce the documents allegedly executed by Loye as part of her plea agreement. Initially, we point out that our rules of criminal procedure require that any plea agreement be disclosed “in open court at the time the plea is offered.” Iowa R. Crim. P. 2.10(2) (emphasis added); accord Iowa R.Crim. P. 2.8(2)(c) (“The terms of any plea agreement shall be disclosed of record as provided in rule 2.10(2).”). We assume the prosecutor was aware of this requirement and, had Loye’s guilty plea been the product of a plea bargain, that any such agreement would have been made a part of the record. Its absence from the record leads us to conclude no plea agreement existed.

Even if we ignore the State’s failure to comply with rule 2.10(2), production of a written plea agreement that includes an express waiver of Loye’s right to appeal would not be sufficient to remedy the deficiencies in the State’s proof. As we stated in Washbume, “[a]n express written waiver is not enough to establish waiver.” 574 N.W.2d at 265. There must be an additional showing that any such waiver was voluntary, knowing and intelligent. Id.; Hinners, 471 N.W.2d at 845 (“[W]e hold that a defendant may expressly waive the right to appeal in a plea bargain agreement as long as the defendant voluntarily, knowingly, and intelligently waives the right.” (Emphasis added.)). As we have already pointed out, that showing has not been made here.

In conclusion, we reject the State’s request to remand this case to allow the prosecutor to supplement the record with the parties’ alleged plea agreement. Given our conclusion the State has not demonstrated a waiver of Loye’s right to appeal, we hold Loye had the right to appeal the judgment of conviction and her sentences. Consequently, we proceed to the merits of her appeal.

V. Validity of the Defendant’s Guilty Plea.

A. Error preservation. The State contends the defendant may not challenge her guilty plea on appeal because she did not file a motion in arrest of judgment contesting the legality of her plea in the district court. See Iowa R.Crim. P. 2.24(3) (“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.”); State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000) (same). The defendant responds that this requirement does not apply here because the trial court did not adequately advise her of the necessity of filing a motion in arrest of judgment to preserve any error in the guilty plea proceeding. See Iowa R.Crim. P. 2.8(2)(d) (“The court shall 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.”); State v. Oldham, 515 N.W.2d 44, 46 (Iowa 1994) (stating court’s failure to comply with rule 2.8(2)(<2) “operates to reinstate the defendant’s right to appeal the legality of his plea”). With the issues so framed, we examine the record to determine whether the district court complied with rule 2.8(2 )(<£).

The State maintains the district court substantially complied with the rule when it imparted the following information to Loye:

At the outset if you decide within a two-week period from today that you don’t want to be in drug court — we will release you from drug court and you’ll be transported back to district court and your case will be prosecuted through to completion which is the option we give everybody. The reason for that is because we really only want people here in drug court who want to be here.
Is that what you want to do?

The defendant responded, “I want the help. I want a different life when it’s over with.”

We do not think the court’s comments are sufficient to discharge the court’s duty under rule 2.8(2)(c£). Nor do we believe this colloquy manifests a knowing and intelligent waiver by Loye of her right to challenge her guilty plea within forty-five days as permitted by rule 2.24(3)(6). See Iowa R.Crim. P. 2.24(3)(6) (allowing forty-five days to file motion in arrest of judgment). Although we employ a substantial compliance standard in determining whether a trial court has discharged its duty under rule 2.8(2)(d), at a minimum the court must ensure the defendant understands the necessity of filing a motion to challenge a guilty plea and the consequences of a failure to do so. Old-ham, 515 N.W.2d at 46; State v. Taylor, 301 N.W.2d 692, 693 (Iowa 1981). The record does not show such an understanding here. The comments of the district court upon which the State relies merely informed Loye that she had two weeks to withdraw from the drug court 'program. This knowledge is not equivalent to an understanding that she had forty-five days to challenge her guilty plea. Moreover, the court’s comments in no way conveyed the fact that the defendant’s failure to file a motion attacking the adequacy of her plea would forfeit her right to challenge the plea on appeal.

Under these circumstances, we conclude the defendant was not satisfactorily informed of the requirements of rule 2.24(3)(6). Accordingly, her acquiescence to the judge’s statement that she had two weeks to withdraw from the drug court program fails to demonstrate a knowing and intelligent waiver of her rights under this rule. Cf. State v. Smith, 300 N.W.2d 90, 91 (Iowa 1981) (holding defendant’s voluntary waiver of time for sentencing did not operate as a waiver of defendant’s right to move in arrest of judgment because court had not informed defendant of this right as required by rule 2.8(2)(d)). Consequently, Loye’s failure to file a motion in arrest of judgment does not prevent her from challenging her guilty plea on appeal.

B. Scope of review. The defendant claims her guilty plea was not made knowingly and intelligently. Because this claim implicates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, our review is de novo. See Thomas, 659 N.W.2d at 220.

C. Discussion. Although the defendant offers several reasons why her plea was not knowing and intelligent, we need only address her argument that the district court did not comply with rule 2.8(2)(6 )(1)-(2) by adequately informing her of the nature of the charges to which she was pleading guilty and the potential penalties for these crimes. We start with the governing legal principles.

The Due Process Clause requires that a guilty plea be voluntary. See State v. Fluhr, 287 N.W.2d 857, 863 (Iowa 1980), overruled on other grounds by Kirchoff, 452 N.W.2d at 804-05. “To be truly voluntary, the plea must not only be free from compulsion, but must also be knowing and intelligent.” Id. Consequently, a defendant must be aware not only of the constitutional protections that he gives up by pleading guilty, but he must also be conscious of “the nature of the crime with which he is charged” and the potential penalties. Id.

Rule 2.8(2)(6) codifies this due process mandate. See State v. Mensah, 424 N.W.2d 453, 455 (Iowa 1988); see also Kirchoff, 452 N.W.2d at 803-04. The rule provides in pertinent part:

b. Pleas of guilty. The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea was made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered.
(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.

Iowa R.Crim. P. 2.8(2)(6 )(l)-(2).

As noted earlier, we apply a substantial compliance standard in assessing whether the trial court has adequately informed the defendant of the items listed in the rule. State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002). “Substantial compliance” requires at a minimum that the defendant be informed of these matters and understand them. State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001).

In applying this standard to the requirement that the defendant know and understand the nature of the charges against him, we have held the court need not review and explain each element of the crime if it is “apparent in the circumstances the defendant understood the nature of the charge.” Smith, 300 N.W.2d at 92. Moreover, if “the record shows the court gave misleading or inaccurate advice concerning the nature of the offense, the requisite understanding cannot be found.” Id. A clearer understanding of these principles can be gained from a comparison of this court’s decision in the Smith case with the court of appeals’ decision in State v. Ludemann, 484 N.W.2d 611, 612 (Iowa Ct.App.1992).

In Smith, the defendant pled guilty to second-degree theft based on an allegation that he uttered false checks on two banks and received cash or property having a value in excess of $500. 300 N.W.2d at 92. The defendant claimed on appeal the district court had failed to determine that he understood he was guilty only if he knew at the time he passed the checks that they would not be paid upon presentment to the banks. Id. During the plea proceeding, the defendant acknowledged that he was pleading guilty because he wrote checks on a bank account in which he had insufficient funds to cover the checks and on another bank where he did not even have an account. Id. The court then asked the defendant if he understood the State would have to prove he “did not knowingly have an understanding with the bank so that the checks would be honored.” Id. The defendant said he understood. Id. This court concluded on appeal that even though the trial court did not expressly identify the knowledge element the State had to prove, the defendant was adequately advised of the nature of the crime because he understood the charge would require proof that he knew the checks would not be paid when presented. Id.

In contrast, in Ludemann, the court of appeals determined the trial court failed to substantially comply with the requirement that the defendant know and understand the nature of the charges against him. 484 N.W.2d at 613. In that case the defendant pled guilty to second-degree burglary. Id. at 612. In taking his plea, the trial court confirmed that the defendant understood second-degree burglary was a class C felony. Id. at 613. The court also asked the defendant’s attorney whether he had explained the elements of the offense to his client and what the State would have to prove. Id. The defendant’s attorney affirmed that he had done so and that the defendant understood. Id. The court of appeals held this colloquy was not sufficient:

[The defendant’s] decision to enter a plea did not relieve the trial court of its duty to inform him of the nature of the offense, including the element of specific intent. Additionally, a “court may not abrogate or delegate to anyone, including the attorney for the accused, the duty to determine defendant’s knowledge of the charge, appreciation of legal consequences of a guilty plea, whether it is voluntarily entered, or [the] existence of facts supporting it.”

Id. (citation omitted).

In reviewing the transcript of Loye’s plea hearing, we conclude the degree of inquiry made by the trial court here is not much more than that found deficient in Ludemann. With respect to the possession charge, the court told the defendant that she was charged with possession of a controlled substance, marijuana, in violation of section 124.401(5), a serious misdemeanor. The court asked Loye whether she “possessed] marijuana ... at the time [she] was apprehended,” but did not otherwise engage the defendant in any discussion of the elements of the charge. Loye was not informed of the penalty for this offense.

The colloquy on the possession-of-burglar’s-tools charges was similarly deficient: the court stated the charge, identified the code section violated, and indicated the crime was an aggravated misdemeanor. There was no further discussion with respect to the elements of this offense or what the State would have to prove, nor was the penalty that would result from conviction mentioned.

With respect to the ongoing criminal conduct charge, Loye was informed of the code section violated, and that it was a class B felony, “a 25-year offense.” The same type of information was offered on the burglary charges: the court identified the code section violated and told Loye third-degree burglary was a class D felony. Although the court reviewed the punishment for the burglary charges, the information given the defendant was incomplete and inaccurate. The court told Loye the penalty for third-degree burglary was “five years in the penitentiary or as much as a $7500 fine.” (Emphasis added.) In fact, the possible penalty was five years imprisonment and a fine of at least $750 and not more than $7500. See Iowa Code § 902.9. The only discussion of the substance of the ongoing-criminal-conduct charge and the burglary charges was the following exchange:

THE COURT: In that particular instance you’re charged with the [ongoing-criminal-conduct] offense because you were involved with allegations that you intended to defraud or to injure another person and that you engaged in a series of acts for financial gain that resulted in a continuous course of conduct; in this particular case, burglary, where you — I assume you tell me if I’m wrong — that you burglarized several properties in order to obtain property that you could either fence or sell in order to raise money to support your drug habit. Is that about right?
THE DEFENDANT: Yeah, it was money.
THE COURT: It was money that you wanted, right?
THE DEFENDANT: It was money that I was stealing.

Although this discussion tends to establish Loye’s intent to steal money when she “burglarized several properties,” it does not shed any light on the defendant’s understanding of what it means to “burglarize” property.

The court’s failure to specify the punishments for some of the offenses was somewhat rectified when the court announced its intention to impose consecutive sentences should the defendant fail the drug court program. The court stated: “So you have seven times five is 35 plus 25 making 60 and two aggravated misdemeanors of two years each mean 64 years that you could be sent to the pen — the penitentiary for.” Even if we were to accept this mental math as a sufficient explanation of the “maximum possible punishment provided by the statute[s] defining the offense[s],” Iowa R.Crim. P. 2.8(2)(6 )(2), it fails to encompass the possible fines that could be imposed as part of the sentence.

The State attempts to excuse the court’s deficient plea colloquy by relying on defense counsel’s cryptic statement at the hearing that he had talked to Loye about “punishments.” The State concludes from this statement that “[t]he terms of Loye’s sentence were negotiated by the parties prior to her entry into drug court and Loye was adequately informed of the punishment for each of the offenses.” But, as we noted earlier, the fact that a defendant pleads guilty does not relieve the court of its obligation to ensure the defendant’s knowledge and understanding of the nature of the charges and the potential punishments. See Ludemann, 484 N.W.2d at 613. Nor is the court’s obligation lessened because the defendant’s attorney has discussed the same matters with the accused in preparation for the plea hearing. Id.

The State also relies on the alleged existence of an underlying plea agreement to supply the deficiencies in the court’s oral plea colloquy. The State argues in its brief:

The fact that Loye entered the drug court program pursuant to a plea agreement is important because the extent of the trial judge’s explanation and inquiry into defendant’s understanding of the plea “varies with the circumstances of each case, including the complexity of the charge and other factors involved in the particular case.”

(Citation omitted.) We initially observe there is no record of a plea agreement and the State’s repeated references to one are without merit. See Oliver, 588 N.W.2d at 415.

More importantly, a plea agreement, if one exists, would not save Loye’s plea to the felony charges. We held in State v. Hook, 623 N.W.2d 865 (Iowa 2001), abrogated in part on other grounds by State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002), that a written guilty plea to a felony could not “serve as a substitute for a question the court is required to pose to the defendant directly.” 623 N.W.2d at 870. The same reasoning applies to a plea bargain. A written plea agreement is not a substitute for the in-court colloquy required by rule 2.8(2)(6) in felony cases.

In conclusion, the trial court did not substantially comply with rule 2.8(2)(6 )(1)-(2) because it did not confirm that the defendant knew and understood the nature of the charges to which she intended to plead guilty or the maximum possible punishments that might result from her plea. See Kress, 636 N.W.2d at 22 (finding lack of compliance with rule 2.8(2)(6) where defendant was not informed of correct punishment for offense to which she pled guilty). Under these circumstances, Loye’s plea was not made knowingly and intelligently and, therefore, was not voluntary. For this reason, the defendant’s guilty plea violated the Due Process Clause and must be set aside.

VI. Summary and Disposition.

Having concluded the defendant did not waive her right to appeal and that her notice of appeal was timely filed, we hold on the merits that Loye’s guilty plea was invalid because the court failed to establish on the record that Loye’s plea was entered knowingly and intelligently as required by the Due Process Clause and rule 2.8(2)(6). We will not assume compliance with these requirements simply because the defendant’s plea was ostensibly negotiated in exchange for the opportunity to participate in the drug court program.

Because the defendant’s guilty plea is illegal, it must be set aside. Kress, 636 N.W.2d at 21; Hook, 623 N.W.2d at 871. We therefore vacate the defendant’s guilty plea and reverse the judgment of conviction. This case is remanded to the district court where the defendant shall be given the opportunity to plead anew to the charges.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.

      . We note the State has conceded error on Loye’s claim that the trial court did not establish a factual basis for her plea. See Iowa R.Crim. P. 2.8(2){b) (stating court "shall not accept a plea of guilty without first determining that the plea ... has a factual basis”). The State suggests that we remand the case to the district court for a hearing to determine whether a factual basis exists. See State v. Schminkey, 597 N.W.2d 785, 792 (Iowa 1999) (stating where it is possible that factual basis may exist, proper remedy is to vacate sentence and remand for further proceedings to allow State to show a factual basis); Ryan v. Iowa State Penitentiary, 218 N.W.2d 616, 620 (Iowa 1974) (holding lack of factual basis for plea does not automatically require that plea be set aside; factual basis may be shown upon remand). We decline to remand this case for this purpose, however, because other defects in the plea require that the plea be set aside. Under these circumstances, there is no point in allowing the State to establish a factual basis for a plea that is illegal in any event.

      . The State makes several references in its brief to the fact that Loye was "sentenced to the drug court program.” In the event we have misapprehended the State’s argument on this issue and the State is actually arguing that final judgment was rendered at the June hearing because Loye was "sentenced” to drug court, we reject this characterization of what happened at the plea proceeding. The drug court program is not a "sentence.” Rather, successful completion of the drug court program is a condition of probation. Thus, it is a misnomer to say that a defendant is "sentenced” to the drug court program.

      . The State suggests the defendant agreed to a two-week period to withdraw from drug court and assert any challenge to her guilty plea as part of a plea bargain with the prosecutor. As we have already held, however, there is no proof of a plea agreement in the record.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    CAPITAL FUND 85 LIMITED PARTNERSHIP, Appellant, v. PRIORITY SYSTEMS, LLC, Appellee.
    No. 02-1356.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Jonathan C. Wilson, Debra Rectenbaugh Pettit, and Heather L. Palmer of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.
    Michael D. Ensley of Hanson, Bjork <& Russell, L.L.P., Des Moines, for appellee.
   STREIT, Justice.

An apartment building owner complains an electronic dish is on its building’s roof without permission and wants it off. The owner of the apartment complex brought a forcible entry and detainer action against its tenants’ former cable television provider for installing a two-foot repeater satellite dish on the roof of one of its buildings. The district court dismissed, and the cable television provider requested an award of attorney fees. The district court refused to award the cable television provider attorney fees. Both sides appeal. Because we hold this dispute does not warrant the summary remedy of forcible entry and de-tainer, we affirm.

I. Facts and Background

In 1995, Capital Fund 85, L.P. entered into a service agreement with Provision, Inc. Under the terms of the contract, Provision agreed to provide television service to Bristol Apartments, which Capital Fund owned. To do so, Provision installed a six-foot satellite receiver dish on top of one of the buildings at Bristol Apartments. In 1997, a Provision employee attached a second dish to the receiver dish. The attached dish, a repeater, relayed the same signal across the street to another budding not owned by Capital Fund.

In the district court, Capital Fund offered evidence to show that Provision asked Capital Fund on the telephone if it could install the repeater dish before it did so, but was denied permission. Priority Systems, L.L.C., an alleged assignee of Provision and the defendant in this forcible entry and detainer action, denies there is sufficient evidence to support such a claim.

Capital Fund claims it did not become aware Provision had installed the repeater dish until 2002, when Capital Fund terminated the service agreement with Priority Systems. At that time, Capital Fund contracted with another company to provide cable television. When the change in service took place, Capital Fund, no longer needing service from the six-foot receiver dish, shut off electricity to the dishes. Capital Fund thereby unwittingly turned off the television service to the tenants across the street. Capital Fund later turned the power back on. The receiver and repeater dishes are presently using Capital Fund’s electricity.

Capital Fund filed a petition for forcible entry and detainer against Priority Systems. Capital Fund alleged the installation of the repeater dish without its consent, as well as its continued presence upon the rooftop of the Bristol Apartments, warrants the “summary remedy” of a forcible entry and detainer action. See Iowa Code § 648.1 (2001). In particular, Capital Fund alleged Priority Systems has “by force, intimidation, fraud, or stealth entered upon [its] prior actual possession ... in real property, and detains the same.” Id. § 648.1(1).

After a trial, the district court dismissed Capital Fund’s forcible entry and detainer petition. The court held the matter was not properly brought as a forcible entry and detainer action, because the court would be required to rule on the rights of the parties to the underlying contract; the court noted that Capital Fund had already filed a separate action in district court to resolve those very issues. In the alternative, the district court held that “[e]ven if the court found an FED action proper in this circumstance ... there is no evidence in this record to support a finding of force, intimidation, fraud, or stealth.”

After the district court ruled against Capital Fund on the forcible entry and detainer action, Priority Systems filed an application to tax attorney fees against Capital Fund. The court denied Priority Systems’ request, ruling that there was no statutory or contractual authority on which to award attorney fees. Capital Fund appealed the district court’s dismissal of the forcible entry and detainer action and Priority Systems cross-appealed the district court’s refusal to award attorney fees.

II. Scope of Review

Our review of a forcible entry and detainer action, which is tried in equity, is de novo. Petty v. Faith Bible Christian Outreach Ctr., 584 N.W.2d 303, 306 (Iowa 1998); Bernet v. Rogers, 519 N.W.2d 808, 810 (Iowa 1994). Although we are not bound by the factual or legal findings of the district court, “we give them weight, especially when considering the credibility of witnesses.” Petty, 584 N.W.2d at 306. The defendant has the burden to prove the affirmative defenses it raises. Id. In contrast, our review of an award of attorney fees, or lack thereof, is for an abuse of discretion. Equity Control Assocs., Ltd., v. Root, 638 N.W.2d 664, 670 (Iowa 2001).

III. The Merits

A. Forcible Entry and Detainer

The section of the statute at the center of the disagreement in this case reads as follows:

648.1 Grounds
A summary remedy for forcible entry or detention of real property is allowable:
(1) Where the defendant has by force, intimidation, fraud, or stealth entered upon the prior actual possession of another in real property, and detains the same....

Capital Fund bases its forcible entry and detainer claim upon this first subsection of the foregoing statute. Iowa Code § 648.1(1). Capital Fund alleges “Priority Systems and its predecessors-in-interest wrongfully entered Capital Fund’s property and thereafter detained the same, by forcefully and stealthily attaching and operating a satellite repeat transmitter at Bristol Apartments.”

On appeal, Capital Fund argues it has met the force, fraud, and stealth requirements of section 648.1(1), even though the disjunctive phraseology of that subsection requires a plaintiff to prove only one of these three elements, or “intimidation.” See id. Capital Fund argues it has established force because Provision installed the repeater dish even though it was told not to do so, and the dish continues to draw upon Capital Fund’s electricity, for which Capital Fund is not paid compensation. Likewise, Capital Fund claims the facts support a finding of stealth and fraud because Provision, which had the limited right to provide cable service to Capital Fund’s tenants, secretly installed, and its successors-in-interest maintained, the two-foot repeater dish after Capital Fund’s representative expressly told Provision not to do so. Provision put the repeater dish, Capital Fund alleges, in a place where it is not visible to the naked eye from the ground. Nor is the dish, it claims, discernible to the untrained eye standing directly in front of it as a device distinct from the six-foot receiver dish.

Before reaching these claims, the district court, recognizing “[a forcible entry and detainer action] is typically used to remove a tenant in a residential dwelling or retail establishment” questioned “whether Chapter 648 even covers the situation before the court.” The court then held the matter was “not properly brought as an FED action under Chapter 648.” In order to reach a decision, the district court reasoned, it would have “to determine the meaning of the contract ... when those very issues are being litigated in [another pending action].” The district court refused to do so, and dismissed Capital Fund’s petition.

We agree with the district court that the present matter was not properly brought as a forcible entry and detainer action. We recognize our statute is often used to resolve landlord-tenant disputes. We do not think this, nor the fact that the court would be required to determine the meaning of a contract that is being litigated elsewhere is necessarily fatal to a forcible entry and detainer action.

While it is true forcible entry and detainer actions typically involve landlord-tenant disputes, the plain language of Iowa Code section 648.1(1) allows for a forcible entry and detainer action where “the defendant has by force, intimidation, fraud, or stealth entered upon the prior actual possession of another in real property, and detains the same.” Compare Iowa Code § 648.1(1), with Iowa Code § 648.1(2)-(6). Although other subsections of our forcible entry and detainer statute are confined in scope to the resolution of landlord-tenant disputes, section 648.1(1) contains no such restriction.

Nor is there any language in the statute expressly forbidding application of section 648.1(1) where the court would be required to interpret a contract that is the subject of another action. It is true that determining the ancillary legal rights of the parties is not the primary object of the statute. Since our earliest days, Iowa courts have recognized that forcible entry and detainer “is ... a civil action to obtain possession.” Harrow v. Baker, 2 Greene 201, 203 (Iowa 1849) (emphasis added). And it is true that historically we were reluctant to permit parties to use this summary remedy to prove legal rights, such as title. See, e.g., Emsley v. Bennett, 37 Iowa 15, 17 (1873) (“the question of title or right of possession is not involved and cannot be tried ... [I]t is the fact of possession alone that is material” (emphases in original)); Settle v. Henson, 1 Morris 111, 112 (Iowa 1841) (“[the action of forcible entry and detainer] is not the proper action for trying titles of any description”).

This reluctance to try titles, however, was, in part, a function of the statutes of the time; unlike our present statute, our earliest statutes expressly forbade title from being put in issue at all. Compare Iowa Code § 3961 (1860), with Iowa Code ch. 648 (2003); see Steele v. Northup, 168 N.W.2d 785, 787-88 (Iowa 1969) (“chapter 648 was not passed as a primary vehicle to establish or test title,” but due to repeal of a prior statutory restriction, “[w]hen title is germane ... it may [now] be the subject of inquiry provided statutory prerequisites are met”); see also Cummins Mgmt., L.P. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538, 542-43 (2003) (recognizing two purposes behind restriction upon trying titles: statutory restriction and summary nature of forcible entry and detainer remedy). In the absence of statutory restrictions, we have repeatedly interpreted written agreements — from leases to land contracts — in order to determine whether a defendant is in wrongful possession. See, e.g., Petty, 584 N.W.2d at 306-08 (interpreting a lease); Warren v. Yocum, 223 N.W.2d 258, 260-63 (Iowa 1974) (land contract); Gifford v. King, 54 Iowa 525, 529-30, 6 N.W. 735, 738 (1880) (contract); accord Robinson v. Black, 607 N.W.2d 676, 677-79 (Iowa 2000) (expressing willingness to examine real estate contract if part of record). We have also recognized the availability of other actions at law. See, e.g., Petty, 584 N.W.2d at 308; Wernet v. Jurgensen, 241 Iowa 833, 839, 43 N.W.2d 194, 198 (1950); see also Iowa Code § 648.17 (forcible entry and detainer is a nonexclusive remedy). The pendency of another action is not necessarily a bar to a forcible entry and detainer action.

“Where ... the language of the statute is clear and plain ... the sole function of this court is to apply the statute according to its terms.... [W]e simply apply the statute, as written.” Hinders v. City of Ames, 329 N.W.2d 654, 655 (Iowa 1983) (citations omitted). The district court, therefore, incorrectly concluded the present matter was not properly brought as a forcible entry and detainer action, because to do so would require the court to interpret a contract that is the subject of another legal action. We see no such bar in the statute.

Nevertheless, the district court was correct to question the applicability of chapter 648 to the facts of the present ease on statutory grounds. Even if we were to accept Capital Fund’s argument that Priority Systems installed the repeater dish with force, fraud or stealth, the presence of the repeater dish does not constitute a sufficient “ent[ry] upon the prior actual possession of another in real property.” To hold otherwise would ignore both the history and purpose of our forcible entry and detainer statute.

“Before institution of forcible entry statutes, English common law permitted one entitled to possession of land to use any force reasonably necessary ... to regain possession from another wrongfully withholding the land.” Keller v. Southwood N. Med. Pavilion, 959 P.2d 102, 108, n. 6 (Utah 1998) (citing Randy G. Gerchick, Comment, No Easy Way Out: Making the Summary Eviction Process a Fairer and More Efficient Alternative to Landlord Self-Help, 41 U.C.L.A. L.Rev. 759, 773-75 (1994)). The enactment of a forcible entry and detainer statute “obviate[d] resort to self-help and violence,” providing a peaceful legal process for the bloodletting English statutes had fostered. Lindsey v. Normet, 405 U.S. 56, 71, 92 S.Ct. 862, 873, 31 L.Ed.2d 36, 49 (1972). Forcible entry and detainer statutes were designed “to prevent disturbances of the public peace, and to forbid any person righting himself by his own hand and violence.” 36A C.J.S. Forcible Entry and Detainer § 3, at 962 (1961).

Statutes providing a cause of action for forcible entry and unlawful detainer are enacted to enable the parties to obtain a speedy determination of the right to the possession of property without having to resort to violence, to preserve the peace, and require instead the use of judicial process to gain possession.

35A Am.Jur.2d Forcible Entry and Detainer § 7, at 1041 (2001); see Lindsey, 405 U.S. at 70, 92 S.Ct. at 872, 31 L.Ed.2d at 48 (the purpose of a forcible entry and detainer statute is the “prompt as well as peaceful resolution of disputes over the right to possession of real property”). In the case at hand, the receiver dish occupies a small area upon the roof of one of Capital Fund’s buildings. Capital Fund does not dispute its presence on the roof. The contested two-foot repeater dish, on the other hand, occupies only a small paraboloid in space, suspended above the ground, behind the receiver dish. It does not increase the footprint of the receiver dish. Granted, the ancient legal maxim cujus est solum, ejus est usque ad coelum (whose is the soil, his it is up to the sky) still governs, to some extent, the space occupied by the repeater dish. Black’s Law Dictionary 378 (6th ed.1990); see 8A Am.Jur.2d Aviation § 3, at 13-14 (1997) (a property owner has an interest in the airspace above his land to the extent a benefit to the land may be derived therefrom). But see United States v. Causby, 328 U.S. 256, 260-61, 66 S.Ct. 1062, 1065, 90 L.Ed. 1206, 1210 (1946) (“[T]hat doctrine has no place in the modern world ... Common sense revolts at the idea”). Considering the history and purpose of our forcible entry and detainer statute, as well as the nature of the statute as a summary remedy, it strains reason to characterize the installation and subsequent maintenance of the repeater dish as an “ent[ry] upon the prior actual possession of another in real property, and detains the same” as our forcible entry and detainer statute requires. The de minimis infringement alleged here is the otherwise unused space on the backside of a six-foot receiver dish which is occupied by a two-foot receiver dish. Accord Keller, 959 P.2d at 108 (stating, in dicta, Utah’s “forcible entry statute only protects types of property that people can occupy” and not one’s interest in a sign). There is no risk these two businesses will engage in physical struggle; only ink, as opposed to blood, is likely to be spilled.

Capital Fund does not cite any authority applying section 648.1(1) in a similar factual situation. For example, Bernet v. Rogers, 519 N.W.2d 808 (Iowa 1994), upon which Capital Fund relies in its brief, is an obviously dissimilar case. In Bemet, the defendant refused to leave her ex-boyfriend’s house after he ended their relationship. Unlike a two-foot satellite repeater dish annexed to the back of a contractually installed six-foot receiver dish, in Bemet the defendant went so far as to change the locks on the plaintiffs entire house; in our words, “holding his house hostage,” until, in her words, “she was good and ready” to move. Bernet, 519 N.W.2d at 811.

Although Capital Fund may characterize the installation of the dish as an “ent[ry] upon [its] ... possession ... in real property,” its true argument, as it suggested at trial and in its brief to this court, is that Priority Systems exceeded the scope of its contractual rights. The controversy is simply whether the contract allows additional equipment, not used to provide television service to the tenants of Bristol Apartments, to be attached to the dish on the roof. We therefore affirm the decision of the district court; the present matter was not properly brought as a forcible entry and detainer action. Because of our decision, we do not reach other issues raised by the parties — including, but not limited to, the issue of whether the actions of Provision and its alleged assignees constituted force, fraud, or stealth.

B. Attorney Fees

Priority Systems appeals the district court’s refusal to award attorney fees. We have repeatedly stated that, as a general rule in Iowa, attorney fees are not allowed in the absence of a statute or contract authorizing such an award. Suss v. Schammel, 375 N.W.2d 252, 256 (Iowa 1985); Harris v. Short, 253 Iowa 1206, 1208-10, 115 N.W.2d 865, 866 (1962). Chapter 648 does not provide for an award of attorney fees, and there is no evidence in the record that the district court abused its discretion in failing to award attorney fees on a contract between the two parties which neither it, nor we, believe ought to be litigated in this context. We affirm.

IV. Conclusion

The district court properly held that the present matter was not properly brought as a forcible entry and detainer action. This matter does not warrant the summary remedy of chapter 648, because it would require this court to act in direct contravention to the history and purpose of the statute. Nor did the district court err in its denial of attorney fees. We affirm the decision of the district court.

AFFIRMED.

      . Although services were cancelled with Priority Systems, the service agreement apparently allows for the placement of the receiver dish for seventeen years.

      . Priority Systems points out that the underlying contract permits recovery for costs of electricity, on request, but Capital Fund has made no such request.

      . A pending prior action at law usually abates a later forcible entry and detainer action. See 36A C.J.S. Forcible Entry and Detainer § 29, at 993 (1961) ("The pendency of a prior action for the same cause of action between the same parties ordinarily is a ground for abatement of a later action of forcible or unlawful entry and detainer.”); accord Music v. De-Long, 209 Iowa 1068, 1072, 229 N.W. 673, 675 (1930) (rejecting appellant’s claim that the lower court should have "abate[d] the action on the theory that there was another action pending in the district court, similar in its nature, asking for the same relief ... [because] that proceeding had been dismissed, and was not pending”). The parties did not address this issue, however; in the present case it is unclear which action was filed first.


author: TERNUS, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Richard S. KALLSEN, Respondent.
    No. 03-0935.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Richard Kallsen, pro se, for respondent.
   TERNUS, Justice.

This disciplinary proceeding stems from the desire of the respondent, Richard Kail-sen, to change professions and from his failure to attend to two clients in the process of closing his practice. These clients, Melissa Farrell and Timothy Deplanty, claim the respondent neglected legal matters he undertook on their behalf and failed to account for attorney fees paid in advance by both clients. We find the respondent has violated the Iowa Code of Professional Responsibility for Lawyers and, as a consequence, we suspend his license to practice law indefinitely with no possibility of reinstatement for three months.

I. Background Facts and Proceedings.

For several years prior to the events giving rise to this matter, Kallsen practiced law in Sioux City, Iowa. Unhappy with the practice of law, the respondent decided in 2000 to return to college to obtain his teaching certificate and, thereafter, to teach high school students. Pursuant to this plan, the respondent closed his law office on September 1, 2000. With two exceptions, Kallsen completed his clients’ work or referred them to other attorneys for further representation. The two exceptions were Melissa Farrell and Tim Deplanty.

Farrell had hired the respondent to pursue modification of a dissolution decree. Deplanty’s stepfather had employed the respondent to defend Deplanty on criminal charges. Both Farrell and Deplanty were unhappy with the representation they received from the respondent, claiming that Kallsen closed his office without completing the work he had been retained to do on their behalf. These clients were equally disappointed that the respondent did not return some portion of the advance fees that had been paid to Kallsen when he was hired to represent them.

Farrell’s and Deplanty’s dissatisfaction with the respondent’s conduct resulted in the filing of two complaints with the Board. After receiving several notices from the Board concerning Farrell’s complaint, the respondent wrote a letter to the Board explaining his handling of Farrell’s modification action. After unsuccessfully attempting to obtain Kallsen’s response to the Deplanty complaint, the Board filed a formal complaint concerning both matters with the Iowa Supreme Court Grievance Commission on October 2, 2002. The respondent did not answer the complaint, nor did he file a response to the Board’s request for admissions and request for production of documents.

After the Commission chair sustained the Board’s motion to compel discovery, the respondent faxed a letter to the Board on December 27, 2002, apologizing for the delay in his response and stating that he admitted the fifteen requests for admissions served by the Board. In response to the request for production, Kallsen stated he had no documents in addition to those the Board already possessed. The respondent also replied to the allegations made by his former clients, describing his efforts on their behalf. He further informed the Commission that he had no desire to appear at the hearing and argue with Farrell and Deplanty about what had happened. For that reason, the respondent told the Board he did not plan to attend the hearing or to present any evidence other than his letters to the Board.

On January 3, 2003, an evidentiary hearing was held before the Commission; Kail-sen did not attend. The Board did, however, introduce the respondent’s letters into evidence, as well as the complete court files in the Farrell modification matter and in the Deplanty criminal case. In addition, Deplanty and his stepfather, Randy Frady, testified.

Subsequently, the Commission issued its report, concluding the respondent had violated the Iowa Code of Professional Responsibility for Lawyers by neglecting his clients’ legal matters. See Iowa Code of Profl Responsibility for Lawyers DR 6-101(A)(3) (providing lawyer shall not neglect a client’s legal matter), DR 7-101(A) (providing lawyer shall not intentionally fail to carry out a contract of employment or prejudice a client in the course of representation). The Commission also concluded the respondent’s failure to render an adequate accounting to his clients and to remit any unearned fees violated the canons of ethics. See id. DR 9-102(B)(3), (4) (requiring lawyers to render appropriate accounting to clients and to promptly pay any fees in lawyer’s possession to which client is entitled). Finally, the Commission concluded the code of professional responsibility had been violated by Kali-sen’s failure to respond to notices and inquiries from the Board. See id. DR 1-102(A)(5), (6) (stating lawyer shall not engage in conduct prejudicial to the administration of justice or reflecting adversely on fitness to practice law). The Commission recommended the respondent’s license to practice law be suspended with no possibility of reinstatement for nine months.

II. Principles Governing Our Consideration of This Disciplinary Matter.

This proceeding comes to the court for review of the Commission’s report and for final disposition. See Iowa Ct. Rs. 85.9, .10(1). Our review is de novo. See Iowa Ct. R. 35.10(1). Accordingly, although we give weight to the factual findings made by the Commission, particularly when they involve an assessment of witness credibility, this court finds the facts anew. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001). In determining the facts, we keep in mind that the Board bears the burden to prove the alleged ethical violations by a convincing preponderance of the evidence. See id.

It is the obligation of this court to determine the appropriate discipline. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001); Iowa Ct. R. 35.10. Nevertheless, we give respectful consideration to the Commission’s recommended discipline in making our decision. Adams, 623 N.W.2d at 818. To establish a suitable sanction, we consider the nature and extent of the respondent’s ethical infractions, his fitness to continue practicing law, our obligation to protect the public from further harm by the respondent, the need to deter other attorneys from engaging in similar misconduct, our desire to maintain the reputation of the bar as a whole, and any aggravating or mitigating circumstances. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rylaarsdam, 636 N.W.2d 90, 93 (Iowa 2001).

III. Factual Findings.

A. Melissa Farrell complaint. In April 2000, Farrell employed the respondent to seek a modification of her dissolution decree, paying an advance fee of $2000. Shortly thereafter, the respondent filed an application for modification. Subsequently, Kallsen, Farrell, Farrell’s former spouse, and his attorney met to work out a settlement. Eventually, Farrell and her ex-husband met alone and agreed to the terms of a stipulation. Farrell brought her notes to the respondent’s office and his secretary typed the stipulation and an order for the court’s signature.

What happened next is unclear. Farrell asserts the final draft of the stipulation and order were never provided to her. The respondent claims he understood his involvement to be at an end, as Farrell and her former spouse had decided to complete the modification themselves to save on attorney fees. Suffice it to say, the stipulation and order were never presented to the court and on January 3, 2002, Farrell’s application to modify was dismissed for failure to prosecute.

In December 2000, Farrell complained to the Woodbury County Bar Association. She said she had been unable to reach the respondent, as his office was closed and his work number had been disconnected. She also asserted the respondent had not returned her phone calls to his residence. In addition to her frustration at Kallsen’s inattention to completion of the modification, Farrell also complained about his failure to account for the $2000 retainer she had paid.

When the local bar told Kallsen of Farrell’s concerns, the respondent attempted unsuccessfully to contact her. He subsequently informed the bar of these efforts and asserted he had sent Farrell an itemized statement in September 2000. The respondent later told the Board that after he closed his office, his computer crashed, causing him to lose his only copy of the statement he had prepared. Recreating this statement, he asserted, would require a review of his daily time logs, a task the respondent had not undertaken. There is no dispute Kallsen has not returned any portion of the $2000 paid by Farrell.

B. Timothy Deplanty complaint. In June 2000 Randy Frady hired the respondent to defend Frady’s stepson against a charge of operating a motor vehicle while under the influence of marijuana, first-offense, and a possession-of-marijuana charge. Although Deplanty planned to plead guilty, he hoped an attorney could minimize any sentence he received. Frady paid the respondent a $750 advance fee to represent Deplanty.

It is uncontroverted that on February 8, 2001, a bench warrant was issued and De-planty’s bond forfeited after he failed to appear for a scheduled court appearance on January 29, 2001. Deplanty was eventually arrested on the outstanding warrant on December 19, 2001. Shortly thereafter his stepfather hired another attorney, Robert Tiefenthaler, to represent Deplanty. On May 2, 2002, Deplanty pled guilty to the charges and was given a deferred sentence. Tiefenthaler was also successful in having the . bond forfeiture set aside. Frady paid Tiefenthaler $1000 for his services.

Frady and Deplanty, the Board’s only witnesses, testified concerning the details of their communications with the respondent and the respondent’s representation of Deplanty. This testimony was somewhat at variance with Kallsen’s letter to the Board and with the court file in the criminal case. Before reconciling these discrepancies, we briefly review the conflicting evidence.

Frady said that from time to time De-planty received notices of court hearings and Frady would then call the respondent to ask whether Deplanty needed to appear in court. According to Frady, the respondent always told him that Deplanty’s personal appearance was not necessary because the respondent could handle the various court hearings on Deplanty’s behalf. Despite these alleged assurances, Frady testified, Deplanty was taken into police custody on an arrest warrant issued for his failure to appear at a hearing in his criminal case. Frady attributed Deplanty’s arrest to the respondent’s neglect of Deplanty’s case.

Frady also testified that Kallsen never met with Deplanty and never informed them that he was withdrawing from the case. In addition, the respondent did not account to Frady for the $750 paid to the respondent, nor was any portion of these funds returned to Frady.

Deplanty testified similarly. He said he never met the respondent, but did talk to him on several occasions. Although De-planty was not definite with respect to exactly what papers he received from the clerk’s office and from the respondent, he acknowledged that he received notice of the various court hearings. He claimed, however, that each time, with one exception, Kallsen told him he did not need to appear. On the one occasion that Deplanty did come to court, he learned from court personnel that the matter had been rescheduled due to a problem "with the judge’s schedule. Deplanty said he then went to the respondent’s office, but Kall-sen was not there.

Deplanty confirmed that he was arrested on an outstanding warrant due to his failure to appear at a hearing scheduled in his criminal case. He said there was never a time when he was told to be present that he intentionally failed to appear. He also testified that Kallsen did not tell him that he — the respondent — was closing his office and would no longer be representing Deplanty.

In the respondent’s December 2002 letter to the Board, he paints a different picture of these events. He claimed Frady made several promises to have Deplanty present, both before and after the respondent closed his office, but Deplanty never showed up for court hearings and the respondent never met him. Conceding that it was likely a breach of his duty to De-planty, Kallsen stated he “quit trying” because he felt Deplanty “no longer was interested in solving the matter” and had “simply used [the respondent] to get a warrant lifted.”

The court file lends support to the respondent’s version of what occurred. The file shows a bench warrant was first issued on December 6, 2000, based on Deplanty’s failure to appear on December 1, 2000 for a scheduled hearing for “plea taking and sentencing.” Three days later, the record shows, defense counsel (apparently Kall-sen) appeared, had the warrant recalled, and participated in scheduling a status hearing for December 15, 2000. At the December 15 hearing, defense counsel entered a not guilty plea on behalf of the defendant and trial was set for January 29, 2001. This hearing appears to be the last record of any involvement by the respondent.

Although the court file does not show any withdrawal by Kallsen, on January 17, 2001, the public defender filed a motion for continuance on behalf of Deplanty. It appears no ruling was entered on this motion and on February 8, 2001, the bench warrant was issued for Deplanty’s failure to appear at the trial scheduled for January 29, 2001. It was this warrant that provided the basis for Deplanty’s arrest in December 2001.

We find from the evidence before us that the respondent should be held accountable for issuance of the first bench warrant. Although Deplanty’s failure to appear for two court appearances while represented by two different attorneys shows a pattern of neglect on his part that supports a conclusion Deplanty’s absence on December 1, 2000, was his own fault, this fact does not excuse Kallsen’s failure to be present at the scheduled hearing that day. We also find, however, that there was no harm to Deplanty caused by this failure as the respondent successfully obtained a recall of the warrant issued as a result of Deplanty’s failure to appear at the December 1, 2000, hearing.

. We do not think the Board has shown by a convincing preponderance of the evidence that the issuance of the second warrant and Deplanty’s subsequent arrest and placement in the county jail resulted from any breach of duty by the respondent. To the contrary, it appears that Deplanty was represented by a public defender when these events occurred.

IV. Ethical Violations.

A. Neglect. Based on these factual findings, we agree with the Commission that the respondent has violated our rules of professional responsibility. Until Kallsen notified his clients that he would no longer be representing them and withdrew as their attorney of record, or until his clients retained other representation, he had an ethical duty to protect their interests in the matters for which he was employed. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rauch, 650 N.W.2d 574, 576 (Iowa 2002); Comm. on Prof'l Ethics & Conduct v. Kelly, 357 N.W.2d 815, 319 (Iowa 1984). Thus, although the respondent may have reasonably understood that Farrell and her former spouse preferred to minimize the involvement of their attorneys in the resolution of their modification dispute, it was incumbent upon the respondent to ensure the parties’ stipulation was presented to the court and an order entered prior to a dismissal of the modification action. Similarly, even if we accept the respondent’s version of his dealings with Deplanty, difficulties in obtaining a client’s cooperation and presence cannot excuse the attorney’s failure to appear at a court hearing. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Pracht, 656 N.W.2d 123, 126 (Iowa 2003); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 637 N.W.2d 183, 187-88 (Iowa 2001). We conclude, therefore, that Kallsen has violated DR 6-101(A)(3) and DR 7 — 101(A). See Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. D’Angelo, 652 N.W.2d 213, 215 (Iowa 2002); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 654-55 (Iowa 2001).

B. Accounting. Disciplinary Rule 9-102(B) requires a lawyer to “render appropriate accounts to the client” and to “[p]romptly pay ... to the client as requested by a client the funds ... in the possession of the lawyer which the client is entitled to receive.” Iowa Code of Profl Responsibility for Lawyers DR 9-102(B)(3), (4). This rule was violated when the respondent failed (1) to render an accounting to his clients showing the work he did on their behalf and the extent to which he earned the funds paid to him, and (2) to pay to them any unearned fees. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Feeney, 657 N.W.2d 454, 457 (Iowa 2003); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ramey, 639 N.W.2d 243, 245 (Iowa 2002).

C. Failure to cooperate. As we reviewed above, the Board served various notices on the respondent with respect to Farrell’s and Deplanty’s complaints, and also served a request for admissions and request for production on the respondent during the course of the present grievance proceeding. Although Kallsen eventually responded to these notices and requests, his responses were seriously tardy. The respondent’s failure to cooperate with the Board’s investigation and prosecution of these complaints is a violation of DR 1-102(A)(5) and (6). See DAngelo, 652 N.W.2d at 215; Rylaarsdam, 636 N.W.2d at 92-93. We turn now to a discussion of the appropriate discipline.

V. Discipline.

The Commission has recommended an indefinite suspension with no possibility of reinstatement for nine months. While we agree that the respondent’s license should be suspended, we think a more appropriate sanction would permit reinstatement after three months.

Kallsen’s ethical violations are serious matters and warrant a suspension for some period of time in view of the dismissal entered in the Farrell modification action. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Daggett, 653 N.W.2d 377, 381 (Iowa 2002) (noting harm to client is an aggravating factor). On the other hand, we have found the extent of the respondent’s neglect and the consequences of that misconduct to be somewhat less pervasive than did the Commission, which was “particularly bothered” by the Deplanty situation. As noted earlier, we think Kallsen is responsible only for issuance of the first bench warrant, which he had recalled before Deplanty was arrested, and not for issuance of the second warrant on which Deplanty was eventually taken into custody.

In addition, we do not think the other considerations affecting the determination of an appropriate sanction call for an extended suspension. Because the respondent is no longer engaged in the practice of law, the need to protect the public from further harm is minimal in this case. For the same reason, we need not be overly concerned with Kallsen’s fitness to continue practicing law. (Nonetheless, we note there was no evidence in the record that the actions leading to this disciplinary action were chronic in nature.) Finally, we think a three-month suspension will adequately deter other attorneys from engaging in similar misconduct and will maintain the reputation of the bar as a whole. Although the respondent’s license is currently suspended for his failure to file required reports with the Commission on Continuing Legal Education and the Client Security Commission, this failure is due to the respondent’s decision to leave the practice of law for a teaching position and his disinterest in maintaining his license to practice law. Under these circumstances, we do not deem his current suspension to be a particularly aggravating factor.

VI. Conclusion.

We indefinitely suspend the license of Richard S. Kallsen to practice law in Iowa, with no possible reinstatement for three months from the date this opinion is filed. This suspension applies to all facets of the practice of law. See Iowa Ct. R. 85.12(3).

Upon any application for reinstatement, Kallsen must establish that he has not practiced law during the suspension period and that he has in all other ways complied with the requirements of Iowa Court Rule 35.21. In addition, as a condition of reinstatement, Kallsen must confirm that he has accounted to Farrell and Deplanty for the advance fees paid to him and that he has refunded any unearned fees.

The costs of this proceeding are taxed to the respondent. See Iowa Ct. R. 35.25(1).

LICENSE SUSPENDED.

      . The matters admitted by the respondent focused on his failure to respond to the Board rather than on the charges made by his former clients. The admissions included the following facts: (1) the respondent was served on March 28, 2001, with the complaint concerning Melissa Farrell, but did not file an answer; (2) the respondent received a second notice of the complaint on April 20, 2001, but did not respond within ten days as requested in the notice; (3) the respondent received a subsequent letter from the Board, dated May 9, 2001, informing him of the consequences of failing to respond and asking for an immediate response; (4) the respondent did not respond to the Board until late June or early July 2001; (5) Randy Frady filed a complaint against the respondent on March 1, 2002, concerning the respondent's representation of Frady's stepson, Tim Deplanty; (6) the respondent received this complaint from the Board on March 19, 2002, but did not respond; (7) a second notice of complaint was mailed to the respondent, but was not claimed; and (8) the respondent received a letter from the Board dated May 3, 2002, advising him that his failure to respond was an ethical violation, but he still failed to respond.


text:
    STATE of Iowa, Appellant, v. Dallas Wade MADDOX, Appellee.
    No. 02-0630.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Michael Bennett, Assistant County Attorney, for appellant.
    Alan N. Waples, Burlington, for appel-lee.
   STREIT, Justice.

Wal-Mart employees and police officers became suspicious when two men went shopping late at night for an aquarium pump, flexible plastic tubing, coffee filters, starter fluid, and some jars. The police obtained a warrant, searched their truck, and discovered methamphetamine precursors, including peeled lithium batteries and crushed ephedrine pills. The district court held the search unconstitutional, and suppressed the seized evidence. The court of appeals affirmed. On appeal, we are asked to determine whether the warrant was supported by probable cause, and, if not, whether a warrantless search of the truck was constitutional. We find the police had probable cause to search the truck without a warrant. We reverse and remand for further proceedings.

I. Background and Facts

Late one night in December, Dallas Wade Maddox and Anthony George Gallegos went shopping together at the West Burlington Wal-Mart. A store employee, suspicious of items in a shopping cart, called an assistant manager. The assistant manager walked by Maddox and Gallegos, and saw at least a six-pack of starter fluid, flexible plastic tubing, and a plastic or glass jar in one of their carts. The manager recognized the items, in combination, might be used to produce methamphetamine. In accordance with store policy, police were called.

When it came time to check out, Maddox and Gallegos went through the same checkout stand, but with separate orders. After paying, Maddox went to a semi-truck — sans trailer — parked in the middle of the parking lot. Maddox then got in the truck. As Gallegos was leaving, the police arrived at the store, and Gallegos made a “U-turn” back towards some payphones outside the store. A police officer briefly questioned the assistant manager, who told him Maddox and Gallegos had made a suspicious purchase of items, including starter fluid, plastic or glass jars, coffee filters, and plastic tubing. Gallegos later walked toward the semi-truck, and police followed him.

Maddox then got out of the semi-truck, and a police officer asked Maddox and Gallegos if he could see what they had in their shopping bags. Maddox went back to the truck and got his bag. Both Maddox and Gallegos then showed the officer what they had bought. In Maddox’s bag, the officer found one or two plastic or glass jars and a six-pack of starter fluid; in Gallegos’ bag, police found a plastic or glass jar, an aquarium pump, plastic tubing, and cough drops. The officer thought all of the items, except the cough drops, were consistent with the production of methamphetamine. He then called in the Southeast Iowa Drug Task Force.

Upon arrival, one member of the task force looked into the windows of the semi-truck, and saw more Wal-Mart bags inside its cab. The officer could not determine what was in the bags. Meanwhile, another officer, Investigator Dean Salsberry, asked Maddox why he had purchased each of the items. Maddox gave explanations for each purchase: Maddox said he had purchased a six-pack of starter fluid to keep the semi-truck running in the cold weather; an aquarium pump and tubing for his aquarium; jars for storing foods in his semi; and coffee filters to make coffee.

Based on his training and experience regarding methamphetamine production, Investigator Salsberry believed Maddox and Gallegos had purchased the items— except for the cough drops — for the production of methamphetamine. At the suppression hearing, Salsberry testified how each of these items are commonly used in the manufacture of methamphetamine: starter fluid is used as a solvent, in order to extract chemicals needed for the production of methamphetamine from over-the-counter medication; coffee filters are then used to filter out the “impurities” found in the medication; methamphetamine manufacturers use jars to store and transfer chemicals at various stages of the process; and plastic tubing is used to convert methamphetamine from liquid to powder form — a process which an aquarium pump hastens.

The police asked to search the semi-truck, but Maddox said' they would have to ask his supervisor for permission first. When the officers asked Maddox how to contact his supervisor, Maddox said his supervisor was out-of-town and unavailable. Failing to obtain consent to search the semi-truck, the officers applied for and received a search warrant.

At a suppression hearing, Maddox alleged the warrant lacked probable cause. The State replied the warrant was sufficiently supported by probable cause, and, even if the warrant was somehow defective, that the search of the semi-truck falls within the so-called “automobile exception” to the search warrant requirement. The district court sustained Maddox’s motion to suppress. The court held the warrant was defective and that the officers lacked probable cause to search the semi-truck, in violation of Maddox’s constitutional right against unreasonable searches and seizures. • The State appealed on an interlocutory basis, and the court of appeals affirmed the ruling of the district court. The State asked us to review this ruling.

II. Scope of Review

Where the State is alleged to have violated a defendant’s constitutional rights against unreasonable searches and seizures, our review is de novo. State v. Jones, 666 N.W.2d 142, 145 (Iowa 2008).

III. The Merits

We have repeatedly held that where there is probable cause and exigent circumstances, a warrantless search does not violate a defendant’s constitutional rights against unreasonable searches and seizures. See, e.g., State v. Bergmann, 633 N.W.2d 328, 338 (Iowa 2001); see also U.S. Const. amend. IV; Iowa Const. art. I, § 8. A trailerless semi-truck, because of its inherent mobility, presents an exigent circumstance. This is the so-called “automobile exception” to the well-established legal maxim that warrantless searches are per se unreasonable. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Dawdy, 533 N.W.2d 551, 556 (1995). Even if police lack a valid warrant, they may search a vehicle if they have probable cause to believe a crime, or evidence thereof, may be found within it. Therefore, we must now determine whether the police had probable cause to search the semi-truck.

Probable cause is present when “a person of reasonable prudence would believe a crime was being committed on the premises to be searched or evidence of a crime could be located there.” State v. Bowers, 661 N.W.2d 536, 542 (Iowa 2003). In considering whether the police had probable cause to search the semi-truck, we “make an independent evaluation of the totality of the circumstances as shown by the entire record.” State v. Crawford, 659 N.W.2d 537, 541 (Iowa 2003) (citing State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)).

The district court and the court of appeals both held the facts of the present case do not amount to probable cause to search the semi-truck. In reaching its decision, the court of appeals recognized its decision accorded with the ruling in a federal case with “a virtually identical fact pattern.” State v. Maddox, 665 N.W.2d 439, 2003 WL 1786084 at *2, n. 2 (Iowa Ct.App., April 4, 2003) (citing United States v. Ameling, 2002 WL 31972354 (N.D.Iowa, June 26, 2002), rev’d, 328 F.3d 443 (8th Cir.2003), cert. denied, — U.S. -(2003). We agree the facts of the two cases are similar.

In Ameling, Target store employees told police officers the defendants had walked together to the area in the store where pseudoephedrine, a known methamphetamine precursor, was sold. Each defendant picked up two boxes of pseu-doephedrine products, walked toward the checkout lanes, and split up, checking out separately at different checkout stands. After making their purchases, the defendants met up at a truck in the parking lot. A store security officer, knowing methamphetamine producers often split up their purchases in order to avoid detection, called police. While the security officer was on the phone with police, he watched the defendants drive across the street to a nearby grocery store. A police officer called the grocery store, and was told the defendants had purchased a lithium battery (another known methamphetamine precursor) there. The defendants came out of the store, got into their truck, and left. The police stopped their truck, and questioned the defendants separately. The defendants gave inconsistent statements, denied purchasing either pseu-doephedrine or a battery, and refused to consent to a search of their truck. The police then searched the truck.

Although a federal magistrate ruled the search of the truck was unconstitutional, that decision was subsequently reversed. United States v. Ameling, 328 F.3d 443 (8th Cir.2003). The United States Court of Appeals held that apparently false and inconsistent statements, when coupled with the purchase of a significant amount of a known methamphetamine precursor, attempted concealment thereof, and the training and experience of the officers in methamphetamine production, established probable cause and rendered the warrant-less search of the truck constitutional. Id. at 448-49.

The reasoning of the United States Court of Appeals in Ameling is consistent with our recent decision in State v. Heuser, 661 N.W.2d 157 (Iowa 2003), which also involved the suspicious purchase of methamphetamine precursors. In Heuser, a man and a woman entered a Target store together, but separated and bought several boxes of cold medication containing pseu-doephedrine at separate cash registers. A store employee became suspicious and called police. The police then observed the defendants alternating the purchasing at two other stores. Upon learning the man had purchased additional boxes of cold medication containing pseudoephed-rine at a third store, the police stopped the defendants’ van.

Although in Heuser we were only asked whether the defendants’ conduct met the lesser constitutional mandate for an investigatory stop, we held police had “a solid basis upon which the officers had reasonable cause to stop the van to determine ‘whether criminal activity [was] afoot.’ ” Heuser, 661 N.W.2d at 162 (quoting State v. Richardson, 501 N.W.2d 495, 497 (1993)); see also Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968). Bearing in mind the higher burden of proof required here, we recognize the case under consideration is a closer one. Nevertheless, using the analysis in both Heuser and Ameling as guideposts, we think the burden of probable cause is met.

In the present case, officers found Maddox and Gallegos in possession of several legal materials that, taken in combination, gave both store employees and trained police officers good reason to believe they would be used to make methamphetamine. The inference is just as strong as if the defendants had bought several boxes of over-the-counter medication containing pseudoephedrine. We have recognized “police must ‘draw upon their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.’ ” Heuser, 661 N.W.2d at 161 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740, 749-50 (2002)). Investigator Salsber-ry, a member of the local drug task force, had substantial education, training, and experience in the investigation of the manufacture of methamphetamine, and recognized the particular combination of materials bought by the defendants was consistent with that illegal activity.

Although the suspects in the present case did not make inconsistent or putatively false statements to the police, as in Ameling, Maddox’s responses were generally inconsistent with the attendant circumstances of the case. Although Maddox gave facially valid explanations for his purchases, the facts of the case undermine their believability. Maddox and Gallegos displayed unusual behavior which strengthened the inference that the purchases were not for various innocent purposes, but rather that criminal activity or evidence would be found in the semi-truck. Store personnel observed the defendants shopping together late at night for a peculiar constellation of items, known by trained police officers to be consistent with methamphetamine production. When the defendants checked out of the store they did so separately, albeit at the same checkout stand. Upon leaving the store, Maddox’s co-defendant, Gallegos, made a “U-turn” for the payphones. He later headed towards the truck, as well, to meet up with Maddox. Importantly, the police saw more Wal-Mart bags in the car, thus raising the inference that Maddox and Gallegos may have made other purchases towards the manufacturing of methamphetamine at other times or at other Wal-Mart stores, which might be found in the truck — thus further ‘breaking up’ their purchases in order to avoid detection, like the defendants in Heuser and Ameling.

Although Maddox and Gallegos consented to a search of their bags, Maddox refused to allow officers to search the truck. Absent other facts, mere refusal to consent to a search does not establish probable cause. State v. Green, 540 N.W.2d 649, 656 (1995). Maddox had previously entered the vehicle to retrieve a bag, but later refused to allow officers to search the truck, even though additional bags were there. Maddox then gave feeble excuses for his refusal to consent to the search. Maddox told police they would need to ask his supervisor for permission. When the police then asked Maddox how they could contact his supervisor, Maddox said his supervisor was out-of-town and unavailable. Under such circumstances, Maddox’s refusal to consent to a search of the truck, as well as his subsequent excuses, fairly raise a further inference that criminal activity or evidence was to be found in the semi-truck.

We have previously stated that, when determining whether police officers have probable cause to conduct a search,

[a]ll of the evidence available to the arresting officer may be considered, regardless of whether or not each component would support a finding of probable cause by itself. Seemingly innocent activities may combine with other factors to give an experienced police officer reasonable grounds to suspect wrongdoing.

State v. Bradford, 620 N.W.2d 503, 508 (Iowa 2000) (citations omitted). This principle guides our decision today. Considering together all the factors previously described, no matter how innocent each may appear alone, we conclude “a person of reasonable prudence would believe a crime was being committed on the premises to be searched or evidence of a crime could be located there.” Bowers, 661 N.W.2d at 542.

Because police had probable cause to search the truck without a warrant, it does not matter whether the warrant the police in fact obtained was valid. We therefore do not reach the issue of whether the warrant was supported by probable cause. The district court and court of appeals erred in suppressing evidence seized as a result of the search, because the search falls within the so-called “automobile exception” to the legal maxim that warrant-less searches are unreasonable.

IV. Conclusion

Considering the totality of the circumstances, the police, given the information available to them at the time of the search, had probable cause to search the semi-truck. The warrantless search of the semi-truck fits within the so-called “automobile exception” to the legal maxim that warrantless searches are per se unreasonable. We do not address the validity of the warrant; the search would be constitutional even without a valid warrant. The district court and court of appeals thus erred in sustaining the defendant’s motion to suppress and excluding evidence gained as a result of the search of the semi-truck. We therefore reverse and remand to the district court for proceedings not inconsistent with this decision.

REVERSED AND REMANDED.

      . Although the officer who searched the two bags did not report seeing coffee filters, another officer stated the assistant store manager had told him that coffee filters were purchased. It is also unclear from the record why Maddox gave an explanation for the purchase of the aquarium pump and tubing, when they were found in Gallegos' bag, and the two made separate purchases.

      . The district court and the court of appeals incorrectly concluded Gallegos had his own vehicle at the scene. Because of this finding, both courts reasoned that the link between the Gallegos’ purchases and the semi-truck was weaker than if Gallegos was a passenger in, or driver of, the semi-truck. At oral argument, however, Maddox’s counsel conceded Gallegos did not have his own vehicle.