author: STREIT, Justice.

text:
    Joe COMES and Riley Paint, Inc., an Iowa Corporation, Appellees, v. MICROSOFT CORPORATION, a Washington Corporation, Appellant.
    No. 05-0097.
    Supreme Court of Iowa.
    Jan. 27, 2006.

      Edward W. Remsburg of Ahlers & Coo-ney, P.C., Des Moines, Thomas W. Burt, Richard J. Wallis, and Steven J. Aesch-bacher, Redmond Washington, David B. Tulchin, Joseph E. Neuhaus, and Richard C. Pepperman II, of Sullivan & Cromwell, L.L.P., New York City, and Charles B. Casper of Montgomery, McCracken, Walker & Rhoads, L.L.P., Philadelphia, PA, for appellant.
    Roxanne Barton Conlin of Roxanne Con-lin & Associates, P.C., Des Moines, and Richard M. Hagstrom of Zelle, Hofmann, Voelbel, Mason & Gette, L.L.P., Minneapolis, MN, for appellees.
   STREIT, Justice.

Justice Felix Frankfurter once observed, “to some lawyers, all facts are created equal.” However, for the purposes of collateral estoppel, they are not. The defendant, Microsoft Corporation, was granted permission to take an interlocutory appeal from the district court’s ruling that collateral estoppel would apply to 352 findings of fact arising from prior federal antitrust litigation. Because we find the district court’s application of the “necessary and essential” requirement of collateral estoppel was too broad, we reverse the district court’s order and remand with instructions.

I. Facts and Prior Proceedings

Joe Comes and Riley Paint sued Microsoft Corporation for violating provisions of the Iowa Competition Law. See Iowa Code §§ 553.4, 553.5 (1997). This is the third time this case has journeyed into this court. See Comes v. Microsoft Corp., 696 N.W.2d 318 (Iowa 2005) (finding plaintiffs established the prerequisites for class certification); Comes v. Microsoft Corp., 646 N.W.2d 440 (Iowa 2002) (holding indirect purchasers may maintain an antitrust suit against Microsoft). The facts were set out fully in our first decision, and we now state only those facts necessary for this appeal.

In the spring of 1998, the United States and several states (including Iowa) filed a civil action against Microsoft Corporation in the District of Columbia for violations of the Sherman Act (hereinafter the “Government Action”). A bench trial before Judge Thomas Jackson lasted 76 days and included testimony from 26 live witnesses, deposition excerpts from 79 additional witnesses, and over 2700 exhibits. Rather than issue one decision and judgment, Judge Jackson bifurcated his decision by first making 412 findings of fact “proved by a preponderance of the evidence.” See generally United States v. Microsoft Corp., 84 F.Supp.2d 9 (D.D.C.1999). Five months later, Judge Jackson entered his decision concluding Microsoft (1) illegally maintained a monopoly in the market of licensing Intel-compatible PC operating systems, (2) attempted to monopolize the web browser market, and (3) entered into an illegal tying arrangement by bundling its Internet Explorer web browser with its Windows operating system, in violation of sections 1 and 2 of the Sherman Act. United States v. Microsoft Corp., 87 F.Supp.2d 30, 35, 44 (D.D.C.2000). This decision did not refer to a large number of the factual findings entered five months earlier.

Microsoft appealed this decision, and the United States Court of Appeals for the District of Columbia affirmed Judge Jackson’s conclusion that Microsoft illegally maintained a monopoly in the PC operating systems market. United States v. Microsoft Corp., 253 F.3d 34, 80 (D.C.Cir. 2001). However, the D.C. Circuit reversed the attempted monopolization claim and remanded the claim of illegally tying the Internet Explorer web browser to Windows for a new trial. Id. at 94. The D.C. Circuit also vacated the district court’s remedy and disqualified Judge Jackson for ethical violations related to his discussion of the merits of the case with reporters. Id. at 117. On remand, the case was reassigned to Judge Kollar-Kotelly. Judge Kollar-Kotelly rejected almost all of the additional remedies requested by the states and determined many of Judge Jackson’s 412 findings of fact “were ultimately not relied upon by the district court in conjunction with the imposition of liability for violation of § 2 of the Sherman Act.” New York v. Microsoft Corp., 224 F.Supp.2d 76, 138 (D.D.C.2002).

In the present case, the class of plaintiffs alleges Microsoft maintained or used a monopoly in conjunction with its Windows 98 operating system for the purpose of excluding competition or controlling, fixing, or maintaining prices in violation of Iowa Code sections 553.4 (prohibiting restraint of trade) and 553.5 (“A person shall not attempt to establish or establish, maintain, or use a monopoly of trade or commerce in a relevant market for the purpose of excluding competition or of controlling, fixing, or maintaining prices.”). These allegations are based in part on the factual findings and conclusions made in the Government Action. In July of 2004, the plaintiffs filed a motion requesting the court use the doctrine of collateral estop-pel to foreclose Microsoft from relitigating 352 of the 412 factual findings made in the Government Action.

The district court granted this motion through a pretrial order applying the doctrine of “offensive” collateral estoppel to preclude Microsoft from relitigating the 352 factual findings. We granted Micro-' soft’s application for leave to appeal the district court’s ruling.

The overarching issue in this appeal is whether the district court correctly applied the requirement that facts subject to collateral estoppel be “necessary and essential” to the judgment in the prior litigation. Microsoft contends the court’s misapplication of this standard led to an overbroad ruling in which preclusive effect was given to 336 factual findings that were not “necessary and essential” to the judgment.

II. Standard of Review

Because this appeal is premised upon the district court’s application of an incorrect legal standard, our review is for error. See Walters v. Herrick, 351 N.W.2d 794, 796 (Iowa 1984) (stating, as a general rule, an “assertion that an incorrect legal standard was applied is reviewed on error”).

III. Merits

The doctrine of collateral estop-pel, sometimes referred to as issue preclusion, prevents parties from relitigating issues previously resolved in prior litigation if certain prerequisites are established. Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981). In general, collateral estoppel prevents parties to a prior action in which judgment has been entered from relitigating in a subsequent action issues raised and resolved in the previous action. Id. This doctrine may be utilized in either a defensive or offensive manner. Id. Defensive use of the doctrine is when “a stranger to the judgment, ordinarily the defendant in- the second action, relies upon a former judgment as conclusively establishing in his favor an issue which he must prove as an element of his defense.” Id. Offensive use of the doctrine is when “a stranger to the judgment, ordinarily the plaintiff in the second action, relies upon a former judgment as conclusively establishing in his favor an issue which he must prove as an essential element of his cause of action or claim.” Id.

This case involves offensive use of the collateral estoppel doctrine. The plaintiffs, who were strangers to the first judgment, seek to rely upon the prior judgment that Microsoft had maintained an operating system monopoly by anticompet-itive means and ask the court to accord preclusive effect to 352 of the 412 findings of fact entered in the Government Action.

Collateral estoppel may be invoked if four prerequisites are met:

(1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.

Id. The fighting issue in this case involves the application of the fourth prerequisite to the findings of fact entered in the Government Action.

Admittedly, the fourth requirement of our collateral estoppel analysis — the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment — is exceedingly vague. However, prior cases demonstrate that we apply this requirement somewhat narrowly.

Almost 150 years ago, long before we articulated the present collateral estoppel analysis, we said “[mjatters which arise only incidentally in the evidence, however much they may influence the mind of the judge or jury in arriving at a conclusion, are not matters adjudicated.” Haight v. City of Keokuk, 4 Iowa 199, 4 Clarke 199, 208 (Iowa 1857) (emphasis in original).

In Hutchinson v. Maiwurm, 162 N.W.2d 408, 410-11 (Iowa 1968), we prefaced our' analysis of a case involving the collateral estoppel doctrine by stating “a judgment is hot binding or conclusive as to facts or questions of law, although put in issue and -actually tried and expressly determined by the court in the former action, where such matters were immaterial or unessential to the determination of the real and decisive issue.” In applying this standard to the facts of the case, we looked to other jurisdictions for guidance. Hutchinson, 162 N.W.2d at 411-12. In particular, we considered a Wyoming case, where a factual finding that was not “vital to the case” and was “not the point upon which the case turned” was not given estoppel effect. Id. at 412 (citing Willis v. Willis, 48 Wyo. 403, 49 P.2d 670, 677 (1935), over-mled on other grounds by Shaw v. Smith, 964 P.2d 428 (Wyo.1998)). In another case, the Supreme Court of New Mexico did not grant estoppel effect to a prior court’s conclusions of fact because the facts “were not ultimate facts ... without which the [previous] judgment would lack support in an essential particular.” Id. at 413, 49 P.2d 670 (citing State v. Nance, 77 N.M. 39, 419 P.2d 242, 245 (1966)). On the strength of these decisions, we decided in •Hutchinson that the findings and conclusions in the previous action did not satisfy the doctrine of collateral estoppel and were therefore not subject to estoppel effect. Id.

In Supreme Court Board of Professional Ethics v. D.J.I., 545 N.W.2d 866 (Iowa 1996), we analyzed the “necessary and essential” requirement in the context of an attorney ethical violation proceeding. In an attorney subject to a disciplinary proceeding based on unethical dealings with his clients sought to relitigate whether he had violated various provisions of the Iowa Code of Professional Responsibility, even though that question had been decided in an earlier civil proceeding. 545 N.W.2d at 868-69. In the earlier civil proceeding, two former clients alleged the attorney had violated. several professional rules and committed civil fraud and legal malpractice. Id. at 869. The district court, in a bench ruling, concluded the attorney committed fraud, legal malpractice, constructive fraud, and conspiracy to defraud. Id. In so ruling, the court found the former clients proved the scienter element of their fraud claim because the attorney had violated lawyer disciplinary rules concerning conflicts of interests. Id. The attorney did not appeal the adverse decision. Id. An ethical complaint was subsequently filed against the attorney for his representation of the same clients. Id. The Iowa Supreme Court Board of Professional Ethics and Conduct' relied on the principles of issue preclusion to prove these same ethical violations. Id. at 870. The attorney argued the district court’s conclusion in the previous civil proceeding that he had violated the Iowa Code of Professional Responsibility was “not necessary and essential to the issues determined in the resulting judgment.” Id, We disagreed. We noted: “[r]ecovery in a fraud action against an attorney is premised on the plaintiffs ability to show ... the following elements: (1) representation; (2) falsity; (3) materiality; (4) scienter; (5) intent to deceive.... ” We concluded the disciplinary code violations were “crucial ” to the previous civil fraud and legal malpractice case against the attorney because the violations were the evidence used by the former clients to prove the scienter element of their civil fraud claim. Id. at 875-76 (emphasis added).

These cases illustrate that we apply the necessary and essential requirement narrowly, and only preclude those facts vital or crucial to the previous judgment, or those properly characterized as ultimate facts without which the previous judgment would lack support. See generally id.; Hutchinson, 162 N.W.2d at 412-13.

IY. Analysis of the District Court’s Ruling

At the outset, the district court correctly recited the necessary and essential requirement — ‘When issues of law or fact were raised and litigated and relevant to the prior proceeding, collateral estoppel precludes relitigation when the determination of those issues was also necessary and essential to the judgment in the earlier action.” The court then set forth the legal standard for monopolization claims used by the D.C. Court of Appeals in the Government Action and identified approximately two and a half pages of legal conclusions that' “survived intact” after the D.C. Court of Appeals modified the district court’s judgment in the Government Action. However, when the court determined 352 out of the 412 findings of fact “were necessary and essential to the elements of the government’s monopolization claim against Microsoft” because these findings “provided a proper foundation” or “proper basis” for individual elements of the monopolization claim in the Government Action, the court’s interpretation of our collateral estoppel doctrine drifted away from the doctrine’s original intent.

The district court’s first precluded finding of fact illustrates that the necessary and essential requirement was misapplied:

A “personal computer” (“PC”) is a digital information processing device designed for use by one person at a time. A typical PC consists of central processing components (e.g., a microprocessor and main memory) and mass data storage (such as a hard disk). A typical PC system consists of a PC, certain peripheral input/output devices (including a monitor, a keyboard, a mouse, and a printer), and an operating system. PC systems, which include desktop and laptop models, can be distinguished from more powerful, more expensive computer systems known as “servers,” which are designed to provide data, services, and functionality through a digital network to multiple users. -

This finding is clearly not a fact “upon which the case turned” and it is not a fact one would deem vital or crucial to the ultimate issue precluded — that Microsoft violated the antitrust laws for unlawful monopoly maintenance of operating systems from the period of 1995-1998. See D.J.I., 545. N.W.2d at 875; Hutchinson, 162 N.W.2d at 412-18. This finding, is a subsidiary fact the parties could readily establish through testimony at trial, a request for admission, or a pretrial stipulation of facts. It is not a fact crucial or vital to the ultimate issue-in the previous ease.

Before a court applies collateral estoppel offensively, the court must also consider whether treating an iásue or fact as conclusively determined will complicate the determination of other issues in the subsequent action or prejudice the interests of the defending party. Hunter, 300 N.W.2d at 125.

A lengthy list of subsidiary facts granted preclusive effect could be very prejudicial to a defendant. Application of collateral estoppel to every subsidiary matter actually litigated in a prior proceeding greatly increases the hazards in trying the first lawsuit as well as the hazards of misuse in a subsequent lawsuit because “[ljogical relevance is of infinite possibility,” and an innocuous fact in the first proceeding could be used as a critical fact against the defendant in a second proceeding. See Evergreens v. Nunan, 141 F.2d 927, 929 (2d Cir.1944). Along with the inherent danger that preclusive effect will be given to determinations of issues that were not seriously contested and may have been barely relevant in the first proceeding, a long list of isolated findings could confuse or mislead the jury. See Coburn v, Smithkline Beecham Corp., 174 F.Supp.2d 1235, 1241 (D.Utah 2001) (finding “the risk of prejudice and confusion significantly outweighs any benefit that might be derived from applying collateral estoppel” to an isolated factual finding); see also Whelan v. Abell, 953 F.2d 663, 669 (D.C.Cir.1992) (accepting the district court’s decision to reject a broad application of collateral estoppel for fear of “unduly swaying or confusing the jüry” and distorting the resolution of other issues). A brief review of the 336 findings of fact reveals an inordinate number of such findings. These subsidiary facts may or may not have been seriously contested in the Government Action and therefore could unfairly prejudice the defendant in the present case by unduly influencing the jury-

Because the court did not properly apply the necessary and essential standard and did not properly consider the potential prejudice inherent in such a large list of subsidiary facts, we reverse the district court’s order granting preclusive effect to these factual findings.

V. Directions for Remand

Our necessary and essential requirement parallels the standard set forth in the first Restatement of Judgments, which stated collateral estoppel is “applicable to the determination of facts in issue, but not to the determination of merely evidentiary facts, even though the determination of the facts in issue is dependent upon the determination of the evidentiary facts.” Restatement of Judgments § 68 cmt. p (1942). Judge Learned Hand stated this distinction more succinctly when he wrote:

[A] “fact” may be of two kinds. It may be one of those facts, upon whose combined occurrence the law raises the duty, or the right, in question; or it may be a fact, from whose existence may be rationally inferred the existence of one of the facts upon whose combined occurrence the law raises the duty, or the right. The first kind of fact we shall for convenience call an “ultimate” fact; the second, a “mediate datum.” “Ultimate” facts are those which the law makes the occasion for imposing its sanctions.

Evergreens, 141 F.2d at 928.

This section was significantly altered in 1982 by the Second Restatement of Judgments. The second Restatement .rejected rote application of the ultimate fact/eviden-tiary fact analysis because, even if a fact is properly categorized as evidentiary, “great effort may have been expended by both parties in seeking to persuade the adjudicator of its existence or nonexistence and it may well have been regarded as the key issue-in the-dispute.”. Restatement (Second) of Judgments § 27 cmt-. j (1982). The second Restatement replaced its comment discussing the distinction between ultimate and evidentiary facts with a new analysis where the court must determine “whether the issue was actually recognized by the parties .as important and -by the trier as necessary to the first judgment.” Id. (emphasis added). This “important and necessary” analysis ■ protects parties, from the dangers of innocuous, subsidiary facts because it only precludes such, facts as were truly disputed in the first proceeding. Or, as aptly stated by the First Circuit Court of Appeals,

[w]hen two adversaries concentrate in attempting • to resolve an- issue importantly involved in litigation,- there is no unfairness in considering that issue settled for all time between the parties -and those in their shoes. But .. ...it is unfair to close the door to.issues which have not been on stage center, for there is no knowing what the white light -of controversy would have revealed.

Farmington Dowel Prods. Co. v. Forster Mfg. Co., 421 F.2d 61, 79 (1st Cir.1970).

Because this analysis" protects against the dangers stemming from preclusion on subsidiary facts, we adopt this analysis as well. Rather than pigeonholing facts as evidentiary or ultimate, courts must determine whether the issue was actually recognized by the parties as important and by the adjudicator as necessary to the first judgment. Under this analysis, collateral ' estoppel will only adhere to those factual findings necessary and essential to the prior judgment, rather than findings of every minute fact contested by the parties in the previous trial.

As noted above, the .parties agree 16 of the 352 factual findings granted pre-elusive effect by the district court were necessary and essential to the underlying judgment. For example, findings 33 and 34 hold: '

33. Microsoft enjoys so much power in the market for Intel-compatible PC operating systems that if it wished to exercise this power solely in terms of price, it could charge a price for Windows substantially above that " which could be charged in a competitive market. Moreover, it could do so for a significant period of time without losing an unacceptable ¿mount of business to competitors. In other words, Microsoft ' enjoys monopoly power in the relevant market.
34. Viewed together, three main ' facts indicate that Microsoft enjoys monopoly power. First, Microsoft’s share •of the market for Intel-compatible PC • operating systems is extremely large and stable. Second, Microsoft’s dominant market share is protected by a high barrier to entry. Third, and largely as a result of that barrier, Microsoft’s customers lack a commercially viable alternative to Windows.

Both of these findings were necessary arid essential to the underlying judgment because the court had to establish Microsoft had monopoly power before it could conclude Microsoft maintained monopoly power. These findings were also important because both, parties debated the relevant market and Microsoft’s monopoly power in that market..

Because the district court failed to apply the proper standard in evaluating plaintiffs’ .collateral estoppel claims, we reverse its order.. The case is remanded to that court .for a reconsideration of this issue under the standard that we have articulated, aided by the more particularized arguments that will now be available to counsel as the result of our clarification of the rule of law to be applied. On remand, the parties herein will have the opportunity to convince the court which facts were actually recognized by the parties in the Government Action as the key issues in dispute and by the adjudicator as necessary to the final judgment.

VI. Conclusion

Because the district court’s application of the “necessary and essential” requirement of collateral estoppel was too broad, we reverse the district court’s order and remand for further proceedings in conformance with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . The parties agree 16 of the 352 factual findings were necessary and essential to the D.C. Circuit's judgment. The sixteen findings of the judgment are set forth in paragraphs 18, 33-34, 161, 164, 170, 213, 244-45, 339, 350-52, 394, 401, and 406.

      . This court- is cognizant of the difficulty in presenting this case at trial and. an underlying motivatipn of Comes to start this case with a panoply of facts that are deemed estab- ' lished — facts that do not need further proof. These findings would provide a broad landscape of facts upon which to park this case. Given, the size of this litigation, it is enticing to start this case with a foundation of basic facts. However, as explained herein, such is not the purpose of collateral estoppel.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    Richard Tyler DICKENS, Individually and as Special Executor for the Estate of Sharon Kenyon, Appellant, v. ASSOCIATED ANESTHESIOLOGISTS, P.C., Appellee.
    No. 04-0973.
    Supreme Court of Iowa.
    Jan. 27, 2006.

      Christopher Kragnes, Sr., and Tiffany Koenig of Kragnes, Tingle & Koenig, P.C., Des Moines, for appellant.
    Loree A. Nelson and Barry G. Vermeer of Gislason & Hunter, L.L.P., Des Moines, for appellee.
   WIGGINS, Justice.

Richard Tyler Dickens' filed a medical negligence action individually and on behalf of the estate of his deceased wife, Sharon Kenyon, against her health care providers including Associated Anesthesiologists, P.C., and its employees, Dr. John C. Jabour and Rebecca Meyer, seeking damages in connection with Sharon’s death. The district court dismissed lab-our and Meyer with prejudice after Dickens failed to serve them with an original notice within ninety days after filing his petition. After the dismissal of labour and Meyer, the district court granted Associated Anesthesiologists’ motion for summary judgment on the grounds the dismissal of labour and Meyer precluded litigation on the claims against Associated Anesthesiologists. The court of appeals affirmed the district court’s judgment. Because the dismissal of labour and Meyer did not preclude Dickens’ action against Associated Anesthesiologists, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

In his petition, Dickens alleged his wife died as a result of the negligence of various defendants, including anesthesiologist labour, certified registered nurse anesthetist Meyer, and their employer Associated Anesthesiologists. Dickens served Associated Anesthesiologists with an original notice. Associated Anesthesiologists filed a timely answer, labour and Meyer claimed Dickens did not properly serve them with an original notice, and they filed a motion to dismiss for Dickens’ failure to serve them within ninety days after filing his petition as required by Iowa Rule of Civil Procedure 1.302(5) Dickens did not resist the motion. The court granted the motion and entered an order dismissing the action against labour and Meyer with prejudice.

Associated Anesthesiologists then filed a motion for summary judgment asserting that the dismissal of labour and Meyer was an adjudication on the merits warranting dismissal of their employer, Associated Anesthesiologists. After Associated Anesthesiologists filed its motion for summary judgment, Dickens’ original counsel, leff Carter, withdrew from the case due to a conflict. Dickens’ new counsel resisted the motion for summary judgment and filed an affidavit signed by Carter supporting the resistance. The affidavit stated Carter had conversations with Associated Anesthesiologists’ counsel regarding the motion to dismiss in which he agreed not to resist the motion to dismiss and agreed to a voluntary dismissal of labour and Meyer, based on “the agreement with [Associated Anesthesiologists’] counsel that there was no difference substantively to the case because [Associated Anesthesiologists] was responsible for [labour’s and Meyer’s] actions and [labour and Meyer] would be available as witnesses in this matter.”

Associated Anesthesiologists filed a response to the resistance and attached an affidavit of its counsel. Counsel’s affidavit stated that after the time had expired to file a resistance to the motion to dismiss, she had a conversation with Carter. She stated Carter indicated he was not concerned about the court dismissing labour and Meyer because Associated Anesthesiologists would still be in the lawsuit. She denied making any statements that lab-our’s and Meyer’s dismissal would not have a bearing on Associated Anesthesiologists’ liability. She acknowledged that she wrote a letter to ludge Robert Wilson, with a copy to Carter, noting that the motion to dismiss was unresisted and asking for a ruling on the motion. A month and a half went by without a ruling on the motion. Per the instructions of the judge’s clerk, she sent a second letter to Judge Wilson, with a copy to Carter. This letter contained an unsigned order dismissing the case against Jabour and Meyer with prejudice, which Judge Wilson signed.

Prior to the ruling on the motion for summary judgment, Dickens’ second counsel withdrew because she left the private practice of law. Dickens’ third and current counsel filed a motion for order nunc pro tunc requesting the court to correct the prior order dismissing the action against Jabour and Meyer with prejudice because the dismissal should have been without prejudice under rule 1.302(5). Dickens filed this motion ten months after the court filed the order dismissing the case. Associated Anesthesiologists, Jabour, and Meyer resisted this motion.

The district court granted Associated Anesthesiologists’ motion for summary judgment and denied Dickens’ motion for order nunc pro tunc. The court concluded the dismissal of Jabour and Meyer was not voluntary; therefore, it was an adjudication on the merits pursuant to Iowa Rule of Civil Procedure 1.946 precluding the action against their employer, Associated Anesthesiologists, on the theory of respon-deat superior. The court further concluded an order nunc pro tunc would be improper not only because the intent of such an order is to correct clerical errors rather than alter judicial conclusions, but also in view of the time delay between the dismissal and the filing of the motion for order nunc pro tunc.

Dickens filed an application for interlocutory appeal. We denied the application. Dickens then dismissed the remaining defendants from his action without prejudice and filed his notice of appeal.

We transferred the case to our court of appeals. The court of appeals affirmed the district court’s granting of Associated Anesthesiologists’ motion for summary judgment and its denial of Dickens’ motion for order nunc pro tunc. Dickens sought further review, which we granted.

II. Issue.

The dispositive issue on appeal is whether the district court erred in granting Associated Anesthesiologists’ motion for summary judgment. Consequently, we will not discuss the district court’s denial of the motion for order nunc pro tunc.

III. Scope of Review.

Dickens does not claim a genuine issue of material fact exists to preclude summary judgment. Rather, he claims the district court erred in concluding the ruling dismissing Jabour and Meyer was an adjudication on the merits preventing him from proceeding against Associated Anesthesiologists. Thus, the only issue on appeal concerns the legal consequences of Jabour’s and Meyer’s dismissal. “Our review of a granting or denying of .a motion for summary judgment is for correction of errors at law.” City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 675 (Iowa 2005).

IV. Analysis.

Dickens premises Associated Anesthesiologists’ liability on the doctrine of respondeat superior. Under this doctrine, the employer is vicariously liable for the negligent acts of its employees. Brosamle v. Mapco Gas Prods., Inc., 427 N.W.2d 473, 475 (Iowa 1988). The doctrine gives the injured party the right to sue the employer with or without joining the employee as a party to the action. Id. One of the limitations of the doctrine is that the employer has no liability unless the employee. is liable. Peppmeier v. Murphy, 708 N.W.2d 57, 63-64 (Iowa 2005); Brosamle, 427 N.W.2d at 475. Therefore, we must decide if the employees’ dismissal precludes litigation on Dickens’ claims against their employer.

Generally, a valid and final personal judgment rendered in favor of a defendant is a bar to another action by the plaintiff on the same claim. Peppmeier, 708 N.W.2d at 63; Restatement (Second) of Judgments § 19 (1982). An exception to the general rule exists when the judgment is a dismissal for lack of jurisdiction. Burlington N. R.R. v. Bd. of Supervisors, 418 N.W.2d 72, 75 (Iowa 1988); Restatement (Second) of Judgments § 20(l)(a). This exception will apply even if the dismissal specifies it is with prejudice. Charchenko v. City of Stillwater, 47 F.3d 981, 985 (8th Cir.1995); Restatement (Second) of Judgments § 20 cmt. d; accord Dep’t of Revenue v. Ryan R., 62 Mass.App.Ct. 380, 816 N.E.2d 1020, 1023 (2004); Trujillo v. Acequia de Chamisal, 79 N.M. 39, 439 P.2d 557, 559 (Ct.App.1968). The Restatement (Second) of Judgments explains the rationale for the exception in one of its comments. The comment provides:

A court in dismissing on any of these grounds [for lack of jurisdiction, for improper venue, or for nonjoinder or mis-joinder of parties] may specify that its decision is “with prejudice” or “on the merits,” or words to that effect. While there are instances in which a court may have discretion to determine that a judgment of dismissal shall operate as a bar ... a judgment may not have an effect contrary to that prescribed by the statutes, rules of court, or other rules of law operative in the jurisdiction in which the judgment is rendered. Thus in a jurisdiction having a rule patterned on Rule 41(b) of the Federal Rules of Civil Procedure, a dismissal for lack of jurisdiction, for improper venue, or for nonjoin-der may not be a bar regardless of the specification made. And even in the absence of such a rule, a dismissal on any of these grounds is so plainly based on a threshold determination that a specification that the dismissal will be a bar should ordinarily be of no effect.

Restatement (Second) of Judgments § 20 cmt. d.

The Restatement position is consistent with our case law governing when the dismissal of an employee has a preclusive effect on an action against the employer under a theory of respondeat superior. In one of our cases, the district court granted the employee’s motion for summary judgment. Peppmeier, 708 N.W.2d at 61. The employer claimed the ruling on the motion for summary judgment exonerating the employee was a final bar as to the liability of the employee and res judicata as to the claim against the employer. Id. at 61, 64. There we held a summary judgment is a final bar as to the liability of the employee; therefore, it is res judicata in favor of the employer and the plaintiff could not proceed with her action against the employer. Id. at 66.

In another case, the plaintiffs voluntarily dismissed an employee with prejudice, stating they did not intend to dismiss their claims against the employer. Brosamle, 427 N.W.2d at 474. The employer claimed the dismissal of the employee was an adjudication on the merits as to the claim against the employee and was res judicata as to the claim against the employer. Id. There we held the voluntary dismissal of the employee with prejudice was not res judicata and plaintiffs could proceed with their action against the employer. Id. at 474, 476. In reaching this conclusion, we agreed with the reasoning of the Montana Supreme Court when it said:

“We conclude that the better rule is that dismissal of a defendant ‘with prejudice’ does not release other defendants who may be liable under a theory of respon-deat superior, unless the document intends to do so, or the payment is full compensation, or the release expressly so provides. This [conclusion] ... reflects the tactical reality of dismissals of less than all defendants in multi-party tort litigation. It also reflects the inappropriateness in modern practice of an interpretation which finally disposes of substantive issues based on a technical misstep by counsel.”

Id. at 476 (alterations in original) (citation omitted).

Applying these principles to the facts of this case, the dismissal of Jabour and Meyer does not preclude Dickens from going forward with his claims against Associated Anesthesiologists even though the district court included the words “with prejudice” in its dismissal. Prior to January 24, 1998, our rules of civil procedure did not include a time limit for serving an original notice. Our case law presumed a delay in service beyond 120 days after the filing of a petition was abusive. See Henry v. Shober, 566 N.W.2d 190, 192 (Iowa 1997) (finding a 169-day delay to be presumptively abusive); Alvarez v. Meadow Lane Mall Ltd. P’ship, 560 N.W.2d 588, 591 (Iowa 1997) (finding a 159-day delay to be presumptively abusive). Our case law further held that if the delay in service was presumptively abusive and not justified, the court must dismiss the suit. Henry, 566 N.W.2d at 192; Alvarez, 560 N.W.2d at 591. At that time, a dismissal for abusive delay of process was an adjudication on the merits and barred refiling of the same action. Becker v. Becker, 603 N.W.2d 627, 628 (Iowa 1999).

Effective January 24, 1998, we amended our rules of civil procedure to provide:,

If service of the original notice is not made upon the defendant, respondent, or other party to be served within 90 days after filing the petition, the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice as to that defendant, respondent, or other party to be served....

Iowa R. Civ. P. 1.302(5) (emphasis added). The adoption of rule 1.302(5) overruled our prior case law. Consequently, an action filed and dismissed for failure to serve the original notice in a timely manner after the effective date of this amendment is not a dismissal on the merits.

Dickens filed his petition in August 2002. Although the district court signed an order provided by defense counsel that included the words “with prejudice,” factually the district court dismissed Jabour and Meyer from the suit because Dickens failed to serve them within the ninety-day time limit of rule 1.302(5). In other words, the district court dismissed Jabour and Meyer from the lawsuit because the lack of service precluded the court from obtaining personal jurisdiction over them. Rule 1.302(5) specifically provides such a dismissal is not a dismissal on the merits. Under our case law and the Restatement, a dismissal for lack of jurisdiction is not res judicata and is not the type of dismissal that would preclude Dickens from proceeding-on his claims against Associated Anesthesiologists. See Burlington N. R.R., 418 N.W.2d at 75; Restatement (Second) of Judgments § 20(l)(a). Accordingly, the district court should- not have granted Associated Anesthesiologists’ motion for summary judgment.

V. Disposition.

Because the dismissal of Jabour and Meyer did not preclude the litigation of Dickens’ claims against Associated Anesthesiologists, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case for further proceedings consistent with this opinion.

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

      . The motion cited Iowa Rule of Civil Procedure 1.302(6). We renumbered this rule as rule 1.302(5), effective February 1, 2003. All references in this opinion will be to rule 1.302(5).

      . When we adopted this amendment in 1998, we numbered it as Iowa Rule of Civil Procedure 49(f). Effective February 15, 2002, we renumbered it as rule 1.302(6). Effective February 1, 2003, we renumbered it as rule 1.302(5).


author: STREIT, Justice. LAVORATO, Chief Justice

text:
    STATE of Iowa, Appellee, v. Cary Lee STRAW, Appellant.
    No. 04-0952.
    Supreme Court of Iowa.
    Feb. 3, 2006.

      Linda Del Gallo, State Appellate Defender, and Greta A. Truman, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, and W. Wayne Saur, County Attorney, for appellee.
   STREIT, Justice.

Cary Lee Straw appeals from the judgments and sentences entered by the district court following his guilty pleas to possession of a controlled substance, third offense, and driving while barred. Straw claims the district court erred by not substantially complying with the requirements of Iowa Rule of Criminal Procedure 2.8(2)(6). He also claims his counsel rendered ineffective assistance by failing to file a motion in arrest of judgment after the district court did not inform him of the maximum punishment he could face by pleading guilty. The court of appeals affirmed the decision of the district court. Upon our review, we affirm the decision on different grounds and preserve the issue for postconviction relief proceedings.

I. Facts and Prior Proceedings

On a Tuesday afternoon in the fall of November 2003, Cary Lee Straw rolled through the town of Oelwein with a license plate that did not match his vehicle. A police officer stopped Straw to investigate the license plate and discovered Straw was driving while barred. The officer arrested him, searched him, and found a plastic bag containing marijuana and rolling papers in his pocket. The officer also noticed an open bottle of Jim Beam bourbon whiskey and an open bottle of vodka in the back seat. Straw was charged with possession of a controlled substance (third offense), driving while barred, and possession of drug paraphernalia. He was also cited for an open container violation and improper use of a vehicle registration.

Pursuant to a plea agreement, Straw pled guilty to possession of a controlled substance, third offense, and driving while barred. See Iowa Code §§ 124.401(5) (2003) (possession of a controlled substance, third offense, class “D” felony), 321.561 (driving while barred, aggravated misdemeanor). In exchange for his plea, the State dismissed the paraphernalia charge, as well as the improper use of registration and open container citations. The agreement also specified Straw would make his own recommendation for sentencing while the State would recommend concurrent sentences for both charges.

Before accepting the plea, the court spoke with Straw and discussed the elements of the charged offenses, the factual basis for those charges, the right to go to trial, rights pursuant to trial, and the fact that if he pled guilty he would be forfeiting those rights. The court did not discuss the maximum punishment he would face by pleading guilty. The court accepted Straw’s plea and found it “knowingly and voluntarily made” with a basis in fact. Straw never filed a motion in arrest of judgment to challenge the validity of his plea.

Weeks later, the sentencing court imposed sentences of up to five years for the possession of marijuana charge and up to two years for the driving-while-barred charge. The court ordered the sentences consecutive to each other and consecutive to a separate, unrelated conviction.

Straw appealed, contending the district court erred by not properly informing him of the potential punishments he faced for pleading guilty to these charges, and erred by not explaining these sentences could be ordered to run consecutively. Straw claimed this rendered his plea unknowing and involuntary. Straw asserted his claim should be considered directly on appeal because the district court did not adequately advise him of his right to file a motion in arrest of judgment. In the alternative, Straw claimed his counsel was ineffective for failing to ensure he was fully informed at the plea proceeding and for failing to file a motion in arrest of judgment.

We transferred the case to the court of appeals. The court of appeals found the district court substantially complied with its duty to inform Straw of his right to file a motion in arrest of judgment and determined Straw did not preserve the error for direct appeal because he did not file such a motion. It then analyzed whether Straw’s counsel was ineffective. It determined Straw’s counsel violated an essential duty by no.t filing a motion in arrest of judgment, but ultimately affirmed the district court because it found Straw was not prejudiced by the error because he had received a favorable plea and the evidence against him was overwhelming. We granted further review.

II. Error Preservation

The State contends Straw may not directly challenge his guilty plea on appeal because he did not file a motion in arrest of judgment contesting the legality of his plea. 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.”); see State v. Loye, 670 N.W.2d 141, 149 (Iowa 2003). Straw contends this requirement does not apply because the trial court did not adequately advise him that failure to file a motion in arrest of judgment would preclude him from later raising issues regarding his guilty plea on appeal. 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.”); Loye, 670 N.W.2d at 149 (stating court’s failure to comply with rule 2.8(2)(d) operates to reinstate the defendant’s right to appeal the legality of his plea).

Following Straw’s guilty plea, the district court told Straw:

Now, if you have — wish to appeal or challenge any of the proceedings that have taken place in the courtroom today, you have to file a paper that we call a Motion in Arrest of Judgment. That is simply a paper that basically says I didn’t follow all of the correct procedures in taking your guilty plea and it gives me a chance to go back and correct that. Mr. Harden can explain that to you. But the important thing is that that paper must be filed not less than five days before sentencing. So, when we come back for sentencing, if no such motion has been filed, then we will proceed to sentencing, and we will assume that all the procedures we followed up to this point are correct. Do you understand that, sir?

Straw responded, “Yes, Your Honor.”

We employ a substantial compliance standard in determining whether a trial court has discharged its duty under rule 2.8(2)(d). Id. at 150. The court must ensure the defendant understands the necessity of filing a motion to challenge a guilty plea and the consequences of failing to do so. Id.

The court’s comments were sufficient to discharge its duty under rule 2.8(2)(d). Instead of quoting rule 2.8(2)(d) verbatim, the court performed its duty commendably by using plain English to explain the motion in arrest of judgment. The court’s statement plainly indicated that if Straw wanted to appeal or challenge the guilty plea, he had to file a motion in arrest of judgment. It also indicated this motion had to be filed not less than five days before sentencing. In whole, it conveyed the pertinent information and substantially complied with the requirements of rule 2.8(2)(d). Therefore, Straw’s failure to move in arrest of judgment bars a direct appeal of his conviction. Iowa R.Crim. P. 2.24(3)(a); State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). However, this failure does not bar a challenge to a guilty plea if the failure to file a motion in arrest of judgment resulted from ineffective assistance of counsel. Brooks, 555 N.W.2d at 448.

III. Merits and Scope of Review

An ineffeetive-assistance-of-eoun-sel claim in a criminal case “need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes.” Iowa Code § 814.7(1) (2005). The defendant may raise the ineffective assistance claim on direct appeal if he or she has reasonable grounds to believe the record is adequate to address the claim on direct appeal. Id. § 814.7(2). If an ineffective-assistance-of-counsel claim is raised on direct appeal from the criminal proceedings, we may decide the record is adequate to decide the claim or may choose to preserve the claim for postconviction proceedings. Id. § 814.7(3). Only in rare cases will the trial record alone be sufficient to resolve the claim on direct appeal. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997) (stating claims of ineffective assistance of counsel raised on direct appeal are ordinarily reserved for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct); State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We review ineffective-assistance-of-counsel claims de novo. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001).

A. Ineffective Assistance

To establish his claim of ineffective assistance of counsel, Straw must demonstrate (1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 693 (1984); State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004). Straw must prove both elements by a preponderance of the evidence. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999). As discussed in the following analysis, the record does not adequately present the issues in this case and the case is more properly addressed in a postcon-viction relief hearing. See State v. Ueding, 400 N.W.2d 550, 553 (Iowa 1987).

1. Failure to Perform an Essential Duty

Under the first prong of this test, counsel’s performance is measured “against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner.” Dalton, 674 N.W.2d at 119. Straw claims his counsel violated an essential duty by failing to file a motion in arrest of judgment prior to sentencing. There is adequate evidence in the record to decide this issue on direct appeal.

Due process requires the defendant enter his guilty plea voluntarily and intelligently. State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005). “If a plea is not intelligently and voluntarily made, the failure by counsel to file a motion in arrest of judgment to challenge the plea constitutes a breach of an essential duty.” Id. In order to ensure a guilty plea is voluntarily and intelligently made, the court must articulate the consequences of the plea to the defendant. State v. Boone, 298 N.W.2d 335, 337 (Iowa 1980). Iowa Rule of Criminal Procedure 2.8(2)(6) provides the court with a blueprint for the guilty plea proceeding:

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.
(3) That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant’s status under federal immigration laws.
(4) That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant’s own behalf and to have compulsory process in securing their attendance.
(5) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial.

Iowa R.Crim. P. 2.8(2)(6) (emphasis added). Substantial compliance with this rule is required. State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990).

The State concedes the district court did not substantially comply with rule 2.8(2)(6 )(2) when it omitted any mention of the punishment Straw could face by pleading guilty to the charges in this case. See, e.g., id. (holding substantial compliance is the measure for judging whether the requirements of rule 2.8(2)(6) have been met). When Straw’s counsel did not bring this matter to the court’s attention or file a motion in arrest of judgment, his counsel failed to perform an essential duty. See State v. Myers, 653 N.W.2d 574 (Iowa 2002) (finding counsel breached an essential duty by failing to raise court’s failure to inform the defendant of the right to compulsory process); State v. Kress, 636 N.W.2d 12 (Iowa 2001) (holding defense counsel’s failure to correct court’s misinformation concerning defendant’s potential sentence exposure, or to file motion in arrest of judgment raising the issue, placed counsel below range of normal competency).

2. Resulting Prejudice

Straw claims he suffered prejudice because, had he understood the sentences could be made consecutive, he would not have pled guilty. The fighting issue in this case is what standard should be applied to evaluate Straw’s claim under this prejudice element. Four cases guide our analysis.

In 1983, we reviewed Joseph Ross Meier’s appeal from the denial of his application seeking postconviction relief from his conviction pursuant to a guilty plea. Meier v. State, 337 N.W.2d 204, 205 (Iowa 1983). In the postconviction relief (PCR) hearing Meier established a record for our review. Id. At the PCR hearing, Meier described how his original counsel had told him that if he stood trial and was convicted, he would be given a twenty-five year sentence with a mandatory five-year sentence; however, if he pled guilty, he would get the twenty-five .years without the mandatory term. Id. He thought his counsel meant that if he accepted the bargain, he could be released in less than five years; however, if he did not accept the bargain and was eventually convicted, then he would be in prison at least five years before he would be eligible for any kind of release. Id. His original counsel substantiated his claim — “I am sure that I told Mr. Meier that if we stood trial and ... that sentencing provision were invoked, that he would serve five years and be eligible for parole at the expiration of five years?’ Id. Based on his counsel’s advice, Meier pled guilty and waived his right to trial. Id.

The PCR trial court found Meier’s original counsel misadvised him of the law. Id. However, because Meier “got what he bargained for; that is, a 25-year sentence without a mandatory minimum sentence,” the court concluded the record did not demonstrate his counsel was so “mistaken or careless in his advice to [Meier] to amount to ineffective assistance of counsel.” Id. at 205-06. Our court disagreed and reversed. Id. at 208. Noting the test in this context was for ineffective assistance of counsel, we determined Meier’s trial counsel gave erroneous advice regarding the law and Meier relied on this advice in waiving trial and pleading guilty. Id. at 206-08. When it came to the prejudice element, we did not focus on what sentence Meier received, but instead focused on what he relinquished. Id. at 208. We found a due process deprivation occurred when Meier was unable to make an intelligent and informed choice from among his alternate courses of action at the plea hearing and we would not speculate as to the outcome of the trial waived by the guilty plea. Id. We reversed and remanded so Meier could plead anew. Id.

In Meier, the dissent focused on whether Meier proved he was substantially prejudiced by his attorney’s misadviee. Id. The dissent noted the following evidence indicated there was no actual prejudice suffered by Meier: (1) there was “not even a hint of evidence that petitioner could have obtained a better result,” (2) his original attorney testified Meier had no chance to prevail in a jury trial on the issue of culpability, and (3) his original attorney thought the best deal was to take the plea bargain. Id. In the face of these three findings, the dissent found Meier failed to prove he suffered prejudice from his counsel’s misadviee. Id.

Two years after Meier, the United States Supreme Court discussed the prejudice element of an ineffective-assistance-of-counsel claim in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88. L.Ed.2d 203, 210 (1985). In Hill v. Lockhart, the Court considered a prisoner’s petition for habeas corpus alleging his trial counsel was ineffective in failing to accurately inform him as to his eligibility for parole. Id. The district court denied habeas relief because neither state law nor federal law required that Hill be informed of his parole eligibility date prior to pleading guilty. Id. at 55, 106 S.Ct. at 368, 88 L.Ed.2d at 207-08. A divided Court of Appeals for the Eighth Circuit affirmed the district court, with the dissent arguing a hearing should have been held to determine whether Hill’s counsel wrongly advised him on his parole eligibility prior to the plea. Hill v. Lockhart, 731 F.2d 568, 573 (8th Cir.1984).

The Supreme Court affirmed the decision of the court of appeals, stating the prejudice element in a guilty plea case “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d. at 210. The Court stated: “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.

The Court described this test by explaining how, in many guilty plea cases, the prejudice inquiry would resemble the same inquiry as when the conviction was obtained through trial. Id. For example, when the alleged error of counsel is a failure to investigate potentially exculpatory evidence, the determination whether this failure prejudiced the defendant by causing him to enter into a plea agreement rather than go to trial will depend on whether it was likely the discovered evidence would have changed his counsel’s recommendation as to the plea. Id. “This assessment ... will depend in large part on a prediction whether the evidence likely would have changed the outcome of [the] trial.” Id. However, the Court did not reach the question whether erroneous advice by counsel as to parole eligibility would be constitutionally ineffective assistance of counsel because Hill “did not allege in his habeas petition that had counsel correctly informed him about his parole eligibility date ... he would have pleaded not guilty and insisted on going to trial.” Id. at 60, 106 S.Ct. at 371, 88 L.Ed.2d at 211. The Court noted he “alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty” and it therefore found Hill did not satisfy the second prong of the ineffective assistance test. Id.

After the Hill decision, we applied the “reasonable probability” standard to ineffective-assistance-of-counsel claims. See, e.g., State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (evaluating prejudice in the context of a conviction by jury trial); Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995) (evaluating prejudice in the context of a conviction by guilty plea).

In State v. Kress, we again discussed the prejudice element of an ineffective-assistance-of-counsel claim in the context of a guilty plea. In Kress, the trial court accepting the guilty plea misinformed the defendant that the sentencing court could waive a mandatory minimum sentencing requirement. 636 N.W.2d at 21-22. We began our ineffective-assistance-of-counsel analysis by applying the familiar two-step test. Id. at 20. We first determined the defendant’s trial counsel failed to perform an essential duty by not correcting the court’s misinformation or filing a motion in arrest of judgment. Id. at 22. We then turned to the second element, resulting prejudice. The following is our entire analysis of this element:

Turning to the prejudice element, we think the prejudice results from what Kress relinquished. [Meier, 337 N.W.2d at 208]. Kress “had an unqualified constitutional right to a trial on the issue of [her] guilt, which she [may have] abandoned on the strength of [the court’s misinformation].” Id. We do not speculate on the outcome of the trial waived by her guilty plea. Id. As mentioned, the remedy called for in these circumstances is to set aside the conviction and sentence and allow the defendant to plead anew.

Id. Rather than explicitly discussing the Hill reasonable probability analysis, we cited Meier and concluded there was resulting prejudice.

In State v. Myers, we again considered a direct appeal of an ineffective-assistance-of-counsel claim in the context of a guilty plea. 653 N.W.2d at 577. In this case, the defendant was not informed of the right to compulsory process during the plea colloquy. Id. The defendant claimed she received ineffective assistance of counsel when her counsel failed to file a motion in arrest of judgment after the court told her “you ... have the right to present any witnesses in your own defense” rather than explaining she could force the attendance of such witnesses, as required by rule 2.8(2)(& )(4) (compulsory process). Id. We determined the trial counsel’s failure to correct the judge or file a motion in arrest of judgment established the first prong of the test for ineffective assistance of counsel, but we found the second prong of the ineffective-assistance-of-counsel test to be “more problematic.” Id. at 578. We did not cite either Meier or Kress as authority for the prejudice element. Instead, we analyzed the prejudice element under the “reasonable probability” framework set forth in Hill. Id. After a thorough analysis under this standard, we concluded the defendant failed to prove, or even assert, there was “a reasonable probability that, ‘but for counsel’s error[], [s]he would not have pleaded guilty and would have insisted on going to trial.’ ” Id. (quoting Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210). We stated the defendant’s right of compulsory process could not be claimed “in a yacuum,” and a conclusory claim that she was ready to insist on going to trial was not a sufficient assertion of prejudice. Id. at 578-79. We noted the defendant had not claimed there were any witnesses whose testimony was denied her because she could not force them to testify. Id. at 579.

The brevity of our analysis of the prejudice element in Kress has led some to characterize our holding as a per se rule of prejudice when the district court fails .to tell the defendant the maximum sentence on an ineffective-assistance-of-counsel claim. We reject this characterization, because Kress was an aberration which failed to consider the analysis set forth in Hill. We also refuse to adopt a per se rule- of prejudice because such a rale would force-us to accept conclusory claims of prejudice without the benefit of a true review of the circumstances surrounding the plea. Under the “reasonable probability” test, the defendant, who has already admitted to committing the crime, has the burden to prove he or she would not have pled guilty if the judge had personally addressed the maximum punishment for his or her crimes. On the other hand, if we adopted a per se rule, some defendants would grin like a Cheshire cat as we gave them a second bite at the apple — even though they committed the crime and actually knew the maximum length of punishment for the crime. Such a rule would undermine the court’s integrity and erode the public’s confidence in its criminal justice system. Though, on its face, it may appear easier to reverse the conviction and let Straw plead anew, the driving force behind our decision is the common-sense notion that a conviction will not be reversed unless the judicial misstep complained of prejudiced the defendant.

Our standard for the prejudice element in ineffective-assistance-of-counsel claims remains consistent — in order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial. Id. (quoting Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210).

Under the “reasonable probability” standard, it is abundantly clear that most claims of ineffective assistance of counsel in the context of a guilty plea will require a record more substantial than the one now before us. Unlike our decision in Meier, there is nothing in this record to indicate whether or not Straw’s trial counsel told him about the possibility of consecutive sentences. Such evidence could be a significant part of our prejudice analysis. This case exemplifies why claims of ineffective assistance of counsel should normally be raised through an application for postconviction relief. In only rare cases will the defendant be able to muster enough evidence to prove prejudice without a postconviction relief hearing. Atley, 564 N.W.2d at 833; Coil, 264 N.W.2d at 296.

IV. Conclusion

Once a defendant waives his or her right to a trial by pleading guilty and then does not file a motion in arrest of judgment prior to sentencing, “the State is entitled to expect finality in the conviction.” State v. Mann, 602 N.W.2d 785, 789 (Iowa 1999). “This is true because ‘[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction.’ ” State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000) (quoting Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279 (1969)). Nothing in the record before us indicates we should overturn Straw’s conviction. We affirm the decision of the court of appeals and uphold the conviction and sentence. Straw’s ineffective-assistance-of-counsel claim is preserved for postconviction relief proceedings.

AFFIRMED.

All justices concur except LAVORATO, C.J. and WIGGINS, J., who dissent.

LAVORATO, Chief Justice

(dissenting).

This case involves a claim of ineffective assistance of counsel arising out of a guilty plea. Pursuant to a plea agreement, the defendant pleaded guilty to two offenses: possession of a controlled substance and driving while barred. In return for the plea, the State agreed to drop several other charges. The record is clear that before the district court accepted the plea, it failed to advise the defendant that it could impose consecutive sentences.

On appeal, the defendant contended that the district court erred when it did not inform him that it could impose consecutive sentences and for that reason the plea was not knowingly and voluntarily entered. The defendant also contended that his counsel was ineffective for failing to ensure that the defendant was fully informed at the plea proceeding regarding the potential for consecutive sentences and for failing to file a motion in arrest of judgment challenging the plea on this basis.

I agree with the majority that when the defendant’s counsel did not bring this matter to the district court’s attention or failed to file a motion in arrest of judgment, counsel failed to perform an essential duty. I disagree with the majority’s holding on the prejudice prong of the claim for ineffective assistance of counsel. My reasons for disagreeing follow.

As we noted in State v. Loye,

The Due Process Clause [of the Fourteenth Amendment to the Federal Constitution] requires that a guilty plea be voluntary. “To be truly voluntary, the plea must not only be free from compulsion, but must also be knowing and intelligent.” 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.

670 N.W.2d 141, 150-51 (Iowa 2003) (emphasis added) (citations omitted); see also State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005) (“ ‘A guilty plea results in a waiver of several constitutional rights. For the waiver to be valid, there must be an intentional relinquishment of known rights. Due process therefore requires that a defendant enter a guilty plea voluntarily and intelligently.’ ” (Citation omitted.)).

Iowa Rule of Criminal Procedure 2.8(2)(6) was passed to ensure that pleas are voluntary, State v. Fluhr, 287 N.W.2d 857, 863 (Iowa 1980), overruled on other grounds by State v. Kirchoff, 452 N.W.2d 801, 804-05 (Iowa 1990), and “codifies this due process mandate,” Loye, 670 N.W.2d at 151. Rule 2.8(2)(6) provides in part:

The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is 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.
(3) That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant’s status under federal immigration laws.
(4) That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant’s own behalf and to have compulsory process in securing their attendance.
(5) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial.

Iowa R.Crim. P. 2.8(2)(b )(l)-(5) (emphasis added).

As the majority notes, we apply a substantial compliance standard in assessing whether the trial court has adequately informed the defendant of the matters listed in the rule. Loye, 670 N.W.2d at 151. “ ‘Substantial compliance’ requires at a minimum that the defendant be informed of these matters and understand them.” Id.

A failure to challenge the plea in a motion in arrest of judgment precludes a defendant from asserting such a challenge on appeal. Iowa R.Crim. P. 2.24(3)(a). One exception occurs when during the plea the court fails to advise the defendant, as required by rule 2.8(2)(d!), of the necessity to file the motion within the time set out in rule 2.24(3)(6 ). Loye, 670 N.W.2d at 149-50. Another exception occurs when the failure to file the motion results from ineffective assistance of counsel, State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996), which is the case here.

On direct appeal, the remedy for a successful challenge to a guilty plea is to vacate the plea, reverse the judgment of conviction, and remand the case to allow the defendant to plead anew. Loye, 670 N.W.2d at 153-54 (because the district court did not substantially comply with rule 2.8(2)(6 )(l)-(2) when it did not confirm that the defendant understood the nature of the charges to which she intended to plead guilty or the maximum possible punishments that might result from the plea, the plea violated the Due Process Clause and for that reason had to be set aside); State v. White, 587 N.W.2d 240, 246^7 (Iowa 1998) (plea was successfully challenged on appeal based on ground that defendant was not informed that the maximum punishment that could be imposed included consecutive sentences). The remedy is applied even if counsel has discussed the same matters with the defendant in preparation for the plea hearing. Loye, 670 N.W.2d at 153. Thus reversal is automatic if the court taking the plea does not substantially comply with the requirements of the rule. In these circumstances, we are strictly enforcing the rule.

When the appeal occurs in the context of a claim of ineffective assistance of counsel, we have applied essentially the same remedy with some modification if the plea lacks a factual basis. See, e.g., State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996). When the claim is lack of a factual basis, two possible remedies exist. State v. Mitchell, 650 N.W.2d 619, 621 (Iowa 2002) (per curiam). If the record establishes that the defendant was charged with the wrong crime, we have vacated the judgment of conviction and sentence and remanded for dismissal of the charge. Id.; Hack, 545 N.W.2d at 263. In those circumstances, we allow the State to reinstate a charge dismissed in contemplation of a valid plea or re-indict the defendant under a code section supportable by the available evidence. Hack, 545 N.W.2d at 263. But if it is possible that a factual basis could be shown, the more appropriate remedy is to vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis. Mitchell, 650 N.W.2d at 621.

The net result of Mitchell and Hack is that we presume prejudice, that is, we apply a prejudice per se rule, which is contrary to the prejudice prong of a claim for ineffective assistance of counsel. Ordinarily, under the prejudice prong of a claim for ineffective assistance of counsel, we apply the prejudice requirement in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) when a defendant is claiming a violation of his rights under the Sixth Amendment to the Federal Constitution. Under the Strickland requirement, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. The prejudice requirement was based on the Court’s conclusion that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696.

In Hack, we expressed our reasons for refusing to apply the Strickland prejudice requirement in a claim of ineffective of assistance of counsel arising out of a guilty plea that lacks a factual basis:

The court of appeals affirmed Hack’s conviction, preserving the allegation of ineffective assistance of counsel for post-conviction review. Its decision rested on the belief that counsel may have had strategic reasons for permitting his client to plead guilty notwithstanding the lack of a factual basis. Endorsing such strategies, however, would erode the integrity of all pleas and the public’s confidence in our criminal justice system. For this reason, they cannot be permitted.

545 N.W.2d at 263 (emphasis added) (citations omitted).

I submit the same reasons support a refusal to apply the Strickland prejudice requirement when defendants plead guilty without being informed of the maximum possible punishment they face. White involved a direct appeal in which we concluded that a failure to inform the defendant of the possibility of consecutive sentences rendered his guilty plea involuntary. 587 N.W.2d at 241. We said in White:

“Duration of incarceration unquestionably goes to the very heart of voluntariness required for a valid waiver of a defendant’s right to trial on the charge alleged.... ”
“It is virtually self-evident that a defendant’s decision to plead guilty ... to a criminal charge is a grave and personal judgment, which a defendant should not be allowed to enter without full comprehension of possible consequences of conviction by such plea. Whether it be the maximum term of imprisonment authorized by the statute prescribing a penalty for conviction of a crime or whether it be a combination of terms of imprisonment imposed as penalties for convictions of separate crimes, duration of possible imprisonment is an important factor affecting any defendant’s intelligent choice between the alternatives confronting a defendant — going to trial or entering a plea of guilty.... Anyone unaware that the term or duration of incarceration acutely affects a defendant’s decision regarding a guilty ... plea in a criminal case is oblivious to one of the realities in our system for efficient criminal justice.”

Id. at 246 (citation omitted).

In terms of deprivation of due process, I equate a failure to inform defendants of the maximum possible punishment with a failure to establish a factual basis. As the above quote so eloquently suggests, nothing is more important to defendants contemplating a plea than knowing the maximum possible punishment they face. Rule 2.8(2)(6) requires a factual basis for a plea as well as requiring the court to inform the defendant of the maximum possible punishment. Both requirements go to the heart of voluntariness. Moreover, contrary to the majority’s view, a failure to abide by either requirement violates the spirit and purpose of rule 2.8(2)(&) and erodes the integrity of the plea process along with the public’s confidence in the criminal justice system.

In State v. Stallings, we held that trial counsel was ineffective for failing to comply with a rule to ensure that the defendant’s waiver of a jury trial was knowing, voluntary, and intelligent. 658 N.W.2d 106, 111-12 (Iowa 2003). In coming to that conclusion, we did not apply the Strickland prejudice requirement but instead we presumed prejudice; In doing so, we said: “Because the right to a jury trial is so fundamental to our justice system, we conclude this is one of those rare cases of a ‘structural’ defect in which prejudice is presumed.” Id. at 112. It goes without saying that a failure to inform the defendant of the maximum possible punishment renders the plea defective. Because liberty is such a fundamental aspect of the Due Process Clause, I would similarly consider such a plea a structural defect in which prejudice should be presumed. Moreover, the prejudice resulting from such a plea is the relinquishment of a constitutional right to a trial by jury, Meier v. State, 337 N.W.2d 204, 208 (Iowa 1983), which is fundamental to our justice system, Stallings, 658 N.W.2d at 112. Athough the majority mentions Stallings, it neglects to answer the question why the failure to advise a defendant of the maximum possible punishment in a plea is not a structural defect. As in Stallings, Straw waived his right to a jury trial in a plea process that was constitutionally defective.

What I am suggesting is not novel. In Commonwealth v. Persinger, a case we cited with approval in White,- the trial court imposed consecutive sentences following a plea that was devoid of any mention of potential consecutive sentences. 532 Pa. 317, 615 A.2d 1305, 1307 (1992). The superior court affirmed. Id. at 1306. The sole issue on appeal to the supreme court of Pennsylvania was whether trial counsel was ineffective for failing to file a motion to withdraw defendant’s guilty plea. Id. Although the defendant was informed of the maximum sentence possible on each count, the defendant was not informed that the sentences could be imposed consecutively. Id. at 1307. Reversing and remanding the case for trial, the supreme court of Pennsylvania stated:

Requiring the trial court to tell the defendant that the sentences may be imposed consecutively and what the total aggregate sentence could be will not significantly lengthen the colloquy or place any undue burden on the court. Accordingly, we find that the absence of this inquiry from the transcript renders the colloquy defective. As a result, appellant has suffered a manifest injustice. We find therefore, that appellant’s claim has merit. We also find that because there were adequate grounds for withdrawal of appellant’s plea, counsel’s failure to seek withdrawal of appellant’s plea was prejudicial to appellant.

Id. at 1308 (emphasis added); accord Pennsylvania v. Jones, 433 Pa.Super. 421, 640 A.2d 1330, 1335 (1994). A later superi- or court decision characterized this holding as a per se prejudice rule. Pennsylvania v. Stanley, 830 A.2d 1021, 1026 (2003); see also North Dakota v. Schumacher, 452 N.W.2d 345, 347-48 (N.D.1990) (on appeal per se prejudice rule was applied in the context of a claim for ineffective assistance of counsel because the trial court failed to abide by the statutory rule requiring the court to. advise the defendant of the mandatory minimum punishment, if any, and the maximum possible punishment; defendant was not informed at the plea of the mandatory minimum sentence required by the charge to which he pleaded guilty); Hinton v. Hill, 197 Or.App. 238, 105 P.3d 923, 926 (2005) (court applied per se prejudice rule in the context of a claim for ineffective assistance of counsel because the trial court failed to advise the defendant of the maximum punishment required by the charges to which she pleaded guilty).

In the course of its opinion, the court in Persinger quoted with approval this passage from one of its earlier cases:

“[T]he decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.”

615 A.2d at 1307 (citation omitted); see also Henry v. Alabama, 639 So.2d 583, 584 (Ala.Crim.App.1994) (holding that defendant’s right to know the possible sentence he faces is absolute and the fact he was misinformed about the minimum and maximum sentence rendered his plea involuntary and the error was not harmless); cf. Kleppinger v. Florida, 884 So.2d 146, 148 (Fla.Dist.Ct.App.2004) (“A defendant is inherently prejudiced by his inability, due to his counsel’s neglect, to make an informed decision whether to plea bargain.”). This passage from Persinger suggests the Pennsylvania Supreme Court considers the failure to advise the defendant of the maximum possible punishment that might be imposed a structural defect in the plea process.

That brings me to Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), a decision upon which the majority heavily relies. In Hill, the defendant filed a federal habeas corpus action alleging that his guilty plea was involuntary because he was misinformed as to his parole eligibility. 474 U.S. at 54-55, 106 S.Ct. at 368, 88 L.Ed.2d at 207. He claimed he was told that if he pleaded guilty he would become eligible for parole after serving one-third of his sentence when in fact to become eligible for parole he was required to serve one-half of his sentence. Id. at 55, 106 S.Ct. at 368, 88 L.Ed.2d at 207. The question was whether the defendant was entitled to a hearing on his habeas corpus action. The majority concluded that the defendant failed to allege the type of prejudice necessary to satisfy the Strickland test. To satisfy that test, the court reasoned that the defendant had to allege in his habeas corpus action that had counsel correctly informed him about his parole eligibility date, he would not have pleaded guilty and would have insisted on going to trial. Because the defendant did not make, such allegations, the Court concluded that his claim of ineffective assistance of counsel failed as a matter of law. As a result, he was not entitled to a hearing. Id. at 60, 106 S.Ct. at 371, 88 L.Ed.2d at 211.

It is interesting to note that the concurring opinion found no professional error— the first prong of the Strickland test. In support of this finding, the concurring opinion noted'the record was clear that the defendant did not advise his attorney of a previous felony conviction which required defendant under state law to serve one-half rather than one-third of his sentence. Id. at 61-62, 106 S.Ct. at 371-72, 88 L.Ed.2d at 212 (White, J., concurring). Additionally, the concurring opinion found that the record supported sufficient facts to show there was a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. In sum, because the defendant did not allege facts showing professional error, the concurring opinion concluded the Court should deny the hearing for that reason. Id. at 62-63, 106 S.Ct. at 372-73, 88 L.Ed.2d at 212-13.

In any event, I think Hill is distinguishable. ' In Hill, the misinformation by the defendant’s attorney was about parole eligibility rather than on the maximum possible punishment a defendant faces in pleading guilty. Parole eligibility is a collateral consequence of a plea. Kinnersley v. State, 494 N.W.2d 698, 700 (Iowa 1993), overruled on other grounds by State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001). The maximum possible punishment a defendant faces in pleading guilty is a direct consequence of a plea. Id. A court need not inform the defendant of collateral consequences of a plea while it must inform the defendant of the direct consequences of a plea. Id. The majority fails to mention and explain away this distinction.

There is a vast difference between a court’s failure to advise a defendant about a maximum possible punishment and an attorney’s misinformation about parole eligibility. Hill and Kress are good examples. The. defendant in Hill was facing a possible life sentence on charges of first-degree murder and theft. 474 U.S. at 53-54, 106 S.Ct. at 368, 88 L.Ed.2d at-207. His counsel negotiated a plea bargain under which the State would recommend concurrent prison sentences of thirty-five years for the murder charge and ten years for the theft charge. Id. at 54, 106 S.Ct. at 368, 88 L.Ed.2d at 207. The trial judge sentenced the defendant in accordance with the plea, agreement. Id. Therefore, notwithstanding the attorney’s alleged misinformation about parole eligibility,- the defendant by pleading guilty at least had the. chance to avoid a life sentence. So the defendant indeed had an incentive to plead guilty.

Contrast that situation with one in which the court misinforms or does not inform the defendant about the maximum possible punishment in violation of our rule and thereafter the defendant pleads- guilty. That was exactly the - situation in Kress. In Kress, the State charged the defendant with procurement of a prescription drug by forgery, which carried a ten-year sentence. 636 N.W.2d at 15, 17. There was no plea agreement, id. at 16, and therefore Kress had no incentive to plead guilty. In fact, the State also alleged that Kress had been previously convicted of a drug offense that enhanced the penalty. Id. at 16-18. Because of a previous drug conviction, Kress would have to serve one-third of the indeterminate sentence. Id. at 17-18. The court incorrectly informed Kress that the sentencing judge could waive the one-third mandatory minimum sentence requirement. Id. at 16. Kress then pleaded guilty. Id. Later, the district court imposed a ten-year indeterminate sentence and required Kress to serve at least one-third of her sentence. Id.

By pleading guilty, Kress gave up her constitutional right to a jury trial based on the incorrect information given at the plea. Id. at 22. Had Kress known the true facts, she had nothing to lose and everything to gain by going-to trial because a jury may have found her not guilty. What possible reason would there have been to preserve Kress’s claim of ineffective assistance of counsel on the prejudice prong of the Strickland test rather than just setting aside the plea and judgment of conviction and allowing her to plead anew? The result would have been the same in either case. It all boils down to this: “A guilty plea must represent the informed, self-determined choice of the defendant among practicable alternatives; a guilty plea cannot be a conscious, informed choice if the accused” does not know of or is misinformed about the maximum punishment he or she faces by pleading guilty. Hawkman v. Parrott, 661 F.2d 1161, 1170 (8th Cir.1981).

The majority faults Kress because it fails to consider the Hill analysis. At the time we decided Kress, the State apparently did not believe Hill was applicable because it did not even mention Hill in its brief.

The other distinguishing factor is the structural defect aspect surrounding a failure to inform a defendant of the maximum possible punishment, which I mentioned earlier. In Hack, which was decided eleven years after Hill, we applied a per se prejudice rule in the context of an ineffective assistance of counsel claim arising out of a plea in which there was a lack of factual basis. In that case we did not even consider Hill. The Pennsylvania Supreme Court likewise decided Persinger after Hill and applied a per se prejudice rule in the context of an ineffective assistance of counsel claim arising out of a plea in which the maximum possible punishment was not mentioned. It too did not consider Hill.

Under the per se prejudice approach, I suggest the following. I would, as we did in Kress, 636 N.W.2d at 22, presume prejudice, vacate the judgment of sentence and conviction, and remand the case to allow the defendant to plead anew. This disposition, of course, would, in cases like the one before us, invalidate a plea bargain involving the dismissal of other charges. I would therefore on remand allow the State to reinstate the charges, if it so desired, and to file any additional charges supportable by the available evidence. In answer to the majority’s second-bite-at-the-apple claim, allowing the State to reinstate charges and file additional charges should eliminate any incentive on the part of defendants to claim they were not advised of the maximum possible punishment when in fact they were so advised. These remedies are analogous to the remedies we apply in claims of ineffective assistance of counsel based on a lack of factual basis. Moreover, contrary to the majority’s conclusion, these remedies preserve the integrity of the process while at the same time they serve the purpose and spirit of rule 2.8(2 )(&).

Finally, the approach I suggest would conserve judicial resources by eliminating a postconviction hearing and an appeal in the event the defendant lost in the post-conviction process. This makes far more sense than the approach the majority takes.

For all of these reasons, I would vacate the court of appeals decision; I would also vacate Straw’s judgment of sentence and conviction and remand to allow him to plead anew. In addition, I would also allow the State on remand to reinstate the charges it dismissed as part of the plea bargain and to file any additional charges supportable by the available evidence.

WIGGINS, J., joins this dissent.

      . For the third-offense possession charge, the State recommended a five-year prison sentence, a fine of $750, and a 180-day license revocation along with other related court costs. For the driving-while-barred charge, the State recommended a concurrent two-year prison sentence and a $500 fine.

      . Prior to the enactment of rule 2.24(3), a defendant could directly appeal his or her conviction based on a guilty plea. See State v. Fluhr, 287 N.W.2d 857, 860 (Iowa 1980) (reversing guilty plea conviction on direct appeal because the court did not substantially comply with procedural guidelines when accepting the guilty plea).

      . The State claims Straw knew there was a possibility the sentences could be consecutive because the plea agreement recommended concurrent sentences. This argument is similar to the argument the State made in State v. White, 587 N.W.2d 240, 246 (Iowa 1998). In White, the defendant pled guilty to two counts of possession of methamphetamine with intent to deliver, but the district court failed to inform the defendant, prior to the acceptance of his guilty plea, that consecutive sentences could be imposed. 587 N.W.2d at 246. The State argued the district court satisfied rule 2.8(2)(⅛ ) by informing the defendant what the penalty was for each charge, because the defendant could "figure out by implication that the sentences could be ordered to be served consecutively.” Id. We rejected this argument because it left the defendant "partially informed, but uninformed of the true maximum possible punishment of twenty years imprisonment coming from consecutive sentences.” Id. We reject the State's similar argument in this case.

      . The rare instances where we presume prejudice are easily distinguishable from the present case. We presume prejudice when the defendant is denied his or her right to a jury trial because the right to a jury trial is one of only a handful of “important" constitutional rights that are fundamental to our justice system. State v. Stallings, 658 N.W.2d 106, 112 (Iowa 2003) (citing McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir.1998) ("Despite the strong presumption that constitutional error can be harmless, we conclude that the denial of a jury trial is a structural error subject to automatic reversal.") (Internal quotations and citations omitted.)). We also presume prejudice when there was no factual basis for the plea because we-do not want to convict people for crimes they did not commit. State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996); see State v. Sanders, 309 N.W.2d 144, 145 (Iowa Ct.App.1981). In the present case, neither of these pressing concerns exists. Straw does not contend he did not commit the crime, and he does not contend he was denied the right to trial. Instead, he argues his decision not to go to trial would have been different had he known the maximum punishment for the crime he committed. Rather than presume his decision would have been different, Straw ought to prove that point on his own.

      . The prejudice suffered by a defendant who does not know the potential length of imprisonment for his guilty plea is unique because it " 'is virtually self-evident that a defendant's decision to plead guilty ... is a grave and personal judgment, which a defendant should not be allowed to enter without full comprehension of possible consequences of conviction by such plea. " White, 587 N.W.2d at 246 (quoting State v. Irish, 223 Neb. 814, 394 N.W.2d 879, 884-85 (1986) (Shanahan, J., dissenting)). Anyone "unaware that the term or duration of incarceration acutely affects a defendant's decision regarding a guilty ... plea ... is oblivious to one of the realities in our system for efficient criminal justice.” Id.


author: /s/ Russell A. Anderson Chief Justice

text:
    George R. BOYINGTON, Relator, v. HIRSCHBACH MOTOR LINES, INC., and St. Paul Travelers f/k/a, Aetna Commercial Insurance Division, Respondents.
    No. A05-2055.
    Supreme Court of Minnesota.
    Feb. 1, 2006.
    David R. Ludwigson, Ludwigson Law Office, White Bear Lake, MN, for Boying-ton.
    Richard C. Pranke, St Paul MN, for Respondents Aetna Commercial Insurance Division, Hirschbach Motor Lines, Inc., St. Paul Travelers.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 28, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 817 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ Russell A. Anderson Chief Justice


author: /s/ G. Barry Anderson Associate Justice

text:
    David A. JOHNSON, Relator, v. LARAWAY ROOFING and Federated Mutual Group, Respondents, and Wilson Refrigerated Express and Great West Casualty Company, Respondents.
    No. A05-2057.
    Supreme Court of Minnesota.
    Feb. 6, 2006.
    Raymond Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for relator.
    David O. Nierenstein, Teresa R. Flack, Fitch, Johnson, Larson & Held, Richard W. Schmidt, Brad K. Rolling, Cousineau McGuire Chtd., Minneapolis, MN, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 22, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ G. Barry Anderson Associate Justice