author: GILBERTSON, Chief Justice.

text:
    2005 SD 59
    In the Matter of the Application of Amy YANNI for Review of the Decision of the Board of Bar Examiners (SDCL 16-16-16).
    No. 23260.
    Supreme Court of South Dakota.
    Argued March 21, 2005.
    Decided May 11, 2005.

      Daniel L. Jongeling, Rapid City, SD, for applicant, Yanni.
    Jennifer K. Trucano, G. Verne Goodsell of Gunderson, Palmer, Goodsell & Nelson, L.L.P., Rapid City, SD, for intervenor, State Bar.
    James D. Leach, Board of Bar Examiners, Rapid City, SD, and Craig M. Ei-chstadt, Board of Bar Examiners, Pierre, SD, for Board of Bar Examiners.
   GILBERTSON, Chief Justice.

[¶ 1.] Amy Yanni is an attorney licensed to practice law in both Minnesota and Massachusetts. Yanni applied for admission to the South Dakota Bar without examination under SDCL 16-16-12.1, using her Massachusetts bar membership and almost twenty years of practice to fulfill the requirements. The South Dakota Board of Bar Examiners denied her request. Yanni challenged the denial, and attempted to use her Minnesota bar membership and experience to meet the required showing. The Board of Bar Examiners again denied her application. The denials stated that the Minnesota and Massachusetts reciprocity provisions did not allow South Dakota attorneys substantially similar admission without examination as required under SDCL 16 — 16— 12.2(h), and therefore South Dakota’s reciprocal admission without, examination provision was not available to attorneys licensed in these two jurisdictions. Yanni appealed. Because of the significance of this issue to attorneys in this State, we granted intervention to the State Bar of South Dakota. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] Amy Yanni (Yanni) graduated from Northeastern University School of Law in Boston, Massachusetts in 1985. Yanni took the Massachusetts bar examination in July 1985, and received a passing score. Yanni had previously taken the Multistate Professional Responsibility Examination (MPRE) in 1984, for which she also received a passing score. Yanni was admitted to practice law in the courts of Massachusetts on December 18, 1985, and remains a member in good standing.

[¶ 3.] After practicing law in Massachusetts for sixteen years, first in private practice for three years, and then in public service for twelve, Yanni relocated to Minnesota in May 2001. She applied for admission to the Minnesota bar without examination based on her years of practice. Yanni was admitted to practice in Minnesota on September 7, 2001, and remains a member in good standing. Yanni practiced law in Minnesota for two years with Legal Services of Northwestern Minnesota before relocating to South Dakota.

[¶ 4.] Yanni moved to Rapid City, South Dakota, in 2003, and was hired as a paralegal by a law firm. At that time, Yanni was unable to obtain admission to the South Dakota Bar without taking the South Dakota bar examination. However, on January 1, 2004, SDCL 16-16-12.1 and 16-16-12.2 became effective allowing admission without examination under specific requirements.

[¶ 5.] On March 11, 2004, Yanni applied for admission to the South Dakota Bar using her Massachusetts bar membership and her twenty years of legal work to satisfy the requirements for admission without examination. As required, Yanni submitted a copy of the Massachusetts Rule, SrOlCO.l). The Board of Bar Examiners (Board) denied Yanni admission, informing her that she was not eligible for admission under SDCL 16-16-12.1 because the Massachusetts rule was not “substantially similar” to the South Dakota rule.

[¶ 6.] Yanni appealed the determination and requested consideration by the Board of Bar Examiners of her Minnesota bar membership as well as her Massachusetts bar membership. Along with her application materials, Yanni submitted the Minnesota court rules that allows admission without examination as required by SDCL 16 — 16—12.2(h). Once again the Board denied her application for admission without examination, stating that the rules of Minnesota and Massachusetts were not substantially similar to the South Dakota reciprocity rule.

[¶ 7.] Yanni appealed the Board’s decision to this Court'. She raises two issues for review:

1. Whether the Massachusetts and Minnesota rules allow South Dakota attorneys substantially similar admission without examination.
2. Whether the Board of Bar Examiners could impose “additional requirements” upon Minnesota and Massachusetts applicants short of requiring them to take the entire bar examination.

STANDARD OF REVIEW

[¶ 8.] We employ the de novo standard of review for questions of law in all bar admission cases. In re Application of Widdison, 539 N.W.2d 671, 675 (S.D.1995). The standard for the construction of statutes and court rules employed by this Court is well settled. Cf. State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653-54.

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute.... Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Courts only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.

Id. (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). “This court assumes that court rules mean what they say....” State v. Sorensen, 1999 SD 84, ¶ 14, 597 N.W.2d 682, 684 (quoting In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984)).

ANALYSIS AND DECISION

[¶ 9.] Article V, Section 12 of the South Dakota Constitution 'provides that “[t]he Supreme Court by rule shall govern terms of courts, admission to the bar, and discipline of members of the bar.” As the Court has the constitutional authority to supervise and regulate the legal system and members of the bar, “[t]his Court has authority to oversee all applications for admission” to the bar. In re Application of Widdison, 539 N.W.2d at 675 (citing In re Shemonsky, 379 N.W.2d 316, 318 (S.D.1985)). See also SDCL 16-3-9. Our court rules were adopted- to protect the public from those unfit to practice the law, not to create a monopolistic property inter est in the practice of law. State ex rel. Rice v. Gozad, 70 S.D. 193, 197, 16 N.W.2d 484, 486 (1944).

[¶ 10.] South Dakota’s bar admission requirements have a unique and complicated history. The first statutory scheme for the admission of lawyers was enacted in 1893, and required an applicant pass “a satisfactory examination before the supreme court.” 1893, SD Sess. Laws, ch. 21, § 2 (current version at SDCL 16-16-6 (2004)). The statutory scheme permitted admission without examination for attorneys previously licensed or admitted to practice by the supreme court of another state or the United States. Id. § 3.

[¶ 11.] Amendments were enacted in 1903, 1919, 1939, and 1960 that refined the admission requirements. However, no examination was required for attorneys previously licensed in another state until 1982, when SDCL 16-16-6 was amended to require all bar applicants, including those previously licensed in other jurisdictions, to successfully pass the South Dakota bar examination. 1983 SD Sess. Laws ch. 397 (Supreme Court Rule 82-24) (current version at 2004 SD Sess Laws ch 322 (Supreme Court Rule 03-21)).

[¶ 12.] In 1903, the legislature instituted a diploma privilege for graduates of the University of South Dakota law- program. SD Laws 1903, ch 77 (current version at SDCL 16-16-6 (2004)). John H. Davidson, Jr., John F. Hagemann', Bar Examination and Legal Education in South Dakota, The Bar Examiner Vol. 54, November 1984, at 16. Under the diploma privilege, USD law graduates were admitted to the South Dakota Bar without an examination requirement. SD Laws 1903, ch 77. All graduates of other law schools, and those who studied law in the “office of a member of the bar in regular practice,” who sought admission to the South Dakota Bar had to be previously licensed in another state, or if not already licensed in another jurisdiction, such graduates had to take and pass the South Dakota bar examination. Id.

[¶ 13.] The diploma privilege continued unchanged until 1957, when it was discontinued. Davidson, supra at 16. The South Dakota Bar Association resurrected the issue of the diploma privilege in 1972. After a hearing before this Court, the privilege was reinstated retroactively to January 1, 1973. SD Sup Ct Rule 3 (1973); SDCL 16-16-6.1 (1983 Supp) (amended by 1983 SD Sess Laws ch 398 (Supreme Court Rule 82-25); repealed by 1987 SD Sess Laws ch 406 (Supreme Court Rule 86-32)); Davidson, supra. However, the diploma privilege was once again discontinued for graduates awarded a Juris Doctor after June of 1983, when USD law graduates were again required to sit for a bar examination. 1983 SD Sess Laws ch 398 (Supreme Court Rule 82-25) (repealed by 1987 SD Sess Laws ch 406 (Supreme Court Rule 86-32)). The traditional bar examination in 1983 consisted of the Multi-state Bar Examination., Applicants were also required to pass the Multistate Professional Responsibility Examination (MPRE). Id. This resulted in a unique history and set of circumstances for those USD law graduates licensed in South Dakota prior to 1957, and those who graduated between- the years of 1973 -and 1983, who were never required to sit for a bar examination of any- type, including the MPRE.

[¶ 14.] Whether the Massachusetts and Minnesota rules allow South Dakota attorneys substantially similar admission without examination.

[¶ 15.] “The intent of a statute ‘must be determined from the statute as a whole.’ ” Myrl & Boy’s Paving, 2004 SD 98, ¶ 10, 686 N.W.2d at 655 (quoting Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d at 611). When- interpreting a statute, this Court must seek the true intention from the language. used and cannot supply words in the statute. Boehrs v. Dewey County, 74 S.D. 75, 79, 48 N.W.2d 831, 833-34 (1951). When a statute fails to define a term, this Court must construe the term according to its ordinary and accepted usage. SDCL 2-14-1. Nelson v. South Dakota State Bd. of Dentistry, 464 N.W.2d 621, 624 (S.D.1991) (citation omitted). The Court cannot “enlarge the scope of the statute by an unwarranted interpretation of its language.” Hannon v. Weber, 2001 SD 146, ¶ 5, 638 N.W.2d 48, 50 (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 9, 597 N.W.2d 424, 426; In re Estate of Gossman, 1996 SD 124, ¶ 11, 555 N.W.2d 102, 106). Additionally, when interpreting legislation, we cannot add language that simply is not there. Helmbolt v. LeMars Mut. Ins. Co., 404 N.W.2d 55, 59 (S.D.1987) (citing Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D.1984); Boehrs; 74 S.D. 75, 48 N.W.2d 831).

[¶ 16.] “[Administrative boárds may be given the power to perfect the details of a plan the general outlines of which have been laid down in a statute.” In re Dakota Transp. of Sioux Falls, 67 S.D. 221, 231, 291 N.W. 589, 594 (1940) (citing 11 AmJur., Const. Law, § 242). Administrative rules enacted by such boards are subject to the same rules of construction as statutes and statutory schemes. Nelson, 464 N.W.2d at 624 (citing Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982)). Rules adopted in contravention of statutes are invalid, Cavanagh v. Coleman, 72 S.D. 274, 277, 33 N.W.2d 282, 284 (1948) (citing In re Dakota Transp. of Sioux Falls, 67 S.D. 221, 291 N.W. 589).

Meaning of “without examination” in SDCL 16-16-12.2(h).

[¶ 17.] In 2003 at its annual convention, the State Bar Association unanimously approved a proposal requesting the addition of a provision to our court rules to allow admission without examination under specific requirements. This Court approved an amended version of the Bar Association’s original proposal in 2003, codified as SDCL 16-16-12.1 and 16-16-12.2. SDCL 16-16-12.1 provides:

An applicant may be eligible for admission without examination if the applicant:
(a) meets the requirements of SDCL 16-16-2;
(b) furnishes satisfactory evidence of graduation from a law school accredited by the American Bar Association, and;
(c) provides documentary evidence showing that for the last five (5) years immediately preceding the application . for -admission without examination, the applicant, as principal occupation, has,-been actively, continuously, and lawfully engaged in the practice of law as:
(1) a sole practitioner;
(2) a member of a law firm, professional corporation or association;
(3) judge in a court of record;
(4) an attorney for any local or state governmental entity;
(5) inside counsel for a corporation, agency, association or trust department; and/or,
(6) an attorney with the federal government or a federal governmental agency including service as a member of the Judge Advocate General Department of one of the military branches of the United States.

SDCL 16-16-12.2 provides:

The application for admission without examination shall be filed with the secretary of the board of bar examiners in such form as the board shall prescribe. The failure of an applicant to furnish information or answer truthfully interrogatories of the board pertinent to the application may result in denial of the application. The application shall be accompanied by:
(a) the applicable fees;
(b) the criminal background check required by § 16-16-2.6;
(c) a certified copy of the application for admission to the bar in each jurisdiction in which the applicant has previously been admitted to practice law;
(d) a certification of admission to practice by the admitting authority in each jurisdiction that the applicant identified in (c) as having admitted the applicant to the bar;
(e) a certification from the proper authority in each jurisdiction where the applicant has been admitted stating that the applicant is in good standing;
(f) a certification by the attorney disciplinary authority in each jurisdiction where the applicant has been admitted to the bar of the applicant’s disciplinary history and indicating whether the applicant is the subject of a pending complaint or charge of misconduct;
(g) a report of the National Conference of Bar Examiners as to the applicant’s character; and
(h) a copy of the rule in the state in which the applicant has been practicing law which allows South Dakota attorneys substantially similar admission without examination.
To the extent that the state has additional requirements for South Dakota lawyers seeking admission without examination, the board of bar examiners may impose the same additional requirements for applicants seeking admission in South Dakota without examination,

(emphasis added).

[¶ 18.] SDCL 16-16-12.1 has as its stated purpose to allow attorneys licensed in other jurisdictions, who have graduated from an American Bar Association accredited law school, who have practiced law for the last five years preceding the application, and who meet the application requirements in SDCL 16-16-2, to be admitted to the South Dakota Bar without examination. Applicants are required to include in their application, “a copy of the rule in the state in which the applicant has.been practicing law which allows South Dakota attorneys substantially similar admission without examination.” SDCL 16-16-12.2(h) (emphasis added).

[¶ 19.] The term “examination” is not defined, within SDCL116-16-12.2. Two competing definitions have been advanced by the-parties. The Intervenor, the State Bar Association, contends “examination” means the traditional bar examination, comprised of the MEE, the MPT and the MBE. Under the Bar Association’s definition, a state that allows a South Dakota licensed attorney admission without requiring these components of the traditional bar exam has “substantially similar” requirements and meets the terms of the reciprocity statute: The Bar Association’s interpretation would permit reciprocity with any state that requires a passing MPRE score, as the Bar Association contends the MPRE is not a part of the traditional bar examination. The Board however, contends “examination” means “any examination,” and therefore would encompass the MPRE as well as the traditional bar examination. The question of whether “examination” as used in SDCL 16-16-12.2(h) includes only the traditional bar examination, or any examination, including the MPRE, turns on our interpretation of the term “examination.”

[¶20.] The language of SDCL 16 — 16— 12.2(h) does not use the language “without any examination.” Rather, the statute provides “without, examination.” However, it is unclear from the language used in SDCL 16-16-12.2(h) whether the term “examination” refers specifically to the traditional bar examination comprised of the MEE, MPT and MBE, ‘or the traditional bar examination plus the MPRE. We must therefore determine which examination or examinations are included within the language of SDCL 16-16-12.2(h). We must resort to the statutory scheme as a whole to determine the meaning of the word “examination” within SDCL 16-16-12.2(h). See Myrl & Roy’s Paving, 2004 SD 98, ¶ 6, 686 N.W.2d at 653-54.

[¶ 21.] SDCL 16-16-6 states that all applicants for admission to the South Dakota Bar, except those applying under SDCL 16-16-7.6 and 16-16-12.1, “shall be required to pass satisfactorily an examination by the Board of Bar Examiners.” However, the statute does not specify the components of the single bar examination. SDCL 16-16-11 does note that “an applicant who fails three times to pass the examination may not be permitted to take another examination except by permission of the Supreme Court.” Additionally, SDCL 16-16-13 requires applicants who wish to take the South Dakota bar examination to “pay a fee of three hundred dollars, and a fee of one hundred seventy-five dollars for subsequent examinations.”

[¶ 22.] These statutes indicate that the term “examination” as used in SDCL 16-16-11 and SDCL 16-16-13, refers only to the traditional bar examination administered by the Board in July and February of each year and comprising the MEE, MPT and MBE, but not the MPRE. This is so because the Board does not administer the MPRE. The MPRE is administered three times per year by the National Conference of Bar Examiners. National Conference of Bar Examiners, available at http://www.ncbex.org/tests.htm. MPRE score reports are made available to the Board at the request of an applicant, but otherwise MPRE scores are not made available to the Board of Examiners. Id. In addition, applications for the MPRE are made available and processed by the National Conference without any involvement by the Board. Id. Moreover, a separate fee of fifty-two dollars is assessed by the National Conference for applicants registering to take the MPRE. Id. And finally, an applicant may take the MPRE an unlimited number of times in order to obtain a higher score, and is not restricted to three attempts by SDCL 16-16-13. . Id.

[¶ 23.] Despite the language in the statutory scheme indicating that “examination” within the statutory scheme in SDCL Chapter 16-16 means the traditional bar examination, SDCL 16-16-10 clearly authorizes the Board to examine applicants to the South Dakota Bar on the subject of legal ethics. Thus, Regulation 3 of the Board of Bar Examiners, as approved by this Court, defines the components of the South Dakota Bar Examination as the MEE, MPT, MBE, and unlike SDCL 16-16-6, -11, and -13, it includes the MPRE. Regulation 3 defines what subject matter applicants will be tested on, and what specific testing tools will be utilized to further that end. However, the Board’s rule does not control the interpretation of SDCL 16-16-12.2(h). It is the interpretation of our rule, SDCL 16-16-12.2(h), that is binding on the Board’s regulations and their implementation of those regulations. See Cavanagh, 72 S.D. at 277, 33 N.W.2d at 284.

[¶ 24.] Because of this conflict and ambiguity in the application of the rules, the rationale of the membership of the South Dakota Bar Association as expressed at its April 2003 Bar Commissioner and business meetings is helpful. The original draft of the now-disputed rule came from that body and was ultimately adopted by this Court with minimal changes. The stated purpose of the Bar Association in proposing the rule change was' to allow South Dakota lawyers to obtain admission without examination in states with reciprocal admission provisions, so that South Dakota lawyers could follow their client’s business into these other jurisdictions. Bar Association members expressed concern that practicing attorneys did not have the ability to devote several weeks, if not months, to studying for another jurisdiction’s bar examination while maintaining their current law practices. The Bar envisioned that the admission without examination procedure would enable South Dakota attorneys to be licensed in some, if not all, of the twenty-one states with reciprocal admission provisions. At a hearing on the matter before this Court on August 28, 2003, the purpose of the reciprocity rule was reiterated by Tom Barnett Jr., Secretary-Treasurer of the State Bar Association: “[we are] not opening the door to all these outsiders, we’re simply agreeing to treat their people, their lawyers, in the same fashion that their jurisdiction will treat ours.”

[¶ 25.] When we interpret statutes we seek to ascertain the intent of a co-equal but different body of government, the Legislature. When we interpret court rules, we generally seek to ascertain the intent of the Justices who served upon this Court at the time the rule was adopted and have in most instances since departed. Here, we are in the somewhat unique position of being asked to interpret the intent of what we, as Justices, did in 2003 when we enacted these rules. It was our intent that we allow attorneys to practice in our jurisdiction where their jurisdiction grants the same privilege to South Dakota attorneys, as long as their jurisdiction did not require. South Dakota attorneys to sit for the tradi-. tional bar examination. Therefore, we hold the word “examination” in -SDCL 16-16-12.2(h) was intended to mean the traditional bar examination, and was not intended to be inclusive of the MPRE.

Meaning of “substantially similar” within SDCL 16-16-12.2(h)

[¶ 26.] The Board denied Yanni’s application based on the language of SDCL 16-16-12.2(h). The Board concluded in its letters of denial that the Massachusetts and the Minnesota rules permitting admission without examination are not “substantially similar” to the South Dakota rule. The Board argues that the Massachusetts MPRE requirement, a passing score on the MPRE, and the Minnesota requirement on the MPRE, of a minimum score of 85, cause those reciprocity schemes to fail the “substantially similar” portion of SDCL 16-16-12.2(h).

[¶ 27.] The term “substantially similar” is not defined within SDCL 16-16-12.2, or within our court rules. However, the word “substantial” is defined as “relating to.” American Heritage College Dictionary 1354 (3d ed. 1997). The word “similar” is defined as “[r]elated in appearance or nature; alike though not identical.” Id. at 1270. In trying to determine if two statutes were “substantially similar” the Supreme Court of Nebraska reasoned:

It was not contemplated that the benefits of this statute should only apply to the residents of the state, territory, etc., having a statute exactly like ours. It was intended that the benefits of this statute should extend to the residents of any state, territory, district or country in which a remedy was provided by the laws of such state, territory, district, or country ..., corresponding in its essential particulars to the provisions of our statute....

In re Fletcher’s Guardianship, 157 Neb. 196, 59 N.W.2d 359, 362 (1953) (citing Orr v. Wright, 45 S.W. 629, 634 (Tex.Civ.App.1898)). Thus, the issue before us restated is whether the Minnesota or the Massachusetts rules contain the “essential particulars” of the South Dakota rule.

[¶ 28.] The Board interprets the language “substantially similar without examination” as requiring the comparable rule from another jurisdiction to be “essentially alike, without material difference, or that any differences are slight or insubstantial.” Therefore, the Board argues, no examination may be required by the other jurisdiction of any applicant who is licensed to practice in South Dakota. The Board argues that a South Dakota attorney who graduated from USD under the diploma privilege and never took the MPRE would be required to take it in order to be admitted under the Massachusetts and Minnesota admission without examination requirements. See MA R S CT Rule 3:01(6.1); Minn., Admission to the Bar Rule 7. Additionally, the Board argues that a South Dakota attorney who has taken and passed the MPRE with a score of between seventy-five and eighty-four would be required to retake the MPRE for admission to Minnesota under its comparable rule, Bar Rule 7. Therefore, according to the Board, the Massachusetts and Minnesota admission rules are not substantially similar to the South Dakota rule, because each state would require this subset of licensed South Dakota attorneys to take or retake the MPRE. ■

[¶ 29.] What the Board has failed to consider is that a significant number of South Dakota attorneys would be eligible for admission to Minnesota and Massachusetts without any form of examination. Any attorney with at least five years of experience and who received a passing score of eighty-five or more on the MPRE would be eligible for admission to Minnesota without examination. Also, any attorney licensed in South Dakota since 1984, the year when the MPRE was first introduced as a prerequisite for licensure in South Dakota, would be eligible for admission to Massachusetts, as South Dakota’s passing score on the MPRE is sufficient to satisfy that state’s requirements.

[¶ 30.] The requirements of the South Dakota admission without examination provision and the Massachusetts provision are almost identical. The only differences are due to South Dakota’s peculiar history with the diploma privilege program and the MPRE. Clearly there is no other state that possesses the same history of this subject matter. Our history of bar admissions and its consequences is unique. This calls into question whether any other state’s reciprocity rules would result in across-the board similar treatment of our attorneys under a standard that mandates “similar” admission rules. That is why this Court did not mandate “similar” admission rules but instead opted for the “substantially similar” standard.

[¶ 31.] We did not intend that the language of SDCL 16-16-12.1 and SDCL 16-16-12.2 require that all South Dakota attorneys must be eligible for reciprocal admission in another jurisdiction in order for the admission without examination waiver to apply to that jurisdiction. The language of the South Dakota statutory scheme itself assumes that some licensed applicants from other jurisdictions will not be eligible due to various circumstances unique to a specific applicant, such as an open disciplinary proceeding at the time of application, or failure to graduate from an American Bar Association accredited law school. The language of the South Dakota statutory scheme excludes some admission without examination applicants, just as the Massachusetts and Minnesota provisions exclude some applicants.

[¶ 32.] The exclusion of some South Dakota applicants due to our state bar history, or an individual’s particular circumstances, does not change the fact that the language of the Massachusetts admission without examination provision is almost identical with the South Dakota provision. Similarly, the language of the Minnesota admission without examination provision is almost identical to the South Dakota provision. The only difference is that the Minnesota provision requires an MPRE scaled score of eighty-five, while South Dakota requires a seventy-five. The Minnesota provision, similar to the Massachusetts provision, results in the exclusion of diploma privileged South Dakota Bar members because of the MPRE. Minnesota’s provision only excludes South Dakota Bar member who obtained a score of eighty-four or less on the MPRE. Again, these are circumstances peculiar to an individual applicant, and are not a wholesale exclusion of members of the South Dakota Bar.

[¶ 33.] It was our intent when we approved SDCL 16-16-12.1 and 16-16-12.2 that we allow attorneys to practice in our jurisdiction where their jurisdiction grants the same privilege to South Dakota attorneys. We hold the language of the Minnesota and Massachusetts admission without examination provisions are “substantially similar” to South Dakota’s within the plain meaning of the words in that they contain the “essential particulars” of our rule.

[¶ 34.] Given our holding in Issue 1, we do not need to reach Issue 2.

[¶ 35.] Reversed and remanded for proceedings consistent with this opinion.

[¶ 36.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, and ENG, Circuit Court Judge, concur.

[¶ 37.] ENG, Circuit Court Judge, sitting for SABERS, Justice, disqualified.

      . The Massachusetts admission without examination rule provides in relevant part:
      A person who has been admitted as an attorney of the highest judicial court of any state, district or territory of the United States may apply to the Supreme Judicial Court for admission on motion as an attorney in this Commonwealth. The Board of Bar Examiners may, in its discretion, excuse the applicant from taking the regular law examination on the applicant's compliance with the following conditions:
      6.1.1 The applicant shall have been admitted in the other state, district or territory, for at least five years prior to applying for admission in the Commonwealth, and shall provide the court with a certificate of admission and current good standing from the highest judicial court of each such state, district or territory.
      6.1.2 The applicant shall have so engaged in the practice or teaching of law since the prior admission as to satisfy the Board of Bar Examiners of his or her good moral character and professional qualifications.
      6.1.3 The applicant shall submit to the Board of Bar Examiners letters of recommendation for admission from three members of the bar of the Commonwealth, or of the state, district or territory of prior admission, or of the bar of the state, district or territory in which the applicant has last resided.
      6.1.4 The applicant shall have graduated from high school, or shall have received the equivalent education, in the opinion of the Board, completed work for a bachelors degree at a college or university, or its equivalent, and graduated from a law school which at the time of graduation was approved by the American Bar Association or was authorized by a state statute to grant the'degree of bachelor of laws or juris doctor.
      6.1.5 The applicant shall pass the Multi-state Professional Responsibility Examination if he or she has not previously passed that examination in another jurisdiction.
      MA R S CT Rule 3:01(6.1) (2004).

      . The South Dakota Board of Bar Examiners is composed of attorneys who have volunteered to serve in this most important of capacities. See generally SDCL 16-16-3, SDCL 16-16-5. They provide the expertise and invest significant amounts of their .time toward the goal of protecting the public by assuring only academically qualified candidates who possess good moral character are admitted to the honored office of attorney in this state. This Court greatly appreciates this public service to the bench, bar and citizens of South Dakota.

      . The Minnesota rule pertaining to admission without examination provides in relevant part:
      An applicant may be eligible for admission without examination if the applicant otherwise qualifies for admission under Rule 4 and provides documentary evidence showing that for at least five of the seven years immediately preceding the application, the applicant has been licensed to practice law, has been in good standing in the highest court of another jurisdiction, and has principal occupation, has been actively and lawfully engaged in the practice of law as:
      (1) a sole practitioner;
      (2) a member of a law firm, profession corporation or association;
      (3) a judge in a court of record;
      (4) an attorney for any local or state governmental entity;
      (5) inside counsel for a corporation, agency, association or trust department;
      (6) an attorney with the federal government or a federal governmental agency including service as a member of the Judge Advocate General's Department of one of the military branches of the United States; and/or
      (7)a professor teaching full-time in any approved law school.
      Minn., Admission to the Bar Rule 7 (2004).
      In addition to the above limitations, an applicant for admission without examination must meet eligibility criteria:
      An applicant is eligible for admission to practice law upon establishing to the satisfaction of the Board:
      (1) Age of at least 18 years;
      (2) Good character and fitness as defined by these Rules:
      (3) Graduation with a J.D. or LL.B. degree from a law school which is provisionally or fully approved by the American Bar Association;
      (4) Passing score on a written examination or qualification under Rule 7(A) or (B);
      (5) A scaled score of 85 or higher on the Multistate Professional Responsibility Examination; and
      (6) Not currently suspended or disbarred from the practice of law in another jurisdiction.
      Minn., Admission to the Bar Rule 4 (2004).

      . In In re Discipline of-Laprath, 2003 SD 114, ¶ 42, 670 N.W.2d 41, 55, we stated:
      Since the earliest days of organized government in this jurisdiction, the authority exercised by practicing attorneys has been under the supervision of its highest judicial authority. See ch. 5, 1st Session, Laws of the territory of Dakota 1862. An attorney • has always been viewed as possessing and exercising substantial power and authority:
      A certificate of admission to the bar is a pilot’s license which authorizes its possessor to assume full control of the im- - portant affairs of others and to guide and safeguard them when, without such assistance, they would be helpless. Moreover, in South Dakota it is a representation made by this court he or she is worthy of the unlimited confidence which clients repose in their attorneys; trustworthy to an extent that only lawyers are trusted, and fit and qualified to discharge the duties which devolve upon members of his [or her] profession.

        In re Egan, 52 S.D. 394, 402, 218 N.W. 1, 4 (1928) (quoting in re Kerl, 32 Idaho 737, 188 P. 40).

      . Until 1982, South Dakota had a residency requirement for applicants licensed in other jurisdictions. The residency requirement was declared unconstitutional in Stalland v. South Dakota, 530 F.Supp. 155 (D.S.D.1982), and the provision was subsequently repealed. See generally 1983 SD Sess Laws ch 397 (Supreme Court Rule 82.24). In its stead, the examination requirement was reinstituted for all bar applicants previously licensed in other jurisdictions. Id. (current version at 2004 SD Sess Laws ch 322 (Supreme Court Rule 03-21)).

      . The passing score was “an average of seventy-five per cent., on an examination embracing the following subjects: Evidence, law of real and personal property, torts, contracts, pleading, partnership, bailments, negotiable instruments, agency, suretyship, domesticre-lations, wills, corporations, equity, criminal law, constitutional law, the code of civil procedure and legal ethics.” 1903 SD Laws ch. 78 § 1(a) (current version at 2004 SD Sess. Laws ch. 322 (Supreme Court Rule 03-21)).

      . After four inspections by the American Bar Association between 1955 and 1963, the University felt its law program was in jeopardy due to the ABA’s strong preference for a bar exam. Davidson, supra at 17. The diploma privilege was discontinued in 1957, and the graduating law class of 1958 was required to sit for the state bar examination. Id.

      . The Multistate Bar Examination is a 200 multiple choice question examination- that tests basic competencies in six subjects including: Constitutional Law, Contracts, Criminal Law/Criminal Procedure, Evidence, Property and Torts. National Conference of Bar Examiners, available at http:// www.ncbex.org/tests.htm

      . Effective January 1, 1987, the South Dakota bar examination requirements were expanded to include a state specific essay examination covering the subjects of civil procedure, commercial law, corporations and partnerships, family law, remedies, wills, agency, conflicts of law, debtor-creditor and trusts. 1987 SD Sess Laws ch 407 (Supreme Court Rule 86- • 33) (current version at SL 2004, ch. 326 (Supreme Court Rule 03-25)). The state specific essay portion of the examination was replaced by the Multistate Essay Examination in 1998. 1998 SD Sfess. Laws ch. 316 (Supreme Court Rule 98-11) (current version at SL 2004, ch. 326 (Supreme Court Rule 03-25)). That same year, the Multistate Performance Test was added to the list of requirements. Id.

      . The Multistate Professional Responsibility Examination is a sixty multiple choice question examination that tests applicants on the Rules of Professional Conduct and ethical issues pertaining to the practice of law. National Conference of Bar Examiners, available at http://www.ncbex.org/tests.htm

      . Only Wisconsin shares a history that includes the recent use of the diploma privilege. 2003 Statistics, The Bar Examiner, Vol. 73, May 2003, at 19.

      . SDCL 16-16-2 provides:
      An applicant for admission to practice as an attorney or counselor at law in this state must be at least eighteen years of age, be a person of good moral character, and satisfy the requirements of the applicable rules.
      Prior to admittance an applicant must be a resident of this state; or maintain an office in this state; or designate the clerk of the Supreme Court as his or her agent for the service of process for all purposes.

      . A state is said to have a reciprocity agreement when it limits bar admission to applicants licensed in other jurisdictions that allow the same kind of admission for that state’s lawyers.

      . The twenty-one states with reciprocal admission processes include: Alaska, Colorado, Connecticut, Georgia, Idaho, Illinois, Kentucky, Missouri, New Hampshire, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Erica Moeser, Margaret Fuller Corneille, Comprehensive Guide to Bar Admission Requirements (2004), at 18.

      . It is important to note that the Bar Examiners are within their authority to require all South Dakota applicants to take the MPRE. SDCL 16-16-10 authorizes the Bar Examiners to examine the knowledge of applicants on the subject of legal ethics. The manner in which the Bar Examiners elects to examine applicants on their knowledge of legal ethics is within their authority as providéd by SDCL 16-16-5. However, the Bar Examiners' authority to require an examination on the subject of legal ethics is not determinative of the meaning of ''examination" within SDCL 16-16-12.2(h).

      . The average scaled score for all 2003 MPRE examinees was 98.78, indicating a large majority of all examinees score well beyond the eighty-five scaled score required by Minnesota. 2003 Statistics, The Bar Examiner, Vol. 73, May 2003, at 25.

      . Given that the test is administered with a maximum possible score of 150, the difference between a passing score in Minnesota and South Dakota amounts to 6.7 percent.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Mark Thomas PHILO, Appellant.
    No. 04-0183.
    Supreme Court of Iowa.
    June 3, 2005.

      Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate. Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee.
   CADY, Justice.

In this appeal, we primarily consider the meaning of the phrase “participating in a public offense” as -applied to the eluding of a law enforcement vehicle statute, Iowa Code section 321.279(3)(a) (2003). In doing so, we vacate- the- decision' of the court of appeals, reverse the decision of the district court, and remand for’further proceedings.

I. Background Facts and Proceedings ■

Mark Philo pled guilty to the crimes of theft of a motor vehicle, third-offense possession of marijuana, and felony eluding of a law enforcement vehicle. The minutes of testimony filed with the county attorney information alleged Philo stole a car in Buchanan County “on or about December 5, 2003.” The minutes further alleged two Waterloo police officers on a routine patrol in the late morning hours of December 5 observed the vehicle stopped at a stoplight in Waterloo, which is in Black Hawk County. The officers did not know the vehicle was stolen, but decided to run a random license plate check through the computer in the police car. The computer showed the vehicle had been reported as stolen, and the officers attempted to stop the vehicle by activating the lights and siren of the police car.

Instead of stopping, Philo led police on a high-speed chase through the city of Waterloo. Before he was eventually stopped and apprehended, Philo reached speeds from fifty to eighty miles per hour on the city streets, committed several traffic violations, and damaged property.

The guilty pleas entered by Philo occurred in two separate hearings. Philo first entered a plea of guilty in Buchanan County district court to theft in the second degree in violation of Iowa Code sections 714.1(1) and 714.2(2). He was sentenced to a term of incarceration not to exceed five years. He then appeared in district court in Black Hawk County and entered pleas of guilty to felony eluding in violation of section 321.279(3)(a) and possession of marijuana, third offense,' in violation of section 124.401(5). Although Philo was unable to admit that he exceeded the posted speed limit by more than twenty-five miles an hour during the police chase, he acknowledged that the court could find he did so from the police reports that were made part of the minutes of testimony.

■ Philo then waived his right to file a motion in arrest of judgment and waived time before sentencing. See Iowa R.Crim. P. 2.23(1) (“Upon a plea of guilty, ... the court must fix a date for pronouncing judgment, which must be within a reasonable time but not less than 15 days after the plea is entered ..., unless the defendant consents to a shorter time.”). The court sentenced Philo to a term of incarceration not to exceed five years for eluding. He was also sentenced to a term of incarceration not to exceed two years for possession of marijuana. Additionally, he was fined, and his license was revoked. The court ordered the two sentences of incarceration for eluding and possession to run concurrently with each other. The court also ordered the possession sentence to run concurrently with the theft sentence imposed by the district court in Buchanan County, but ordered the eluding sentence to run consecutively to the theft sentence.

The plea colloquy in the Black Hawk County proceeding indicated the guilty pleas were entered pursuant to a plea agreement. In initially discussing the plea agreement on the record, the court agreed to impose the sentence for possession of marijuana “concurrently with the other eases, both in Buchanan County and the other case we are about to deal with.” A short time later, the court advised Philo that the sentence for eluding would “run concurrently with the other sentences we’ve talked about here.” Philo acknowledged the plea agreement, as did defense counsel and the county attorney. However, after accepting the guilty pleas and just prior to the pronouncement of sentence, the county attorney asked the court to impose sentencing pursuant to the plea agreement so that the possession of marijuana sentence would run concurrently with the eluding sentence and concurrently with the theft sentence, but the eluding sentence would run consecutively to the theft sentence. Counsel for Philo acknowledged the statement of the plea agreement made by the county attorney, and the court subsequently imposed the sentences.

Philo appealed and raised a single claim of ineffective assistance of counsel under both the state and federal constitutions. He claimed his trial counsel was ineffective for failing to file a motion in ■ arrest of judgment following the guilty plea proceeding because there was no factual basis in the record to support the plea of guilty to felony eluding. He also claimed his trial counsel was ineffective for failing to file a motion in arrest of judgment because the court misled him into believing all the sentences would be served concurrently, rendering his guilty plea involuntary and unintelligent.

We transferred the ease to the court of appeals. The court of appeals found trial counsel was not ineffective and affirmed the judgment and sentence of the district court. We granted further review.

II. Principles of Review

“Ordinarily, we do not consider issues raised for the first time on appeal. The issues forming the basis of the defendant’s claim of ineffective assistance of counsel fall into that category. However, we recognize an exception in the case of claims of ineffective assistance of counsel. We do so because as a practical matter these claims are .not made by attorneys against their own actions. “Because the defendant’s claims of ineffective assistance of counsel arise from his Sixth Amendment right to counsel, our review is de novo.”

State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005) (quoting State v. Scalise, 660 N.W.2d 58, 61-62 (Iowa 2003)) (brackets omitted).

III. Ineffective Assistance of Counsel

“To prove an ineffective assistance of counsel claim, ‘a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.’ ” State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citation omitted). With respect to the second prong, “the defendant must ‘show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).

A. Factual Basis

Before accepting a guilty plea, the court must ensure that the plea is not only voluntarily and intelligently made, but also that it is supported by a factual basis. Iowa R.Crim. P. 2.8(2)(6). If an attorney allows a defendant to plead guilty to an offense for which there is no factual basis and to waive the right to file a motion in arrest of judgment, the attorney breaches an essential duty. See State v. Doggett, 687 N.W.2d 97, 101-02 (Iowa 2004). Philo claims his attorney breached an essential duty because, there was no factual basis to support two elements of felony eluding: (1) that he exceeded the posted speed limit by twenty-five miles per hour or more, (2) while participating in a public offense. Iowa Code § 321.279(3)(a).

Regarding his first argument, Philo concedes that the minutes of testimony indicate he traveled at speeds up to fifty to eighty miles per hour during the chase. However, he claims that there is no evidence in the minutes to show the posted speed limit when he reached those speeds. Accordingly, he argues there is no factual basis to support the element of felony éluding that he exceeded the posted speed limit by twenty-five miles per hour or more. See id.

Philo is correct that there is no evidence in the record of the posted speed limits on the streets through which the police pursued him. The State responds that the district judge could rely on his independent knowledge that the streets referenced in the police reports attached to the minutes of testimony were residential and business streets where the speed limit would be twenty to twenty-five miles per hour. See id. § 321.285(l)-(2) (setting forth speed limits).

In construing Federal Rule of Criminal Procedure 11(f), the federal counterpart to our rule 2.8(2)(&), the Supreme Court has stated that the rule requires the judge to “develop, on the record, the factual basis for the plea.” Santobello v. New York, 404 U.S. 257, 261, 92-S.Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971); see Fed.R.Crim.P. ll(gr) (requiring verbatim record of plea proceedings); Iowa R.Crim. P. 2.8(3) (same). It has been held that “if the district judge finds it necessary to look to evidence other than the defendants’ statements to establish the factual basis for the plea in any situation, these additional facts or evidence must be specifically articulated on the record.” United States v. Wetterlin, 583 F.2d 346, 353 (7th Cir.1978); see 1A Charles Alan Wright, Federal Practice and Procedure § 174, at 203-04 n. 18 (3d ed.1999) (citing cases). Thus, if the district court in this case had relied on independent knowledge of the speed limits on the Waterloo streets for a factual basis, those facts should have been made part of the record. However, the absence of these facts in the record does not invalidate the plea because in this case, there was other evidence to establish a factual basis. Philo admitted on the record that the district court could find he exceeded the posted speed limit by twenty-five miles per hour or more. The defendant’s admission On the record of the fact supporting an element of an offense is sufficient to provide a factual basis for that element. See United States v. Lovelace, 683 F.2d 248, 251 (7th Cir.1982) (finding sufficient factual basis, when defendant repeatedly responded to district court’s inquiries saying, “I am pleading guilty,” even if this could be considered, as defendant argued on appeal, “ ‘agreeing to agree’ ”). We now turn to consider the factual basis supporting the “participating in a public offense” element of eluding.

It is a class D felony to elude law enforcement while “participating in a public offense, as defined in section 702.13, that is a- felony.” Iowa Code § 321.279(3)(a). The legislature has defined “participating in a public offense” as the

period commencing with the first act done directly toward the commission of the offense and for the purpose of committing that offense and terminating when the person has been arrested or has withdrawn from the scene of the intended crime and has eluded pursuers, if any there be.

Id. § 702.13. The State claims Philo participated in the public offense of theft of a motor vehicle. Philo argues the record fails to disclose that he was participating in the offense of theft of a motor vehicle at the time of the eluding incident because the theft of the vehicle occurred in Buchanan County, and there was no evidence that he was being pursued from Buchanan County when he was observed and pursued by the Waterloo police officers in Black Hawk County. The State responds that theft is a continuing offense, and the police commenced the pursuit in Black Hawk County as Philo continued to withdraw from the crime scene.

We recently observed in State v. Doggett that the continuing offense doctrine does not enter into the analysis under the felony eluding statute. Doggett, 687 N.W.2d at 101. Rather, we confine our analysis to the plain language of the statute defining “participating in a public offense.” Id.

The statute reveals that our legislature defined “participating in a public offense” in the context of a time frame, with a commencement point and a termination point. See Iowa Code. § 702.13. Of course, only the termination point is at issue in this case. The termination point occurs upon the .arrest of the accused for the public offense or withdrawal of the accused from the scene of the intended crime after any pursuers have been eluded. Id. These two events work hand in hand to establish the point when the participation in a public offense ends.

Philo was not arrested for the public offense of motor vehicle theft until after the eluding incident. Therefore, we must decide if the evidence supports Philo’s claim on appeal that, under the record, the public offense of the motor vehicle theft terminated sometime earlier, prior to the eluding incident.

An arrest for a public offense occurs when an accused is taken into custody. State v. Bumpus, 459 N.W.2d 619, 622 (Iowa 1990). This can take place at the crime scene or any later time- and place. However, it is clear our legislature, from its inclusion of the second part of the termination point in the definition of “participating in a public offense,” intended to limit the concept to prevent it from being extended days, weeks, or even months beyond the commission of the offense. This termination point generally is limited to withdrawal from the crime scene and is only extended beyond the crime scene in the event the accused, who has not been arrested, is pursued. Thus, once a participant in a public offense has left the crime scene and has eluded any pursuers, the person is no longer “participating in a public offense” under the statute. Iowa Code § 702.13. Likewise, once a participant has left the crime scene without any pursuers, the person is no longer “participating in a public offense.” Id.

Although the evidence in this case reveals Philo was eventually pursued for the public offense of motor vehicle theft, there was no evidence that the pursuit was connected to the withdrawal from the crime scene. Instead, the record only reveals that the vehicle Philo was operating in Black Hawk County was taken from Buchanan County sometime prior to the eluding incident in Black Hawk County and that police only pursued Philo after a random license plate check showed the vehicle was reported as stolen. Moreover, the crime scene does not expand beyond the area where the crime is committed. It is significant that our legislature not only defined participation to commence when the first act occurs towards the commission of the offense, but described withdrawal from the scene in the context of the “intended crime.” This shows the scene is tied to the area where those acts, beginning with the first act; occur that directly result in the commission of the offense. Once the offense has been committed, the scene is defined, and participation can only extend beyond the scene in the event of a pursuit that takes place prior to withdrawal. We agree with Philo that the record failed to reveal a factual basis to support the “participating in a public offense” element of the offense of felony eluding.

By allowing Philo to plead guilty to felony eluding and to waive his right to file a motion in arrest of judgment, Philo’s counsel breached an essential duty. Doggett, 687 N.W.2d at 101-02. “Additionally, prejudice is inherent' under the circumstances.” State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (citing State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999)).

The remedy for a claim of ineffective assistance of counsel based on the lack of a factual basis for a guilty plea is to vacate the sentence and remand the case to allow the State an opportunity to establish a factual basis, unless -the defendant was charged with the wrong crime. Schminkey, 597 N.W.2d at 792 (citing State v. Burtlow, 299 N.W.2d 665, 670 (Iowa 1980); Ryan v. Iowa State Penitentiary, 218 N.W.2d 616, 620 (Iowa 1974)). If the defendant was charged with the wrong crime, the plea is set aside. Id. (citing State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996); State v. Schoelerman, 315 N.W.2d 67, 75 (Iowa 1982)). Here, it could be possible for the State to show a factual basis for felony eluding if there is evidence that Philo was pursued from the crime scene in Buchanan County and had not yet eluded those pursuers. Therefore, the remedy in this case is to vacate the sentence and remand to the district court to allow the State an opportunity to supplement the record to establish a factual basis for felony eluding. Id.

B. Voluntary and Intelligent Guilty Plea

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.

State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001) (citations omitted). 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. at 22 (citing Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983)). “To enter a guilty plea voluntarily and intelligently means the defendant has a full understanding of the consequences of a plea.” Id. at 21 (citing State v. Boone, 298 N.W.2d 335, 337 (Iowa 1980)). “The overriding question is whether defendant, on the whole record, understood the elements of the crime and the nature of the charge against him.” State v. Oberbreckling, 235 N.W.2d 121, 122 (Iowa 1975) (citing State v. Watts, 225 N.W.2d 143, 144-45 (Iowa 1975); Brainard v. State, 222 N.W.2d 711, 714-15 (Iowa 1974); State v. Hansen, 221 N.W.2d 274, 276 (Iowa 1974); State v. Bedell, 220 N.W.2d 891, 892 (Iowa 1974)).

Philo claims his plea was not intelligent and voluntary because the district court’s initial statements during the plea proceeding led him to believe his sentence for eluding was to run concurrently with his sentence" for theft of a motor vehicle. We agree the record presents a confusing picture of the plea agreement in this case. The statements made by the . court and the questions propounded by the court make it unclear if the eluding sentence was to be imposed concurrently with or consecutively to the theft sentence. It is clear, however, that the plea agreement was reached between the county attorney and defense counsel and that the court ultimately agreed to accept the plea agreement and imposed the sentence pursuant to.the agreement. See Iowa R.Crim. P. 2.10(3) (acceptance of plea^ agreement). It is also apparent that defense counsel understood that the eluding sentence would run consecutively to the theft sentence. Yet, for the purposes of determining whether a guilty plea was involuntary due to confusion over the plea agreement, the important inquiry is what the defendant, not the defense attorney, understood. Wallace v. State, 245 N.W.2d 325, 327 (Iowa 1976). Thus, if material misstatements are made by the court that induce a defendant to plead guilty, and those misstatements are not corrected, the plea is not intelligently and voluntarily entered, and the defendant is entitled to have it set aside and to plead anew. Stovall v. State, 340 N.W.2d 265, 267 (Iowa 1983).

It is evident that the claim of ineffective assistance of counsel asserted by Philo on appeal based on the confusion over the plea agreement must be preserved for postconviction relief. See Taylor, 689 N.W.2d at 134 (“If it is necessary to more fully develop a factual record, we preserve the ineffective-assistance claim for a possible postconviction relief action.)” (citing State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003)). This will allow a record to be developed concerning the actual terms of the plea agreement and Philo’s understanding of the terms of the plea agreement. The record must also be developed whether Philo was actually confused by the court’s statements during the plea colloquy and whether those statements induced Philo to plead guilty.

IV. Disposition

Accordingly, we preserve the issue of the voluntary nature of the guilty plea based on confusion over the plea agreement for postconviction relief. We otherwise vacate the sentence and remand the case to the district court to allow the State to supplement the record and attempt to establish that Philo was “participating in a public offense” at the time of the pursuit through Waterloo. If the State establishes a factual basis for the felony eluding offense, then Philo shall be entitled to pursue postconviction relief to challenge the guilty plea on the basis of his claim of confusion over the terms of the plea agreement. If a factual basis for the plea is not shown on remand, then the guilty plea to felony eluding must be set aside, and it will be unnecessary for Philo to pursue the postconviction relief action concerning the voluntary nature of the plea based on the confusion over the plea agreement.

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

      . During the plea proceedings, the following exchange took place:
      ■ THE COURT: And were you speeding, attempting to elude or get away from [the police]?
      THE DEFENDANT: To get away from them, yes.
      THE COURT: And did you exceed the speed limit by 25 miles per hour or more in doing so?
      THE DEFENDANT: That part's, questionable.
      THE COURT: Do you agree that what the officer said in the minutes of testimony would be accurate and could be relied upon by me?
      THE DEFENDANT: Yes.
      THE COURT: Do you agree that I can find that you did in fact exceed the speed limit by 25 miles per hour or more?
      (The defendant confers with [counsel].)
      THE DEFENDANT: Yes, sir, your honor.


author: EISENHAUER, J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Elliot Vernard WISE, Defendant-Appellant.
    No. 04-0547.
    Court of Appeals of Iowa.
    March 16, 2005.

      Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee.
    Considered by HUITINK, P.J., and MILLER and EISENHAUER, JJ.
   EISENHAUER, J.

Elliot Wise appeals his conviction and sentence for driving while barred, see Iowa Code section 321.561 (2003), alleging (1) trial counsel was ineffective for failing to object to irrelevant evidence and (2) the trial court imposed an illegal “conditional” sentence. We affirm- the conviction, but remand for resentencing. Background. In- September 2003, a Waterloo police officer was parked at a stop sign when a blue car drove toward him. According to the officer, the driver of the blue car noticed the officer, stopped, changed direction, and parked. The officer followed the blue car. At trial, he described the driver’s race and height and stated the driver had a “bald head.” The officer’s description matched Mr. Wise. The officer testified Mr. Wise was driving the blue car.

According to the officer, he only briefly lost sight of the vehicle. After the officer pulled in behind the blue car, Mr. Wise got out of the vehicle and the officer approached him as Mr. Wise was standing by the vehicle’s trunk. No other person was around the vehicle. The officer asked Mr. Wise to identify himself. According to the officer, Mr. Wise responded, “[Expletive], you know who I am.” Mr. Wise further stated, “You know I ain’t got no license.” According to Mr. Wise’s certified driving record, his license is barred until March 2009.

During direct examination of the officer, the following exchange took place between the prosecutor and the officer, without objection from defense counsel.

Q. When you initially made contact with the Defendant, did he have anything in his hand? A. Yes, he did.
Q. And what did he have? A. He had a can of beer.

The officer testified he did not see Mr. Wise driving with anything in his hands.

A jury convicted Mr. Wise, who appeared for sentencing on March 26, 2004. The State recommended two years’ imprisonment, to be made consecutive to the sentence in a companion driving while barred case. Mr. Wise requested a suspended sentence. The court indicated it would impose a prison sentence, at first indicating it favored concurrent sentences. To accommodate his school schedule, the district court told Mr. Wise it would withhold mittimus until June 1, 2004 and further informed Mr. Wise his sentence in this case and the other driving while barred case would be concurrent, but would convert to consecutive sentences if (1) he failed to surrender on June 1 or (2) if he was “arrested for anything at all before June 1.” In its written judgment and sentence, the district court provided Mr. Wise’s sentences were consecutive, but would convert to concurrent sentences if the above two conditions were met. Mr. Wise appealed on March 30, 2004.

Scope of Review. We review claims of ineffective assistance of counsel de novo. State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999). We review challenges to a sentence based on illegality for the correction of errors at law. State v. Liddell, 672 N.W.2d 805, 815 (2003).

Ineffective Assistance of Counsel. Mr. Wise claims his trial counsel was ineffective for failing to object to the testimony about a beer in his hand when he stepped out of the vehicle. He argues this evidence is either irrelevant, see Iowa R. Evid. 5.402, or inadmissible under rules 5.403 and 5.404.

Defendants in criminal cases have a constitutional right to “the assistance of counsel,” see U.S. Const, amend. VI, and that assistance must be effective. A person claiming ineffective assistance of counsel must rebut the presumption that counsel was effective by showing both (1) a failure to perform an essential duty and (2) resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984). To show prejudice resulted from counsel’s breach of an essential duty, - a defendant must show, absent the breach, the outcome “would reasonably likely have been different.” Id. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.

Here, the evidence is undoubtedly irrelevant. Mr. Wise was not charged with any alcohol-related crime. The crime Mr. Wise was charged with has only two elements: he (1) was operating a motor vehicle (2) while'his license was barred. Iowa Code § 321.561. That a police officer saw Mr. Wise with a can of beer in his hand made the existence of neither element more or less probable. See Iowa R. Evid. 5.401.

On appeal, the State does not attempt to defend this evidence’s admissibility. Rather, the State argues Mr. Wise has not demonstrated Strickland prejudice. Strickland, 466 U.S. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. We agree. The evidence of Mr. Wise’s guilt, recited above, was strong. In contrast, the concededly irrelevant testimony was brief and paled in significance compared to the balance of the record. When considering the record as a whole, we conclude the reception of this irrelevant evidence does not undermine our confidence in the outcome. Id. Mr. Wise has failed to demonstrate prejudice, and his claim of ineffective assistance of counsel must fail.

While Mr. Wise’s claim ultimately fails, we note this claim is of the State’s creation. The assistant county attorney asked the questions at issue, which were immaterial to the case and which resulted in irrelevant testimony. In doing so, the prosecutor presented Mr. Wise with a gift-wrapped appealable issue. In pursuing this needless line of questioning, the prosecutor almost "let the air out of an airtight case. In many cases, prosecutors only invite trouble for themselves and the criminal division of the attorney general’s office when they seek to needlessly introduce “other crimes” or “bad acts” evidence. This was one such case.

“Conditional Sentence. ” Mr. Wise next argues the district court erred in imposing an illegal conditional sentence. He argues a sentence providing for the conversion from consecutive to concurrent terms based on future events is not authorized by statute. A sentence must be authorized by statute. State v. Manser, 626 N.W.2d 872, 874 (Iowa Ct.App.2001). If a sentence is not authorized by statute, it is void. Id.; see also State v. Ohnmacht, 342 N.W.2d 838, 842 (Iowa 1983).

We first must address the State’s arguments that this issue is not properly before us. Mr. Wise may challenge this sentence on direct appeal even though he did not challenge it in the district court. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). In its brief, the State acknowledges this general rule, yet argues the “unusual situation” presented by this case required Mr. Wise to raise his claim of sentencing error in the district court. The State’s only authority for this proposition is Iowa Rule of Civil Procedure 1.904(2) and a case construing the rule. The Rules of Civil Procedure have no applicability in criminal cases, unless made applicable by statute. State v. Iowa District Ct., 253 Iowa 903, 905, 114 N.W.2d 317, 318 (1962). Rule 1.904(2) does not apply to this case. Absent some citation to applicable authority, we see no reason to depart from the rule our supreme court announced in Cooley.

Next, the State argues this issue is somehow not ripe for our review because Mr. 'Wise appealed before June' 1, 2004. We cannot agree. “A case is ripe for adjudication when it presents an actual, present controversy, as opposed to one that is merely hypothetical or speculative.” State v. Iowa District Ct., 616 N.W.2d 575, 578 (Iowa 2000). This case presents a present controversy. Either Mr. Wise’s sentence was void or it was not. If no statute authorizes the conditional sentence imposed by the district court, the sentence is “a nullity,” see Ohnmacht, 342 N.W.2 d at 842, which may be challenged at any time, see State v. Garrett, 516 N.W.2d 892, 894 (Iowa 1994). We reject the State’s ripeness argument.

Turning to the merits of this issue, we agree with Mr. Wise. The State cited no statute specifically authorizing or permitting the conditional sentence imposed by district court. There is nothing in the Iowa Code providing for the automatic conversion of consecutive to concurrent sentences (or concurrent to consecutive sentences) based on the occurrence or nonoccurrence of future events. The sentence is not authorized by statute. It is void. Manser, 626 N.W.2d at 874.

The State’s arguments in favor of the sentence imposed are unpersuasive. First, the State argues district courts are permitted to allow defendants to select between two sentencing options. See Cooley, 587 N.W.2d at 754-55. The State further argues the facts of this case would justify either consecutive or concurrent sentences. We cannot agree with either argument. In Cooley, the district court offered the defendant the choice between two otherwise permissible sentencing options. Id. Here, the “choice” offered to Mr. Wise was not authorized by statute. Furthermore, the issue on this appeal is not whether the facts support consecutive sentences or concurrent sentences. The issue is whether the district court could, in effect, do both. As noted above, this is not permitted.

Of all of the arguments the State advances in support of the sentence imposed, one has some momentary appeal; however, it too fails. In its brief, the State argues the conditional sentence imposed by the district court “amounts to no more than an agreement to reconsider Wise’s sentence” if he did not comply with the two conditions imposed on him. Iowa Code section 903.2 (governing reconsideration of sentences in misdemeanor cases) states, in relevant part, a district court “may order the person to be returned to court, at which time the court may review its previous action and reaffirm it or substitute it for any sentence permitted by law.” If the sentencing order had been written so the sentences would convert from consecutive to concurrent only upon a court order after a hearing, we might be persuaded by the State’s argument. The order before us, however, does not do so. It attempts to provide for the “reconsideration” of Mr. Wise’s sentence with no further court action. This is inconsistent with section 903.2. We cannot stretch the plain language of the reconsideration statute to legitimize this sentencing order.

Conclusion. We affirm Mr. Wise’s conviction. We vacate the sentence and remand for resentencing. All costs are taxed to the State.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . Mr. Wise appealed this companion case, which we also decide today. State v. Wise, No. 04-0548, 2005 WL 599969 (Iowa Ct.App. Mar. 16, 2005).

      . Mr. Wise does not indicate how this makes any meaningful difference.