                    IN THE COURT OF APPEALS OF IOWA

                                 No. 17-0903
                              Filed April 4, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TROY STEVEN UTECH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, John C. Nelson,

District Associate Judge.



      A defendant appeals his conviction and sentence for harassment in the

second degree.     CONVICTION AFFIRMED, SENTENCE VACATED, AND

REMANDED FOR RESENTENCING.



      Rees Conrad Douglas, Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

       Infuriated by a student throwing litter out a school-bus window, Troy Utech

knocked on the bus door and convinced the bus driver to let him board. Once

inside, Utech approached a boy seated in the back and threatened to squash his

head “like a grapefruit.” The State charged Utech with harassment in the second

degree, and he pleaded guilty. The district court sentenced him to jail time, gave

him the option of electronic monitoring instead, and ordered him to complete an

anger management course. On appeal, Utech challenges the performance of his

plea counsel and contends the sentencing order was illegal.

       Because Utech’s complaints about his counsel cannot be resolved on this

record, we preserve them for postconviction-relief proceedings. As for the legality

of his sentence, because the district court had authority to grant in-home detention

under Iowa Code section 356.26 (2016), we uphold the electronic monitoring

provision. But because the district court did not place Utech on probation, we find

no statutory authority for ordering him to complete coursework in anger

management. Accordingly, we vacate the sentence and remand for resentencing.

I.     Facts and Prior Proceedings

       In October 2016, a Sioux City school bus driver, en route to East High, was

stopped in traffic when Utech pounded on the door. The driver thought Utech was

a parent trying to “get his child off the bus” and opened the door to let him in. Utech

“walked up the stairs and began yelling and cussing” about someone throwing

things out the window of the bus. Utech apparently was angry because one of the

students had thrown “a baked good” out the window and hit his truck. Utech

confronted some boys sitting in the back of the bus, singling out C.H. in his tirade.
                                             3


C.H. recalled Utech calling him a “punk” and threatening to hurt him. The driver

was “very afraid” of what Utech would do and tried to calm him down.

       In November 2016, the Woodbury County Attorney filed a trial information

alleging Utech committed harassment in the second degree by threatening to

commit bodily injury against C.H., a serious misdemeanor in violation of Iowa Code

section 708.7(3). Utech initially entered a plea of not guilty. The district court set

a final pretrial conference in the matter for May 10, 2017.        Defense counsel

appeared for the conference, but Utech did not. The district court denied the

defense’s request for a delay and issued a bench warrant for Utech, setting a cash-

only bond in the amount of $3000. The court also scheduled a bond forfeiture

hearing for May 31, 2017.

       On May 11, Utech sent a handwritten letter to the court alleging his defense

counsel was “incompetent” and had not informed him of the pretrial conference

date. Utech also floated the following idea: “I am requesting a change of my plea

if the State will accept I surrender of five days of house arrest and if you would

reconsider a rescind of the warrant on my behalf.” In addition, Utech shared with

the court details about personal financial strains he was under.

       Later the same morning, in response to Utech’s self-represented filing, the

district court issued the following order:

       The court has received a letter from the Defendant. The clerk shall
       immediately send copies of the same to the attorneys of record.
       They shall each respond accordingly. The court is not going to
       change anything else at this time.
               If the parties do reach a plea agreement, the court will cancel
       the bond forfeiture hearing and recall the bench warrant upon the
       filing of a plea of guilty herein. Sentencing can be done at the same
       time or later.
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       On the afternoon of May 11, Utech filed a written plea of guilty. The plea

form stated that the maximum sentence for a serious misdemeanor 1 was

“imprisonment not to exceed one year and a fine of not more than $1825.00 plus

surcharge. The minimum fine is $315.00 plus surcharge.” The form also indicated

Utech understood the consequences of waiving the right to file a motion in arrest

of judgment to contest any defects in the guilty plea. At the same time, defense

counsel filed a motion to recall the warrant and to set a sentencing date. Yet that

day, the court issued an order recalling the bench warrant, cancelling the bond

forfeiture hearing, and scheduling a sentencing hearing for May 24.

       On May 24, the court issued a “sentencing order” accepting Utech’s guilty

plea as “voluntarily and intelligently made.” The order also committed Utech “to

the Woodbury County Jail for a period of 20 days. Of this sentence, 0 days are

suspended. ln lieu of the jail sentence imposed in this Sentencing Order the

Defendant may serve 7 days on electronic monitoring.” The order explained Utech

was required to contact the jail to qualify for the electronic monitoring. Utech was

fined $315, plus the thirty-five percent surcharge. The court also ordered him to

“attend and complete the Anger Management Course through the Third Judicial

Department of Corrections.”

       On June 5, Utech filed a notice of appeal, which was electronically filed

stamped at 9:40 a.m.2 At 10:15 a.m., the court filed an “amended sentencing




1
  The form mistakenly referred to “aggravated” misdemeanors at one point, but Utech is
not raising that discrepancy as an issue on appeal.
2
  “Electronic file stamps have the same force and effect for electronic submissions as
nonelectronic file stamps for nonelectronic submissions.” Iowa R. Elec. P. 16.307.
                                         5


order” asserting the defense submitted a proposed sentencing order on May 24

and “this order should have read as follows: ‘The Defendant is committed to the

Woodbury County Jail for a period of 10 days. Of this sentence, 0 days are

suspended. In lieu of the jail sentence imposed in this Sentencing Order, the

Defendant may serve 20 days on electronic monitoring.’”

        Utech attacks both the original sentencing order and the amended order in

his appellate briefing.   But the notice of appeal divested the district court of

jurisdiction to amend the sentencing order. See Jones v. Jones, 121 N.W.2d 668,

672 (Iowa 1963) (holding “sole jurisdiction of the matter was placed in the

[s]upreme [c]ourt” by notice of appeal, and any district court proceedings held

“thereafter were null and void”).     Accordingly, we consider only the original

sentencing order on appeal.

II.     Legal Analysis

        A.     Ineffective Assistance of Plea Counsel

        Failure to file a motion in arrest of judgment normally prevents a defendant

from contesting his guilty plea on appeal. Iowa R. Crim. P. 2.8(2)(d). But Utech

may proceed with his claims by alleging ineffective assistance of counsel. See

State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We review such claims de

novo.    Id.   Utech must prove his attorney failed to perform competently and

prejudice resulted.    See Hill v. Lockhart, 474 U.S. 52, 58–59 (1985).         The

“prejudice” requirement focuses on whether counsel’s constitutionally inadequate

performance affected the outcome of the plea process. Id. In other words, Utech

must show “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. “In only rare
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cases will the defendant be able to muster enough evidence to prove prejudice

without a postconviction relief hearing.” State v. Straw, 709 N.W.2d 128, 138 (Iowa

2006).

         Utech claims his attorney failed to provide him with necessary information

about his case. Specifically, he contends counsel failed to inform him of the status

of the pending prosecution, including the date of the pretrial conference, and failed

to ensure Utech understood the amount of the surcharges he would owe on top of

the serious-misdemeanor fine. Utech also alleges counsel was remiss in allowing

the district court to “impermissibly pressure” him into entering a guilty plea. Utech

characterized the court’s response to his May 11 letter as either a “promise” to

recall the bench warrant or an “implicit threat” to leave it in place, premised on

Utech’s decision whether to reach a plea bargain.

         On the surcharge issue, the written plea form advised Utech that the

maximum and minimum fines would be “plus surcharge” without indicating the

percentage increase. Our supreme court held “wholesale omission” of information

regarding surcharges did not substantially comply with Iowa Rule of Criminal

Procedure 2.8(2)(b), but left open the question whether informing a defendant of

the existence of a surcharge “without specifying the amount” would satisfy the rule.

State v. Weitzel, 905 N.W.2d 397, 408 n.6 (Iowa 2017). This case is not a good

vehicle for answering that question because we do not know what additional

information counsel supplied his client or how knowing the exact amount of the

surcharges would have impacted Utech’s decision to plead guilty. So we preserve

this claim for a postconviction-relief action where the facts may be more fully

developed. See State v. McNeal, 867 N.W.2d 91, 105–06 (Iowa 2015).
                                             7


       We likewise decline to resolve Utech’s allegations about counsel’s

performance in regard to the court’s issuance of the bench warrant for Utech’s

failure to appear at the final pretrial conference and the court’s later offer to recall

the warrant if a plea agreement was reached. Those allegations are best raised

in a postconviction-relief petition. See Straw, 709 N.W.2d at 138.

       B.      Legality of Sentencing Order

       Utech argues his sentence was illegal because the district court approved

electronic monitoring and ordered anger management without placing him on

probation. The State defends the sentencing order—acknowledging the district

court did not use the word “probation” yet insisting the court’s design of “conditional

incarceration” fits the statutory definition of probation.            State law defines

“probation” as “the procedure under which a defendant, against whom a judgment

of conviction of a public offense has been or may be entered, is released by the

court subject to supervision by a resident of this state or by the judicial district

department of correctional services.” Iowa Code § 907.1(5).

       Contrary to the State’s argument, the sentencing order did not release

Utech subject to supervision.3 If the district court had intended to place Utech on

probation, it should have followed Iowa Code section 365.47, which provides:

       A judge who sentences a person to the county jail or other detention
       facility pursuant to this chapter, may suspend any part of such
       sentence and place such person on probation, upon such terms
       and conditions as the sentencing judge may direct, after such person
       has served that part of the person’s sentence which was not

3
  The State is mistaken in suggesting this case is “nearly identical” to State v. Jones, No.
12-1903, 2013 WL 6405466, at *2 (Iowa Ct. App. Dec. 5, 2013), where our court found
“bench probation” was valid. In Jones, the district court sentenced the defendant to one
year in jail and suspended all but ten days, placing him on “good behavior probation,” as
indicated in the court’s judgment entry. Jones, No. 12-1903, 2013 WL 6405466, at *2.
                                             8


       suspended.

       Here, the district court sentenced Utech to twenty days in jail with zero days

suspended. Because the court did not suspend any part of Utech’s jail sentence,

the court could not direct any terms or conditions to be satisfied after Utech served

the part of his sentence that was not suspended. Without a suspended sentence,

the district court could not direct Utech to complete an anger management

course—though such a course would have been appropriate given Utech’s angry

outburst on the school bus.4

       We turn next to the option presented in the sentencing order for Utech to

arrange for electronic monitoring by Woodbury County officials as an alternative to

serving time in jail. We find this alternative was authorized by Iowa Code section

356.26(3) (“The district court may also grant by order to any person held in a county

jail the privilege of in-home detention if the county sheriff has certified to the court

that the jail has an in-home detention program.”). The Woodbury County Sheriff’s

Office offers an in-house detention program using satellite tracking. See Electronic

Monitoring,                   Woodbury                      County                    Iowa,



4
   The district court has broad authority under Iowa Code section 907.6 to establish
conditions of probation. State v. Valin, 724 N.W.2d 440, 446 (Iowa 2006). A condition of
probation is reasonable if it “promotes the rehabilitation of the defendant or the protection
of the community when it addresses some problem or need identified with the defendant
. . . or some threat posed to the community by the defendant.” Id. On appeal, Utech
conflates anger management with batterers’ treatment programs mandated under Iowa
Code sections 708.2A(10) and 708.2B. The discussion of batterers’ education programs
in State v. Manser, 626 N.W.2d 872, 875 (Iowa Ct. App. 2001), has no bearing here.
“Widespread program application suggests that anger management is a useful social skill
that can be learned and applied by people facing stress in all walks of life, including
persons under supervision in the criminal justice system.” Pamela Hollenhorst, What Do
We Know About Anger Management Programs in Corrections? 62 Fed. Probation 52, 61
(1998).
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https://www.woodburycountyiowa.gov/electronic-monitoring (last visited Mar. 21,

2018). The district court was not required to place Utech on probation before

offering him the opportunity to sign up for that program.

       As a remedy, Utech asks us to vacate his sentence and remand for

resentencing. Because the district court had no authority to order completion of

an anger management course without placing Utech on probation, that sentencing

term was outside the statutory limits, and the sentence is void. We therefore

vacate the entire sentence and remand for resentencing.       See Manser, 626

N.W.2d at 875.

       CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.
