                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2157
                           Filed November 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PHILLIP EUGENE MARAS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carol S. Egly, District

Associate Judge.



      Phillip Maras appeals his conviction for first-degree harassment.

AFFIRMED.




      Joel E. Fenton of Law Offices of Joel E. Fenton, P.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

       Phillip Maras pled guilty to first-degree harassment.       On appeal, he

contends (1) the plea lacked a factual basis; (2) his trial attorney was ineffective

in allowing him to plead guilty and in failing to pursue intoxication and diminished

responsibility defenses; and (3) the district court abused its discretion in

sentencing him.

I.     Factual Basis for the Plea

       The State charged Maras with first-degree harassment. See Iowa Code

§ 708.7(2)(a) (2015). “A person commits harassment in the first degree when the

person commits harassment involving a threat to commit a forcible felony . . . .”

Id. The State asserted the underlying forcible felony was a “threat to commit

second-degree sex abuse on a twelve-year-old child. See id. §§ 708.7(2)(a);

702.11 (“A ‘forcible felony’ is any felonious . . . sexual abuse.’”). In fact, sex

abuse against a twelve-year-old child is statutorily defined as third-degree rather

than second-degree sexual abuse. Compare id. § 709.3 (“A person commits

sexual abuse in the second degree when the person commits sexual abuse [and

t]he other person is under the age of twelve.” (emphasis added)), with id. § 709.4

(“A person commits sexual abuse in the third degree when the person performs a

sex act [and t]he other person is twelve or thirteen years of age.” (emphasis

added)). This mistake was not caught and Maras pled guilty as charged.

       On appeal, Maras contends “the correct facts were present within the

record at all times, but misapplied by counsel, the State and the trial court.” He

requests a remand for a new factual basis determination. He acknowledges he

failed to raise this challenge in the district court by way of a motion in arrest of
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judgment and alternatively raises the issue under an ineffective-assistance-of-

counsel rubric. We find it unnecessary to address the claim under that rubric

because, as the State concedes, Mara received incomplete advice on the

implications of a failure to file a motion in arrest of judgment and his “claim is not

precluded by his failure to file” the motion. See State v. Loye, 670 N.W.2d 141,

149-150 (Iowa 2003) (noting failure to file a motion in arrest of judgment does not

prevent a challenge to a guilty plea on appeal where the defendant is not

“satisfactorily informed of the requirements of rule 2.24(3)(b)”). We turn to the

merits.

       The State and defense essentially agree on the law and the mistake of

law. The State concedes a threat to commit a sex act on a twelve-year-old child

“does not meet the elements of sexual abuse in the second degree” and “instead

constitute[s] a threat to commit sexual abuse in the third degree.” But, in the

State’s view, this error “does not change the elements of harassment in the first

degree, which merely requires a threat to commit a forcible felony,” and “[b]oth

sexual abuse in the second degree and sexual abuse in the third degree are

forcible felonies.” Maras, in turn, acknowledges “[w]hether that sexual abuse

threat constitutes the elements meeting the definitions of the first, second, or

third degrees of that crime is immaterial for purposes of determining whether an

offense of harassment in the first degree has been committed.           Any forcible

felony will do.” But, he argues “any error in the factual basis for a plea should be

corrected.”

       The question before us, then, is whether the conceded error in charging

the underlying offense supporting the “forcible felony” element requires reversal.
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Our answer is no because the degree of sexual assault was not an element of

first-degree harassment and the facts supported a finding that a forcible felony

was committed. Cf. State v. Crane, No. 12-0497, 2003 WL 289497, at *1-2 (Iowa

Ct. App. Feb. 12, 2003) (noting the child was eleven rather than twelve or

thirteen as the statute required and “[t]he age of the child is an essential element

of [the] prosecution”). Specifically, Maras told the court he was pleading guilty to

“threatening to commit a sexual act upon [the child] at age twelve years old.”

The court asked Maras to confirm the age as being twelve. Maras responded,

“This is correct.”    Maras also agreed to have the minutes of testimony

incorporated into the record. The minutes included a case investigation report

detailing Maras’ attempt “to persuade” the “12 year old” child through text

messages “to engage [in] sexual acts.” According to the report, the child told

Maras “numerous times to stop but he continued anyways.”

       We conclude there was a factual basis for the plea to first-degree

harassment. Accordingly, we affirm the plea.

II.    Ineffective Assistance of Counsel

       Maras contends his plea attorney was ineffective in (A) allowing him to

plead guilty to a plea lacking a factual basis and (B) failing to pursue the

defenses of intoxication or diminished capacity. Having found a factual basis, we

need not address the first claim.            We preserve the second claim for

postconviction relief proceedings to allow counsel an opportunity to weigh in.

See State v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006) (“We normally

preserve an ineffective-assistance-of-counsel claim for a postconviction relief

proceeding where preserving the claim allows the defendant to make a complete
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record of the claim, allows trial counsel an opportunity to explain his or her

actions, and allows the trial court to rule on the claim.”).

III.   Sentencing Decision

       Maras contends the district court abused its discretion in sentencing him

by (A) “relying on facts that were not in evidence or demonstrably erroneous

interpretations of facts from the minutes of testimony” and (B) “consider[ing]

improper sentencing factors in imposing a sentence of imprisonment.”             Both

arguments are premised on the erroneous forcible felony charge. In Maras’ view,

“a judge viewing the threatened part of the act as a part of the entire offense may

indeed view the entirety of the offense differently depending on the degree of the

threatened offense.”

       In sentencing Maras to a prison term not exceeding two years, the district

court stated:

               The Court has considered the entire presentence
       investigation report. The Court has considered the statements of
       counsel, the statements of Mr. Maras, and, Mr. Maras, this Court is
       going to note, as mentioned by the county attorney, the Court
       independently came to this conclusion that you have apparently no
       insight into what you did, or you’re simply electing to minimize it yet
       today, but at least to the date of the presentence investigation
       report.
               You claim this—your action’s on alcohol, and yet this is
       something that took place over the course of several days. I went
       back and reviewed the Minutes of Testimony attached to the Trial
       Information and I note that you sent text messages over a several-
       day period, all of which dealt with—or many of which, I should say,
       dealt with sexual contact with this 12-year-old victim. This is not—
       and, remarkably, the text messages appeared to be in good form
       and statements that—or matters that were spelled correctly, and
       were, with the exception of one, clear statements about what you
       wanted to do. This Court believes that you are either continuing to
       minimize what you did or just won’t accept what you did, one of the
       two.
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              And also considering your past criminal history, again, much
      of it involves alcohol. Your OWI one—1st, 2nd, 3rd. The Court
      believes the following sentence should be entered.
              First, the Court makes the finding beyond a reasonable
      doubt that the defendant on or about June 15, 2015 committed the
      crime of Harassment in the First Degree, by making threats to
      commit Sexual Abuse in the Second Degree by specifically
      threatening to put his hands in the 12-year-old victim’s pants;
      sucking, kissing and, to quote your text message, licking your
      luscious nips and sweet pussy—close the quote—upon the 12-
      year-old girl.

There is no indication the court viewed the crime differently based on the degree

of the underlying forcible felony. Accordingly, we conclude the court did not

consider an impermissible factor or abuse its discretion in sentencing Maras. We

affirm Maras’ judgment and sentence for first-degree harassment.

      AFFIRMED.
