                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0279
                                   Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THIERNO YAYA DIALLO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Deborah Farmer

Minot, District Associate Judge.



      A defendant appeals following his guilty plea asserting his plea was not

knowing and voluntary. CONVICTION VACATED AND REMANDED.



      Anne K. Wilson of Anne K. Wilson Law Office, PLLC, Hiawatha, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas A. Bakke, Assistant

Attorney General, for appellee.



      Considered En Banc.
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VOGEL, Judge.

        Thierno Yaya Diallo appeals following his written guilty plea to assault

causing bodily injury under Iowa Code sections 708.1(2) and 708.2(2) (2015), a

serious misdemeanor. He was sentenced to ninety days in jail with all but ten

days suspended and one year of supervised probation. He was also ordered to

pay a fine of $315.00 plus all applicable surcharges, along with any victim

restitution, court costs, and $60.00 in attorney fees. He asserts his guilty plea

was not knowing and voluntary because: (1) he was not informed of the

immigration consequences of the guilty plea and (2) he was not informed of the

applicable surcharges he would be assessed.            He also asserts counsel was

ineffective for failing to inform him of the immigration consequences of his guilty

plea.

I. Error Preservation.

        It is undisputed Diallo did not file a motion in arrest of judgment

challenging his guilty plea in the district court. See Iowa R. Crim. P. 2.24(3)(a)

(“A defendant’s failure to challenge the adequacy of a guilty plea proceeding by

motion in arrest of judgment shall preclude the defendant’s right to assert such

challenge on appeal.”); State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004) (“[A]

defendant must file a motion in arrest of judgment to preserve a challenge to a

guilty plea on appeal.”). However, the State concedes Diallo may challenge his

guilty plea here because the advisory provided to Diallo in the written guilty plea

form did not substantially comply with Iowa Rule of Criminal Procedure 2.8(2)(d).1


1
  The rule requires that “[t]he court shall inform the defendant that any challenges to a
plea of guilty based on alleged defects in the plea proceedings must be raised in a
                                           3

See State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980) (“No defendant, however,

should suffer the sanction of rule [2.24(3)(a)] unless the court has complied with

rule [2.8(2)(d)] during the plea proceedings by telling the defendant that he must

raise challenges to the plea proceeding in a motion in arrest of judgment and that

failure to do so precludes challenging the proceeding on appeal.”). The advisory

given to Diallo in the written guilty plea form was identical to the advisory given to

the defendant in State v. Fisher, 877 N.W.2d 676, 682 (Iowa 2016)—“Absent

from Fisher’s form was any statement that by signing it or proceeding to

immediate sentencing, Fisher was giving up his ability to contest the plea in the

future . . . .” Therefore, consistent with Fisher, we also conclude “[the] written

plea was deficient in this respect, [and Diallo] is not precluded from challenging

his guilty plea on direct appeal.” 877 N.W.2d at 682.

II. Immigration Consequences.

       Diallo first claims he was not advised of the immigration consequences of

his guilty plea as required by rule 2.8(2)(b)(3)—“Before accepting a plea of guilty,

the court must . . . inform the defendant of, and determine that the defendant

understands . . . [t]hat a criminal conviction, deferred judgment, or deferred

sentence may affect a defendant’s status under federal immigration laws.” He

asserts a handwritten addition on the guilty plea form that stated, “Defendant has

been advised of any possible immigration consequences” was an inadequate

advisory under the rule.     Diallo also notes this handwritten addition was not

initialed or signed. However, as the State points out, Diallo fails to acknowledge



motion in arrest of judgment and that failure to so raise such challenges shall preclude
the right to assert them on appeal.” Iowa R. Crim. P. 2.8(2)(d).
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that this statement was not the only statement on the written guilty plea form that

pertained to the immigration consequences of the guilty plea. On the fourth page

of the form, it states: “I understand that, if I am not a citizen of the United States, I

may suffer adverse immigration consequences as a result of this guilty plea,

including deportation. I understand that I have the right to contact an immigration

attorney and my consulate.”         Immediately following this statement is Diallo’s

signature.

       We agree with the State’s assertion that this advisory substantially

complies with a court’s obligation to inform a defendant and ensure he

understands      that   the   conviction    could    result   in   adverse     immigration

consequences. See Iowa R. Crim. P. 2.8(2)(b)(3); Meron, 675 N.W.2d at 544

(“Substantial compliance requires that the essence of each requirement of the

rule be expressed to allow the court to perform its important role in each case.”).

Therefore, we find no error in this aspect of Diallo’s guilty plea. See Fisher, 877

N.W.2d at 680 (“We ordinarily review challenges to guilty pleas for correction of

errors at law.”).

III. Surcharges.

       Diallo also claims his guilty plea was not knowing and voluntary because

he was not informed of the applicable surcharges. 2 In support of his claim, Diallo

cites the Fisher case, which establishes surcharges are punishment and a



2
  Diallo also appears to challenge the guilty plea form’s failure to inform him of the
possibility of being required to pay victim restitution. However, victim restitution is not a
punishment, and the court is not required to inform a defendant of the possibility of a
restitution order under rule 2.8(2)(b). State v. Brady, 442 N.W.2d 57, 59 (Iowa 1989)
(“Payment of money under a court order, standing alone, does not make it
punishment.”).
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defendant should be informed of surcharges as they affect the mandatory

minimum and maximum penalties faced by those who plead guilty. Id. at 685–86

(“We conclude that Fisher should have been informed of the mandatory minimum

and maximum possible fines, including surcharges.”).         However, the Fisher

decision left open the issue of whether omitting information about the applicable

surcharges alone can render a guilty plea unintelligent and involuntary:

             Because we are vacating Fisher’s plea and sentence and
      remanding for further proceedings anyway based on failure to
      disclose the mandatory license suspension, we need not decide
      today whether failure to disclose the surcharges alone would have
      meant the plea did not substantially comply with rule 2.8(2)(b)(2).
      Regardless, we hold that actual compliance with rule 2.8(2)(b)(2)
      requires disclosure of all applicable chapter 911 surcharges.

Id. at 686 n.6.    Whether substantial compliance with rule 2.8(2)(b)(2) was

achieved despite the omission of the information regarding the applicable

surcharge is the question we must answer in this case.

      The written guilty plea form in this case informed Diallo that the fine he

could be responsible to pay would be “at least $315.00 and up to $1875.00.” The

form went on to say that the plea agreement provided for Diallo to pay the

$315.00 fine, serve ninety days in jail with all but ten days suspended, and serve

one year of supervised probation. The day after the written guilty plea was filed,

Diallo was ordered to pay the $315.00 fine, but the sentencing order stated he

was also to pay “all applicable surcharges.”

      Under Iowa Code section 911.1(1) (2015), Diallo would be responsible for

a thirty-five percent surcharge on the $315.00 fine.       The imposition of this

surcharge is mandatory so long as the fine is imposed.            See Iowa Code

§ 911.1(1) (“When a court imposes a fine or forfeiture for a violation of state law,
                                           6

. . . the court or the clerk of the district court shall assess an additional penalty in

the form of a criminal penalty surcharge equal to thirty-five percent of the fine or

forfeiture imposed.” (emphasis added)). So the minimum amount Diallo could

have been assessed as a “fine” was $315.00 plus the $110.25 surcharge, which

makes the actual minimum fine $425.25, not $315.00 as he had been advised.

In addition, the maximum amount he could have been required to pay as a fine

was $1875.00 plus the $656.25 surcharge, making the actual maximum fine

$2531.25.    There was no mention in the written guilty plea form that any

surcharge could impact the amount of the fine that could be imposed.

       The State asserts the written guilty plea form substantially complied with

advisories required under rule 2.8(2) and the failure to inform Diallo of the thirty-

five percent surcharge should not permit him to have his conviction and sentence

overturned, considering “the mandatory surcharges are of relatively small

consequence” in relation to the other punishments Diallo was facing. The State

goes on to contend, “There is a distinct difference between failing to inform a

defendant on the applicable surcharges and other matters such as maximum

term of incarceration.”

       The supreme court in Fisher indicates that there is a difference between

“actual compliance” and “substantial compliance” when it comes to informing a

defendant of the “mandatory minimum punishment” and the “maximum possible

punishment” under rule 2.8(2)(b)(2). See 877 N.W.2d at 686 n.6 (noting “actual

compliance with rule 2.8(2)(b)(2) requires the disclosure of all applicable chapter

911 surcharges” but not deciding “whether failure to disclose the surcharges

alone would have meant the plea did not substantially comply with rule
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2.8(2)(b)(2)”). The substantial compliance standard provides “a trial court is not

required to advise a defendant of his rights using the precise language of the

rule; it is sufficient that the defendant be informed of his rights in such a way that

he is made aware of them.” State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002).

It requires “the essence of each requirement of the rule be expressed.” Meron,

675 N.W.2d at 544.

       Diallo was informed of a minimum and maximum base fine, but this

amount omitted the increase caused by application of the mandatory surcharge,

which resulted in Diallo being misinformed as to the potential total amount due.

See State v. Kress, 636 N.W.2d 12, 21–22 (Iowa 2001) (noting the guilty plea

court misinformed the defendant that it could waive the one-third mandatory

minimum sentence, which “was tantamount to a failure to advise her of the

maximum possible punishment”); State v. White, 587 N.W.2d 240, 246 (Iowa

1998) (concluding the failure to inform a defendant of the possibility of

consecutive sentences leaves the defendant “partially informed, but uninformed

of the true maximum possible punishment” and results in the plea being

“uninformed and unenlightened”). But see Stovall v. State, 340 N.W.2d 265, 267

(Iowa 1983) (“If the court does make a misstatement, if the misstatement is

material in the sense that it is part of the inducement for the defendant’s decision

to plead guilty, if the defendant’s attorney does not correct the misstatement, and

if the defendant enters a guilty plea accordingly, the plea is not intelligently and

voluntarily made, and the defendant is entitled to have his plea set aside and to

plead anew.”); State v. West, 326 N.W.2d 316, 317 (Iowa 1982) (“[T]he voluntary

and intelligent nature of the plea would be affected by any misstatement of the
                                           8


court placing in defendant’s mind ‘the flickering hope of a disposition on

sentencing that was not possible.’” (citation omitted)).         Because Diallo was

misinformed as to the mandatory minimum and maximum possible fine that could

be imposed upon his plea of guilty, we conclude the plea was not knowing and

voluntary. His conviction must be vacated and the case remanded for further

proceedings consistent with this opinion.3

       CONVICTION VACATED AND REMANDED.

       All Judges concur except Tabor and Doyle, JJ. who concur in part and

dissent in part.




3
 Because we conclude Diallo’s plea was not knowing and voluntary due to the written
guilty plea form’s failure to advise of the applicable surcharges and we are vacating his
conviction and remanding the case, we need not address Diallo’s final claim that his
counsel was ineffective for failing to advise him of the immigration consequences of his
guilty plea.
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TABOR, Judge (concurring in part and dissenting in part)

      I respectfully dissent from the portion of the decision vacating Diallo’s

guilty plea based on the omission of information about the 35% surcharge. While

I believe Diallo’s serious-misdemeanor plea bargain presents a closer case, I

would find substantial compliance with Iowa Rule of Criminal Procedure

2.8(2)(b)(2) for the same reasons outlined in the dissent in State v. Weitzel, No.

16-1112, __ W.L. __ (Iowa Ct. App. May 3, 2017), also filed today.

      Doyle, J., joins this partial dissent.
