                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2194
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DERRICK GLENN SMITH JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      The defendant challenges his convictions and sentences. CONVICTIONS

AFFIRMED, SENTENCE VACATED, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, 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.
                                        2


MCDONALD, Judge.

      The State charged defendant Derrick Smith Jr. with two counts of

attempted murder, two counts of willful injury causing serious injury, and two

counts of intimidation with a dangerous weapon. The charges arose out of a

shooting on the east side of Des Moines on the morning of June 8, 2015. Smith

was driving his girlfriend’s sport utility vehicle. His passenger and codefendant,

Jamon Allen Jr. fired a handgun from the passenger side of the vehicle at Michi

Palmer and Willie Taylor, striking and seriously injuring both of them. One of the

errant bullets struck the residence of Johnetta Daye. Taylor and Palmer were

visiting Daye. Danielle Looney, who was sleeping at Daye’s residence at the

time of the shooting, awoke to the gunfire.     The matter came on for trial in

October 2015. On the third day of trial, Smith and Allen pleaded guilty by way of

Alford v. North Carolina, 400 U.S. 25, 37 (1970), to two counts of willful injury

causing serious bodily injury, in violation of Iowa Code section 708.4(1) (2015),

and intimidation with a dangerous weapon, in violation of Iowa Code section

708.6. The State agreed to dismiss the remaining counts. Smith now challenges

his convictions and his sentences.

                                        I.

      Smith asserts three claims of ineffective assistance of counsel under the

Sixth and Fourteenth Amendments to the United States Constitution and article I,

section 10 of the Iowa Constitution.    Smith makes a generic assertion Iowa

courts conduct a more stringent review of claims arising under the Iowa

Constitution, but Smith provides no substantive guidance regarding the more

stringent standard to be applied and no citation to any legal authority providing
                                         3


any substantive guidance regarding the more stringent standard to be applied. In

the absence of any substantive guidance or authority, we decline to apply a

different standard to Smith’s Iowa claims. See State v. Edouard, 854 N.W.2d

421, 452 (Iowa 2014) (Appel, J., concurring specially) (“Where a party raises

issues under the Iowa Constitution and the Federal Constitution, but does not

suggest a different standard be applied under the Iowa Constitution, we generally

apply the federal standard.”), overruled on other grounds by Alcala v. Marriott

Int’l, Inc., 880 N.W.2d 699, 708 (Iowa 2016); State v. Bohl, No. 15-1546, 2016

WL 4543957, at *2 (Iowa Ct. App. Aug. 31, 2016) (“The right question, is not

whether a state’s guarantee is the same as or broader than its federal

counterpart as interpreted by the Supreme Court. The right question is what the

state’s guarantee means and how it applies to the case at hand.”).

       To establish a claim of ineffective assistance of counsel, Smith must

demonstrate “(1) his trial counsel failed to perform an essential duty, and (2) this

failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

To establish counsel failed to perform an essential duty, Smith must establish

“the attorney performed below the standard demanded of a reasonably

competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). The

attorney’s performance is measured against “prevailing professional norms,” and

it is presumed the attorney performed competently. Id. “A claim of ineffective

assistance is more likely to prevail when counsel lacked diligence as opposed to

the exercise of judgment.” State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). To

establish prejudice, the defendant must show trial counsel’s allegedly deficient

performance caused a complete “breakdown in the adversary process” such that
                                         4

the defendant’s conviction is unreliable. Strickland v. Washington, 466 U.S. 668,

687 (1984). This requires a showing “there is a ‘reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998) (citation omitted).

In the context of a guilty plea, “to satisfy the prejudice requirement, the defendant

must show that there is a reasonable probability that, but for counsel’s errors, he

or she would not have pleaded guilty and would have insisted on going to trial.”

Straw, 709 N.W.2d at 138.

       Smith’s first claim is his guilty plea was not voluntarily and intelligently

made because the district court failed to inform him of the nature of the charges

to which he was pleading guilty. Specifically, Smith claims the district court failed

to inform Smith of each and every element of the charges and his counsel was

deficient in allowing the plea to go forward. As a general rule, a defendant’s

guilty plea waives all defenses and objections to a criminal proceeding except

those intrinsic to the plea. See Wise v. State, 708 N.W.2d 66, 70 (Iowa 2006).

The defendant’s waiver includes claims of ineffective assistance of counsel

except those bearing on the knowing and voluntary nature of the plea. See State

v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000). This is because “[f]undamental due

process requires a guilty plea be voluntary and intelligent.” State v. Speed, 573

N.W.2d 594, 597 (Iowa 1998) (citation omitted).        Counsel thus breaches an

essential duty resulting in prejudice when a defendant’s guilty plea is not

voluntarily and intelligently made. See Meeker v. State, No. 12-2292, 2014 WL

955988, at *2 (Iowa Ct. App. Mar. 12, 2014).
                                         5


       To ensure the defendant’s guilty plea is voluntarily and intelligently made,

the district court must inform the defendant of his constitutional rights, the nature

of the charges, and the penal consequences of the guilty plea. See Iowa R.

Crim. P. 2.8(2)(b). With respect to the specific challenge here, the district court

should explain each of the elements of the offense or offenses to which the

defendant is pleading guilty. See Brainard v. State, 222 N.W.2d 711, 714 (Iowa

1974). Although strict compliance is ideal, substantial compliance is acceptable.

See State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). Substantial compliance

depends on the particular facts and circumstances of the case. See State v.

Victor, 310 N.W.2d 201, 204 (Iowa 1981). “Lack of explanation of the elements

of an offense is not reversible error if, under all the circumstances, it is apparent

the accused understood the charge.” Id.

       We conclude the district court substantially complied with Rule 2.8 and the

defendant understood the nature of the charges. First, the names of the offenses

themselves are sufficiently self-explanatory to inform the defendant of the nature

of the charges. See id.; State v. Sanders, No. 03-1734, 2004 WL 2169748, at *3

(Iowa Ct. App. Sept. 29, 2004) (concluding the “name of the crime itself” can

satisfy the requirement the defendant understand the nature of the charge).

Second, prior to trial, the district court held several pretrial conferences in the

presence of the defendant, including an extensive pretrial conference regarding

the plea offers made to the defendant. The nature of the charges and the penal

consequences for the same were discussed extensively. Third, at the beginning

of trial, in the presence of the defendant, the prosecutor read the trial information

setting forth the elements of the offenses. See State v. Cook, No. 00-1560, 2001
                                         6


WL 804063, at *2 (Iowa Ct. App. July 18, 2001) (“Where the trial information

charges the offense in language containing the elements, no additional

explanation may be required.”). Fourth, the defendant sat through three days of

trial, including the State’s opening statement in which the elements of the

offenses and the relevant evidence were again discussed. Fifth, the defendant’s

counsel stated he explained to the defendant the nature of the charges and the

minutes of testimony. Sixth, the defendant admitted his counsel explained to him

the minutes of testimony. See State v. Readus, No. 03-0642, 2004 WL 239928,

at *1 (Iowa Ct. App. Feb. 11, 2004) (holding there was substantial compliance

where the defendant read the trial information and minutes of testimony). The

minutes “explicitly described in simple and easy-to-understand terms how the

crime was committed.”     State v. Oberbreckling, 235 N.W.2d 121, 122 (Iowa

1975). Seventh, the defendant also agreed there would be sufficient evidence

for a jury to return a guilty verdict. Under the circumstances, as in Oberbreckling,

“[i]t cannot be seriously contended defendant did not understand the nature of

the crime.” Id.; see State v. Catlett, No. 14-0500, 2015 WL 408071, at *3 (Iowa

Ct. App. Jan. 28, 2015) (holding defendant understand the nature of the charges

where the “names of the offenses alone are descriptive enough” and the

defendant agreed “the minutes of evidence for each charge were accurate”).

      Smith’s second and third claims are related. Smith contends his guilty

plea to intimidation with a deadly weapon was not supported by a factual basis in

the record.   Specifically, he challenges the factual basis for the element the

defendant placed “occupants or people” in reasonable apprehension of serious
                                          7

injury.1 See Iowa Code § 708.6; State v. Ross, 845 N.W.2d 692, 699 (Iowa

2014). Smith also contends his plea was not voluntary and intelligent because of

the lack of a factual basis. The supreme court has explained the distinction

between the two claims:

      The first strand, rooted in the right to effective assistance of counsel
      under the Sixth Amendment, requires competent advice. It is a
      responsibility of defense counsel to ensure that a client does not
      plead guilty to a charge for which there is no objective factual basis.
      It follows that no advice to plead guilty would be considered
      competent absent a showing of a factual basis to support the
      crimes to which the accused has elected to plead guilty. Where
      counsel falls short, a Sixth Amendment violation is present. The
      determination of whether there is a factual basis in the record to
      support the charge to which the defendant seeks to plead guilty is
      an objective inquiry that has nothing to do with the state of mind of
      the accused, but everything to do with the state of the record
      evidence.
              The second strand, based on the Due Process Clauses of
      the Fifth and Fourteenth Amendments, requires the trial court to
      determine the defendant made a knowing and intelligent choice to
      waive constitutional rights, including the right to a jury trial, the right
      to protection against self-incrimination, the right to confront
      witnesses, and the right to plead guilty to the underlying crime.
      Even overwhelming objective evidence of guilt that amply satisfies
      the factual-basis requirement of Rule 11 will not save a conviction
      when the subjective requirements of due process have not been
      met. When a Fifth Amendment due process voluntariness claim
      based on a lack of factual basis is asserted, federal courts look on
      the record developed at the plea colloquy for evidence of the
      subjective state of mind of the defendant. Reference to the minutes
      of testimony is irrelevant for the purposes of the voluntariness
      inquiry if the record does not show that the minutes were reviewed
      and accepted as true on the record by the defendant.

State v. Finney, 834 N.W.2d 46, 55 (Iowa 2013) (citations omitted).

      We first address the objective inquiry. A court must ensure a guilty plea is

supported by a factual basis in the record. See Iowa R. Crim. P. 2.8(2)(b). This


1
  Here, the count to which Smith pled guilty was charged under the “building . . .
occupied by another person” alternative. See Iowa Code § 708.6.
                                        8

is true for Alford pleas as well. See State v. Schminkey, 597 N.W.2d 785, 788

(Iowa 1999). Counsel breaches an essential duty by allowing a defendant to

plead guilty where a factual basis does not exist, and prejudice is inherent. See

id.

       The record evidence shows there was a factual basis for Smith’s guilty

plea to intimidation with a dangerous weapon. The homeowner, Daye, testified

she experienced the shots as loud pops but she was not sufficiently startled to

undertake more than a cursory investigation before going back to sleep.          In

contrast, her guest, Danielle Looney, testified she “jumped up” in response to the

gunfire. Smith relies on State v. Rivas, No. 03-0511, 2004 WL 57660, at *4 (Iowa

Ct. App. Jan. 14, 2004), but that case is distinguishable. In that case, a witness,

like Daye, “had no idea a gun was being fired or that he was potentially in

danger.” Rivas, 2004 WL 57660, at *4. However, here, Looney was startled by

the gunfire, which she recognized as gunfire, and was concerned for her safety.

Looney’s testimony was sufficient to support a factual basis for this charge. Cf.

id. at *3 (finding other witness’s testimony he was awakened by a noise he

believed to be thunder, learned it was gunfire, and was “scared” as a result

sufficient to satisfy element).

       We next address the subjective inquiry, and we conclude Smith’s claim his

plea was not voluntary and intelligent also fails. During the plea colloquy, Smith

stated the minutes of testimony were explained to him. Smith was present when

Daye and Looney testified regarding their reaction to the gunfire. Smith also

acknowledged to the district court his guilty plea was voluntary and based on the
                                          9


evidence presented at trial and the additional evidence that would have been

presented based on the minutes of testimony:

              THE COURT: Based upon the advice you received from
       your attorney, seeing all the information that the State has
       presented so far at trial and will present at trial, is it your own
       decision, your voluntary decision to plead guilty?
              DEFENDANT SMITH: Yes, sir.

Under the circumstances, we cannot conclude the defendant is entitled to relief

on this claim or his other claims challenging his convictions. See, e.g., State v.

Williamson, No. 15-0303, 2016 WL 4384484, at *2 (Iowa Ct. App. Aug. 17, 2016)

(holding facts in record and admissions in guilty plea were sufficient to establish

the defendant had a subjective understanding of the charge); Taylor v. Hill, No.

3:10-cv-00105-AC, 2012 WL 7070447, at *7 (D. Or. Nov. 28, 2012) (stating there

was no credible evidence “it would have been beneficial to reject the mid-trial

plea offer and proceed with a trial he was clearly losing”).

                                         II.

       Smith contends his sentence is illegal.        An illegal sentence may be

corrected at any time and is not subject to normal rules of error preservation.

See State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009). Challenges to the

legality of a sentence are reviewed for errors at law. See State v. Sisk, 577

N.W.2d 414, 416 (Iowa 1998).

       As a result of Smith’s guilty plea, the State dismissed the three remaining

counts in the trial information. Smith was ordered to “pay restitution if restitution

is due on any of the dismissed counts/cases” and “pay court costs on any

dismissed counts/cases.” The general rule is “that only such fees and costs

attributable to the charge on which a criminal defendant is convicted should be
                                       10


recoverable under a restitution” unless the plea agreement provides to the

contrary.   State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991) (holding “the

provisions of Iowa Code section 815.13 and section 910.2 clearly require, where

the plea agreement is silent regarding the payment of fees and costs, that only

such fees and costs attributable to the charge on which a criminal defendant is

convicted should be recoverable under a restitution plan”).       Here, the plea

agreement was not of record.      The assessment of costs for the dismissed

charges was in violation of Petrie. See id.; State v. Black, No. 14-0886, 2016 WL

3010497, at *2 (Iowa Ct. App. May 25, 2016).

      Although the assessment of costs for dismissed charges violates Petrie, it

does not appear to violate the relevant statute. The Petrie court relied on Iowa

Code sections 815.13 and 910.2.       Iowa Code section 815.13 relates to the

allocation of costs for criminal cases arising under county and municipal

ordinances. See Iowa Code § 815.13 (providing “fees and costs” recoverable

from the defendant are “witness fees and mileage in trials of criminal actions

prosecuted by the county or city under county or city ordinance”). Section 815.13

is inapplicable here. See State v. Klindt, 542 N.W.2d 553, 555 (Iowa 1996)

(explaining statute was enacted when the state assumed financial responsibility

from the counties for financing the court system); State v. Foth, No. 14-1250,

2016 WL 719044, at *6 n.6 (Iowa Ct. App. Feb. 24, 2016) (explaining section

815.3 applies only “when the county or city prosecutes a case”). Iowa Code

section 910.2 provides: “In all criminal cases in which there is a plea of guilty,

verdict of guilty, or special verdict upon which a judgment of conviction is

rendered, the sentencing court shall order that restitution be made by each
                                         11


offender . . . to the clerk of court for . . . court costs.” (Emphasis added.) There

is nothing in the language of the controlling statute that requires the allocation of

court costs on a charge-specific basis. To the contrary, the plain language of the

statute provides the “sentencing court shall order” costs for “cases.” The word

“case” refers to a criminal proceeding and not the individual counts within a

multicount trial information. See State v. Foy, No. 10-1549, 2011 WL 2695308,

at *4 (Iowa Ct. App. July 13, 2011) (“The term ‘case’ is defined as ‘all charges or

allegations arising from the same transaction or occurrence or contained in the

same trial information or indictment in a criminal proceeding.’” (citing Iowa Admin.

Code r. 493-7.1)); State v. Muyingo, 200 P.3d 601, 605 (Or. Ct. App. 2009) (“A

‘case’ is a legal proceeding that may have multiple components (i.e., a criminal

case may involve multiple charges, a civil case may have both claims and

counterclaims) but those components are grouped together and proceed under

the same case number.”). There is nothing in the statutes that requires or even

allows the district court to allocate the costs as Petrie requires. To the contrary,

the district court can assess costs for the entire “case” where there is a

multicount trial information so long as there was a “judgment of conviction . . .

rendered” on any count in the trial information. Iowa Code § 910.2.

       In addition to being contrary to the text of the relevant statutes, Petrie is

internally inconsistent. Sentencing is wholly a creature of statute. The district

court can only impose a sentence authorized by statute. See State v. Manser,

626 N.W.2d 872, 875 (Iowa Ct. App. 2001) (noting the court’s power to punish a

defendant only extends as far as the Iowa Code authorizes). The Petrie court

held the relevant statute did not allow the district court to assess against the
                                       12


defendant costs associated with dismissed charges in a multicount trial

information. The Petrie court went on to hold, however, the parties could agree

to an assessment of costs for dismissed charges in the plea agreement. See

Petrie, 478 N.W.2d at 622 (“We stress that nothing in this opinion prevents the

parties to a plea agreement from making a provision covering the payment of

costs and fees.”).     It is well established the parties cannot agree upon a

statutorily unauthorized, or illegal, sentence.   See State v. Copenhaver, 844

N.W.2d 442, 447 (Iowa 2014) (“An illegal sentence is a sentence that is not

permitted by statute.”); State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000)

(“Neither party may rely on a plea agreement to uphold an illegal sentence.”). It

cannot be true that the statute does not allow for the assessment of costs related

to dismissed charges but the parties can agree to a sentence in which costs

related to dismissed charges are assessed. If the statute does not authorize the

assessment of costs for dismissed charges in a multicount trial information, then

the provision in the sentencing order embodying the plea agreement is void. See

State v. Ohnmacht, 342 N.W.2d 838, 842 (Iowa 1983) (stating “[a] sentence not

permitted by statute is void”).

       Finally, allowing for the assessment of costs for dismissed charges in a

multicount trial information would improve the administration of justice without

material detriment to the criminal defendant.      Petrie has proved to be an

administrative burden without material benefit. In many cases, it is well-nigh

impossible to determine which costs are associated with any particular count.

See, e.g., Commonwealth v. Soudani, 165 A.2d 709, 711 (“We fail to perceive

how the costs of prosecution in the instant case may be divided or apportioned
                                          13


between the first and second counts of the indictment.”). In addition, in many

(perhaps most) cases, the costs are indivisible. As this court explained in a

recent case:

                 The fact that some counts were dismissed does not
         automatically establish that a part of the assessed court costs are
         attributable to the dismissed counts. Here, the record shows just
         the opposite. The combined general docket report prepared by the
         district clerk of court on December 10, 2015, two days after
         Johnson filed his notice of appeal, shows a total of $210 in court
         costs accrued as of that date. These costs would have been the
         same even had the State not charged Johnson with the counts later
         dismissed. Moreover, the record shows none of the assessed
         charges are clearly attributable or discrete to the dismissed counts.
         We therefore conclude the total court costs are clearly attributable
         to the counts to which Johnson pled guilty and, therefore, fully
         assessable to him.

State v. Johnson, No. 15-2101, 2016 WL 4802916, at *2 (Iowa Ct. App. Sept. 14,

2016).     Further, Petrie provides no guidance on who is to determine the

attribution of costs and the method of allocation. It is an inefficient use of judicial

and administrative resources to vacate the defendant’s conviction and remand

this matter only to have the district court enter the same sentence because the

plea agreement is made of record, enter effectively the same sentence because

all of the costs are deemed relevant to all of the counts and are indivisible, or

enter an order based on an arbitrary allocation of costs with little relationship to

the actual costs of securing a conviction.

         Nonetheless, this court is not at liberty to overrule supreme court

precedent. See State v. Beck, 854 N.W.2d 56, 64 (Iowa 2014). We thus must

vacate the defendant’s sentence.
                                          14


                                          III.

      For the foregoing reasons, we affirm the defendant’s convictions. We

vacate the defendant’s sentence and remand this matter for the entry of a new

sentencing order in accord with Petrie.

      CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED.
