                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0187
                             Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CORY ARDEN HURSEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, John J.

Bauercamper, Judge.



      Cory Hursey appeals from his conviction upon entry of a written guilty plea

to operating while intoxicated, first offense. AFFIRMED.




      John J. Sullivan of the Sullivan Law Office, and Shannon R. Michael of the

Law Office of Shannon R. Michael, Oelwein (until withdrawal) for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

       Cory Hursey appeals from his conviction upon entry of a written guilty plea

to operating while intoxicated, first offense, in violation of Iowa Code section

321J.2(2)(a) (2015). Hursey asserts (1) the guilty plea was not knowing and

voluntary because he was not properly informed of the consequences of the plea

and (2) the district court erred in ordering Hursey to pay restitution related to a

dismissed charge.1        We conclude Hursey was properly informed of the

consequences of the guilty plea and the district court did not err in ordering

Hursey to pay restitution. We therefore affirm.

       I. Background Facts and Proceedings.

       On October 20, 2015, Hursey was charged in count I with operating while

intoxicated (OWI), first offense, and in count II with second-degree criminal

mischief resulting from an incident that occurred on September 19, 2015. On

that date, Hursey drove a golf cart while intoxicated, hitting a light pole and

driving the golf cart into the golf course lake. When officers arrived on the scene,

Hursey’s clothing was soaking wet, he smelled of alcoholic beverage, his eyes

were bloodshot, and he was slurring his words. While officers administered field

sobriety tests, Hursey stated he was drunk multiple times. Hursey also provided

a preliminary breath test, the results indicating his blood alcohol content was over

the legal limit of .08.

       Hursey filed a written guilty plea to OWI on December 29, 2015. Pursuant

to the plea agreement, count II was dismissed. On December 30, 2015, the

1
 To the extent Hursey also asserts counsel was ineffective in allowing Hursey to plead
guilty to count II because there was no factual basis for the crime, we note Hursey did
not plead guilty to count II and, therefore, we will not address this argument.
                                          3


district court accepted the plea and sentenced Hursey to fifteen days in jail with

credit for time served and ordered him to pay a fine of $1250.00 plus surcharges.

Hursey now appeals.

       II. Standard of Review.

       “We ordinarily review challenges to guilty pleas for correction of errors at

law.” State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016). “We review the district

court’s restitution order for errors of law.” State v. Petrie, 478 N.W.2d 620, 622

(Iowa 1991).

       III. Analysis.

       Hursey first contends his guilty plea was not knowing and voluntary

because he was not adequately informed of the consequences of the plea. The

State argues Hursey did not file a motion in arrest of judgment to preserve the

challenge to the guilty plea on appeal as required by Iowa Rule of Criminal

Procedure 2.24(3)(a) and has, therefore, waived the challenge.              However,

Hursey contends his challenge on appeal is not barred because the district court

did not advise Hursey that the failure to file a motion in arrest of judgment would

preclude his right to challenge the guilty plea on appeal. See Iowa R. Crim. P.

2.8(2)(d). Hursey’s written guilty plea2 provided, in relevant part:

       I am requesting that the Court accept my written plea of guilty and
       impose sentence in my absence. I understand that by following this

2
 We note an in-court colloquy was not required because
        [i]n State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002), we determined
        that it was unnecessary in misdemeanor cases for the trial court to
        actually engage in an in-court colloquy with a defendant so as to
        personally inform the defendant of the motion in arrest of judgment
        requirements. Instead, we found a written waiver filed by a defendant
        that properly reflected knowledge of the requirements of rule 2.8(2)(d)
        was sufficient.
State v. Meron, 675 N.W.2d 537, 541 (Iowa 2004).
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       procedure I am giving up my right to raise any challenge to my
       guilty plea through a Motion in Arrest of Judgment pursuant to Rule
       2.24(3) of the Iowa Rules of Criminal Procedure.

       Rule 2.8(2)(d) requires the court to “ensure the defendant understands the

necessity of filing a motion to challenge a guilty plea and the consequences of

failing to do so.” State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006). “We employ

a substantial compliance standard in determining whether a trial court has

discharged its duty under rule 2.8(2)(d).” Id.

       Hursey argues the language of the written plea did not substantially

comply with rule 2.8(2)(d) because it did not indicate all avenues for challenging

the guilty plea would be precluded and did not include the word “appeal.” In

State v. Ball, No. 15-1319, 2016 WL 169707, at *1 (Iowa Ct. App. April 27, 2016),

this court addressed a challenge to a guilty plea containing identical language. In

Ball, the written guilty plea provided, “I understand that by following this

procedure I am giving up my right to raise any challenge to my guilty plea

through a Motion in Arrest of Judgment pursuant to Rule 2.24(3) of the Iowa

Rules of Criminal Procedure.” 2016 WL 1697071, at *1. This court held the

written guilty plea did not substantially comply with rule 2.8(2)(d) because it “did

not inform [the defendant] that the failure to file a motion in arrest of judgment

would preclude his right to appeal” and did “not mention the word ‘appeal’ at all.”

Id.   For the same reasons, we hold Hursey’s written guilty plea does not

substantially comply with rule 2.8(2)(d), and Hursey is not precluded from

challenging the guilty plea on appeal.
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       Turning to the merits, Hursey asserts his guilty plea was not knowing and

voluntary because he was not adequately informed of the mandatory minimum

jail time and fine, and mandatory surcharges.

       Iowa Rule of Criminal Procedure 2.8(2)(b)(2) requires the court to

determine the defendant understands “[t]he mandatory minimum punishment, if

any, and the maximum possible punishment provided by the statute defining the

offense to which the plea is offered.”        “As with rule 2.8(2)(d), we utilize a

substantial compliance standard to determine whether a plea crosses the rule

2.8(2)(b)(2) threshold.” Fisher, 877 N.W.2d at 682.

       As to the minimum jail time and fine, the plea provided: “I understand that

the maximum sentence for the above charge is: 1 year in jail with a fine of

$1250.00 with a minimum of 2 days in jail and/or a fine of $1250.00.” Hursey

contends the “and/or” language implies either a jail sentence for two days or a

fine of $1250.00 may be imposed, and does not convey that both are

mandatory.3     However, the plea also provided: “I understand my plea

negotiations to be: . . . Receive 15 days in Jail with credit for 15 days’ time

served, . . . . Pay a fine of $1250.00 . . .” Thus, Hursey agreed to serve a jail

sentence greater than the minimum punishment and to pay the minimum fine

amount of $1250.00. We conclude the plea agreement adequately informed

Hursey of the mandatory minimum punishment and fine and, therefore,

substantially complied with rule 2.8(2)(b)(2). See id. at 686 n.6 (“Fisher also

argues that his guilty plea was defective because he was not informed of the

3
  See Iowa Code § 321J.2(3)(a) and (c) (providing a first offense is punishable by “[a]
minimum period of imprisonment in the county jail of forty-eight hours” and an
“[a]ssessment of a fine of one thousand two hundred fifty dollars”).
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mandatory minimum of two days in jail.           We note, however, that in his plea

agreement, Fisher agreed to two days in jail.”).

       With regard to the mandatory surcharges, the guilty plea provided: “I

understand my plea negotiations to be: . . . Pay a fine of $1250.00 + 35%

surcharge + Court Costs + $10 DARE surcharge.” The supreme court has held

surcharges and fines, such as the ones in question here, are punitive and thus

must be disclosed in advance of the plea. Id. at 685-86. However, Hursey’s

written plea recited that he understood the plea agreement required that he pay

the 35% surcharge and $10 DARE surcharge.                     The written guilty plea

substantially complied with rule 2.8(2)(b)(2) in this regard.

       Hursey also contends the district court erred in entering an illegal

sentence by ordering Hursey to pay restitution on a dismissed charge. Pursuant

to the plea agreement, Hursey agreed “to pay victim restitution in exchange for

the State dismissing count 2 at defendant[’]s cost.” The district court’s December

30, 2015 order stated, “Victim restitution to be paid on Count II.” The restitution

in question is for pecuniary damages on a claim by the owners of the golf course

for $200 in damage to the light pole. Hursey argues the court was not authorized

to order Hursey to pay restitution on a count that was dismissed.

       A sentencing court is required to order restitution pursuant to Iowa Code

section 910.2.4 State v. Moore, 500 N.W.2d 75, 76 (Iowa 1993). “There must be

a causal relationship between the damages the victim suffers and the conduct for

which the defendant is ultimately convicted.” State v. Hagen, 840 N.W.2d 140,

4
  “In all criminal cases in which there is a plea of guilty, . . . upon which a judgment of
conviction is rendered, the sentencing court shall order that restitution be made by each
offender to the victims of the offender’s criminal activities, . . . .” Iowa Code § 910.2.
                                          7

147 (Iowa 2013); see also State v. D’Amico, No. 05-1250, 2006 WL 2059306, at

*2 (Iowa Ct. App. July 26, 2006) (“For a district court to order restitution, it must

find proximate causation between the defendant’s activities and the victim’s

damages. We will not find a restitution order excessive if it bears a reasonable

relationship, as shown by a preponderance of the evidence, to damages caused

by the defendant’s acts.” (citations omitted)).

       We acknowledge “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.” Petrie, 478 N.W.2d at 622 (emphasis added); see also State v.

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

(“Unless a plea agreement provides for the recovery of costs associated with

dismissed charges, only those costs associated with the charges on which a

conviction is obtained may be recoverable; where a plea agreement is silent on

costs, no costs are recoverable for dismissed charges.”). However, the court in

Petrie also stated, “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.” 478 N.W.2d at 622.

       In this case, the plea agreement was not silent as to the payment of

restitution. Hursey agreed in the guilty plea to pay victim restitution in exchange

for the dismissal of count II. Additionally, although Hursey contends there is no

factual basis for the criminal mischief charge, the order for restitution must only

be premised upon the finding of a causal relationship between the conduct for

which the defendant is convicted and the damages suffered by the victims. Here,
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Hursey does not dispute he caused damage when he hit the light pole while

driving a golf cart in an intoxicated state. Hursey’s OWI conduct was clearly

causally related to the damage.

       Moreover, we agree with the State that Hursey is judicially estopped from

raising the issue. Hursey agreed to pay restitution and court costs associated

with count II to gain the dismissal of the count. His argument that he should not

now have to pay the restitution is inconsistent with his promise to pay. See State

v. Duncan, 710 N.W.2d 34, 43-44 (Iowa 2006) (providing a party with knowledge

of the facts is precluded from taking inconsistent positions in judicial proceedings

to the prejudice of the adverse party). Here, as set forth in his written guilty plea,

Hursey knew he could take his case to a jury trial, and he waived that right and

accepted the plea bargain.

       Even if we disregard Hursey’s inconsistent positions, it is not illegal to

require a defendant to pay the court costs of a dismissed count if the plea

agreement so provides. Petrie, 478 N.W.2d at 622. We know of no authority—

nor has the defendant provided any—providing it is illegal to require a defendant

to pay restitution for a dismissed count if the defendant has agreed to pay it as a

part of a plea agreement, or that we must find a factual basis for the dismissed

charge. The court did not err in ordering restitution for pecuniary damages.

       IV. Conclusion.

       Because we conclude Hursey’s guilty plea was voluntary and knowing and

the district court did not err in ordering Hursey to pay restitution for pecuniary

damages, we affirm.

       AFFIRMED.
