                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1757
                            Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PAUL JOSEPH BORUCH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Paul R. Huscher,

Judge.



      Paul Joseph Boruch appeals his conviction, claiming counsel was

ineffective for failing to object to an erroneous jury instruction and the court

imposed an illegal sentence by ordering jail room-and-board fees and by

extending a no-contact order. AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                        2


MULLINS, Judge.

      Paul Joseph Boruch was convicted of willful injury causing serious injury

and going armed with intent. He has appealed, arguing counsel was ineffective

for failing to object to an erroneous jury instruction and the court imposed an

illegal sentence by ordering jail room-and-board fees and by extending a no-

contact order. Upon our determination Boruch suffered no prejudice from the

erroneous jury instruction, the jail fees were properly ordered, and the no-contact

order was entered without statutory authority, we affirm in part, reverse in part,

and remand.

      I.      Background Facts and Proceedings

      Briefly, the salient facts are that Boruch and the victim were employees of

a traveling carnival. They shared a semitrailer for storage, and their sleeping

quarters—called “possum” or “pot” bellies—were on opposite sides of the same

trailer. On an evening after working at the Dallas County fairgrounds, they ended

up at a bar, drinking several alcoholic beverages and playing pool. After they

had a disagreement between themselves, the bartender told them to leave. The

victim returned to the carnival location, changed into pajamas, got into his

possum belly, and closed the door to sleep. He kept a metal tent stake in the

possum belly with him for use as a weapon if he needed such protection. A brief

time later, Boruch returned to the location of the trailer. The accounts of the

victim and Boruch vary, but it is undisputed that Boruch went to the victim’s

possum belly and the victim got out of the possum belly. A scuffle ensued, and

the victim suffered a knife wound to his back. The victim claims Boruch stabbed

him, he was certain it was Boruch as his face was within six inches of Boruch’s
                                         3


face, Boruch told him to stay down on the ground after the scuffle, and then

Boruch ran off. Boruch claims the scuffle was started by the victim swinging his

tent stake at Boruch, and, after the two of them went to the ground, Boruch saw a

set of feet walk by and the victim then claimed to have been stabbed. When

Boruch got up, he saw the knife in the victim’s back and another person standing

nearby. Boruch claims he asked the other person, “[W]hy did you do this?” In

response, the person lifted his shirt to show a gun. Boruch then went to another

area of the fairgrounds. When the police found Boruch hiding in tall grass, he

told the police he made a big mistake, he really screwed up, and he wanted the

police to shoot him.

       Boruch was charged with willful injury intending to and causing serious

injury, going armed with intent, and being an habitual offender. He had an initial

appearance on July 9, 2014, at which time a preliminary hearing was scheduled

for July 29. While still in jail on a cash-only bond, he filed a pro se request for a

bond review hearing that was held on July 25. The court denied the request to

change the bond, and Boruch remained in jail. On July 28, the State filed a trial

information, which the court approved with no changes in Boruch’s conditions of

release.

       A jury found Boruch guilty as charged. He was sentenced to prison on

October 22, 2014. The court also ordered, “Defendant is further advised that if

the Dallas County Sheriff charges room and board fees pursuant to Iowa Code

section 356.7(2) [(2013)] in addition to other fines, costs, and surcharges, those

fees shall become a judgment against the Defendant herein,” and ordered, “The

No-Contact Order is/previously entered in this matter is hereby extended for
                                        4


5 years from the date of the defendant’s release from incarceration.”

Immediately after sentencing, Boruch filed his notice of appeal. On October 31,

2014, the Dallas County Sheriff’s Office filed a claim for reimbursement of room

and board for 106 days from July 9, 2014, to October 23, 2014, at sixty dollars

per day, plus fifteen dollars in medical costs. On December 1, 2014, the court

entered an order approving the claim made by the sheriff.

       II.    Standard and Scope of Review

       We review claims of erroneous jury instructions for errors at law. See

Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 891 (Iowa 2015). “We review

ineffective-assistance-of-counsel claims de novo.” State v. Ross, 845 N.W.2d

692, 697 (Iowa 2014). We review sentences for correction of errors at law where

nonconstitutional challenges are raised. State v. Seats, 865 N.W.2d 545, 553

(Iowa 2015). “When a defendant attacks the constitutionality of a sentence, our

review is de novo.” Id. When a sentence is within statutory limits, we apply an

abuse-of-discretion standard. Id.

       III.   Analysis

              A.    Jury Instructions

       Boruch argues on appeal the district court erred when it instructed the jury

as follows:

             The State must prove all of the following elements of the
       crime of Willful Injury Causing Serious Injury, as charged in
       Count 1:
             1.      On or about the 8th day of July, 2014, Paul Joseph
             Boruch did an act which was intended to cause pain or
             injury, or result in physical contact which was insulting or
             offensive to [the victim].
             2.      The Defendant specifically intended to cause a
             serious injury to [the victim].
                                         5


              3.     [The victim] sustained a serious injury.

       Boruch relies on the case of State v. Schuler, 774 N.W.2d 294 (Iowa

2009), to argue the third element failed to require the jury to find Boruch caused

a serious injury to the victim. The elements of the offense of willful injury causing

serious injury include requirements that the defendant “does an act which is not

justified and which is intended to cause serious injury to another . . . [and] causes

serious injury to another.” Iowa Code § 708.4; Schuler, 774 N.W.2d at 298.

       In Schuler, the defendant had objected to the third element of the jury

instruction that mirrors the instruction given in the case before us and made

essentially the same argument Boruch raises on appeal. Schuler, 774 N.W.2d at

297. The supreme court determined the difference between “sustained a serious

injury” and “caused a serious injury” was not stylistic, but substantive; the former

has a passive connotation, while the later has an active inference. Id. The court

found the instruction was faulty as it allowed the jury to convict the defendant

without finding all of the elements required by the statute. Id. The State urged

the court to find the defendant was not prejudiced by the error and to conclude

the error was harmless beyond a reasonable doubt. Without deciding whether a

harmless-error analysis would be appropriate in that case, the court concluded,

even if it were to apply the analysis, it could not conclude the error was harmless

as the fight that resulted in the injury to the victim in Schuler involved as many as

six participants and a reasonable jury could have found one of the other

individuals caused the victim’s serious injury. Id. at 300. And, if the jury were to

conclude a different individual caused the serious injury to the victim, the

instruction given to the jury would have allowed it to find Schuler guilty if it had
                                          6


found he intended to cause serious injury to the victim and the victim sustained

serious injury caused by an individual other than Schuler. The supreme court

reversed the conviction and remanded for a new trial.

       As noted above, in Schuler, the defendant had objected to the faulty jury

instruction, and thus had preserved error for the appeal.       Id. at 297. In the

present case, Boruch did not object to the instruction that was given. Thus, he

raises the issue as an ineffective-assistance-of-counsel claim.        In order to

succeed on a claim of ineffective assistance of counsel, a defendant must prove

counsel breached a duty and prejudice resulted. See Ledezma v. State, 626

N.W.2d 134, 141 (Iowa 2001).            Both elements must be proven by a

preponderance of the evidence, and we reject the claim if it fails on either

ground. Id. at 142. A breach of duty is shown if counsel performed below the

standards of a “reasonably competent attorney” as measured against the

“prevailing professional norms.” Id. (citation omitted).

       Following the reasoning of the Schuler decision, we find the contested jury

instruction was not a correct statement of Iowa law and Boruch’s counsel failed

to provide effective assistance by failing to object to the instruction given by the

court. Our supreme court has recently reiterated a long-held approach to an

appellate review of an ineffective-assistance-of-counsel claim arising out of an

erroneous jury instruction:

       We have made it clear that ineffective-assistance-of-counsel claims
       based on failure to preserve error are not to be reviewed on the
       basis of whether the claimed error would have required reversal if it
       had been preserved at trial. Rather, a defendant must demonstrate
       a breach of an essential duty and prejudice. In ineffective-
       assistance-of-counsel claims “the instruction complained of [must
                                             7


        be] of such a nature that the resulting conviction violate[s] due
        process.”

State v. Thorndike, 860 N.W.2d 316, 321 (Iowa 2015) (alterations in original)

(citation omitted). In order to prevail, Boruch “must affirmatively demonstrate

counsel’s alleged deficiency undermines our confidence in the verdict and

therefore resulted in prejudice entitling him to a new trial, regardless of whether

his claim would require reversal if it were before us on direct appeal.” Id. at 321-

22.   If the erroneous instruction does not raise a reasonable probability the

outcome of the trial could have been different had counsel not erred, there would

be no prejudice to Boruch. See id. at 322.

        Although Boruch claimed another person must have stabbed the victim,

the victim’s eye-witness account, statements made by Boruch at the time of

arrest, and other overwhelming evidence was against him.              On our de novo

review of the facts, we believe there is not a reasonable probability the verdict

would    have    been   different   if   a   correct   instruction   had   been   given.

Consequently, Boruch has not established he was prejudiced by the instruction

given, and his claim of ineffective assistance of counsel for failure to object to the

instruction fails.

                B.   Jail Room-and-Board Fees

        A criminal defendant is entitled to a preliminary hearing within ten days of

his initial appearance if he is in custody and within twenty days if he is not in

custody. Iowa R. Crim. P. 2.2(4)(a).

        Boruch challenges the assessment of jail room-and-board fees on two

bases: (1) he should not be charged for room and board while he was illegally
                                           8


detained, which he claims was any time after the date by which he should have

had a preliminary hearing (July 19); and (2) the court abused its discretion when

it approved the sheriff’s jail room-and-board claim without an evidentiary hearing

to consider the number of days for which he should have been charged. He

does not challenge the amount of the daily charges, and in fact requests that he

be charged at the Dallas County jail charge of $60 per day, plus a $15 medical

charge, but for only the ten days he claims he was legally held in jail.

Procedurally, his challenge is that the sentence as to the judgment1 for the jail

fees was illegal; if not illegal, the court abused its discretion in requiring him to

pay the full costs; or that counsel was ineffective in failing to alert the court of his

improper confinement.

       As we conclude the issue of legality of his confinement is dispositive, we

choose to address only that issue. We conclude the case of State v. Rouse

requires we find the detention was not unlawful. 290 N.W.2d 911 (Iowa 1980).

Boruch was not entitled to dismissal of his charges after he was not granted a

preliminary hearing within ten days after his initial appearance, even though the

trial information was not filed until nine days later. Id. at 913. During that time he

was entitled to challenge his custody by a habeas corpus proceeding, id. at 913,

but he failed to do so.2 Thus, his incarceration was subject to challenge, but

without a judicial determination that he was entitled to be released, his
1
  He makes no claim the jail fees were ordered as restitution. See State v. Abrahamson,
696 N.W.2d 589, 591 (Iowa 2005) (finding a sheriff must make a specific request to have
a room-and-board reimbursement claim included in a restitution plan under Iowa Code
section 356.7(2)(g), or the claim will be a judgment against the defendant pursuant to
section 356.7(3) once approved by the court).
2
  We note that between the date by which he should have had a preliminary hearing and
the date the trial information was filed, he had a hearing on his request for bond review
but did not assert a habeas corpus claim.
                                         9


incarceration was not illegal. Consequently, his challenge to room-and-board

fees from July 19 to July 28 fails. Further, there is no doubt Boruch was legally

held from the time of the filing of the trial information, which affirmed his

conditions of release—i.e., cash bond—as previously ordered by the court. In

other words, even if he had been released as a result of a habeas corpus

proceeding, the filing of the trial information required he be held in custody

subject to a cash bond, which he had not been able to post. To be clear, we do

not conclude Boruch was illegally held for any of his Dallas County stay. The jail

fees were calculated for the correct number of days of incarceration. Having

reached the ultimate conclusion, we need not address his claim the court should

have afforded him a hearing or the court abused its discretion by approving the

claim filed by the sheriff.

               C.     No-Contact Order

       Boruch next challenges the provision of the sentencing order that

extended the previously entered no-contact order for five years from the date of

Boruch’s release from incarceration. He argues the extension of the no-contact

order is a part of his sentence and is illegal as the district court had no authority

to impose a no-contact order to go into effect on a future date beyond the five

years provided by Iowa Code section 664A.5. He asks us to vacate the no-

contact order and remand the case for entry of an order authorized by law.

       In the case of State v. Sanchez, an unreported decision of a panel of this

court, the State made essentially the same arguments it makes here. State v.

Sanchez, No. 13-1989, 2015 WL 4935530, at *4-6 (Iowa Ct. App. Aug. 19, 2015).

We repeat the reasoning from Sanchez as directly applicable here:
                                  10


        We first address the State’s argument the no-contact order is
not subject to review in this direct appeal because it is not a
sentencing option under Iowa Code section 901.5. Section 901.5
merely identifies the sentencing options the district court must
consider in every case. See Iowa Code § 901.5 (stating “the court
shall consider the following sentencing options”). Nothing in the
language of section 901.5 limits the district court’s authority to
include other terms in a sentencing order. Rather, the court’s
sentencing options are limited to those authorized by law. See
[State v.] Manser, 626 N.W.2d [872,] 875 [(Iowa Ct. App. 2001)]
(vacating the defendant’s sentence because it was not authorized
by the “general-application sentencing provisions” or any other
provision of the Iowa Code). For instance, section 901.5 does not
include restitution among the listed sentencing options. However,
restitution may be imposed as part of a sentencing order because
restitution is authorized by statute. See State v. Alspach, 554
N.W.2d 882, 884 (Iowa 1996). Likewise, no-contact orders are not
discussed in section 901.5, but they are authorized pursuant to
chapter 664A.
        We next address the State’s argument that the no-contact
order is not subject to review in this direct appeal because it is
collateral to and not part of the sentence. In determining whether a
provision can be challenged as an illegal sentence, the relevant
question is whether the provision was included in the sentencing
order. If contained in the sentencing order, it is part of the sentence
that may be challenged at any time, whereas those matters that
follow the entry of final judgment are collateral and must be
separately appealed. See State v. Formaro, 638 N.W.2d 720, 727
(Iowa 2002) (distinguishing those situations where the terms and
conditions of bail are contained in a judgment and sentence and
are therefore subject to challenge on direct appeal with those
situations in which the court addresses the issue of bail following
the entry of a judgment and sentence and therefore the ruling must
be separately appealed); Alspach, 554 N.W.2d at 884 (holding a
defendant is entitled to court-appointed counsel when challenging
restitution imposed as part of the original sentencing order and
distinguishing restitution imposed in sentencing orders from later
actions to modify a restitution plan, which are “civil in nature and
not part of the criminal proceedings”). The unpublished opinion
cited by the State for the proposition that a no-contact order is not
part of a defendant’s sentence supports this distinction. In that
case, the court “did not continue the no-contact order as part of the
sentence.” State v. Hughes, No. 02-1751, 2003 WL 22469744, at
*2 (Iowa Ct. App. Oct. 29, 2003). Instead, “as a separate matter,
not a part of a sentencing, the trial court ordered a one-year
extension of the no-contact order so as to prohibit [the defendant]
from contacting the victim prior to beginning his sentence, pending
                                        11

       appeal.” Id. The case at bar differs because the sentencing order
       includes a provision prohibiting Sanchez from having contact with
       the victims for five years. Therefore, it is part of the sentence and
       may be challenged in this appeal. See State v. Schnieders, No. 14-
       1675, 2015 WL 4233382, at *4–5 (Iowa Ct. App. July 9, 2015)
       (considering an appeal of a section 664A.2 no-contact order as part
       of a sentence); State v. Grover, No. 14-0072, 2014 WL 7343514, at
       *1–2 (Iowa Ct. App. Dec. 24, 2014) (finding a firearm prohibition
       included in a chapter 664A no-contact order was an illegal
       sentence because it was not authorized by chapter 664A, standing
       alone); State v. Smith, No. 13-1268, 2014 WL 2600325, at *3 (Iowa
       Ct. App. June 11, 2014) (vacating as an illegal sentence the portion
       of a chapter 664A no-contact order entered at sentencing because
       the condition prohibiting the defendant from contact with all
       juveniles was unreasonably excessive); State v. Cramer, No. 09-
       0957, 2010 WL 2925127, at *6–7 (Iowa Ct. App. July 28, 2010)
       (concluding the defendant did not receive an illegal sentence when
       issued a chapter 664A no-contact order as part of his sentence
       because protected party was a victim as the term is used in chapter
       664A).
              Iowa Code section 664A.5 states that upon conviction of a
       public offense for which there is a victim, “[t]he court may enter a
       no-contact order or continue the no-contact order already in effect
       for a period of five years from the date the judgment is entered.”

2015 WL 4935530, at *4-6 (fourth and fifth alterations in original).       Like in

Sanchez, the court here had no authority to enter a no-contact order to

commence upon Boruch’s release from incarceration.           That portion of the

sentence was illegal and is void. Accordingly, we vacate the no-contact order

and remand for entry of a corrected sentencing order to provide for a no-contact

order authorized by law. We do not order a resentencing hearing.

       IV.    Conclusion

       We vacate the portion of the sentencing order concerning the no-contact

order, remand for entry of a corrected sentencing order, and affirm the district

court in all other respects.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
