                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0490
                            Filed December 6, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER MYERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.



      A defendant appeals following his guilty pleas asserting counsel was

ineffective. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

      Christopher Myers, Clarinda, pro se.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Tabor and Bower, JJ.
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VOGEL, Presiding Judge.

       Christopher Myers appeals following his guilty pleas to two counts of

second-degree sexual abuse, in violation of Iowa Code section 709.3 (2013).

Myers asserts on appeal his trial counsel was ineffective in failing to inform the trial

court that the plea colloquy was insufficient. Specifically, he claims the court failed

to advise him of the mandatory surcharge applicable to the charges pursuant to

Iowa Code chapter 911. In a pro se brief, Myers also alleges there is not a factual

basis to support his guilty plea because the description of the abuse by the child

victims did not match his description of the abuse during his guilty pleas. We

preserve Myers’s ineffective-assistance claim regarding the failure of counsel to

advise him regarding the applicable surcharges for postconviction relief as the

record on appeal is not adequate to address the claim. However, we reject Myers’s

factual-basis claim as the record contains the necessary support for Myers’s guilty

pleas. We therefore affirm Myers’s convictions.

I. Surcharges.

       Myers asserts this court should declare his guilty plea invalid because

counsel provided ineffective assistance by failing to challenge the guilty plea

colloquy that did not advise him of the surcharge applicable to his convictions. See

State v. Fisher, 877 N.W.2d 676, 686 n.6 (Iowa 2016) (noting “actual compliance

with [Iowa Rule of Criminal Procedure] 2.8(2)(b)(2) requires disclosure of all

applicable chapter 911 surcharges”). While Myers’s counsel did file a motion in

arrest of judgment following his guilty plea, the motion did not address the court’s

failure to advise Myers of the surcharges. Thus, Myers raises this claim through

the rubric of ineffective assistance of counsel. State v. Straw, 709 N.W.2d 128,
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133 (Iowa 2006) (noting a challenge to a guilty plea is not barred “if the failure to

file a motion in arrest of judgment resulted from ineffective assistance of counsel”).

       To prove his ineffective-assistance claim, Myers must prove counsel failed

to perform an essential duty and the failure resulted in prejudice. See id. The

prejudice burden requires proof “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.” Id.1 When an ineffective-assistance claim is made on direct

appeal, we must first determine whether the record is adequate to address the

claim made. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). “[M]ost claims

of ineffective assistance of counsel in the context of a guilty plea will require a

record more substantial than the one [available on direct appeal].” Straw, 709

N.W.2d at 138. While it is tempting to conclude there is no reasonable probability

Myers would have insisted on going to trial had he been informed of the small

applicable surcharge,2 we determine Myers should be given the opportunity to

support his ineffective-assistance claim. This claim is therefore preserved for

postconviction-relief proceedings.

II. Factual Basis.

       Next, we address Myers’s pro se claim that his guilty plea is not supported




1
  Myers asks that we overrule Straw and its progeny and hold that where rule 2.8(2)(b)
has been violated, prejudice is presumed, as we do when a guilty plea lacks a factual
basis. See State v. Ortiz, 789 N.W.2d 761, 764–65 (Iowa 2010) (noting prejudice is
presumed where counsel permits a defendant to plead guilty and waive his right to file a
motion in arrest of judgment when no factual basis for the crime has been established).
However, “[w]e are not at liberty to overrule controlling supreme court precedent.” State
v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014).
2
  The surcharge applicable to Myers’s guilty pleas is $100 on each count pursuant to Iowa
Code section 911.2B.
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by a factual basis.3       “To preserve error for appeal, generally, defendants

challenging a guilty plea must file a motion in arrest of judgment prior to

sentencing.” Ortiz, 789 N.W.2d at 764. As noted above, there was a motion in

arrest of judgment filed in this case, but it did not challenge the factual basis to

support the guilty plea. We therefore presume Myers is raising this claim as an

ineffective-assistance claim. Id. (noting claims of ineffective assistance are the

exception to the general error preservation rule).           “If trial counsel permits a

defendant to plead guilty . . . when there is no factual basis to support the

defendant’s guilty plea, trial counsel breaches an essential duty.” Rhoades v.

State, 848 N.W.2d 22, 29 (Iowa 2014). “Prejudice is presumed under these

circumstances.” Ortiz, 789 N.W.2d at 764–65.

       When determining if a guilty plea is supported by a factual basis, we

examine the entire record before the district court, including the minutes of

evidence, the prosecutor’s statement, the defendant’s statement, and the

presentence investigation report, if it was available to the court at the time of the

plea. Rhoades, 848 N.W.2d at 29. “[T]he record must disclose facts to satisfy all

elements of the offense.” Id. “When analyzing the record, we do not require the

record ‘to show the totality of evidence necessary to support a guilty conviction,’

but only that the record demonstrates the facts to support the elements of the

offense.” Id. (citation omitted).


3
  Myers also alludes in his pro se brief that his plea was not voluntary because “my lawyer
made me admit that’s what happened.” A similar claim was made by Myers in a motion
in arrest of judgment, and the district court rejected the claim, finding his counsel’s
testimony that Myers wanted to plead guilty to be credible. We find no abuse of discretion
in the district court’s denial of this claim. See State v. Smith, 753 N.W.2d 562, 564 (Iowa
2008) (noting our review of the district court’s denial of a motion in arrest of judgment is
for abuse of discretion).
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       Myers pled guilty to two counts of second-degree sexual abuse.           The

elements of that offense include: “(1) a person commits sexual abuse as defined

in section 709.1 and (2) the other participant is under the age of twelve.” State v.

Constable, 505 N.W.2d 473, 475 (Iowa 1993); see also Iowa Code § 709.3(1)(b).

Section 709.1 defines sexual abuse to include “any sex act” “when the act is

performed with the other person in any of the following circumstances: . . . (3) Such

other person is a child.” A “sex act” is defined as including “[c]ontact between the

finger or hand of one person and the genitalia or anus of another person, except

in the course of examination or treatment by a person licensed pursuant to chapter

148, 148C, 151, or 152.” See Iowa Code § 702.17(3).

       Myers admitted during the guilty plea hearing that the children of his ex-

girlfriend were under the age of twelve when they touched his genitals with their

hands. He also admitted that the touching occurred between December 2013 and

October 2015 when they all lived together in Scott County. Myers acknowledged

this touching was at the behest of his ex-girlfriend and done for the sexual arousal

of his ex-girlfriend and/or himself. By admitting these facts at the guilty plea

hearing, Myers’s own statements established a factual basis for his guilty plea. In

addition, the minutes include the police report of Myers’s interview with law

enforcement where Myers also admitted to the sexual contact with the victims.

The fact that the forensic interview reports of the children do not match precisely

with what Myers admitted to doing on multiple occasions does not invalidate the

factual basis to support his guilty plea. Because we conclude a factual basis exists

in the record to support his guilty pleas to the two counts of second-degree sexual

abuse, Myers’s ineffective-assistance claims fail, and we affirm his convictions.
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AFFIRMED.
