                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0502
                               Filed June 5, 2019


DONSHEY PURNELL REED,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      Donshey Reed appeals the district court’s denial of his application for

postconviction relief. PCR DECISION AFFIRMED; SENTENCES VACATED IN

PART AND REMANDED FOR RESENTENCING.




      Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

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

Attorney General, for appellee State.



      Considered by Vaitheswaran, P.J., Potterfield, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Presiding Judge.

         Donshey Reed pled guilty to possession of marijuana with intent to

distribute (second or subsequent offense) (Count I), delivery of marijuana (second

or subsequent offense) (Count II), drug-tax-stamp violation (Count III), possession

of a firearm by a felon (Count IV), trafficking stolen weapons (Count V), and eluding

(Count VI). The district court sentenced Reed to serve prison terms not exceeding

fifteen years on Counts I and II, five years on Counts III, IV, and V, and one year

on Count VI; with the sentences to run concurrently. The court fined Reed $750

plus a 35% surcharge on Counts I through V and $315 plus a 35% surcharge on

Count VI. The court also imposed a drug-abuse-resistance-education (DARE)

surcharge on Counts I through IV and a law-enforcement-initiative (LEI) fee on

Counts I through III and Count V.

         Reed filed a postconviction-relief (PCR) application challenging various

aspects of the pretrial and guilty-plea proceedings.1 Following a hearing, the PCR

court denied the application.

         On appeal, Reed argues (1) his sentence should be modified to remove

illegally-imposed surcharges and (2) his PCR attorney was ineffective in “failing to

present evidence or develop a record at the [PCR] proceeding.”

         The State agrees the DARE surcharge should not have been imposed on

Count III (drug-tax-stamp violation) and Count IV (possession of a firearm by a

felon) because those crimes arose under statutes not enumerated in the DARE

surcharge statute. See Iowa Code §§ 911.2(1) (2013) (authorizing imposition of



1
    Reed’s first PCR application was dismissed.
                                           3


the DARE surcharge only for offenses “provided for in chapter 321J or chapter

124”), 453B.12 (drug-tax-stamp violation), 724.26(1) (possession of a firearm as a

felon). The State further agrees the LEI surcharge should not have been imposed

on Count V (trafficking stolen weapons), which arises under a statute not

enumerated in the LEI statute. See id. §§ 911.3(1), 724.16A (trafficking stolen

weapons). The sentence should be corrected to remove the identified surcharges.

See Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an illegal sentence at any

time.”).

         We turn to Reed’s contention that his PCR attorney “did not present any

evidence or argument as to why trial counsel [did not] challenge[] the search

warrants, [seek] to sever the charges, or [move to] suppress[] evidence obtained

from an unlawful traffic stop as alleged in the Petition” and “did not sufficiently

develop the record with respect to whether there was a factual basis for the felon

in possession of a firearm conviction.” To prevail, Reed must show (1) counsel

breached an essential duty and (2) prejudice resulted. Strickland v. Washington,

466 U.S. 668, 687 (1984). “[T]his showing often requires a more thorough record

than the one provided on direct appeal.” State v. Petty, 925 N.W.2d 190, 196 (Iowa

2019).

         At the PCR hearing, the State offered several exhibits culled from trial court

binders, including search warrants executed on two homes. The State also offered

the transcript of a deposition of Reed’s plea attorney.         These exhibits were

admitted without objection.

         The deposition transcript did not elucidate the issues. The plea attorney

candidly stated he could not remember the facts underlying the charges. He
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specifically could not speak to facts contained in the minutes of testimony that

might have raised doubts about Reed’s actual or constructive possession of a gun

and marijuana found in a room frequented by people other than Reed. When PCR

counsel asked him about the search warrants and why he failed to file a

suppression motion, he acknowledged having “many conversations[] [with Reed]

about filing a motion to suppress” but said he was dissuaded by the prosecutor’s

threats to seek “additional enhancements.”

       We conclude the record is inadequate to determine whether Reed’s plea

attorney was ineffective in failing to file a motion to suppress evidence gained

through execution of the search warrants. It follows that the record is inadequate

to determine whether PCR counsel was ineffective in failing to present a more

thorough record on this ineffective-assistance-of-plea-counsel claim. We preserve

the claim for another possible postconviction-relief application. See Allison v.

State, 914 N.W.2d 866, 819 (Iowa 2018) (“In order to avoid the difficult

constitutional position that would result in denying a remedy where defense

counsel allegedly provided ineffective assistance at trial and postconviction

counsel is ineffective in raising that claim, we think the best approach is to hold

that where a PCR petition alleging ineffective assistance of trial counsel has been

timely filed per section 822.3 and there is a successive PCR petition alleging

postconviction counsel was ineffective in presenting the ineffective-assistance-of-

trial-counsel claim, the timing of the filing of the second PCR petition relates back

to the timing of the filing of the original PCR petition for purposes of Iowa Code

section 822.3 if the successive PCR petition is filed promptly after the conclusion

of the first PCR action.”); see also Goode v. State, 920 N.W.2d 520, 526 (Iowa
                                         5

2018) (“Based on Allison, the statutory-limitation period is not an impediment to

pursuing a second PCR application relating to the claim in this case if promptly

filed following the appeal.”).

       The PCR record contains scant if any evidence on Reed’s claim that his trial

attorney should have filed a motion to sever the charges. We preserve the claim

for another possible postconviction-relief application.

       We are left with the contention that the record lacked a factual basis for the

felon-in-possession-charge; Reed’s plea attorney was ineffective in failing to

challenge the absence of a factual basis; and PCR counsel was ineffective in

failing to develop the record on this claim. At a minimum, we need the plea

transcript to address the issue. This was not one of the trial documents admitted

into the PCR record. Accordingly, we preserve the issue for another possible

postconviction-relief application.

        We vacate Reed’s sentence and remand for removal of the DARE

surcharge for Counts III and IV and removal of the LEI surcharge for Count V. We

affirm the PCR court’s denial of Reed’s postconviction-relief application and

preserve his claims that PCR counsel was ineffective for another possible

postconviction-relief application.

       PCR DECISION AFFIRMED; SENTENCES VACATED IN PART AND

REMANDED FOR RESENTENCING.
