                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0421
                            Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID MICHAEL HURST,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.



      The defendant appeals his conviction by guilty plea to third-degree theft

and the resulting sentence. AFFIRMED.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
                                         2


POTTERFIELD, Judge.

       David Hurst appeals his guilty plea to third-degree theft and the resulting

sentence, claiming he received inadequate information from the court and

ineffective assistance of his counsel. Because Hurst fails to preserve error on

any claims regarding the court and because the record is inadequate to address

his ineffective-assistance claims, we affirm and preserve those claims for

possible future postconviction relief.

I. Background and Factual Proceedings.

       On July 26, 2016, the State charged Hurst with theft in the third degree by

trial information pursuant to Iowa Code sections 714.1(1) and 714.2(3) (2016).

On September 13, Hurst pleaded guilty to the charged offense, and the trial court

engaged in the following colloquy with Hurst:

               THE COURT: All right. Mr. Hurst, what you have been
       charged with is theft in the third degree, and that is an aggravated
       misdemeanor. It carries a maximum possible penalty of two years
       in an Iowa penal institution and a maximum possible fine of $6,250.
       This charge would carry with it a mandatory minimum penalty of a
       $625 fine. That fine could be suspended, meaning that you would
       not have to pay that. Mr. Hurst, in addition to those sanctions, the
       Court would be required to impose a $125 Law Enforcement
       surcharge. And if there is some restitution due, the Court would
       also have to order that you pay restitution. Do you have any
       questions about the maximum possible or the mandatory minimum
       penalties for this offense?
               THE DEFENDANT: No, Your Honor, I do not.
               THE COURT: And, Mr. Hurst, in order to be found guilty of
       theft in the third degree, the State would have to prove that you did
       take property that belonged to another person, that you had the
       intent to permanently deprive the person of that property. And then
       that’s a normal theft. But then the degrees of theft are based on
       the value of the property involved. And if the State can prove that
       the property was in excess of $500, then it qualifies as a theft in the
       third degree. Do you understand what the State would have to
       prove in order to find you guilty of this offense?
               THE DEFENDANT: Yes, Your Honor, I do.
                                        3


                THE COURT: All right. Is there a plea agreement, Mr.
       Tilton?
                MR. TILTON: Yes, there is, Your Honor.
                THE COURT: Would you state that for the record?
                MR. TILTON: Yes. The plea agreement in this matter is in
       exchange for the Defendant’s plea of guilty to theft in the third
       degree, that he be sentenced to two years in prison. That that
       sentence be suspended. That he be placed on probation for a
       period of two years. That he be ordered to make restitution. That
       there would be a fine in the amount of $625 that would be
       suspended. That he be ordered to pay the Law Enforcement
       Initiative surcharge of $125 and the court costs and attorney fees in
       this matter.

The court found there was a factual basis for Hurst’s plea, ordered a pre-

sentence investigation report, and set a sentencing hearing for a later date. On

the same day, the court filed a record of plea change detailing the defendant’s

guilty plea. The order stated:

       Defendant is advised by the Court pursuant to Rule 2.24, Iowa
       Rules of Criminal Procedure, that a Motion in Arrest of Judgment
       must be made not later than 45 days after plea of guilty, verdict of
       guilty, or special verdict upon which a judgment of conviction may
       be rendered, but in any case not later than five (5) days before the
       date set for pronouncing judgment. A Motion in Arrest of Judgment
       is an application by the Defendant that no judgment be rendered on
       a finding, plea, or verdict of guilty. A Defendant’s failure to
       challenge the adequacy of a guilty plea proceeding by Motion in
       Arrest of Judgment shall preclude his or her right to assert such
       challenge on appeal.

       Hurst did not file a motion in arrest of judgment. On March 14, 2017, the

matter came on for a sentencing hearing. The court sentenced Hurst under the

following conditions:

       I am going to go ahead and impose a two-year prison term. I am
       going to order that this run consecutive to the sentences that you
       received in Cerro Gordo County. I will impose a $750 fine, and I
       will suspend that; meaning, you’re not required to pay that. You will
       have to pay a $125 Law Enforcement Initiative surcharge, as well
       as the court costs in this matter. I will order restitution in the
                                           4


          amount of $1,149.99 based on what the State is requesting at this
          time.

Hurst appealed.

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). However, claims of

ineffective assistance of counsel are reviewed de novo. See State v. Liddell, 672

N.W.2d 805, 809 (Iowa 2003).

III. Discussion.

          Hurst claims the district court erred by not informing him of the applicable

surcharges related to the offense. Hurst also claims counsel was ineffective by

failing to file a motion in arrest of judgment to challenge his guilty plea based on

the court’s lack of compliance with Iowa Rule of Criminal Procedure 2.8(2)(b) and

because the court failed to discuss the effect on Hurst’s federal immigration

rights.

          A. Error Preservation.

          The State claims Hurst failed to preserve error on his claim regarding the

court’s failure to inform him of the applicable surcharges.

          The trial court must substantially comply with the requirements of rule

2.8(2)(d)(2) when accepting guilty pleas. State v. Loye, 670 N.W.2d 141, 150

(Iowa 2003) (stating “we employ a substantial compliance standard in

determining whether a trial court has discharged its duty” under rule 2.8(2)).

Rule 2.8(2)(d)(2) requires the court to address “[t]he mandatory minimum

punishment, if any, and the maximum possible punishment provided by the
                                          5


statute defining the offense to which the plea is offered.”       Iowa R. Crim. P.

2.8(2)(b); see also Fisher, 877 N.W.2d at 685. Substantial compliance requires

the district court to identify each requirement within rule 2.8(2)(b). See State v.

Meron, 675 N.W.2d 537, 542 (Iowa 2004). This includes a specific “disclosure of

the applicable chapter 911 surcharges independent of information regarding the

fines.” State v. Weitzel, No. 16-1112, 2017 WL 1735743, at *5 (Iowa Ct. App.

May 3, 2017) (citing Fisher, 877 N.W.2d at 685). “The claim turns on the conduct

of the district court and whether the ‘record shows that the trial court explained or

referred to the [required information] in a manner reasonably intelligible to that

defendant.’” Id. at *3 (alteration in original) (quoting State v. Ballard, 423 N.E.2d

115, 120 (Ohio 1981)).

       Here, the district court explained the law enforcement surcharge. The

court, however, did not discuss the section 911.1 surcharge with Hurst, nor did

the State discuss the surcharge in its description of the plea agreement. The

absence of a description of the applicable surcharges from the record does not

substantially comply with rule 2.8(2)(b).       See Fisher, 877 N.W.2d at 685

(explaining a fine or surcharge is a form of punishment that must be disclosed).

       However, a defendant must file a motion in arrest of judgment to challenge

the underlying plea. Iowa R. Crim. P. 2.24(3)(a). An exception to this error-

preservation rule exists if the court fails to notify the defendant of the requirement

of filing a motion in arrest of judgment, and in such cases, a defendant may

challenge the guilty plea on direct appeal. See State v. Worley, 297 N.W.2d 368,

370 (Iowa 1980); Weitzel, 2017 WL 1735743, at *1. Notifying the defendant

requires the court to “inform the defendant that any challenges to a plea of guilty
                                          6


based on alleged defects in the plea proceedings must be raised in a motion in

arrest of judgment and that failure to so raise such challenges shall preclude the

right to assert them on appeal.” Iowa R.Crim. P. 2.8(2)(d).

       Here, the court stated, “[Y]ou have the right to file a motion called a motion

in arrest of judgment. You could file that—or you could file that motion within 45

days of today’s date, or in any case not later than five days before the date set

for sentencing.” In its written order, the court also informed Hurst that he must

challenge the guilty plea through a motion in arrest of judgment, and Hurst’s

failure to challenge the plea through a motion in arrest of judgment precludes him

from asserting the challenges on appeal. The court complied with rule 2.8(2)(d)’s

requirement of providing adequate information regarding the necessity of filing a

motion in arrest of judgment. Hurst’s failure to file a motion in arrest of judgment

is a failure to preserve Hurst’s claims that the district court erred in providing

adequate information before accepting his guilty plea.

       B. Ineffective Assistance.

       Hurst claims his counsel was ineffective for failing to file a motion in arrest

of judgment because the court did not inform him of the appropriate criminal

surcharges and federal immigration status implications. The State claims Hurst

was not prejudiced.

       To prove ineffective assistance of counsel, Hurst must prove by a

preponderance of the evidence (1) counsel failed to perform an essential duty

and (2) he suffered prejudice as a result. See State v. Morgan, 877 N.W.2d 133,

136 (Iowa Ct. App. 2016). The claim fails if either prong is not proved. Id.
                                        7


       To prove the first prong of this claim, Hurst must show counsel’s

performance fell outside the normal range of competency. See State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006).        Starting “with the presumption that the

attorney performed her duties in a competent manner,” “we measure counsel’s

performance against the standard of a reasonably competent practitioner.” State

v. Maxwell, 743 N.W.2d 185, 195 195–96 (Iowa 2008). Although counsel is not

required to predict changes in the law, counsel must “exercise reasonable

diligence in deciding whether an issue is ‘worth raising.’” State v. Westeen, 591

N.W.2d 203, 210 (Iowa 1999) (quoting State v. Schoelerman, 315 N.W.2d 67, 72

(Iowa 1982)). In accord with these principles, we have held that counsel has no

duty to raise an issue that has no merit. State v. Schaer, 757 N.W.2d 630, 637

(Iowa 2008); State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008) (“Counsel

cannot fail to perform an essential duty by merely failing to make a meritless

objection.”).

       Under the second prong, “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. “If an ineffective-assistance-of-counsel claim is raised on direct appeal from

the criminal proceedings, we may decide the record is adequate to decide the

claim or may choose to preserve the claim for postconviction proceedings.”

Straw, 709 N.W.2d at 133.      When analyzing the prejudicial effect of several

allegations of ineffective assistance of counsel, we “look to the cumulative effect

of counsel’s errors to determine whether the defendant satisfied the prejudice

prong of the Strickland test.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012).
                                          8


       We have held that the omission or improper recitation of surcharges shall

generally be preserved for postconviction relief where the claim is raised in the

context of ineffective assistance of counsel. See State v. Delacy, No. 16-0827,

2017 WL 1735684, at *4 (Iowa Ct. App. May 3, 2017) (en banc). Our supreme

court has also held, “An attorney fails to fulfill this duty when the attorney fails to

advise a client of the immigration consequences of a plea.” Diaz v. State, 896

N.W.2d 723, 728 (Iowa 2017).

       Moreover, the record is insufficient to determine counsel’s advice on the

immigration consequences of the guilty plea, Hurst’s citizenship status, or any

resulting effects from the sentence. The record is also insufficient to determine

the cumulative prejudicial effect. Accordingly, we cannot resolve the ineffective-

assistance-of-counsel claims on direct appeal. See Clay, 824 N.W.2d at 494

(holding ineffective-assistance claims are ordinarily preserved for postconviction

relief proceedings, especially “where the challenged action of counsel implicate

trial tactics or strategy which might be explained in a record fully developed to

address those issues”); see also Straw, 709 N.W.2d at 138 (“Under the

‘reasonable probability’ standard, it is abundantly clear that most 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].”). Because

Hurst raises issues that require further development of the record, we preserve

those claims for possible future postconviction relief. See Clay, 824 N.W.2d at

501.

       AFFIRMED.
