                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2100
                             Filed February 24, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAYMES ANTHONY STARK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (South) County, Michael J.

Schilling (plea) and John G. Linn (sentencing), Judges.



      Jaymes Anthony Stark appeals from the judgment, conviction, and

sentence imposed after pleading guilty to second-degree criminal mischief.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

          Jaymes Anthony Stark pled guilty to a charge of criminal mischief in the

second degree. He now appeals from the resulting judgment, conviction, and

sentence imposed.

   I. Factual Background

          Law enforcement officers were called to a residence located on Bank

Street in Keokuk on August 27, 2013. On arrival they discovered that Mary

Stark’s automobile and the house, owned by Pat Morgan, had both been

damaged. It was determined that Anthony Stark was responsible.

          A trial information was filed charging Stark with criminal mischief in the

second degree and harassment in the first degree. Only the criminal mischief

charge is challenged in this appeal. The trial information alleged that “the cost to

repair or replace said property exceeds one thousand but not ten thousand

dollars.” Attached to the minutes were estimates showing the cost to repair the

damage was $1394.88.

          Stark pled guilty to criminal mischief in the second degree as charged.

During the plea proceeding, the prosecutor set out the factual basis of the charge

levied.      He stated the damage to be $1394.88, and counsel for Stark

acknowledged the prosecutor’s rendition of the factual basis. The court directly

asked Stark if the damage to the vehicle was approximately $1395, and Stark

answered “yes.”

          As a part of the plea agreement, Stark agreed to reimburse the victims for

their losses. A statement of pecuniary damages was filed showing a loss of $500
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to the victims. The presentence investigation report also indicated the pecuniary

loss to be $250 to Mary Stark and $250 to Pat Morgan for a total of $500.

       Stark’s counsel did not file a motion in arrest of judgment. Stark contends

that such a motion should have been filed alleging his plea to second-degree

criminal mischief lacked a factual basis based on the statement of pecuniary

damages, which shows the victims’ damages to be less than $1000. See Iowa

Code § 716.4 (2013) (defining second-degree criminal mischief as criminal

mischief where the cost of replacing, repairing, or restoring the property exceeds

$1000 but does not exceed $10,000). Stark has appealed, claiming ineffective

assistance of counsel.

   II. Error Preservation and Scope of Review

       Ineffective-assistance-of-counsel claims are an exception to the error-

preservation requirement. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).

When the claim is based on counsel permitting a defendant to plead guilty when

no factual basis existed, the review is de novo. Id. Generally, the trial record is

inadequate to resolve a claim of ineffective assistance of counsel.         State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). As to the issue raised in this direct

appeal, the record made on the entry of the guilty plea is adequate to dispose of

the claim.

   III. Discussion

       Stark’s claim is meritless.     The pecuniary damage report and the

presentence investigation report relate to the amount of restitution that can be

entered as against Stark to compensate the victims. See State v. Hagen, 840

N.W.2d 140, 147 (Iowa 2013) (“One purpose of restitution is to compensate
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victims of crime.”). The legislature has defined “pecuniary damages” to mean “all

damages to the extent not paid by an insurer.” Iowa Code § 910.1(3). The

pecuniary damage claim is the amount of restitution that a defendant may be

required to pay and is determined ancillary to a plea or finding of guilt. See id.

§ 910.3. Accordingly, it does not and cannot affect the preexisting charge levied

and disposed of by a plea or finding. It would be strange indeed to think the

legislature intended to control the degree of a crime by the amount of the victim’s

insurance.

       It is the duty of the court to establish the factual basis before accepting a

plea of guilty. Iowa R. Crim. P. 2.8(2)(b). In determining whether a factual basis

exists, the entire record before the court is considered. State v. Brooks, 555

N.W.2d 446, 448-49 (Iowa 1996). In this case, the factual basis was reflected in

the minutes attached to the trial information, the statement of the prosecutor

affirmed by Stark’s counsel, and by Stark’s own affirmation. Counsel has no

obligation to pursue a meritless claim. State v. Brubaker, 805 N.W.2d 164, 171

(Iowa 2011). Stark’s request to vacate his conviction and remand the case to the

district court is denied.

       AFFIRMED.
