                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1267
                             Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SAMUEL FRANK DIGHT,
     Defendant-Appellant.
________________________________________________________________


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

District Associate Judge.



      Samuel Dight appeals his guilty plea to possession of a controlled

substance with intent to deliver. AFFIRMED.




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

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.




      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       Samuel Dight appeals his guilty plea to possession of a controlled

substance with intent to deliver. He contends his plea was not voluntarily and

intelligently made because the district court failed to advise him at the plea

proceeding of the statutory surcharge contained in Iowa Code section 911.1

(2017) and that his plea could affect his federal immigration status.

       By failing to file a motion in arrest of judgment to challenge the plea, Dight

did not preserve error. See Iowa R. App. P. 2.24(3)(a) (“A defendant’s failure to

challenge the adequacy of a guilty plea proceeding by motion in arrest of

judgment shall preclude the defendant’s right to assert such challenge on

appeal.”). However, Dight also claims his attorney was ineffective in allowing the

alleged plea-related errors and for failing to file a motion in arrest of judgment to

challenge the plea. “[I]f the guilty plea resulted from ineffective assistance of

counsel, the defendant can challenge the plea under the rubric of ineffective

assistance of counsel.” State v. Weitzel, 905 N.W.2d 397, 401 (Iowa 2017); see

also State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-

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

preservation rules.”). “Claims of ineffective assistance of counsel implicate the

constitutional right to counsel; therefore, we review the claim de novo.” State v.

Lopez, ___ N.W.2d ___, ___, 2018 WL 672085, at *2 (Iowa 2018).

       To succeed on his ineffective assistance-of-counsel claim, Dight “must

establish by a preponderance of the evidence that ‘(1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.’” Id. (quoting

State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v.
                                         3

Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice

prong or breach of duty first, and failure to find either one will preclude relief.”

State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872

N.W.2d 159, 169 (Iowa 2015)). When challenging a guilty plea through a claim

of ineffective assistance of counsel, “in order to satisfy the prejudice requirement,

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.” State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).

       “Before accepting a plea of guilty, the court must address the defendant

personally in open court and inform the defendant of, and determine that the

defendant understands,” among other things, “[t]he maximum possible

punishment” and “[t]hat a criminal conviction . . . may affect a defendant’s status

under federal immigration laws.” Iowa R. Crim. P. 2.8(2)(b)(2)–(3). As to the

former advisement, the court must inform the defendant of, and determine the

defendant understands, the applicability of statutory surcharges. See State v.

Fisher, 877 N.W.2d 676, 686 (Iowa 2016).

       Here, it is undisputed that the district court failed to advise Dight of the

statutory surcharge contained in Iowa Code section 911.1 and that his plea could

affect his federal immigration status. We find the record inadequate to decide

whether Dight was prejudiced by either failure and repeat our position that the

“circumstances underlying the defendant’s willingness to go to trial are facts that

should be permitted to be more fully developed” in a postconviction-relief
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proceeding.1 State v. Delacy, ___ N.W.2d ___, ___, 2017 WL 1735684, at *4

(Iowa Ct. App. 2017), further review denied (Jan. 16, 2018); see also State v.

Gaston, No. 16-1957, 2017 WL 4317310, at *2 (Iowa Ct. App. Sept. 27, 2017),

further review denied (Nov. 22, 2017); State v. Iddings, No. 15-1597, 2017 WL

246049, at *5 (Iowa Ct. App. June 7, 2017); State v. Bascom, No. 15-2173, 2017

WL 1733115, at *1 (Iowa Ct. App. May 3, 2017), further review denied (Jan. 16,

2018); State v. Taylor, No. 16-0762, 2017 WL 1735682, at *1–2 (Iowa Ct. App.

May 3, 2017).

       We affirm Dight’s conviction but preserve his claims of ineffective

assistance of counsel for postconviction relief.2

       AFFIRMED.




1
  The State urges that Dight is a United States citizen and he therefore cannot show any
reasonable probability he would have demanded a trial had he been advised about
immigration consequences. Although the initial arrest report, which was attached to the
minutes of evidence, indicates Dight is a United States citizen, Dight never stipulated to
the accuracy of the minutes of evidence or otherwise admitted to the court that he is a
United States citizen. Rather than simply rely on the arrest report, we prefer to allow
Dight’s citizenship status to be properly examined in a postconviction-relief proceeding.
2
  Dight seems to contend the supreme court’s recent ruling in State v. Weitzel, 905
N.W.2d 397 (Iowa 2017), requires automatic vacation of his conviction and sentence. In
Weitzel, due to the district court’s failure to inform the defendant of the necessity to file a
motion in arrest of judgment to challenge his guilty plea, the defendant was able to
challenge his plea on direct appeal on the merits. See 905 N.W.2d at 401–02. Here,
however, the district court informed Dight of his right to file a motion in arrest of
judgment. Therefore, because he did not preserve error, his only avenue for relief is
through a claim of ineffective assistance of counsel. Weitzel is inapplicable on the issue
of disposition.
