                    IN THE COURT OF APPEALS OF IOWA

                                 No. 19-0490
                             Filed April 29, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY JOHN McGILVREY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,

Judge.



      A man appeals from convictions arising out of a hit-and-run incident.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN

PART, AND REMANDED.



      Jonathan M. Causey of Causey & Ye Law, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

       Anthony McGilvrey appeals his convictions for a hit-and-run incident, which

caused the death of a bicyclist. We affirm the convictions but vacate the restitution

portion of his sentence and remand for recalculation of restitution in light of State

v. Albright, 925 N.W.2d 144 (Iowa 2019). We preserve McGilvrey’s ineffective-

assistance-of-counsel claim for possible future postconviction proceedings where

the record can be further developed.

Background Facts and Proceedings

       In the early morning hours of July 28, 2018, Anthony McGilvrey was driving

his vehicle on Martin Luther King Jr. Parkway in Des Moines when he struck and

killed Darrell Ford. Ford was riding a bicycle at the time of the collision. After

hitting Ford, McGilvrey stopped and exited from his vehicle to look at Ford, who

was lying injured on the road. McGilvrey then returned to his vehicle and drove

off. Ford was later transported to a hospital where he died of his injuries.

       The vehicle McGilvrey was driving was on loan to his wife from a dealership

while her car was being repaired. The dealership only authorized McGilvrey’s wife

to operate the car. She did not give McGilvrey permission to drive the vehicle, and

McGilvrey’s license was barred at the time of the collision. Following the collision,

McGilvrey avoided capture for approximately one month before being

apprehended. The State charged him with one count of driving while barred, an

aggravated misdemeanor in violation of Iowa Code section 321.561 (2018), and

one count of leaving the scene of an accident resulting in death, a class “D” felony

in violation of section 321.261(4). The State later amended the trial information to

add a count for operating a motor vehicle without owner’s consent, an aggravated
                                            3


misdemeanor in violation of section 714.7. Additionally, the State gave notice of

the application of the habitual offender enhancement under section 902.8 due to

McGilvrey’s prior felony convictions.

       On January 25, 2019, McGilvrey pleaded guilty to all three counts and

provided a factual basis for the habitual-offender enhancement. He acknowledged

felony convictions for eluding and theft in the second degree dating from October

2015 and another felony conviction for operating while intoxicated, third offense,

dating from April 2010. These felonies, together with the conviction for leaving the

scene of an accident resulting in death, satisfied the requirements of Iowa’s

habitual offender statute, section 902.8.

       The court sentenced McGilvrey to two years for driving while barred; fifteen

years for leaving the scene of an accident resulting in death as a habitual offender;

and two years for operating a motor vehicle without owner’s consent. The court

determined the sentences would run concurrently and concluded McGilvrey did

not have a reasonable ability to pay court-appointed attorney fees. McGilvrey

appeals, arguing he received ineffective assistance of counsel1 and the court



1 We recognize the Iowa Code was recently amended to provide in pertinent part:
“An ineffective assistance of counsel claim in a criminal case shall be determined
by filing an application for postconviction relief” and “shall not be decided on direct
appeal from the criminal proceedings.” See 2019 Iowa Acts ch. 140, § 31 (codified
at Iowa Code § 814.7 (2019)). In State v. Macke, however, our supreme court held
the amendment “appl[ies] only prospectively and do[es] not apply to cases pending
on July 1, 2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our
supreme court’s holding. We conclude, therefore, the amendment does not apply
to this case, which was pending on July 1, 2019. See id. The Iowa Code was also
recently amended to prohibit most appeals from guilty pleas. See 2019 Iowa Acts
ch. 140 § 28 (codified at Iowa Code § 814.6(1)). However, this amendment also
“appl[ies] only prospectively and do[es] not apply to cases pending on July 1,
2019.” Macke, 933 N.W.2d at 235. Therefore, it does not apply to this case.
                                            4


improperly determined his ability to pay restitution prior to having all costs before

it.

Standard of Review

           Ineffective-assistance-of-counsel claims are renewed de novo. Dempsey

v. State, 860 N.W.2d 860, 868 (Iowa 2015). “We review restitution orders for

correction of errors at law.” Albright, 925 N.W.2d at 158.

Discussion

      I.      Ineffective Assistance

           McGilvrey argues he received ineffective assistance of counsel because his

trial counsel advised him that the district court had discretion to determine whether

to apply a habitual offender enhancement under section 902.9(1)(c). He contends

that if he “would have known that the district court had no discretion whether to

apply the habitual offender enhancement, there is a reasonable probability that he

would have insisted on going to trial.”         We reserve this claim for possible

postconviction-relief proceedings to allow the record to be developed.

           “In order to succeed on a claim of ineffective assistance of counsel, a

defendant must prove: (1) counsel failed to perform an essential duty; and (2)

prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). A defendant must prove

both elements by a preponderance of the evidence. State v. Straw, 709 N.W.2d

128, 133 (Iowa 2006). To prove prejudice, “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.” Id. at 138. We ordinarily

preserve       ineffective-assistance-of-counsel   claims   for   postconviction-relief
                                          5

proceedings. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). “Only in rare cases

will the trial record alone be sufficient to resolve the claim on direct appeal.” State

v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). “The Due Process Clause requires

that a guilty plea be voluntary.” State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003).

       To be truly voluntary, the plea must not only be free from compulsion,
       but must also be knowing and intelligent. Consequently, a defendant
       must be aware not only of the constitutional protections that he gives
       up by pleading guilty, but he must also be conscious of the nature of
       the crime with which he is charged and the potential penalties.

Id. at 150–51 (citations and internal quotation marks omitted). Counsel had a duty

in connection with McGilvrey’s plea to advise him of “available alternatives and

considerations important to counsel or the defendant in reaching a plea decision.”

Saadiq v. State, 387 N.W.2d 315, 325 (Iowa 1986). “Misstatements by defense

counsel, once given, can . . . destroy a defendant’s opportunity to make a knowing

and intelligent choice.” Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983). “On

review of a claim of ineffective assistance of counsel, ‘we make an independent

evaluation of the totality of the relevant circumstances; this is equivalent of a de

novo review.’” Saadiq, 387 N.W.2d at 325 (quoting Taylor v. State, 352 N.W.2d

683, 684 (Iowa 1984)).      A defendant may base an ineffective-assistance-of-

counsel claim on defense counsel’s failure to properly inform him or her of the

consequences of a guilty plea. Meier, 337 N.W.2d at 206–07.

       McGilvrey was informed at the time of his guilty plea that he would face a

maximum sanction of incarceration for nineteen years. At the plea proceedings on

January 25, 2019, the court asked the State to explain to McGilvrey the potential

consequences at sentencing if the plea of guilty were accepted. The prosecutor

stated:
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       Your Honor, as the court correctly noted, the defendant is charged
       with a class “D” felony, leaving the scene of an accident resulting in
       death, in violation of Iowa Code section 321.261(4), I believe. He’s
       charged as a habitual offender. Let’s start with the class “D” felony
       in and of itself. Class “D” felony is punishable by up to five years’
       imprisonment. It has a minimum fine of $750 and a maximum fine of
       $7500.
               Because I understand the defendant—or it’s anticipated the
       defendant is going to make the necessary factual basis and include
       the fact that he has two prior felonies, he would then be pleading as
       a habitual offender, which then enhances the sentence to fifteen
       years with a mandatory minimum of possibly probation and/or a
       minimum of three years if incarcerated in prison. There will be no
       fine if he pleads as a habitual offender, and that’s by way of case
       law.
               As it relates to the two aggravated misdemeanors, the
       minimum fine is $625 for the aggravated misdemeanor charges. Just
       so we’re absolutely clear, that’s applicable to both aggravated
       misdemeanor charges. I believe the maximum is $6250. Again,
       applicable to two charges.
               As it relates to the surcharge, there’s a thirty-five percent
       surcharge applicable to both the charges. Those—and in terms of if
       incarcerated, the maximum prison term is not to exceed two years
       as it relates to both aggravated misdemeanor charges, which brings
       the maximum possible sentence for all three charges to—nineteen
       years with a mandatory three would be the maximum prison
       sentence, and the minimum would be probation at the very least.
               That’s my understanding of the maximum and minimum. I will
       have counsel chime in if he believes there’s something else that
       needs to be noted. Thank you.

       Based on the prosecutor’s statements at the plea proceeding, McGilvrey

knew he could serve a sentence of up to nineteen years. He was further advised

that if he pleaded guilty to the leaving-the-scene felony and provided a factual

basis for his prior felonies that he would be pleading as a habitual offender. The

court specifically asked:

       Do you understand what that means to you today, Mr. McGilvrey, is
       that you’re pleading guilty to these charges not knowing what your
       exact sentence will be and knowing that the court could impose the
       maximum sentence allowed, which, as [the prosecutor] indicated,
       would be up to nineteen years in prison with that mandatory minimum
       of three years. Do you understand that?
                                          7


The defendant responded that he understood and pleaded guilty.

       McGilvrey knew he possibly faced up to nineteen years of incarceration but

alleges his plea was not knowing and voluntary because he misunderstood Iowa’s

indeterminate sentencing scheme. At sentencing on March 13, 2019, counsel and

the sentencing court discussed whether the court had discretion to sentence

McGilvrey to incarceration for less than a term of fifteen years, regardless whether

such sentence was suspended or not. Defense counsel first argued for a nineteen-

year suspended sentence and then asked that if the court found incarceration

warranted that it run all the sentences concurrent and refrain from applying the

habitual-offender sentence enhancement, the result of which would be a five-year

incarceration. After defense counsel’s remarks, the court then said, “Under the

habitual offender, do I have the discretion to enter a sentence less than 15 years?”

Defense counsel later clarified, stating that he believed that while the court had the

discretion to suspend the prison term, the court did not have the discretion to

sentence the defendant to a sentence of less than fifteen years.

       The court was not allowed to refrain from applying the habitual-offender

enhancement once the State had applied for it and the defendant had proffered a

factual basis for the predicate offenses, and neither was the court allowed to

choose any sentence shorter than the fifteen-year sentence prescribed by

section 902.9(1)(c). Once the State applies for a habitual offender enhancement

under section 902.8 the enhancement is mandatory if supported by a factual basis.

       It has been the rule for many years in Iowa that a court may not impose an

indeterminate sentence of less than the maximum allowed by statute. See State

v. Kulish, 148 N.W.2d 428, 433 (Iowa 1967) (“The indeterminate sentencing
                                           8


act . . . requires that the sentence, if it imposes a penitentiary term, shall not be

fixed by the court. The term is imposed by law.”); State v. Hammond, 251 N.W.

95, 95–96 (Iowa 1933) (“The trial court sentenced the defendant to a term of

imprisonment not to exceed ten years. Appellant also contends that the sentence

is excessive, and insists that this court has power to reduce the term of the

sentence. There is no merit in this contention, for under the provisions of . . . the

Code . . ., the limit or duration of a term of imprisonment is not fixed by the court.”);

see also State v. Dohrn, 300 N.W.2d 162 (Iowa 1981) (holding that the 1978

revision of the law maintained the procedure by which a court imposes a statutorily

specified sentence and the board of parole determines the ultimate duration of the

term).

         When proceedings resumed, the record does not reflect further discussion

regarding the sentence required by statute or a record of any conversation

concerning this issue between McGilvrey and his counsel. The court sentenced

the defendant, in accordance with the law, to fifteen years on count two, leaving

the scene of an accident resulting in death as a habitual offender, and two years

for each of the misdemeanor convictions, with those two-year sentences to run

concurrently with count two.

         We have held that an attorney’s misunderstanding of the law controlling

sentencing length and subsequent misadvising of a defendant may constitute

ineffective assistance of counsel. See State v. Holden, No. 16-0322, 2016 WL

7404615 (Iowa Ct. App. Dec. 21, 2016). We will vacate a guilty plea where defense

counsel’s misstatements leave the defendant unable to enter a guilty plea

knowingly and intelligently. Meier, 337 N.W.2d at 207. A defendant’s statements
                                          9


indicating he understood the indeterminate sentencing scheme may in some cases

inoculate any earlier misunderstanding regarding the roles of the court and the

parole board. See State v. Woolsey, 240 N.W.2d 651, 653–54 (Iowa 1976).

         However, unlike in Woolsey, we do not have a record as to when and to

what extent McGilvrey was told by counsel that the trial court had discretion to

lower the sentence, aside from his counsel’s corrected statements to the court.

Based on the record before this court, neither can we discern the weight McGilvrey

may have given to his (mistaken) understanding of the law as a matter of strategy

in pleading guilty. See Meier, 337 N.W.2d at 207–08 (considering whether a

misunderstanding of the consequences of a plea was important enough to a

defendant’s choice to plead guilty to render the defendant “unable to make an

intelligent and informed choice from among his alternative courses of action.”

(quoting Rinehart v. Brewer, 561 F.2d 126, 132 (8th Cir. 1977))).         Claims of

ineffective assistance of counsel raised on direct appeal are generally preserved

for postconviction relief proceedings so that a sufficient record can be developed

and so attorneys whose ineffectiveness is alleged may have an opportunity to

defend their actions. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984).

         For these reasons and because of our preference for considering

ineffective-assistance claims in postconviction proceedings, we preserve

McGilvrey’s claim for possible future postconviction proceedings.

   II.      Restitution

         McGilvrey argues the court erred in ordering him to pay restitution without

knowing the total amount of restitution owed and without considering his
                                         10


reasonable ability to pay. The State agrees. Based on our review of the record,

we find a remand of the restitution issue is required.

       Under Albright, 925 N.W.2d at 162, “[c]ourts must wait to enter a final order

of restitution until all items of restitution are before the court. Once the court has

all the items of restitution before it, then and only then shall the court make an

assessment as to the offender’s reasonable ability to pay.” Although a court can

order a defendant to pay certain items of restitution without determining the

offender’s reasonable ability to pay, a number of restitution items require a

reasonable-ability-to-pay determination, including:

       for crime victim assistance reimbursement, restitution to public
       agencies pursuant to section 321J.2, subsection 13, paragraph “b”,
       court costs including correctional fees approved pursuant to section
       356.7, court-appointed attorney fees ordered pursuant to section
       815.9, including the expense of a public defender, when applicable,
       contribution to a local anticrime organization, or restitution to the
       medical assistance program pursuant to chapter 249A.

Albright, 925 N.W.2d at 159.

       The district court did not have the benefit of Albright at the time of the

sentencing hearing and ordered McGilvrey to pay restitution before it had all items

of restitution before it and without determining McGilvrey’s reasonable ability to

pay. The March 13, 2019, sentencing order required McGilvrey to make restitution

in the amount of “$TBD.” While the sentencing court determined that McGilvrey

did not have a reasonable ability to pay court-appointed attorney fees, these fees

are only one type of the items of restitution for which a court must determine a

defendant’s reasonable ability to pay. See id. The order also required McGilvrey

to pay court costs without a reasonable-ability-to-pay determination.            The

sentencing order does not comport with Albright.          We therefore vacate the
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restitution portion of the sentencing order and remand the case for entry of a final

restitution order in accordance with Albright.

Conclusion

       We vacate the restitution portion of McGilvrey’s sentence and remand for a

recalculation of restitution in accordance with Albright, 925 N.W.2d at 162.

McGilvrey’s convictions are otherwise affirmed, and we reserve his ineffective-

assistance-of-counsel claim for possible postconviction relief proceedings.

       CONVICTIONS        AFFIRMED;      SENTENCES       AFFIRMED       IN    PART,

VACATED IN PART, AND REMANDED.
