               IN THE SUPREME COURT OF IOWA
                               No. 18–0437

                          Filed March 22, 2019


STATE OF IOWA,

      Appellee,

vs.

KENNETH EDWARD PETTY,

      Appellant.



      Appeal from the Iowa District Court for Pottawattamie County,

James S. Heckerman, Judge.



      A defendant appeals his convictions and sentences for lascivious

acts with a child and sexual exploitation of a minor.    JUDGMENT OF

CONVICTIONS        AFFIRMED;    SENTENCES          AFFIRMED   IN   PART,

VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Katie Krickbaum, Assistant

Attorney General, Matthew D. Wilber, County Attorney, and Patrick J.

Eppler, Assistant County Attorney, for appellee.
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WIGGINS, Justice.

        A defendant who pled guilty to lascivious acts with a child and

sexual exploitation of a minor challenges his guilty pleas and sentences.

He also claims he was denied the right to counsel. He claims the district

court failed to comply with Iowa Rule of Criminal Procedure 2.8(2)(b) in

accepting his guilty pleas, did not adequately inquire into the alleged

communication breakdown in the attorney–client relationship, imposed a

surcharge in violation of the Ex Post Facto Clauses of the Iowa and United

States Constitutions, and erroneously ordered restitution without first

determining his reasonable ability to pay.

        We find that the defendant did not preserve error on his guilty pleas

challenge and that the record on appeal is insufficient to conduct an

ineffective-assistance-of-counsel analysis. We find the record on appeal is

also insufficient to determine whether the district court adequately

inquired into the alleged communication breakdown. We leave both of

these claims for postconviction relief if the defendant wants to pursue

them.

        We next find the imposition of the surcharge violated the Ex Post

Facto Clauses and the district court erroneously ordered restitution

without first conducting the applicable reasonable-ability-to-pay analysis.

We vacate these portions of the defendant’s sentences and remand for

entry of a corrected sentence with respect to the surcharge and for

resentencing in light of this opinion and our opinion in State v. Albright,

___ N.W.2d ___ (Iowa 2019), with respect to restitution.

        I. Facts and Proceedings.

        On December 29, 2016, the State charged Kenneth Petty for crimes

related to his sex acts with two minors in two separate cases. First, the

State charged Petty with four counts of sexual abuse in the third degree,
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in violation of Iowa Code sections 709.1, 709.4, and 903B.1 (2015), and

three counts of sexual exploitation of a minor, in violation of sections

728.12, 903B.1, and 903B.2. These charges arose after M.S., the minor

daughter of Petty’s neighbor, alleged that she had been having sex with

Petty for approximately two years and that Petty had videotaped the two of

them on at least one occasion. In the subsequent investigation, officers

discovered a video depicting Petty engaging in a sex act with M.S. when

M.S. was fifteen or sixteen years of age and Petty was in his mid-forties.

      Separately, the State charged Petty with one count of sexual abuse

in the second degree in violation of Iowa Code sections 709.1(3),

709.3(1)(b), 709.3(2), and 903B.1.     These charges arose after Z.C., the

daughter of Petty’s romantic partner, alleged Petty fondled her breasts and

put his finger in her vagina.

      The district court set trial for the case involving M.S. for January 17,

2018, and trial for the case involving Z.C. for the following week.       On

January 4, the State amended the trial information to charge Petty with

two counts of sexual abuse in the third degree, in violation of Iowa Code

sections 709.1, 709.4, and 903B.1, instead of four counts as previously

charged.

      On January 17, following a hearing on the parties’ motions in limine

and while the jury venire was present and ready in the courtroom, the

parties announced Petty would enter an Alford plea based on his

acceptance of the State’s plea offer. Under the terms of the plea offer, Petty

would plead guilty to sexual exploitation of a minor, a class “C” felony, for

the charges stemming from the case involving M.S. Then for the case

involving Z.C., Petty would plead guilty to lascivious acts with a child, also

a class “C” felony, in violation of Iowa Code sections 709.8(1)(a) and

709.8(2)(a). Petty would receive a ten-year indeterminate prison term on
                                     4

each charge, which he would serve concurrently for a total of ten years in

prison. He would also be subject to the sex offender provisions and lifetime

parole provisions.

      After reading through the terms of the agreement, the court asked

Petty how he pled to the amended charge of lascivious acts in the case

involving Z.C. Petty pled guilty. The court asked, “And you understand

that’s a Class C felony carrying up to ten years in prison and/or a $10,000

fine? You understand that’s the maximum penalty?” Petty confirmed, and

he then pled guilty to sexual exploitation for the case involving M.S. The

court set sentencing for March 12.

      On January 18, Petty’s counsel filed a motion to withdraw, stating

he could no longer effectively represent Petty because he could no longer

communicate with Petty or agree with Petty on how to handle the cases.

Defense counsel reported that Petty had texted him expressing his

displeasure over the plea bargain and accusing defense counsel of having

a conflict of interest. The court scheduled the hearing on the motion to

withdraw for March 12, the same day of Petty’s sentencing.

      On January 30, defense counsel filed a motion in arrest of judgment

on Petty’s behalf.   The motion stated that Petty’s guilty pleas were

insufficient because Petty was not adequately advised of his constitutional

rights, Petty did not fully understand his constitutional rights, the court

did not establish a factual basis for the pleas, Petty did not adequately

understand the penal consequences of his pleas, and “for whatever other

reasons set out in [Petty’s] Affidavit which is attached hereto.”    In the

attached affidavit, Petty stated he was fully prepared for trial, was not

aware of any plea bargains before the day of trial, had insufficient time to

consider the offer, and believed the agreement was unfair.
                                      5

      On March 12, the court held a hearing on the motion in arrest of

judgment, the motion to withdraw, and sentencing.              Petty testified

regarding his reasons for the motion in arrest of judgment. Petty testified

that he did not understand the charges he pled guilty to before pleading

guilty; that defense counsel did not represent him, wanted him to plead

guilty for something he did not do, and pressured him into pleading guilty;

and that his pleas were not voluntary. The court overruled Petty’s motion,

finding Petty’s pleas were voluntarily and intelligently made. The court

never reached counsel’s motion to withdraw, but counsel represented

Petty throughout the hearing.

      The court then sentenced Petty in accordance with the plea

agreement    to   two   concurrent,    ten-year   indeterminate     terms    of

imprisonment. As part of the sentence, Petty was ordered to register with

the sex offender registry for life. The court ordered Petty to pay a civil

penalty of $250, in accordance with Iowa Code section 692A.110, and said,

“All court costs, including court-appointed attorney fees are taxed to the

Defendant.” The court also ordered that “[t]he fines, costs, surcharges,

attorney fees and expenses, and restitution assessed against the

Defendant are due immediately.” The court did not conduct a reasonable-

ability-to-pay analysis before ordering immediate payment of court costs

and attorney fees.

      On March 13, Petty filed a notice of appeal. On March 14, the clerk

of court filed the total amount of fees Petty owed as $1911.75 for the case

involving Z.C. and $526 for the case involving M.S.

      II. Issues.

      On appeal, Petty claims the district court erred in four respects: first,

in denying his motion in arrest of judgment; second, in denying him the

right to counsel; third, in imposing the sexual abuse victim surcharge
                                     6

under Iowa Code section 911.2B; and fourth, in failing to determine his

reasonable ability to pay restitution before imposing restitution.

      III. Standards of Review.

      We review challenges to denials of motions in arrest of judgment for

an abuse of discretion. State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008).

We will only find an abuse of discretion if the trial court exercised its

discretion on clearly untenable or unreasonable grounds. Id. A ruling is

untenable when the court bases it on an erroneous application of the law.

Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000) (en banc).

      We review a claim that the district court failed to adequately inquire

into an alleged breakdown of the attorney–client relationship de novo.

State v. Wells, 738 N.W.2d 214, 218 (Iowa 2007). We grant de novo review

because the right to counsel is a constitutional claim. State v. Tejeda, 677

N.W.2d 744, 749 (Iowa 2004).

      We normally review claims of an illegal sentence for correction of

errors at law.   State v. Hoeck, 843 N.W.2d 67, 70 (Iowa 2014).            A

constitutional challenge to an illegal sentence, however, is reviewed

de novo. State v. Lyle, 854 N.W.2d 378, 382 (Iowa 2014).

      We review a restitution order for correction of errors at law. State v.

Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). We review the restitution

order to determine whether the court’s findings lack substantial

evidentiary support or whether the court misapplied the law. Id.

      IV. Denial of the Motion in Arrest of Judgment.

      Petty first argues the district court erred when it denied his motion

in arrest of judgment because he was not fully informed of the

consequences of his guilty pleas. The State counters that Petty failed to

preserve error and Petty cannot prove his claim under an ineffective-

assistance-of-counsel framework.
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      We agree with the State that Petty failed to preserve error on his

challenge to his guilty pleas proceeding. Although Petty challenged the

pleas proceeding in a motion in arrest of judgment as required by Iowa

Rule of Criminal Procedure 2.24(3)(a), the grounds for the challenge in the

motion and argued at the motion hearing are different from the ground

raised on appeal. For error to be preserved, the underlying legal basis for

the challenge on appeal must have been raised and resolved in the district

court. See, e.g., Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); Vine

St. Corp. v. City of Council Bluffs, 220 N.W.2d 860, 862 (Iowa 1974) (“A

specific objection is effective to preserve error on the grounds specified and

none other.”); cf., e.g., Grefe & Sidney v. Watters, 525 N.W.2d 821, 824

(Iowa 1994) (finding appellate challenge to the first and second sentence

of a jury instruction was not preserved where objection at trial related to

only the second sentence).

      On appeal, Petty asserts the district court failed to comply with Iowa

Rule of Criminal Procedure 2.8(2)(b) in accepting his pleas because the

court did not adequately advise him of the penal consequences of his pleas.

Specifically, he claims the court failed to advise him of the $1000 minimum

fine on the lascivious-acts-with-a-child offense, the $50,000 maximum

fine and $1000 minimum fine for the sexual-exploitation-of-a-minor

offense, the 35% criminal penalty surcharge under section 911.1, and the

mandatory lifetime special sentence under section 903B.1.

      However, in the relevant part of his motion in arrest of judgment,

Petty merely made a general assertion that he did not adequately

understand the penal consequences of the pleas. He provided no further

explanation or argument on this point either by filing an accompanying
                                           8

brief in support of the motion or at the motion hearing. 1 Rather, at the

hearing, the substance of Petty’s argument focused on another basis

raised in the motion: his claim that he was not given enough time to

consider the plea offer.

       Because the specific basis for the challenge on appeal—i.e., that the

court failed to adequately advise Petty of the pleas’ penal consequences—

was not raised in the district court, error was not preserved. Petty, thus,

asks us to consider his challenge under an ineffective-assistance-of-

counsel rubric.

       To succeed on an ineffective-assistance challenge to a guilty plea,

the defendant must demonstrate, among other things, “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). However, this showing often requires a more

thorough record than the one provided on direct appeal. Id. In that type

of situation, we preserve the issue for postconviction relief. See id.

       There is nothing in the record indicating whether Petty’s counsel

advised him of the penal consequences concerning his pleas or that Petty

would have insisted on going to trial if he had known of the penal

consequences. Accordingly, it is appropriate to preserve this claim for

postconviction relief. See id.

       V. Denial of the Right to Counsel.

       Petty next argues the district court denied him the right to counsel

under both the Iowa and Federal Constitutions by failing to sufficiently




       1For example, our analysis on this error preservation issue might be different had
Petty explained that he did not adequately understand the penal consequences of the
pleas because the court did not adequately advise him of the consequences.
                                      9

inquire into the breakdown in the attorney–client relationship. The State

argues the district court’s inquiry was sufficient.

      The Sixth Amendment to the United States Constitution and article

I, section 10 of the Iowa Constitution provide that the accused shall have

the right to have counsel in all criminal prosecutions. While this does

guarantee competent counsel, this does not guarantee a “meaningful

relationship” between the accused and counsel.            State v. Lopez, 633

N.W.2d 774, 778 (Iowa 2001) (quoting Morris v. Slappy, 461 U.S. 1, 14,

103 S. Ct. 1610, 1617 (1983)).

      Judges have a duty of inquiry upon receipt of a request for

substitute counsel on account of an alleged breakdown in communication.

Tejeda, 677 N.W.2d at 750. Sufficient cause must be shown to justify a

replacement of court-appointed counsel. Lopez, 633 N.W.2d at 778–79.

“A complete breakdown in communication between an attorney and a

defendant is sufficient cause justifying the appointment of substitute

counsel.” Wells, 738 N.W.2d at 219.

      In the instant case, the record is insufficient for us to determine

whether there was a communication breakdown.               At the hearing on

defense counsel’s motion to withdraw, the court asked defense counsel

about his motion.     Defense counsel confirmed he had filed a motion,

saying, “I filed a motion to withdraw. The Court ordered I appear today.

By implication I interpreted that to mean the Court wanted me to file the

post-trial motions or motion on behalf of Mr. Petty?” The court responded,

“That’s correct.”   The court never personally addressed the defendant

regarding the alleged communication breakdown.            See id.; Tejeda, 677

N.W.2d at 751; cf. Lopez, 633 N.W.2d at 781 (noting court personally

addressed    the    defendant    regarding   the      alleged   communication

breakdown). Under the circumstances, we find the record is insufficient
                                      10

to determine whether there was a breakdown in communication and

preserve the error for postconviction relief. See Tejeda, 677 N.W.2d at

752–53 (preserving similar claim for postconviction relief where trial court

did not inquire into the issue and thus no record was made).

      VI. Imposition of the Section 911.2B Surcharge.

      Petty also claims the imposition of the section 911.2B surcharge for

the lascivious-acts offense was in violation of the Ex Post Facto Clauses of

the Federal and State Constitutions, see U.S. Const. art. I, § 10, cl. 1; Iowa

Const. art. I, § 21, and therefore his sentence is illegal. See State v. Lopez,

907 N.W.2d 112, 122 (Iowa 2018). We agree.

             A criminal law constitutes an ex post facto law if two
      elements are present. “First, the law ‘must be retrospective,
      that is, it must apply to events occurring before its
      enactment.’ ”    Second, the law must either “alter[ ] the
      definition of criminal conduct or increase[ ] the penalty by
      which a crime is punishable.”

Id. at 122–23 (alterations in original) (quoting State v. Lathrop, 781 N.W.2d

288, 295 (Iowa 2010)).

      Here, the imposition of the section 911.2B surcharge satisfies both

elements. First, section 911.2B became effective on July 1, 2015, 2015

Iowa Acts ch. 96, §§ 15, 17, but Petty’s unlawful conduct occurred on

June 1, 2015. Therefore, section 911.2B was applied retrospectively in

this case. And second, as we noted in Lopez last term, “As a surcharge is

a form of punishment, the imposition of the newly enacted one for [a

violation of chapter 709] increased the penalty for that offense.”        907

N.W.2d at 123.

      Generally, when a distinct portion of a defendant’s sentence violates

the Ex Post Facto Clauses, we vacate only that distinct portion and remand

for entry of a corrected sentence. E.g., id. at 123–24 (vacating discrete

portion of sentence imposing the surcharge and remanding for entry of a
                                      11

corrected sentence). But cf. State v. Smith, 291 N.W.2d 25, 29 (Iowa 1980)

(finding the imposition of consecutive sentences under section 901.8 was

an ex post facto violation, vacating entire sentence, and remanding for

resentencing). Accordingly, we vacate the portion of the sentence imposing

the section 911.2B surcharge and remand for entry of a corrected

sentence.

      VII. Failure to Determine Reasonable Ability to Pay.

      Lastly, Petty argues the district court erred in ordering him to pay

restitution in the form of court costs and attorney fees, “due immediately,”

without first determining his reasonable ability to pay those items.

      In Albright, ___ N.W.2d at ___, we clarified that certain items of

restitution are subject to a reasonable-ability-to-pay determination. See

also Iowa Code § 910.2(1). We also clarified that a plan of restitution is

not complete until the sentencing court issues the final restitution order.

Albright, ___ N.W.2d at ___. Finally, we emphasized that a final restitution

order must take into account the offender’s reasonable ability to pay

certain items of restitution. Id.

      Here, the court failed to follow our statutory procedures as outlined

in Albright. Accordingly, we must vacate that part of the sentencing order

regarding restitution and remand the case back to the district court to

impose restitution consistent with our decision in Albright.

      VIII. Disposition.

      Because the record currently before us is insufficient for us to

address Petty’s challenge to the guilty pleas proceeding and right-to-

counsel claim, we preserve both of those issues for postconviction relief.

We affirm Petty’s convictions.      We vacate that part of Petty’s sentence

regarding the section 911.2B surcharge and restitution. We remand the
                                   12

case back to the district court for entry of a corrected sentence and

resentencing consistent with this opinion.

      JUDGMENT       OF    CONVICTIONS       AFFIRMED;     SENTENCES

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      All justices concur except Christensen and McDonald, JJ., who take

no part.
