                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1850
                                  Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DENNIS McKINNEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Thomas L. Koehler

(plea), Ian K. Thornhill (motion to set aside plea), and Lars G. Anderson

(sentencing), Judges.



      Dennis McKinney appeals from the judgement and sentence entered

following his plea of guilty to extortion.        CONVICTION VACATED AND

REMANDED.




      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.

       Dennis McKinney appeals from the judgement and sentence entered

following his plea of guilty to extortion, a class “D” felony, in violation of Iowa

Code section 711.4 (2016). We vacate the conviction and sentence, and remand

for further proceedings on the ground that McKinney’s plea was not voluntarily

and knowingly entered.

       On May 26, 2016, Dennis McKinney entered a guilty plea to the offense of

extortion, acknowledging that on March 9, 2016, he threatened to inflict serious

injury on a person with the intent to obtain money and did not reasonably believe

he had a right to make the threats against the person. McKinney agreed the

minutes of evidence were accurate. Pursuant to a plea agreement, the State

agreed to dismiss a charge of second-degree robbery1 and allow McKinney to be

released pending sentencing; however, the release was subject to the condition

that if McKinney had any pretrial release violations, arrests for other offenses, or

confirmed reports of harassment of the victim or family members pending

sentencing, the State would be free to request any legal sentence that might be

imposed. The court found a factual basis existed for the plea and the plea was

voluntarily and intelligently entered.        The court ordered a presentence

investigation (PSI) and set sentencing for July 26, 2016. The court also informed

McKinney,

       [I]f you intend to contest or challenge the proceedings which just
       occurred here this morning, you would have to do so by what we
       call a motion in arrest of judgment.


1
  The sentence for robbery, a class “C” forcible felony, is ten years in prison with a
seven-year minimum.
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              A motion in arrest of judgment must be filed within [forty-five]
        days of this date and no less than five days prior to sentencing.
        Therefore, you would have to comply with those time limitations to
        be successful with reference.

        McKinney moved to continue sentencing, which the court granted and

rescheduled for September 13, 2016.2

        On August 15, a warrant was issued for McKinney’s arrest for violating the

terms of his release. On August 27, McKinney was in custody and his release

was revoked.

         On September 6, McKinney filed a motion for arrest of judgment,

asserting he “took advantage of a plea offer,” that “upon reconsideration . . . he

now reasserts his innocence,” and he “believes his guilty plea was not voluntarily

or intelligently entered.” The State resisted the motion as untimely and without

merit. After an October 3 hearing, the district court denied the motion, writing in

part:

               [McKinney] alleges no defects in the plea hearing, has
        presented no evidence that his plea of guilty was involuntary, and
        does not allege the State violated the terms of the plea agreement.
        [McKinney] appears to have simply changed his mind after
        receiving at least part of the benefit for which he bargained, that is,
        being released from custody once he had entered his guilty plea.
        [McKinney’s] motion in arrest of judgment is untimely[3] and
        meritless and should be denied on both grounds. The court also
        declines to use its discretion to otherwise allow [McKinney] to
        withdraw his guilty plea.




2
  The sentencing date was again moved to September 26 due to flooding concerns, and
again to October 3. On October 3, the district court considered McKinney’s motion in
arrest of judgment.
3
  See State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008) (“[W]e find if the date of
sentencing is set for more than fifty days after the plea, the maximum time a defendant
has to file the motion in arrest of judgment is forty-five days from the plea.”).
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       After the sentencing hearing on October 11, the district court imposed a

five-year term of imprisonment, a $750 fine, and statutory surcharges, but

suspended payment.

       McKinney now appeals, asserting his plea was not knowingly and

voluntarily entered—because the court did not advise him of the applicable thirty-

five-percent surcharge4 or that a plea had potential immigration consequences,

both as required by Iowa Rule of Criminal Procedure 2.8(2)(b). He also asserts

the sentencing court erred in considering unproven offenses.

       The State concedes the district court failed to advise McKinney of the

applicable thirty-five-percent surcharge and that a plea may have an impact on

his immigration status but notes McKinney cannot directly challenge the alleged

shortcomings in his plea because his motion in arrest of judgment did not

challenge the plea on either ground.5 We disagree. Although McKinney filed a

motion in arrest of judgment, the motion did not raise the issues he now raises on

appeal. If he had been properly informed that any challenges to any defects in

the guilty plea proceeding would be forfeited on appeal unless included in his

motion, we would have no hesitation to conclude his claimed error was not

preserved.

       The exception to the error-preservation rule pertaining to a defendant who

is not properly informed of his or her right to file a motion in arrest of judgment is


4
  See State v. Fisher, 877 N.W.2d 676, 686 (Iowa 2016) (holding the court must inform
the defendant of applicable surcharges).
5
  In his reply brief, McKinney argues he was not adequately advised by the district court
that failure to challenge any defects in his plea by a motion in arrest of judgment would
forever forfeit those challenges on appeal. But, in fact, he filed a motion in arrest of
judgment and although it was determined to be untimely, the court also determined it
was meritless.
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premised upon fairness. See State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980)

(citing State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980) (finding where a

defendant had no opportunity to preserve error, it was not fair to hold error was

waived); Manley v. State, 278 N.W.2d 1, 3 (Iowa 1979) (allowing appeal on

fairness basis despite failure to comply with judicially-imposed requirement of a

motion in arrest of judgment)).     We conclude the exception to the error-

preservation rule should apply equally to McKinney as a matter of fairness.

      Here, McKinney claims his plea was involuntarily and unknowingly entered

because he was not apprised of the maximum penalty (the maximum fine plus

the thirty-five-percent surcharge). We conclude our decision in State v. Diallo,

No. 16-0279, 2017 WL 1735628, at *3 (Iowa Ct. App. May 3, 2017), is persuasive

authority to support the conclusion McKinney’s plea was not voluntarily and

knowingly entered. Accordingly, we vacate McKinney’s conviction, and the case

is remanded for further proceedings consistent with this opinion.      In light of

McKinney’s plea being vacated, we need not address his second issue.

      CONVICTION VACATED AND REMANDED.
