                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1459
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RONALD WAYNE DOWNS II,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Cheryl E. Traum,

District Associate Judge.



      A defendant challenges his guilty plea to being voluntarily absent from

custody. AFFIRMED.



      Thomas M. McIntee, Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

       Ronald Downs seeks to vacate his conviction for being voluntarily absent

from custody in violation of Iowa Code section 719.4(3) (2018). Downs pleaded

guilty to that serious misdemeanor offense and, according to the sentencing order,

waived reporting of the combined plea and sentencing hearing. On appeal, Downs

alleges trial counsel was ineffective in not moving in arrest of judgment to

challenge the validity of his plea. He now contends his plea was involuntary for

four reasons. First, the district court did not inform him of a possible twenty-five

percent collection fee on delinquent court debt. Second, the court did not provide

adequate information on the statutory surcharges. Third, counsel misadvised him

of the penal consequences of his plea. And fourth, counsel did not adequately

investigate the State’s evidence.

       On the first and second claims, we find the record adequate to reject

Downs’s claims of ineffective assistance.1 Because the record requires more

development to resolve Downs’s third and fourth claims, we preserve them for a

possible postconviction relief action.

       I.     Facts and Prior Proceedings

       In May 2018, the Davenport Work Release Center placed Downs on

“escape status” after he checked out of the facility for his work assignment and

failed to return the next morning. The district court issued an arrest warrant, but

Downs was not apprehended until more than one month later.


1 Our supreme court decided recent amendments to Iowa Code section 814.7
(prohibiting resolution of ineffective-assistance-of-counsel claims on direct appeal)
apply only prospectively and do not apply to cases, like this one, pending on July 1,
2019. See State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019).
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      In July 2018, the State charged Downs with voluntary absence from custody

of the department of corrections, a violation of Iowa Code section 719.4(3). The

next month, Downs reached a plea agreement with the State. The prosecutor

agreed to recommend 240 days of incarceration consecutive to the sentence he

was serving.    Downs agreed to take responsibility for paying fines, costs,

surcharges, and restitution. Downs and his counsel signed a written plea of guilty.

That plea form indicated Downs understood “a 35% surcharge will be added to all

fines that are not suspended.” The form also advised Downs that failure to file a

motion in arrest of judgment precluded his right to allege any defects in the plea

on appeal. Downs did not file a motion in arrest of judgment.

      In its sentencing order, the district court stated:

      Defendant waived reporting and record of the Plea and Sentencing
      Hearing.
              Defendant PLEADS GUILTY to the offense set out above.
      The Court has reviewed the signed plea of guilty form and
      considered the statements of the Defendant. The Court finds that
      the Defendant understands the charge, the penal consequences and
      the constitutional rights being waived. Based on the statements of
      the Defendant, statements of the prosecutor, and the minutes of
      testimony accepted as true by the Defendant and considered by the
      Court, the plea has a factual basis and is knowing, voluntary and
      intelligent. DEFENDANT’S PLEA IS ACCEPTED

      The court sentenced Downs to 240 days in jail consecutive to the felony

term he was serving—as recommended in the plea agreement. He now appeals.
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       II.    Scope and Standards of Review

       Failure to file a motion in arrest of judgment normally prevents a defendant

from contesting his guilty plea on appeal. Iowa R. Crim. P. 2.8(2)(d). But Downs

may proceed with his claims by alleging ineffective assistance of counsel. See

State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).

       We review those claims de novo. Id. Downs must prove his attorney failed

to perform competently and prejudice resulted. See Hill v. Lockhart, 474 U.S. 52,

58–59 (1985).       The prejudice requirement focuses on whether counsel’s

constitutionally inadequate performance affected the outcome of the plea process.

Id. In other words, Downs must show “there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Id. “In only rare cases will the defendant be able to muster enough

evidence to prove prejudice without a postconviction-relief hearing.”      State v.

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

       III.   Analysis

       Downs first claims counsel should have moved in arrest of judgment

because his guilty plea was not knowing and voluntary. Downs alleges the district

court failed to inform him of the “maximum possible punishment” he faced for

pleading guilty. See Iowa R. Crim. P. 2.8(2)(b)(2). Specifically, he complains he

received no information about the possibility of incurring a twenty-five percent

collection fee if his court debt was deemed delinquent at some point in the future.

See Iowa Code § 602.8107(5)(b) (outlining consequences of assignment of court

debt for private collection).
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       The requirement that the plea-taking court inform a defendant of the

maximum possible punishment applies only to direct consequences—those that

are definite, immediate, and largely automatic—not to indirect and collateral

consequences. See State v. Fisher, 877 N.W.2d 676, 683 (Iowa 2016). No

certainty attaches to the collection fee at issue. Under section 602.8107(5)(b),

Downs would owe the collection fee only if his court debt was “not paid within thirty

days after the date it is assessed.” See Iowa Code § 602.8107(2)(d). Because

the twenty-five percent collection fee was not a direct consequence of Downs’s

guilty plea, the court had no duty to inform him of that possibility. See State v.

Boyd, No. 18-2224, 2020 WL 564898, at *1 (Iowa Ct. App. Feb. 5, 2020).

       Second, Downs argues the district court “merely made passing reference

to ‘applicable surcharge’ but did not inform the defendant the statutory surcharge

in [Iowa Code section] 911.1 was 35% on each fine imposed.” It is true Downs

had a right to be informed of the applicable surcharges. See Fisher, 877 N.W.2d

at 686. And the record shows he was. He signed a written guilty plea stating he

understood “a 35% surcharge will be added to all fines that are not suspended.”

       Third, Down contends counsel offered faulty advice about the twenty-five

percent collection fee. Although the chance of incurring those costs was indirect,

counsel was not free to misinform his client about the collateral consequences of

the plea. See Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983). Because plea

counsel deserves a chance to defend against Downs’s accusation, we preserve

that claim for possible postconviction-relief proceedings. See State v. Tate, 710

N.W.2d 237, 240 (Iowa 2006).
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       Lastly, Downs asserts counsel did not adequately investigate the facts of

the crime and the State’s witnesses before allowing him to plead guilty. Because

the record is inadequate to determine what investigation counsel performed, we

reserve that question for Downs to develop further if he seeks postconviction relief.

       On the existing record, Downs is not entitled to reversal.

       AFFIRMED.
