                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1015
                             Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA DAVID JONES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark D. Cleve (plea)

and Marlita A. Greve (sentencing), Judges.



      Joshua Jones argues his trial counsel was ineffective in failing to ensure

his guilty pleas were knowing and voluntary. AFFIRMED.



      Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

       Joshua Jones appeals after pleading guilty pursuant to an agreement with

the State. He argues his trial counsel was ineffective in failing to ensure his

guilty pleas were knowing and voluntary. Because Jones has failed to establish

trial counsel breached a duty that resulted in prejudice, we affirm.

       I. Background Facts and Proceedings.

       Jones pled guilty to charges of failing to comply with sex offender registry

requirements, second or subsequent offense, as an habitual offender, and

voluntary absence from custody. In exchange, the State agreed to dismiss two

additional charges Jones faced. A written memorandum of the guilty plea set out

the agreement. Regarding sentencing, the memorandum states:

       State recommends 15 years incarceration on Count 1 and one year
       incarceration on Count 4, to be served consecutively to each other
       and consecutively to the sentence imposed in Scott County Case
       No. FECR353790 for which [Jones] was on parole at the time of
       these offenses. [Jones] is free to make any recommendation as to
       whether sentences are to be served consecutively or concurrently.

       After a hearing, the court accepted Jones’s guilty pleas.        The court

sentenced Jones to fifteen years on the failure-to-comply charge and one year on

the voluntary-absence charge.        The court ordered the sentences to run

concurrently but consecutive to the sentence for Jones’s prior conviction. The

court also fined Jones $750 on the failure-to-comply charge and suspended a

$315 fine on the voluntary-absence charge. Jones appeals.

       II. Ineffective Assistance of Counsel Claims.

       Jones alleges for the first time on appeal that his plea was not knowing

and voluntary because the court failed to ensure that he understood the minimum
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and maximum mandatory sentences for the crimes to which he pled guilty. See

Iowa R. Crim. P. 2.8(2)(b)(2) (stating the court shall not accept a guilty plea

without first determining the defendant understands the mandatory minimum

punishment and the maximum possible punishment provided by statute).

Because Jones never filed a motion in arrest of judgment challenging his

convictions on this basis, he raises this claim under an ineffective-assistance-of-

counsel rubric, arguing his trial counsel was ineffective in failing to file a motion in

arrest of judgment based on the district court’s failure to ensure his plea was

knowing and voluntary.      See State v. Straw, 709 N.W.2d 128, 132-33 (Iowa

2006) (noting that failure to file a motion in arrest of judgment will ordinarily bar

direct appeal of a defendant’s guilty plea unless that failure resulted from

ineffective assistance of trial counsel).

       We review ineffective-assistance-of-counsel claims de novo. See State v.

Clay, 824 N.W.2d 488, 494 (Iowa 2012). To succeed on a claim of ineffective

assistance, a defendant must show (1) defense counsel failed to perform an

essential duty and (2) prejudice resulted. See State v. Graves, 668 N.W.2d 860,

869 (Iowa 2003). Counsel breaches an essential duty by failing to file a motion in

arrest of judgment to challenge a plea that is not knowingly and voluntarily made.

See Straw, 709 N.W.2d at 136. 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 [pled] guilty and would have insisted on going to trial.”             Id.

(citation omitted). Unless the defendant proves both elements, the ineffective-

assistance claim fails. See Clay, 824 N.W.2d at 495. Although we ordinarily

preserve ineffective-assistance claims for postconviction-relief proceedings, we
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find the record here is adequate to resolve Jones’s claim on direct appeal. See

id. at 494.

       A. Prison sentence.

       Jones first claims the district court failed to inform him that he faced a

fifteen-year prison sentence on the charge of failing to comply with the sex

offender registry requirements, as an habitual offender, but the record belies his

claim. He notes that during the plea colloquy, the court informed him that the

maximum penalty for a class “D” felony if he was not an habitual offender would

be a term of up to five years in prison. However, the court went on to state that

because Jones was pleading guilty to the charge with an habitual offender

sentencing enhancement, “the actual penalty would be up to fifteen years” on the

failure-to-comply charge “with a mandatory minimum of three years.”          When

asked if he understood, Jones responded affirmatively.

       The record shows the court informed Jones of the maximum sentence for

the failure-to-comply charge. Because the court ensured Jones understood he

faced a fifteen-year prison sentence by pleading guilty to the failure-to-comply

charge, counsel had no duty to file a motion in arrest of judgment on this basis.

       B. Surcharge and fine.

       During the plea colloquy, the court also informed Jones that the penalty for

pleading guilty to failure to comply with the sex offender registry requirements

included “a fine up to $7500.” Jones complains the court failed to make him

aware of the mandatory 35% surcharge or the $750 minimum mandatory fine on

the charge. We agree the district court failed to comply with this requirement.

See State v. Fisher, 877 N.W.2d 676, 685-86 (Iowa 2016) (holding the
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mandatory 35% surcharge is a penalty the court must inform the defendant of

under rule 2.8(2)(b)(2)). Although we utilize a substantial compliance standard in

determining whether a plea comports with the requirements of rule 2.8(2)(b)(2),

the question of whether failing to disclose a surcharge—on its own—would meet

the substantial compliance threshold remains undecided. See id. at 682, 686

n.6.

       Even if we assume the court fell short of substantially complying with

2.8(2)(b)(2) by failing to inform Jones of the mandatory surcharge and minimum

fine, Jones is unable to show the requisite prejudice to succeed on his

ineffective-assistance claim. Jones pled guilty knowing he faced fines of up to

$7500 and $1875 on the respective charges. It is not reasonably probable—in

fact virtually inconceivable—that Jones would not have pled guilty to the two

charges and would have insisted on going to trial if he had known he would be

required to pay a 35% surcharge and, at a minimum, a fine of $750. This is

especially true where Jones faced two additional felony charges for failure to

comply with sex offender registry requirements with habitual offender

enhancements—each        carrying   an   additional fifteen-year   sentence   upon

conviction—if he had pled not guilty and insisted on going to trial.

       C. Summary.

       Trial counsel was not ineffective in failing to file a motion in arrest of

judgment following Jones’s guilty pleas. Counsel had no duty to file a motion in

arrest of judgment based on the district court’s failure to inform him of the prison

sentence he faced on the failure-to-comply charge where the record shows the

court addressed the matter during the plea colloquy. To the extent counsel had a
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duty to object to the court’s failure to address the mandatory surcharge and

minimum fine Jones faced, Jones is unable to establish the necessary prejudice.

Accordingly, we affirm.

      AFFIRMED.
