                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1529
                              Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PAUL MARK KINGERY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      Paul Kingery appeals the convictions entered following his Alford pleas to

two counts of lascivious acts with a child.          CONVICTIONS AFFIRMED,

SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED

FOR ENTRY OF CORRECTED SENTENCING ORDER.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                              2


MULLINS, Judge.

       Paul Kingery appeals the convictions entered following his Alford1 pleas to

two counts of lascivious acts with a child.

I.     Background Facts and Proceedings

       On February 10, 2017, Kingery was charged by trial information with sexual

abuse in the second degree, a class “B” felony. The charge was based on acts

committed between January 1, 2012 and December 31, 2015, against C.K., a

person under the age of twelve.

       The parties subsequently reached a plea agreement under which Kingery

would enter Alford pleas to the amended charges of two counts of lascivious acts

with a child, class “C” felonies, in return for the State’s agreement to not file any

charges relating to a separate complainant and to recommend an indeterminate

term of incarceration not to exceed ten years on each count, to run consecutively.

The agreement further provided there would be no mandatory minimum term of

incarceration and Kingery would be immediately eligible for parole.

       At the plea hearing on July 31, 2017, Kingery advised the court he agreed

to the terms of the plea agreement, stated his decision to enter Alford pleas was a

voluntary choice, and acknowledged he would receive a benefit by entering the

Alford pleas. Kingery acknowledged the minutes of evidence provided strong

evidence of actual guilt for the original charge. The court found the minutes




1
  See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of crime
may voluntarily, knowingly, and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in the acts constituting
the crime.”).
                                          3


provided a sufficient factual basis for both counts of lascivious acts with a child,

accepted Kingery’s plea, and set the matter for sentencing on September 15.

       On September 7, Kingery filed a pro-se document in which he challenged

the facts and legal definition of a sex act and asked the court to continue the trial.

In his motion, Kingery stated the plea agreement was not in his best interests and

asserted he only entered the pleas because of his concerns about C.K. and he did

not want to rip the family apart. He also claimed he was not asked for any

supporting witnesses by his defense counsel and listed several people who could

provide testimony relating to skin care and the type of massages he performs.

Kingery included definitions for pubes, genitals, vulva, breasts, arouse, lascivious,

lewd, and lustful, without reference to the source of the definitions. The court

directed the motion would be considered at the time of sentencing.

       At the sentencing hearing on September 15, the court interpreted the letter

as a motion for a new trial or motion in arrest of judgment and denied it, finding the

plea was made knowingly, intelligently, and voluntarily and the grounds listed in

the letter were insufficient to withdraw the plea or grant a new trial. The court then

entered judgment and imposed the sentence in accordance with the plea

agreement. Kingery appeals.

II.    Analysis

       A.     Factual Bases

       Kingery claims his Alford pleas lacked factual bases and the court therefore

erred in accepting the pleas. Kingery specifically argues the information contained

in the minutes of evidence was insufficient to support a finding of the requisite

intent or contact with the requisite bodily location of the offense.
                                          4


       In determining whether factual bases support Kingery’s pleas, we consider

the entire record, as a whole, to determine if the elements of the offenses have

been satisfied. See State v. Ortiz, 789 N.W.2d 761, 767–68 (Iowa 2010). “A

factual basis can be discerned from four sources: (1) inquiry of the defendant, (2)

inquiry of the prosecutor, (3) examination of the presentence report, and (4)

minutes of evidence.” Id. at 768. Moreover, “the record does not need to show

the totality of the evidence necessary to support a guilty conviction, but it need only

demonstrate facts that support the offense.” Id.

       Lascivious acts with a child can be committed in several ways.             The

alternative most pertinent to the facts present here provides:

              1. It is unlawful for any person sixteen years of age or older to
       perform any of the following acts with a child with or without the
       child’s consent unless married to each other, for the purpose of
       arousing or satisfying the sexual desires of either of them:
              a. Fondle or touch the pubes or genitals of a child.

Iowa Code § 709.8(1)(a) (2015).2

       Kingery and his counsel both filed appellate briefs claiming his pleas lacked

sufficient factual bases. Appellate counsel challenged the element concerning the

fondling of the pubes or genitals of a child, claiming the allegations that Kingery

touched the victim’s “vaginal area,” “genital area,” and breasts were insufficient to

establish the element. In Kingery’s pro-se brief, he also challenges the fondling

element, as well as the element requiring that the purpose of the act be to arouse

the sexual desires of the actor or the child. He argues he had no sexual motive in




2
 As noted, the charges were based on acts committed between January 1, 2012 and
December 31, 2015. The statutory prohibition contained in section 709.8(1)(a) was the
same throughout this entire timeframe.
                                            5


providing massages to C.K. and had provided therapeutic massages and

reflexology to the feet, back, and hands of other people to alleviate leg cramps and

other ailments.

        If Kingery’s purported motion in arrest of judgment was insufficient to raise

the factual bases issues, our review on appeal would be for correction of errors at

law.   See State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016). If the motion

sufficiently raised a challenge to the factual bases for the guilty pleas, then our

review would be to determine whether the district court abused its discretion in

denying the motion. See State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008). An

error of law constitutes an abuse of discretion. Id. Upon our review of the minutes

of evidence and the trial information, we agree the claims of massages to C.K.’s

breasts are insufficient as a matter of law to provide factual bases for pleas, as

breasts do not fall under the definition of pubes or genitals. State v. Baldwin, 291

N.W.2d 337, 340 (Iowa 1980).

       However, it “is clear that the term ‘genitalia’ broadly describes and includes

many organs associated with the reproduction apparatus.” State v. Martens, 569

N.W.2d 482, 486 (Iowa 1997). This includes the vulva, which is the externally

visible genital organs of the female, “including . . . [the] vestibule of the vagina, . . .

and vaginal orifice.”     Id. (citation omitted).    A child can “lack the technical

knowledge to accurately describe parts of his or her body.” Id. at 487 (citation

omitted). When a “child has sufficiently communicated to the trier of fact that the

touching occurred to a part of the body within the definition of [the statute], the

evidence will be sufficient to support a conviction regardless of the unsophisticated

language that the child uses.” Id. We find the minutes of evidence of C.K., thirteen
                                        6


at the time the minutes were filed, in which she identified Kingery touched her

vaginal area on the skin and massaged the area with lotion, sufficiently

communicated Kingery touched her genitalia. This is sufficient to formulate factual

bases for the contact element of the offenses.

      By the plain language of the statute, “intent is a necessary element of the

offense” of lascivious acts with a child. See State v. Haines, 259 N.W.2d 806, 811

(Iowa 1977). “The requisite intent to arouse or gratify the sexual desire of any

person can be inferred from an accused’s conduct, remarks, and all surrounding

circumstances.” State v. Jorgensen, 758 N.W.2d 830, 837 (Iowa 2008).

      [R]elevant circumstances include but are not limited to the
      relationship between the defendant and the victim; whether anyone
      else was present; the length of the contact; the purposefulness of the
      contact; whether there was a legitimate, nonsexual purpose for the
      contact; where and when the contact took place; and the conduct of
      the defendant and victim before and after the contact.

State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994).

      The minutes of evidence clearly state that from January 1, 2012 through

December 31, 2015, C.K. would go to her grandmother’s house and, while there,

Kingery would give her massages on the sofa in the living room. No other adults

were in the room at the time of these massages. During the massages, Kingery

would begin at C.K.’s feet, move up her leg until he touched her vaginal area on

the skin and then massage C.K.’s vaginal area. On other occasions, he would

massage her shoulders or back and then move his hands to her breasts. C.K. felt

uncomfortable and told Kingery to stop, but he did not. The minutes of evidence

indicated Kingery touched and massaged C.K.’s vaginal area, suggesting it was

not an accidental touch. He did so at a time when no other adult was in the room
                                          7


and when asked to stop, he did not. No nonsexual purpose is discernible from the

record for Kingery to touch or massage C.K.’s vaginal area. We find there is

substantial evidence in the record to support a finding that Kingery had the

requisite intent to arouse or satisfy the sexual desires of himself or C.K. Therefore,

we conclude facts support the offenses and factual bases existed for both of

Kingery’s pleas.

       B.     Surcharge

       1.     Involuntary Plea

       Next, Kingery claims his Alford pleas were unknowing, involuntary, and in

violation of Iowa Rule of Criminal Procedure 2.8(2)(b), because he was not

properly advised about applicable surcharges. We review “challenges to guilty

pleas for correction of errors at law.” Fisher, 877 N.W.2d at 680.

       Courts must substantially comply with rule 2.8(2)(b) when accepting a

defendant’s plea by providing certain information to a defendant, including the

mandatory minimum punishment and maximum possible punishment provided by

the statute for the offense the defendant is pleading guilty to. See id. at 682.

Surcharges are punitive and must be disclosed before accepting a guilty plea. Id.

at 685–86. “[A]ny failure to recite the proper surcharge(s) is reversible error on

direct appeal if the defendant was not precluded from raising the issue on error-

preservation grounds.” State v. Iddings, No. 15-1597, 2017 WL 2464049, at *5

(Iowa Ct. App. June 7, 2017).

       The State concedes the court did not advise Kingery of the criminal-penalty

or sex-abuse-victim surcharges. To challenge his guilty plea on appeal, Kingery

was required to file a motion in arrest of judgment. Iowa R. Crim. P. 2.24(3)(a) (“A
                                             8


defendant’s failure to challenge the adequacy of a guilty plea proceeding by motion

in arrest of judgment shall preclude the defendant’s right to assert such challenge

on appeal.”). This rule does not apply when the court fails to advise defendants

as required by rule 2.8(2)(d). State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004).

       Kingery filed a pro-se letter, which the court determined was a motion in

arrest of judgment. Said motion did not, however, make any claims of error

regarding the surcharges or inadequacy of the court’s advisory. By failing to raise

the surcharge issue in his motion, Kingery has not preserved error and is therefore

unable to challenge the validity of his plea based on this issue on the merits.

Anticipating this result, Kingery seeks to avoid the preservation issue by claiming

the district court failed to sufficiently advise him of the preclusive effect of the failure

to raise particular challenges to his plea by way of a motion in arrest of judgment.

       Iowa Rule of Criminal Procedure 2.8(2)(d) requires the court to “inform the

defendant that any challenges to a plea of guilty based on alleged defects in the

plea proceedings must be raised in a motion in arrest of judgment and that failure

to so raise such challenges shall preclude the right to assert them on appeal.”

       Like rule 2.8(2)(b), substantial compliance with rule 2.8(2)(d) is required.

Fisher, 877 N.W.2d at 680. The district court explained:

              THE COURT: Mr. Kingery, I now have to inform you of a very
       important right that you have.
              Now that I’ve accepted your two Alford pleas to these two
       charges, the only way that you can now attempt to withdraw them or
       to challenge them as being no good, illegal, or in violation of any of
       your rights is to first file with this Court what is called a “motion in
       arrest of judgment.”
              It’s a fancy legal term. It’s very simple. All you have to do—
       and you can ask your attorney to do it also or you may do it—is file
       with the Court in writing a piece of paper which states to the Court
       that you wish to withdraw your pleas which you’ve done here today
                                           9


       and give me a reason for it. Either you didn’t understand something,
       there’s been a violation of your rights, it wasn’t voluntary or knowingly
       made, whatever the reason.
              There’s a time limit. You have to file that no later than 45 days
       from today and no less than five days prior to the date for sentencing.
       So if you wish to challenge these pleas as done today, you would
       have to file that motion in arrest of judgment on or before September
       10, 2017.
              If you don’t, you are forever barred to challenge or attempt to
       withdraw these pleas of guilty at any time—these Alford pleas, I’m
       sorry—at any time in any court in the future.
              Do you understand this?
              THE DEFENDANT: Yes, sir, I do.
              THE COURT: Any questions?
              THE DEFENDANT: No, sir, I do not.

Though the court did not use the term “appeal,” the court’s use of the language

“forever barred to challenge or attempt to withdraw these . . . Alford pleas . . . at

any time in any court in the future” sufficiently conveyed and substantially complied

with the court’s duty to inform Kingery of the effect failing to file a motion in arrest

of judgment would have on his appeal rights. See State v. Straw, 709 N.W.2d 128,

132 (Iowa 2006).

       Because the court substantially complied with its duty under rule 2.8(2)(d)

to inform Kingery and Kingery failed to address the surcharge issue in his motion

in arrest of judgment, Kingery is barred from a direct appeal of his conviction based

upon the alleged surcharge error.

       2.     Illegal Sentence—Ex Post Facto

       Kingery’s final claim is that the district court imposed an illegal sentence

when it assessed two $100 surcharges pursuant to Iowa Code section 911.2B,

contending the court’s imposition of the surcharges violated ex post facto

protections under the United States and Iowa Constitutions.            He argues the

conduct underlying the charges occurred prior to the effective date of the section.
                                         10


       “A claim that a sentence violates the Ex Post Facto Clauses of the United

States and Iowa Constitutions is . . . a claim that the sentence is illegal.” State v.

Lopez, 907 N.W.2d 112, 122 (Iowa 2018). “Illegal sentences may be challenged

at any time.” State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010). “We generally

review claims that a sentence is illegal for correction of errors at law; however,

when a claim challenges the constitutionality of a sentence, we review it de novo.”

Lopez, 907 N.W.2d at 116.

       Both the United States and Iowa Constitutions forbid ex post facto

punishment and prohibit legislation that applies “a new punitive measure to

conduct already committed” or proscribes a punishment for a crime more

burdensome after the crime is committed.         Id. at 122 (citation omitted).    As

discussed, surcharges are punitive and “the imposition of the newly enacted

[surcharge for sexual abuse] increased the penalty for that offense.” See id. at

123.

       Section 911.2B went into effect July 1, 2015. See 2015 Iowa Acts ch. 96,

§§ 15, 17.    The conduct for which Kingery was charged occurred sometime

between January 1, 2012 and December 31, 2015.                The record does not

specifically identify the exact dates of the offenses and whether the conduct

occurred before or after the effective date of the section. If there is uncertainty as

to whether conduct occurred before or after the effective date of a law, we are to

presume the conduct occurred before the enactment of that law. Lathrop, 781

N.W.2d at 298. Therefore, as the State concedes, the court’s imposition of the

section 911.2B surcharge violated the ex post facto clauses of the United States

and Iowa Constitutions.
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         “When a portion of a defendant’s sentence violates the Ex Post Facto

Clause, we generally vacate that portion of the district court’s sentence and

remand for the entry of a corrected sentence.” Lopez, 907 N.W.2d at 123. “If,

however, we cannot vacate a discrete feature of the sentence, we vacate the entire

sentence and remand to the district court for resentencing.” Id. In this case, we

are able to vacate the discrete portion of Kingery’s sentence imposing the

surcharge pursuant to section 911.2B and remand to the district court only for entry

of a corrected sentence.3

         CONVICTIONS AFFIRMED, SENTENCE AFFIRMED IN PART AND

VACATED IN PART, AND REMANDED FOR ENTRY OF A CORRECTED

SENTENCING ORDER.




3
    See State v. McLachlan, 880 N.W.2d 513, 516 n.5 (Iowa Ct. App. 2016).
