                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1718
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRACY ADAM THOMPSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      Following a guilty plea, the defendant appeals from his conviction and

sentence for domestic abuse assault causing bodily injury.           CONVICTION

AFFIRMED; SENTENCE VACATED AND REMANDED.



      Mark C. Smith, State Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Mullins, P.J., McDonald, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BLANE, Senior Judge.

      Tracy Thompson appeals from his conviction and sentence for domestic

abuse assault causing bodily injury, an aggravated misdemeanor, in violation of

Iowa Code section 708.2A(3)(b) (2015). Thompson pled guilty to the offense.

On appeal, he maintains his trial counsel provided ineffective assistance by

failing to advise him of the surcharge that would be added to any fine that was

imposed and by failing to withdraw Thompson’s guilty plea after, he alleges, the

court did not sentence him in accordance with the plea agreement. Thompson

also challenges his sentence as illegal.

I. Background Facts and Proceedings.

      In July 2015, Thompson was charged by trial information with domestic

abuse assault causing bodily injury.

      On September 29, 2015 Thompson signed a written guilty plea. The plea

included an agreement that Thompson would be sentenced to two years’

incarceration, with all but 220 days suspended, and he would receive credit for

time already served. Additionally, he would receive a suspended fine of $625

and two years’ probation.      The agreement did not mention the mandatory

surcharge that would be applied to the fine. As part of the agreement, if the plea

and sentence were not accepted by the court, Thompson was free to withdraw

the plea. Thompson waived his right to both an in-court colloquy and delayed

sentencing.

      On the same date, the court accepted Thompson’s plea and sentenced

him to two years’ imprisonment with all but 220 days suspended, with credit for

time served, as well as probation. As part of the sentence, the court imposed the
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minimum fine, $625, as well as the thirty-five percent surcharge, $218.75, and

suspended both.

      Thompson appeals.

II. Ineffective Assistance.

      To prevail on a claim of ineffective assistance of counsel, Thompson must

prove by a preponderance of the evidence (1) his attorney failed to perform an

essential duty and (2) prejudice resulted from the failure.         See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We look to the cumulative effect

of counsel’s alleged errors to determine whether Thompson satisfied his burden

regarding the prejudice prong. State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012).

His claim fails if either element is lacking. See Everett v. State, 789 N.W.2d 151,

159 (Iowa 2010). Although we prefer to preserve ineffective-assistance claims

for development of the record, see State v. Tate, 710 N.W.2d 237, 240 (Iowa

2006), the record here is adequate for us to decide the claims on direct appeal.

We review his claim de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

      We first consider Thompson’s claim counsel failed to advise him of the

surcharge associated with the charge to which he pled guilty. After the plea in

this case, our supreme court decided State v. Fisher, 877 N.W.2d 676, 686 (Iowa

2016). In Fisher, the court concluded the defendant “should have been informed

of the mandatory minimum and maximum possible fines, including surcharges.”

877 N.W.2d at. 686. However, the court left open the question “whether failure to

disclose the surcharges alone would have meant the plea did not substantially

comply with [Iowa Rule of Criminal Procedure] 2.8(2)(b)(2).” Id. at 686 n.6; see

also State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003) (stating “we employ a
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substantial compliance standard in determining whether a trial court has

discharged its duty” under rule 2.8(2)). Here, even if we assume counsel’s failure

to inform Thompson of the surcharge violated rule 2.8, Thompson cannot

establish that he suffered prejudice, so his claim must fail.

        In order to prove he suffered prejudice, Thompson would have to establish

there is a reasonable probability that, but for counsel’s error, he would not have

pled guilty and instead would have insisted on going to trial. See Straw, 709

N.W.2d at 138. Thompson cannot establish that he would have gone to trial due

to the existence of a surcharge he was never going to be required to pay.

Pursuant to Iowa Code section 911.1(3), “When a fine or forfeiture is suspended

in whole or in part, the court shall reduce the surcharge in proportion to the

amount suspended.”      As part of Thompson’s binding plea agreement, the court

was to suspend the entire fine. As such, the court was also required to suspend

the entire surcharge. See Iowa Code § 911.1(3). The court did both.

        Similarly, Thompson maintains his counsel was ineffective for not

withdrawing the guilty plea when the court sentenced Thompson to something

other than the agreed-upon conditions—namely, imposing (and then suspending)

the mandatory surcharge, which was not contemplated by the written plea

agreement.    Although Thompson’s characterization is technically accurate, in

reality, Thompson was ordered to perform only the obligations to which he

agreed. He did not agree to pay fines or surcharges, and he was ordered to pay

none.     Moreover, the suspension of the fines and surcharges was not

conditioned on his probation, so they could not later be re-imposed. We cannot
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find counsel was ineffective for not moving to withdraw Thompson’s plea in this

circumstance.

III. Illegal Sentence.

       Thompson maintains the district court’s imposition of both probation and

220 days’ confinement is illegal.       We review claims of illegal sentence for

correction of errors at law. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa

2001).1

       Here, Thompson pled guilty to an aggravated misdemeanor, which carries

a maximum penalty of imprisonment of a term not to exceed two years. See

Iowa Code § 903.1(2) (“When a judgment of conviction of an aggravated

misdemeanor is entered against any person and the court imposes a sentence of

confinement for a period of more than one year the term shall be an

indeterminate term.”). The court could then exercise the option to suspend all

but two days of the sentence.       See id. § 907.3(3)(a) (stating “the court may

suspend the sentence and place the defendant on probation upon such terms

and conditions as it may require . . . [but] [t]he court shall not suspend . . . the

following sentence[]: [t]he minimum term of two days imposed pursuant to

section 708.2A, subsection 7, paragraph ‘a’”); see also id. § 708.2A(7)(a) (stating

a person convicted of an aggravated misdemeanor of domestic abuse assault

“shall serve a minimum of two days of the sentence imposed by law”). The
1
  The State asserts Thompson’s argument is moot because Thompson has already
completed the part of the sentence that was not suspended—220 days’ incarceration.
However, Thompson has since violated the terms of his probation and has been ordered
to serve the original sentence. Nothing in the record before us establishes Thompson
has discharged his original sentence, and his claim is therefore not moot. See Rarey v.
State, 616 N.W.2d 531, 532 (Iowa 2000) (finding a motion to challenge an illegal
sentence is moot only if the sentence has been discharged).
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statute does not allow the court to suspend all but 220 days. See id. § 907.3

(allowing the court to exercise “any of the options contained in this section,”

including deferring judgment and placing the defendant on probation, deferring

the sentence and assigning the defendant to the judicial district department of

correctional services, or suspending the sentence and placing the defendant on

probation”).   “Granting probation and imposing confinement constitute a

contradiction.” State v. Harris, 251 N.W.2d 483, 483 (Iowa 1977). Because the

sentence imposed by the district court is not provided for by statute, it is outside

the authority of the district court do so. See Tindell, 629 N.W.2d at 359 (stating

an illegal sentence is one not authorized by statute). We remand to the district

court for resentencing. See State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000)

(remanding for resentencing when “[t]he plea was valid; only the sentence was

illegal”).

        CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.
