                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0431
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ULISES TOMAS MORALES GARCIA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (North) County, Emily S. Dean,

District Associate Judge.



      The defendant appeals from his guilty plea and sentence for assault on a

correctional officer causing bodily injury. AFFIRMED.



      William R. Monroe of the Law Office of William Monroe, Burlington, for

appellant.

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

Attorney General, for appellee.




      Considered by Doyle, P.J., Bower, 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.

       Ulises Morales-Garcia appeals from his guilty plea and sentence for

assault on a correctional officer causing bodily injury. Morales-Garcia maintains

trial counsel was ineffective.    Specifically, he maintains counsel failed to

adequately describe the plea agreement to the court regarding the State’s

recommendation to waive the fine and his guilty plea was not knowing and

voluntary as a result.

I. Background Facts and Proceedings.

       On July 10, 2014, Morales-Garcia was charged by trial information with

assault on a correctional officer causing bodily injury, an aggravated

misdemeanor, in violation of Iowa Code section 708.3A(3) (2013).

       On February 17, 2015, Morales-Garcia filed a written waiver of rights and

guilty plea. The written plea outlined the plea agreement as providing for a term

of incarceration not to exceed two years to run consecutive with Morales-Garcia’s

other prison term and a $625 fine. Morales-Garcia initialed next to the terms of

the plea agreement. Additionally, he initialed next to the paragraph outlining the

possible sentencing options, which included the sentence, “In an aggravated

misdemeanor, the fine could range from $625 to $6250.” Lastly, he initialed next

to the sentence, written in bold, stating, “PLEA AGREEMENT: I am agreeable to

the foregoing Plea Agreement, contained within the table of page 1. I understand

the Court is not bound by it, and may impose the maximum sentence in this

case.” Attached to the filed guilty plea was an email from the county attorney,

stating he “would be willing to recommend suspension of the fine if the Defendant

will take the 2 year sentence, consecutive to his current sentence.”
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      The district court entered judgment and sentence two days later. Morales-

Garcia was sentenced to a two-year term of incarceration consecutive to his

current sentence and ordered to pay the $625 fine. He appeals.

II. Standard of Review.

      A defendant may raise an ineffective-assistance claim on direct appeal if

he has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). If

we determine the record is adequate, we may decide the claim. Id. We review

claims for ineffective assistance of counsel de novo. Id. This is our standard

because such claims have their basis in the Sixth Amendment to the United

States Constitution. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

III. Discussion.

      Morales-Garcia maintains he received ineffective assistance from counsel

because the plea agreement was not accurately represented in his written guilty

plea; he maintains it should have shown the fine was “supposed to be

suspended.” He maintains that because he was not adequately informed of the

potential penalties, his guilty plea was not knowing and voluntary.

      To prevail on a claim of ineffective assistance of counsel, Morales-Garcia

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 measure counsel's

performance against an objective standard of reasonableness under prevailing

professional norms. Clay, 824 N.W.2d at 495. There is a presumption counsel

performed competently. Id. Prejudice exists where the defendant proves by a
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reasonable probability that, but for counsel's unprofessional error, the result of

the proceeding would have been different. Id. at 496. Morales-Garcia’s 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),

here, the record is adequate for us to decide the claim on direct appeal.

       Morales-Garcia makes several arguments under the general heading that

counsel was ineffective for allowing him to enter a guilty plea that was not

knowing and voluntary. His first claim of error is that his guilty plea was not a

valid waiver of his rights because he was not adequately informed of the potential

penalties. See State v. Kress, 636 N.W.2d 12, 21 (Iowa 2011) (“A guilty plea

results in a waiver of several constitutional rights. For the waiver to be valid,

there must be an intentional relinquishment of known rights. To enter a guilty

plea voluntarily and intelligently means the defendant has a full understanding of

the consequences of a plea.”). Insofar as he is claiming that he was generally

unaware of the possible consequences, the guilty plea clearly laid out the

possible minimum and maximum punishments for the crime, as required by Iowa

Rule of Criminal Procedure 2.8(2)(b)(2) (requiring the court, before accepting a

guilty plea, to determine if the defendant understands “[t]he mandatory minimum

punishment, if any, and the maximum possible punishment provided by the

statute defining the offense to which the plea is offered”). If his argument is that

he was unaware he could or would receive a fine as part of the penalty, the

written plea again belies his assertion, as it states that for “an aggravated

misdemeanor, the fine could range from $625 to $6250.”              Morales-Garcia
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initialed next to the bolded statement indicating that the court was not bound by

any agreement1 and had the discretion to choose a sentence, including the fine,

within the parameters outlined above.

       Additionally, Morales-Garcia maintains the district court abrogated its duty

of ensuring his plea was knowing and voluntary; he complains the district court

“relied entirely upon defense counsel to cover the requirements set out in Iowa

Rule of Criminal Procedure 2.8(2)(b).” Iowa Rule of Criminal Procedure 2.8(2)(b)

allows the court, “in its discretion and with the approval the defendant, [to] waive

the above procedures in a plea of guilty to a serious or aggravated

misdemeanor.” As part of the written waiver of rights and guilty plea, Morales-

Garcia initialed the statement that he was waiving his right to be present in court,

to be heard in court, and to hear the rationale for sentencing. Morales-Garcia

cannot now complain that the district court relied on his written plea and waiver of

rights when he previously agreed the court could do so.

        Finally, Morales-Garcia maintains the court was not adequately informed

of the plea agreement. We agree with Morales-Garcia that the terms of the plea

agreement were not correctly represented to the court in the written document.

Whether the prosecutor or defense counsel completed the form, it was done so

incorrectly. Defense counsel had a duty to ensure Morales-Garcia received the

benefit of the deal he struck. See State v. Horness, 600 N.W.2d 294, 300 (Iowa

1999) (holding defense counsel has a duty to ensure the State complies with the

1
  It is undisputed the plea agreement was not entered into pursuant to Iowa Rule of
Criminal Procedure 2.10(2). See Iowa R. Crim P. 2.10(2) (“[I[f the agreement is
conditioned upon concurrence of the court in the charging or sentencing concession
made by the prosecuting attorney, the court may accept or reject the agreement, or may
defer its decision as to acceptance or rejection until receipt of a presentence report.”).
                                             6


plea agreement it made because “no possible advantage could flow to the

defendant from counsel’s failure” to do so). However, Morales-Garcia cannot

establish he suffered prejudice as a result. The email from the prosecutor to

defense counsel stating the prosecutor would recommend suspending the fine

was also attached to the guilty plea form and available to the district court when

imposing sentence. And even if the court did not consider it, the court was not

bound by the agreement or the prosecutor’s recommendation, as Morales-Garcia

had been informed and had agreed to when he submitted his guilty plea.

       Because Morales-Garcia cannot establish that he suffered prejudice, his

claim of ineffective assistance fails. See Everett v. State, 789 N.W.2d 151, 159

(Iowa 2010). We affirm his conviction and sentence.2

       AFFIRMED.




2
  We note that the district court did not make a specific finding that Morales-Garcia’s
decision to plead guilty was knowingly, voluntarily, and intelligently made. However, we
are unconcerned by the lack of a specific finding. In State v. Meron, 675 N.W.2d 537,
542 (Iowa 2004), our supreme court indicated that the trial court has a duty to ensure the
plea is knowingly and voluntarily made and in order to do so, the court “is required to
make specific inquiry into a number of matters set for in the [rule 2.8(2)(b)].” A court
may make the necessary inquiry either through an oral colloquy or through a written
plea. See State v. Kirchoff, 452 N.W.2d 801, 805–06 (Iowa 1990) (“[The defendant] will
not be allowed to plead anew merely because he was informed of the matters listed in
rule [2.8(2)(b)] in writing instead of orally.”). Here, the written plea included each of the
rights Morales-Garcia would waive by entering his guilty plea and he initialed next to the
information before ultimately signing the plea.
