                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1736
                            Filed September 12, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KASSAUN L. BROWN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Jones County, Chad A. Kepros

(guilty plea and deferred judgment) and Paul D. Miller (adjudication of guilt and

sentencing), Judges.

      Kassaun Brown appeals his conviction and sentence after pleading guilty

to one count of assault causing bodily injury. CONVICTION AFFIRMED AND

SENTENCE VACATED IN PART.



      Peter W. Stiefel, Victor, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

         The State charged Kassaun Brown with one count of assault causing bodily

injury. Brown agreed to plead guilty to the charge in exchange for the State’s

agreement to recommend the court defer judgment, impose the $315 civil penalty,

and place Brown on self-supervised probation for one year. He entered a written

guilty plea and requested immediate sentencing. Following an unreported hearing,

the district court accepted Brown’s guilty plea, deferred judgment, and placed

Brown on one year of self-supervised probation. The court also ordered Brown to

pay a $315 civil penalty in addition to surcharges, restitution, fees, and costs. After

Brown violated the terms of his probation, the district court revoked the deferred

judgment and imposed sentence, which included $315 in fines.

         I. Guilty Plea.

         Brown first challenges the adequacy of his guilty plea. The State argues

error is not preserved on direct appeal because Brown failed to file a motion in

arrest of judgment. See Iowa R. Crim. P. 2.24(3)(a) (stating a defendant’s failure

to file a motion in arrest of judgment waives the right to challenge the adequacy of

a guilty plea proceeding on appeal). Brown argues he was not adequately advised

of the necessity of filing a motion in arrest of judgment to preserve error, an

exception to the requirement. See State v. Loye, 670 N.W.2d 141, 149-50 (Iowa

2003).

         Brown’s written guilty plea makes no mention of the requirement of filing a

motion in arrest of judgment to challenge defects in the guilty plea. A second

document that Brown signed on the same day states in part: “I have been advised

of and give up my . . . right to challenge or appeal any irregularities or errors in the
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taking of my guilty plea since such challenge must be raised prior to sentencing by

filing a Motion in Arrest of Judgment.”

       Brown’s failure to file a motion in arrest of judgment does not preclude him

from challenging the defects in the plea proceeding if that failure resulted from

ineffective assistance of counsel. See State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). To succeed on a claim of ineffective assistance of counsel, Brown must

show by a preponderance of the evidence both that his counsel failed an essential

duty and that failure resulted in prejudice. See State v. Harrison, 914 N.W.2d 178,

188 (Iowa 2018).

       Brown argues the district court failed to comply with the requirements of

Iowa Rule of Criminal Procedure 2.8(2)(b). If the court fails to substantially comply

with rule 2.8(2)(b), it renders a defendant’s plea involuntary. See State v. Kress,

636 N.W.2d 12, 21 (Iowa 2001). A breach of an essential duty occurs when

counsel does not bring this failure to comply with rule 2.8(2)(b) to the court’s

attention or file a motion in arrest of judgment. See Straw, 709 N.W.2d at 134.

       Brown claims the court failed to inform him of the maximum possible

punishment for the charge as required by rule 2.8(2)(b)(2).          The maximum

sentence for assault causing serious injury, a serious misdemeanor, is

imprisonment not to exceed one year and a fine of $1875.           See Iowa Code

§§ 708.2(2), 903.1(1)(b) (2016). The written guilty plea form listed the maximum

sentence Brown faced as only “1 yr.” but made no mention of the maximum fine

for the charge. Fines are a form of punishment that the district court must disclose

before accepting a guilty plea. See State v. Weitzel, 905 N.W.2d 397, 407 (Iowa

2017). Therefore, the written guilty plea alone does not satisfy the requirements
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of rule 2.8(2)(b). If the court failed to disclose the maximum possible fine to Brown

in person, his plea was involuntary. See id. at 408. However, because Brown

waived formal reporting of the plea hearing and has not provided us with a

statement of the proceedings as allowed under Iowa Rule of Appellate Procedure

6.806(1), the record is insufficient for us to determine whether the court

substantially complied with the requirements of rule 2.8(2)(b).       See Estes v.

Progressive Classic Inc. Co., 809 N.W.2d 111, 115 (Iowa 2012) (noting that the

appellant has an obligation to provide us with a sufficient record of the error that

forms the basis of the appeal).       Therefore, we preserve Brown’s claim for

postconviction relief. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010)

(holding that a defendant is not required to make any particular record in order to

preserve for postconviction relief an ineffective-assitance claim raised on direct

appeal).

       II. Sentence.

       Brown also challenges the sentence imposed after revocation of his

deferred judgment. He contends the court erred by failing to reduce the amount

of the fine imposed. See Iowa Code § 908.11(5) (“[I]f the court revokes the

probation of a defendant who received a deferred judgment and imposes a fine,

the court shall reduce the amount of the fine by an amount equal to the amount of

the civil penalty previously assessed against the defendant pursuant to section

907.14.”). The State concedes this was error. Accordingly, we vacate this portion

of Brown’s sentence imposing a $315 fine.

       CONVICTION AFFIRMED AND SENTENCE VACATED IN PART.
