                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1957
                           Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS LAVERN GASTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      Nicholas Gaston appeals his conviction following a guilty plea.

AFFIRMED.




      Thomas M. McIntee, Waterloo, for appellant.

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

General, for appellee.




      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

          Pursuant to a plea agreement, Nicholas Gaston pled guilty to the charges

of trespass causing injury, fourth-degree criminal mischief, and assault causing

bodily injury, all serious misdemeanors.1              Gaston appealed his convictions

following the imposition of sentence.              He contends his guilty plea was not

voluntary and intelligent because (1) the district court improperly influenced him

into accepting the State’s plea offer and his trial counsel was ineffective in failing

to shield him from the court’s influence and (2) the district court failed to advise

him at the plea proceeding of the statutory surcharge contained in Iowa Code

section 911.1 and his trial counsel was ineffective in allowing the error. See Iowa

R. Crim. P. 2.8(2)(b) (disallowing the acceptance of guilty pleas unless they are

“made voluntarily and intelligently”).

          At the end of the guilty plea colloquy, the district court advised Gaston of

his right to file a motion in arrest of judgment if he wanted to challenge the guilty

plea for any reason. Gaston told the court he understood that right and expressly

waived that right in order to proceed to immediate sentencing. By failing to file a

motion in arrest of judgment, Gaston did not preserve error on either of his plea-

related arguments. See id. r. 2.24(3) (“A 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.”); see also id.

r. 2.8(2)(d) (requiring courts to advise defendants of the motion-in-arrest-of-

judgment obligation); State v. Meron, 675 N.W.2d 537, 540–41 (Iowa 2004). We

next consider both arguments under an ineffective-assistance-of-counsel rubric,

1
    See Iowa Code §§ 708.1, .2(2), 716.1, .6(1)(a)(1), .7(2)(a), .8(2) (2016).
                                        3


claims Gaston makes which are not subject to our traditional error-preservation

rules. State v. Fountain, 786 N.W.2d 260, 262–63 (Iowa 2010); see State v.

Brooks, 555 N.W.2d 446, 448 (Iowa 1996).

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

McNeal, 897 N.W.2d 697, 703 (Iowa 2017). Such claims require a showing, by a

preponderance of the evidence, both that counsel breached an essential duty

and prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984).

“‘[T]he court may consider either the prejudice prong or the breach of duty first,

and failure to find either one will preclude relief.’” McNeal, 897 N.W.2d at 703

(alteration in original) (quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa

2015)). If we find the record inadequate to decide the claims on direct appeal,

we will affirm the conviction but must preserve the claims for possible

postconviction-relief proceedings. State v. Johnson, 784 N.W.2d 192, 198 (Iowa

2010); State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). “Only in rare cases will

the trial record alone be sufficient to resolve the claim on direct appeal.” Straw,

709 N.W.2d at 133.

       Gaston was originally charged with first-degree burglary, a class “B”

felony, and fourth-degree criminal mischief, a serious misdemeanor. See Iowa

Code §§ 713.1, .3(1)(c), 716.1, .6(1)(a)(1). Prior to the commencement of trial,

Gaston rejected the State’s plea offer, the acceptance of which would have

reduced count one to second-degree burglary. On the third day of trial, the State

made a new offer with two options, one of which required Gaston to plead guilty

to trespass causing injury, fourth-degree criminal mischief, and assault causing

bodily injury.   After Gaston rejected both options, the court made multiple
                                          4


statements urging Gaston to strongly consider one of the plea options. Gaston

restated his desire to reject the offer and continue with the trial, which the court

accepted. Following a brief recess, Gaston’s attorney advised the court Gaston

had decided to accept the State’s plea offer. Gaston ultimately pled guilty to the

amended charges and requested immediate sentencing.                 During the plea

proceeding, Gaston was advised he “would be fined $315 for each offense, plus

surcharges,” and he responded in the affirmative when the court asked him if he

understood he would be responsible for “payment of any related surcharges.” He

was not advised that one of the surcharges would amount to thirty-five percent of

the fines on each count. See Iowa Code § 911.1(1) (requiring the imposition of a

thirty-five percent surcharge in all matters in which a court imposes a fine for a

violation of state law); Iowa R. Crim. P. 2.8(2)(b)(2) (requiring court to inform the

defendant of the “mandatory minimum punishment” and the “maximum possible

punishment” before accepting a guilty plea); State v. Fisher, 877 N.W.2d 676,

686 (Iowa 2016) (concluding a defendant must be advised in a guilty plea

proceeding “of the mandatory minimum and maximum possible fines, including

surcharges”).

       Gaston’s appellate brief is replete with arguments concerning why his

counsel’s alleged failures to correct the court’s supposed errors amounted to

breaches of duty. He complains his right to due process was violated and makes

a claim he did not make a voluntary, intelligent, and knowing plea. He implies

that but for counsel’s failure to object to the district court’s improper influence and

failure to advise him of an applicable surcharge, he would not have entered a

guilty plea and would have instead proceeded to verdict. See Straw, 709 N.W.2d
                                         5


at 138 (“[I]n order to satisfy the prejudice requirement, the defendant must show

that there is a reasonable probability that, but for counsel’s errors, he or she

would not have pleaded guilty and would have insisted on going to trial.”). He

provides us with no specific reasoning as to why he would have proceeded

through trial had these alleged errors not been allowed by his counsel.           A

conclusory claim that a defendant would have proceeded with trial if an error had

not occurred “is not a sufficient assertion of prejudice.”    State v. Myers, 653

N.W.2d 574, 579 (Iowa 2002).

       In any event, we find the record inadequate to decide whether Gaston was

prejudiced in relation to either of his claims on direct appeal. With regard to

Gaston’s claim counsel was ineffective in failing to shield him from the court’s

improper influence, there is nothing in the record to indicate what discussions

occurred between Gaston and his counsel prior to his final decision to accept the

State’s plea offer. “Such evidence could be a significant part of our prejudice

analysis.” Straw, 709 N.W.2d at 138. In relation to Gaston’s claim counsel was

ineffective for not objecting to the court’s failure to advise him of the statutory

surcharge contained in Iowa Code section 911.1, the State insists there is no

reasonable probability Gaston would have insisted on proceeding with trial had a

specific advisement of the surcharge amounts been made.            We maintain a

course we recently clarified, that the “circumstances underlying . . . the

defendant’s willingness to go to trial are facts that should be permitted to be more

fully developed.” State v. Delacy, No. 16-0827, 2017 WL 1735684, at *4 (Iowa

Ct. App. May 3, 2017); see also State v. Iddings, No. 15-1597, 2017 WL

2464049, at *5 (Iowa Ct. App. June 7, 2017); State v. Bascom, No. 15-2173,
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2017 WL 1733115, at *1 (Iowa Ct. App. May 3, 2017); State v. Taylor, No. 16-

0762, 2017 WL 1735682, at *1–2 (Iowa Ct. App. May 3, 2017).

       Because we find the record inadequate to address Gaston’s claims on

direct appeal, we affirm his conviction and preserve his ineffective-assistance

claims for potential postconviction-relief proceedings.

       AFFIRMED.
