                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0762
                               Filed May 3, 2017

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARQUIS TAYLOR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,

District Associate Judge.



      A defendant challenges his guilty plea to harassment in the second

degree. AFFIRMED.



      Jesse A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Kristin A. Guddall (until

withdrawal) and Kevin R. Cmelik, Assistant Attorneys General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                             2


TABOR, Judge.

       Marquis Taylor appeals the judgment and sentence following his guilty

plea to harassment in the second degree.                Taylor asks us to vacate his

conviction because the plea-taking court did not tell him about the mandatory

surcharge on his fine. For the reasons described below, Taylor may pursue this

issue only by alleging his plea counsel was ineffective in failing to file a motion in

arrest of judgment.      Under that framework, we affirm Taylor’s conviction but

preserve his claim counsel was ineffective for possible postconviction-relief

proceedings.

       The State charged Taylor with second-degree harassment, a serious

misdemeanor, in violation of Iowa Code section 708.7(3) (2015), based on a

threat of physical harm Taylor voiced to police officers after being arrested for

driving while his license was revoked. Taylor signed a petition to plead guilty that

included information about the potential incarceration (up to one year in jail), as

well as the minimum ($315) and maximum ($1875) fines for serious

misdemeanor offenses.1 See Iowa Code § 903.1(1)(b).

       The district court accepted Taylor’s plea on March 10, 2016, and set

sentencing for April 4. At sentencing, the court entered judgment; imposed a

one-year jail term, suspending all but seven days; and ordered Taylor to pay the

minimum fine of “$315 plus surcharge.” That surcharge, mandated under Iowa

Code section 911.1(1), is the focus of this appeal.



1
  A plea-offer form filed by the State shortly after Taylor’s arrest included a check box for
“[ ] Fine of $ ___ + 35% surcharge,” but that information was not mentioned during the
guilty-plea proceedings.
                                           3


       We first examine whether Taylor may directly challenge his guilty plea or

may do so only through a complaint about his counsel’s performance. Generally,

“[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.” Iowa R. Crim. P. 2.24(3)(a). But this rule does not apply

to defendants who are not properly advised under rule 2.8(2)(d) that failure to file

a timely motion in arrest of judgment extinguishes their right to assert the guilty-

plea challenge on appeal. State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016)

(noting “substantial compliance” with rule 2.8(2)(d) will suffice).

       Here, the district court substantially complied with rule 2.8(2)(d).     The

court spoke with Taylor in person about filing a motion in arrest of judgment if “for

whatever reason” the judge should not have accepted the guilty plea; the court

explained that by missing the deadline Taylor would “give up [his] right to file that

motion, and [he] could not take back [his] guilty plea.” See State v. Taylor, 301

N.W.2d 692, 692–93 (Iowa 1981) (finding sufficient compliance when defendant

was told if he requested immediate sentencing his right to “question the legality

of his plea of guilty” would be “gone”).

       Taylor did not file a motion in arrest of judgment. Accordingly, he is barred

from a direct appeal of his conviction.        Iowa R. Crim. P. 2.24(3)(a); State v.

Straw, 709 N.W.2d 128, 132–33 (Iowa 2006). Contemplating this bar, Taylor

raises an alternative argument that the failure to file a motion in arrest of

judgment resulted from ineffective assistance of counsel.             See Straw, 709

N.W.2d at 133. That alternative argument sets the framework for our analysis.
                                           4

       We review claims of ineffective assistance of counsel de novo. See id.

To prevail, Taylor must prove by a preponderance of the evidence (1) his plea

counsel failed to perform an essential duty and (2) the breach of duty resulted in

prejudice. See Strickland v. Washington, 466 U.S. 668, 687−88 (1984). For

guilty pleas, the prejudice element “focuses on whether counsel’s constitutionally

ineffective performance affected the outcome of the plea process.”               Hill v.

Lockhart, 474 U.S. 52, 59 (1985).              Consequently, Taylor must show “a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” See Straw, 709 N.W.2d at 135–

36 (citation omitted).

       In Fisher, our supreme court decided defendants pleading guilty should be

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

surcharges.”2    877 N.W.2d at 686.         The Fisher court saw “no meaningful

difference between a fine and a built-in surcharge on a fine.” Id. But because

the court remanded Fisher’s case on a separate basis, it did not decide “whether

failure to disclose the surcharges alone would have meant the plea did not

substantially comply with rule 2.8(2)(b)(2).”       Id. at 686 n.6 (holding “actual

compliance with rule 2.8(2)(b)(2) requires disclosure of all applicable chapter 911

surcharges”).




2
  The Fisher opinion was issued on April 8, 2016—after the guilty plea and sentencing
hearings occurred in the instant case. Fisher suggested guilty-plea forms should reflect
the minimum fine is not $315 but actually $560.25 when the surcharges are tacked on.
See 877 N.W.2d at 686 (including 35% criminal penalty surcharge, as well as the $10
drug abuse resistance education (DARE) surcharge and the $125 law enforcement
initiative surcharge).
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       Taylor argues on appeal that competent trial counsel should have known

the plea form was deficient and the district court failed to inform Taylor regarding

the mandatory surcharges. He contends he was prejudiced “because his lack of

information on the consequences of the guilty plea caused him to be ordered to

pay a sizable fine and surcharge without proper notice.” The State responds that

Taylor has not established a breach of duty or prejudice in connection with the

plea process despite no express mention of the 35% surcharge.             The State

alternatively argues we should preserve the claim for postconviction relief.

       We embrace that alternative argument.        When a defendant raises an

ineffective-assistance-of-counsel claim “on direct appeal from the criminal

proceedings, we may decide the record is adequate to decide the claim or may

choose to preserve the claim for postconviction proceedings.”           Straw, 709

N.W.2d at 133 (discussing options under Iowa Code section 814.7(3)).               A

defendant who raises an ineffective-assistance claim on direct appeal is not

required to make any particular record to warrant preservation for postconviction

relief. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). If the defendant

requests that we resolve the claim on direct appeal, as Taylor does here, it is for

us to decide if the record is adequate to do so. See id. If we decide the record is

not adequate, we must preserve the issue for a postconviction-relief proceeding,

regardless of our view of the claim’s potential viability. Id. In the context of this

guilty plea, we need a more substantial record than the one before us to decipher

if Taylor was prejudiced by counsel’s performance. See Straw, 709 N.W.2d at

138 (observing “only rare cases will the defendant be able to muster enough

evidence to prove prejudice without a postconviction relief hearing”); see also
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State v. Bascom, No. 15-2173, slip op. at 2–3 (Iowa Ct. App. Mar. 8, 2017)

(preserving claim when court ordered defendant “to pay a fine of $3125, ‘plus the

appropriate surcharge’”). Accordingly, we affirm Taylor’s conviction but preserve

for any postconviction action his claim of ineffective assistance of counsel arising

out of the guilty-plea proceedings.

       AFFIRMED.
