                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0181
                            Filed November 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ORLANDO MAURICE TERRELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Henry W. Latham II

(plea) and Stuart P. Werling (sentencing), Judges.



      Orlando Terrell appeals following his pleas of guilty to two counts of

delivery of controlled substances. AFFIRMED.




      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

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

Attorney General, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

        In exchange for dismissal of habitual offender sentencing enhancements, 1

Orlando Terrell pled guilty on two counts of delivery of a controlled substance

(marijuana), a class “D” felony, in violation of Iowa Code section 124.401(1)(d)

(2015). Terrell now seeks reversal of his convictions contending he was not fully

informed of the thirty-five percent surcharge nor “any other monetary

assessments to be added to the fine.” We affirm.

        The written plea agreement noted Terrell would be responsible for

restitution of “buy money” in the amount of $200, a $10 fee for the Drug

Education Assistance Program, and a $125 law enforcement initiative surcharge.

It also noted Terrell’s driving privileges would be suspended.

        During the plea colloquy, the district court informed Terrell the charges

carried a maximum five-year term of imprisonment and a fine “between $750 to a

maximum fine of $7500.” The court did not mention a surcharge. But the court

did state the written plea agreement “further provides the penalties associated

with these charges.” The court also noted the “concurrence of the court to the

agreement is a condition to acceptance of the plea.”         The court then asked

Terrell if “that is your understanding of the plea,” to which Terrell responded, “yes

sir.”

        The court accepted the defendant’s guilty pleas on both counts, and

informed Terrell,



1
 The district court noted during the plea proceeding that the State’s agreement not to
pursue the enhancement decreased the possible sentence Terrell faced from ninety
years to ten years.
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        [A]ny challenges to the pleas of guilty which you have just entered
        based on any alleged defects or mistakes you believe were made
        in these plea proceedings must be raised in what is called a Motion
        in Arrest of Judgment. Failure to raise them in that kind of motion
        will prevent you from asserting them on appeal.

Terrell did not file a motion in arrest of judgment.

        At sentencing the State noted the applicable surcharges.      The district

court sentenced Terrell to concurrent five-year terms of incarceration and

imposed the minimum fine of $750 and “the [thirty-five] percent surcharge on the

court costs.” The court suspended the obligation to repay attorney fees and the

fine.

        Terrell now appeals, arguing his guilty pleas were unknowing and

involuntary because the district court did not mention the surcharge during the

plea proceeding. Because Terrell was informed about the necessity of a filing a

motion in arrest of judgment, he has waived the objections to the plea

proceeding. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009) (“It is well

established that a defendant’s guilty plea waives all defenses and objections

which are not intrinsic to the plea.”); cf. State v. Fisher, 877 N.W.2d 676, 681

(Iowa 2016) (finding no error preservation hurdle where defendant was not

informed of the necessity of motion to arrest of judgment).

        “A defendant can, however, challenge the validity of his guilty plea by

proving the advice he received from counsel in connection with the plea was not

within the range of competence demanded of attorneys in criminal cases,” i.e.,

that plea counsel was ineffective. Carroll, 767 N.W.2d at 642. To establish his

claim of ineffective assistance of counsel, Terrell must demonstrate (1) his plea

counsel failed to perform an essential duty, and (2) this failure resulted in
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prejudice.   See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).           “[T]he

defendant claiming ineffective assistance of counsel with respect to a guilty plea

must prove that, but for counsel’s breach, there is a reasonable probability he or

she would have insisted on going to trial.” State v. Tate, 710 N.W.2d 237, 240

(Iowa 2006) (citing Straw, 709 N.W.2d at 133).

      Although the record before us is not adequate to determine what advice

counsel provided Terrell with respect to the thirty-five percent surcharge or

whether Terrell would claim he would have insisted on going to trial had he

known of the surcharge—here, no reasonable person would have turned down

the plea agreement because of the thirty-five percent surcharge. Moreover, the

fine was suspended, and “[w]hen a fine . . . is suspended in whole or part,” the

surcharge is suspended in the same proportion. Iowa Code § 911.1(3). Thus,

Terrell was not required to pay the thirty-five percent surcharge because the fine

was entirely suspended.     Accordingly, we find no possibility of prejudice or

probability Terrell would have insisted on a trial under these facts. See Tate, 710

N.W.2d at 241. We therefore affirm.

      AFFIRMED.
