IN THE COURT OF APPEALS OF IOWA
No. 20-1258 Filed April 28, 2021
ANDRE HORTON, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Tom Reidel,
Judge.
Andre Horton appeals the dismissal of his application for postconviction
relief. AFFIRMED AND REMANDED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., Mullins, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
MULLINS, Judge.
In November 2018, Andre Horton was charged by trial information with
second-degree theft as a habitual offender. On January 25, 2019, pursuant to a
plea agreement, he entered a written guilty plea to the lesser-included offense of
operating a vehicle without the owner’s consent. The agreement called for an
indeterminate term of imprisonment not to exceed two years, a “fine of $625
(suspended),”1 and provided Horton would “be liable for all applicable surcharges
and court costs.” In his written guilty plea, Horton acknowledged, “I will have to
pay statutory surcharges . . . .” The agreement further provided the plea was
conditioned on the “concurrence by the court,” allowing Horton to withdraw his plea
if the court rejected the agreement. See Iowa R. Crim. P. 2.10(4). The court
imposed the agreed sentence the same day, which included a criminal penalty
surcharge, a law enforcement initiative surcharge (LEIS) pursuant to Iowa Code
sections 911.1 and 911.3 (2018),2 and a suspended fine.
On February 18, Horton filed a motion to withdraw his plea and a letter,
alleging his plea was not entered voluntarily and intelligently. He also claimed he
did not waive his right to in-person sentencing. At a hearing on the matter in March,
Horton alleged his attorney misadvised him on how much time he would likely
serve in prison. The court treated Horton’s filings as a motion in arrest of judgment
1 The notation “(suspended)” is a handwritten addition to the typed memorandum of plea agreement, initialed, apparently by the assistant county attorney and the defense attorney. 2 In 2020, section 911.1 was amended and section 911.3 was repealed. 2020
Iowa Acts ch. 1074, §§ 18, 22. 3
and denied it as untimely because judgment had already been entered. See Iowa
R. Crim. P. 2.24(3)(b).
In July, Horton filed an application for postconviction relief (PCR), in which
he generally argued his plea was not entered voluntarily and intelligently, his due
process rights were violated, and his counsel was ineffective. He added various
other claims in an amended application. The matter proceeded to trial in
September 2020.3 Ultimately, the court denied Horton’s PCR application. This
appeal followed.
On appeal, Horton argues PCR “counsel provided ineffective assistance in
not challenging plea counsel’s failure to address the lack of information regarding
the mandatory surcharges applicable to the offense.” He argues the record
establishes he was not properly advised the mandatory criminal penalty surcharge
and the LEIS would be imposed as part of his sentence following his guilty plea,
his plea was therefore not entered voluntarily and intelligently, and PCR counsel
was ineffective in failing to argue plea counsel was ineffective on this point.
“Generally, a criminal defendant waives all defenses and objections to the
criminal proceedings by pleading guilty, including claims of ineffective assistance
of counsel,” but an exception to this rule exists when there are pre-plea
“irregularities intrinsic to the plea—irregularities that bear on the knowing and
voluntary nature of the plea.” Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).
True, the voluntary nature of a guilty plea can be negated when the defendant fails
3 Horton did not appear for trial. He had apparently been released from prison by this point, but his counsel noted he had been unable to contact him for several months. 4
to understand the maximum possible punishment of the crime, including
surcharges. See State v. Weitzel, 905 N.W.2d 397, 407–08 (Iowa 2017). In order
to establish a claim of ineffective assistance of plea counsel and, by extension,
PCR counsel, Horton must prove counsel breached an essential duty and
prejudice resulted. See Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). When
challenging a guilty plea through a claim “of ineffective assistance of counsel, the
[applicant] satisfies the prejudice prong if he or she can show ‘there is a reasonable
probability that, but for counsel’s error he or she would not have pleaded guilty and
would have insisted on going to trial.’” Weitzel, 905 N.W.2d at 402 (quoting State
v. Straw, 709 N.W.2d 128, 138 (Iowa 2006)).
Horton’s brief claims he was not informed he would have to pay the criminal
penalty surcharge and the LEIS, thus leaving him inadequately informed when he
pled guilty. He claims he was prejudiced by his counsel’s failure to so inform him.
He also claims his PCR counsel prejudiced him by failing to inform him to raise the
issue in these proceedings. The State’s brief assumes Horton was ordered to pay
a total of $343.75 in surcharges but argues he cannot show prejudice that such
amount would have caused him to reject the favorable plea agreement and
proceed to trial.
At the time of sentencing in the present case, the applicable criminal penalty
surcharge was thirty-five percent of the fine imposed. Iowa Code § 911.1(1).
Section 911.1(3) provided: “When a fine . . . is suspended in whole or in part, the
court shall reduce the surcharge in proportion to the amount suspended.” The
agreed fine as imposed by the court in this case was $625.00, suspended, and the
court imposed the criminal penalty surcharge in the amount of $218.75. The court 5
also ordered the LEIS of $125.00 per section 911.3, for total surcharges of
$343.75. Upon the court’s suspension of the whole fine, the $218.75 should have
been reduced in proportion to the amount suspended, leaving only the $125 LEIS
to be imposed at the time of sentencing.
In this case, the district court ordered the fine, criminal penalty surcharge,
and LEIS. The court ordered: “Fine is suspended due to incarceration.” It made
no mention of suspending the criminal penalty surcharge of $218.75 or otherwise
reducing it in proportion to the suspended fine, and because the parties’ briefing is
based on the assumption the penalty was imposed, we must assume that to be
the case.
In the exercise of our discretion, and notwithstanding that neither party
raised the issue, in order to properly address the alleged prejudice in this case, we
choose to address whether the imposition of the criminal penalty surcharge
resulted in an illegal sentence.
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IN THE COURT OF APPEALS OF IOWA
No. 20-1258 Filed April 28, 2021
ANDRE HORTON, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Tom Reidel,
Judge.
Andre Horton appeals the dismissal of his application for postconviction
relief. AFFIRMED AND REMANDED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., Mullins, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
MULLINS, Judge.
In November 2018, Andre Horton was charged by trial information with
second-degree theft as a habitual offender. On January 25, 2019, pursuant to a
plea agreement, he entered a written guilty plea to the lesser-included offense of
operating a vehicle without the owner’s consent. The agreement called for an
indeterminate term of imprisonment not to exceed two years, a “fine of $625
(suspended),”1 and provided Horton would “be liable for all applicable surcharges
and court costs.” In his written guilty plea, Horton acknowledged, “I will have to
pay statutory surcharges . . . .” The agreement further provided the plea was
conditioned on the “concurrence by the court,” allowing Horton to withdraw his plea
if the court rejected the agreement. See Iowa R. Crim. P. 2.10(4). The court
imposed the agreed sentence the same day, which included a criminal penalty
surcharge, a law enforcement initiative surcharge (LEIS) pursuant to Iowa Code
sections 911.1 and 911.3 (2018),2 and a suspended fine.
On February 18, Horton filed a motion to withdraw his plea and a letter,
alleging his plea was not entered voluntarily and intelligently. He also claimed he
did not waive his right to in-person sentencing. At a hearing on the matter in March,
Horton alleged his attorney misadvised him on how much time he would likely
serve in prison. The court treated Horton’s filings as a motion in arrest of judgment
1 The notation “(suspended)” is a handwritten addition to the typed memorandum of plea agreement, initialed, apparently by the assistant county attorney and the defense attorney. 2 In 2020, section 911.1 was amended and section 911.3 was repealed. 2020
Iowa Acts ch. 1074, §§ 18, 22. 3
and denied it as untimely because judgment had already been entered. See Iowa
R. Crim. P. 2.24(3)(b).
In July, Horton filed an application for postconviction relief (PCR), in which
he generally argued his plea was not entered voluntarily and intelligently, his due
process rights were violated, and his counsel was ineffective. He added various
other claims in an amended application. The matter proceeded to trial in
September 2020.3 Ultimately, the court denied Horton’s PCR application. This
appeal followed.
On appeal, Horton argues PCR “counsel provided ineffective assistance in
not challenging plea counsel’s failure to address the lack of information regarding
the mandatory surcharges applicable to the offense.” He argues the record
establishes he was not properly advised the mandatory criminal penalty surcharge
and the LEIS would be imposed as part of his sentence following his guilty plea,
his plea was therefore not entered voluntarily and intelligently, and PCR counsel
was ineffective in failing to argue plea counsel was ineffective on this point.
“Generally, a criminal defendant waives all defenses and objections to the
criminal proceedings by pleading guilty, including claims of ineffective assistance
of counsel,” but an exception to this rule exists when there are pre-plea
“irregularities intrinsic to the plea—irregularities that bear on the knowing and
voluntary nature of the plea.” Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).
True, the voluntary nature of a guilty plea can be negated when the defendant fails
3 Horton did not appear for trial. He had apparently been released from prison by this point, but his counsel noted he had been unable to contact him for several months. 4
to understand the maximum possible punishment of the crime, including
surcharges. See State v. Weitzel, 905 N.W.2d 397, 407–08 (Iowa 2017). In order
to establish a claim of ineffective assistance of plea counsel and, by extension,
PCR counsel, Horton must prove counsel breached an essential duty and
prejudice resulted. See Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). When
challenging a guilty plea through a claim “of ineffective assistance of counsel, the
[applicant] satisfies the prejudice prong if he or she can show ‘there is a reasonable
probability that, but for counsel’s error he or she would not have pleaded guilty and
would have insisted on going to trial.’” Weitzel, 905 N.W.2d at 402 (quoting State
v. Straw, 709 N.W.2d 128, 138 (Iowa 2006)).
Horton’s brief claims he was not informed he would have to pay the criminal
penalty surcharge and the LEIS, thus leaving him inadequately informed when he
pled guilty. He claims he was prejudiced by his counsel’s failure to so inform him.
He also claims his PCR counsel prejudiced him by failing to inform him to raise the
issue in these proceedings. The State’s brief assumes Horton was ordered to pay
a total of $343.75 in surcharges but argues he cannot show prejudice that such
amount would have caused him to reject the favorable plea agreement and
proceed to trial.
At the time of sentencing in the present case, the applicable criminal penalty
surcharge was thirty-five percent of the fine imposed. Iowa Code § 911.1(1).
Section 911.1(3) provided: “When a fine . . . is suspended in whole or in part, the
court shall reduce the surcharge in proportion to the amount suspended.” The
agreed fine as imposed by the court in this case was $625.00, suspended, and the
court imposed the criminal penalty surcharge in the amount of $218.75. The court 5
also ordered the LEIS of $125.00 per section 911.3, for total surcharges of
$343.75. Upon the court’s suspension of the whole fine, the $218.75 should have
been reduced in proportion to the amount suspended, leaving only the $125 LEIS
to be imposed at the time of sentencing.
In this case, the district court ordered the fine, criminal penalty surcharge,
and LEIS. The court ordered: “Fine is suspended due to incarceration.” It made
no mention of suspending the criminal penalty surcharge of $218.75 or otherwise
reducing it in proportion to the suspended fine, and because the parties’ briefing is
based on the assumption the penalty was imposed, we must assume that to be
the case.
In the exercise of our discretion, and notwithstanding that neither party
raised the issue, in order to properly address the alleged prejudice in this case, we
choose to address whether the imposition of the criminal penalty surcharge
resulted in an illegal sentence. PCR is authorized when a sentence is contrary to
the laws of this state or exceeds the maximum authorized by law. Id. § 822.2(1)(a),
(c). “The court may correct an illegal sentence at any time.” Veal v. State, 779
N.W.2d 63, 64 (Iowa 2010) (quoting Iowa R. Crim. P. 2.24(5)(a)). Here, the
sentencing court suspended Horton’s fine in its entirety but still imposed a criminal
penalty surcharge. Section 911.1(3), which governs the criminal penalty
surcharge, mandates, “When a fine . . . is suspended in whole or in part, the court
shall reduce the surcharge in proportion to the amount suspended.” So imposition
of the criminal penalty surcharge was illegal. We choose to correct the illegal
sentence now. Cf. State v. Wieneke, No. 20-0126, 2021 WL 219222, at *1–2 (Iowa 6
Jan. 22, 2021) (stating, in a direct appeal from a criminal case, “[b]ecause the
illegality in this case is clear, we exercise our discretion to correct it now”).
Section 911.1(3) does not tell us the manner in which the surcharge should
be reduced, it only tells us to reduce it “in proportion to the amount suspended.”
We must read section 911.1(3) in pari materia4 with other sentencing provisions.
See State v. Chana, 476 N.W.2d 38, 39 (Iowa 1991). Surcharges, such as the
criminal penalty surcharge, are punitive and mandatory, and there is “no
meaningful difference between a fine and a built-in surcharge on a fine.” State v.
Fisher, 877 N.W.2d 676, 686 (Iowa 2016); see also Iowa Code § 911.1(1). A
sentencing court may impose a fine, confinement, or both, “and suspend the
execution of the sentence or any part of it as provided in chapter 907.” Iowa Code
§ 901.5(3). In this case, the entire fine was suspended. We conclude that when
read in pari materia with other applicable sentencing provisions, the proper
procedure for reducing the criminal penalty surcharge in proportion5 to the fine
suspended is to suspend the entire surcharge.
After suspension of the criminal penalty surcharge, the only alleged
prejudice remaining is the $125.00 LEIS. Horton was facing a charge of second-
degree theft, a class “D” felony, as a habitual offender, punishable by up to fifteen
4 See In Pari Materia, Black’s Law Dictionary (11th ed. 2019) (“It is a canon of construction that statutes that are in pari materia may be construed together, so that inconsistencies in one statute may be resolved by looking at another statute on the same subject.”). 5 “Proportion” is alternately defined as “harmonious relation of parts to each other
or to the whole,” “to adjust (a part or thing) in size relative to other parts or things,” or “to make the parts harmonious or symmetrical.” Proportion, Merriam Webster, https://www.merriam-webster.com/dictionary/proportion (last visited March 30, 2021). 7
years of imprisonment, with a mandatory minimum of three years. See Iowa Code
§§ 714.2(2), 902.8, .9(1)(c). In exchange for Horton’s guilty plea, the State agreed
to amend the charge to operating a motor vehicle without the owner’s consent, an
aggravated misdemeanor punishable by no more than two years in prison. See
id. §§ 714.7, 903.1(2). Horton had the burden to prove by a preponderance of the
evidence that he was prejudiced by failing to be specifically informed of the
$125.00 LEIS. See State v. Clay, 824 N.W.2d 488, 496 (Iowa 2012). “In
determining whether this standard has been met, we must consider the totality of
the evidence . . . .” Id. (citation omitted). Horton did not testify at his PCR hearing.
Even assuming Horton did not know about the $125.00 LEIS, given the significant
sentencing concession, he failed to produce sufficient evidence to convince us
there is a reasonable probability that being made aware of the meager $125.00
surcharge would have resulted in him insisting on proceeding to trial. So we find
no prejudice, and we reject Horton’s ineffective-assistance claim.
We affirm the denial of Horton’s PCR application, but we remand the matter
to the district court to enter an order suspending the criminal penalty surcharge,
thus reducing the criminal penalty surcharge in proportion to the suspended fine.
AFFIRMED AND REMANDED.