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driving while his license was revoked.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). 5
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
Free access — add to your briefcase to read the full text and ask questions with AI
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). 5
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 6
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.