IN THE COURT OF APPEALS OF IOWA
No. 15-1718 Filed December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
TRACY ADAM THOMPSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Following a guilty plea, the defendant appeals from his conviction and
sentence for domestic abuse assault causing bodily injury. CONVICTION
AFFIRMED; SENTENCE VACATED AND REMANDED.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Mullins, P.J., McDonald, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
BLANE, Senior Judge.
Tracy Thompson appeals from his conviction and sentence for domestic
abuse assault causing bodily injury, an aggravated misdemeanor, in violation of
Iowa Code section 708.2A(3)(b) (2015). Thompson pled guilty to the offense.
On appeal, he maintains his trial counsel provided ineffective assistance by
failing to advise him of the surcharge that would be added to any fine that was
imposed and by failing to withdraw Thompson’s guilty plea after, he alleges, the
court did not sentence him in accordance with the plea agreement. Thompson
also challenges his sentence as illegal.
I. Background Facts and Proceedings.
In July 2015, Thompson was charged by trial information with domestic
abuse assault causing bodily injury.
On September 29, 2015 Thompson signed a written guilty plea. The plea
included an agreement that Thompson would be sentenced to two years’
incarceration, with all but 220 days suspended, and he would receive credit for
time already served. Additionally, he would receive a suspended fine of $625
and two years’ probation. The agreement did not mention the mandatory
surcharge that would be applied to the fine. As part of the agreement, if the plea
and sentence were not accepted by the court, Thompson was free to withdraw
the plea. Thompson waived his right to both an in-court colloquy and delayed
sentencing.
On the same date, the court accepted Thompson’s plea and sentenced
him to two years’ imprisonment with all but 220 days suspended, with credit for
time served, as well as probation. As part of the sentence, the court imposed the 3
minimum fine, $625, as well as the thirty-five percent surcharge, $218.75, and
suspended both.
Thompson appeals.
II. Ineffective Assistance.
To prevail on a claim of ineffective assistance of counsel, Thompson must
prove by a preponderance of the evidence (1) his attorney failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We look to the cumulative effect
of counsel’s alleged errors to determine whether Thompson satisfied his burden
regarding the prejudice prong. State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012).
His claim fails if either element is lacking. See Everett v. State, 789 N.W.2d 151,
159 (Iowa 2010). Although we prefer to preserve ineffective-assistance claims
for development of the record, see State v. Tate, 710 N.W.2d 237, 240 (Iowa
2006), the record here is adequate for us to decide the claims on direct appeal.
We review his claim de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
We first consider Thompson’s claim counsel failed to advise him of the
surcharge associated with the charge to which he pled guilty. After the plea in
this case, our supreme court decided State v. Fisher, 877 N.W.2d 676, 686 (Iowa
2016). In Fisher, the court concluded the defendant “should have been informed
of the mandatory minimum and maximum possible fines, including surcharges.”
877 N.W.2d at. 686. However, the court left open the question “whether failure to
disclose the surcharges alone would have meant the plea did not substantially
comply with [Iowa Rule of Criminal Procedure] 2.8(2)(b)(2).” Id. at 686 n.6; see
also State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003) (stating “we employ a 4
substantial compliance standard in determining whether a trial court has
discharged its duty” under rule 2.8(2)). Here, even if we assume counsel’s failure
to inform Thompson of the surcharge violated rule 2.8, Thompson cannot
establish that he suffered prejudice, so his claim must fail.
In order to prove he suffered prejudice, Thompson would have to establish
there is a reasonable probability that, but for counsel’s error, he would not have
pled guilty and instead would have insisted on going to trial. See Straw, 709
N.W.2d at 138. Thompson cannot establish that he would have gone to trial due
to the existence of a surcharge he was never going to be required to pay.
Pursuant to Iowa Code section 911.1(3), “When a fine or forfeiture is suspended
in whole or in part, the court shall reduce the surcharge in proportion to the
amount suspended.” As part of Thompson’s binding plea agreement, the court
was to suspend the entire fine. As such, the court was also required to suspend
the entire surcharge. See Iowa Code § 911.1(3). The court did both.
Similarly, Thompson maintains his counsel was ineffective for not
withdrawing the guilty plea when the court sentenced Thompson to something
other than the agreed-upon conditions—namely, imposing (and then suspending)
the mandatory surcharge, which was not contemplated by the written plea
agreement. Although Thompson’s characterization is technically accurate, in
reality, Thompson was ordered to perform only the obligations to which he
agreed. He did not agree to pay fines or surcharges, and he was ordered to pay
none. Moreover, the suspension of the fines and surcharges was not
conditioned on his probation, so they could not later be re-imposed. We cannot 5
find counsel was ineffective for not moving to withdraw Thompson’s plea in this
circumstance.
III. Illegal Sentence.
Thompson maintains the district court’s imposition of both probation and
220 days’ confinement is illegal. We review claims of illegal sentence for
correction of errors at law. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa
2001).1
Here, Thompson pled guilty to an aggravated misdemeanor, which carries
a maximum penalty of imprisonment of a term not to exceed two years. See
Iowa Code § 903.1(2) (“When a judgment of conviction of an aggravated
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IN THE COURT OF APPEALS OF IOWA
No. 15-1718 Filed December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
TRACY ADAM THOMPSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Following a guilty plea, the defendant appeals from his conviction and
sentence for domestic abuse assault causing bodily injury. CONVICTION
AFFIRMED; SENTENCE VACATED AND REMANDED.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Mullins, P.J., McDonald, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
BLANE, Senior Judge.
Tracy Thompson appeals from his conviction and sentence for domestic
abuse assault causing bodily injury, an aggravated misdemeanor, in violation of
Iowa Code section 708.2A(3)(b) (2015). Thompson pled guilty to the offense.
On appeal, he maintains his trial counsel provided ineffective assistance by
failing to advise him of the surcharge that would be added to any fine that was
imposed and by failing to withdraw Thompson’s guilty plea after, he alleges, the
court did not sentence him in accordance with the plea agreement. Thompson
also challenges his sentence as illegal.
I. Background Facts and Proceedings.
In July 2015, Thompson was charged by trial information with domestic
abuse assault causing bodily injury.
On September 29, 2015 Thompson signed a written guilty plea. The plea
included an agreement that Thompson would be sentenced to two years’
incarceration, with all but 220 days suspended, and he would receive credit for
time already served. Additionally, he would receive a suspended fine of $625
and two years’ probation. The agreement did not mention the mandatory
surcharge that would be applied to the fine. As part of the agreement, if the plea
and sentence were not accepted by the court, Thompson was free to withdraw
the plea. Thompson waived his right to both an in-court colloquy and delayed
sentencing.
On the same date, the court accepted Thompson’s plea and sentenced
him to two years’ imprisonment with all but 220 days suspended, with credit for
time served, as well as probation. As part of the sentence, the court imposed the 3
minimum fine, $625, as well as the thirty-five percent surcharge, $218.75, and
suspended both.
Thompson appeals.
II. Ineffective Assistance.
To prevail on a claim of ineffective assistance of counsel, Thompson must
prove by a preponderance of the evidence (1) his attorney failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We look to the cumulative effect
of counsel’s alleged errors to determine whether Thompson satisfied his burden
regarding the prejudice prong. State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012).
His claim fails if either element is lacking. See Everett v. State, 789 N.W.2d 151,
159 (Iowa 2010). Although we prefer to preserve ineffective-assistance claims
for development of the record, see State v. Tate, 710 N.W.2d 237, 240 (Iowa
2006), the record here is adequate for us to decide the claims on direct appeal.
We review his claim de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
We first consider Thompson’s claim counsel failed to advise him of the
surcharge associated with the charge to which he pled guilty. After the plea in
this case, our supreme court decided State v. Fisher, 877 N.W.2d 676, 686 (Iowa
2016). In Fisher, the court concluded the defendant “should have been informed
of the mandatory minimum and maximum possible fines, including surcharges.”
877 N.W.2d at. 686. However, the court left open the question “whether failure to
disclose the surcharges alone would have meant the plea did not substantially
comply with [Iowa Rule of Criminal Procedure] 2.8(2)(b)(2).” Id. at 686 n.6; see
also State v. Loye, 670 N.W.2d 141, 150 (Iowa 2003) (stating “we employ a 4
substantial compliance standard in determining whether a trial court has
discharged its duty” under rule 2.8(2)). Here, even if we assume counsel’s failure
to inform Thompson of the surcharge violated rule 2.8, Thompson cannot
establish that he suffered prejudice, so his claim must fail.
In order to prove he suffered prejudice, Thompson would have to establish
there is a reasonable probability that, but for counsel’s error, he would not have
pled guilty and instead would have insisted on going to trial. See Straw, 709
N.W.2d at 138. Thompson cannot establish that he would have gone to trial due
to the existence of a surcharge he was never going to be required to pay.
Pursuant to Iowa Code section 911.1(3), “When a fine or forfeiture is suspended
in whole or in part, the court shall reduce the surcharge in proportion to the
amount suspended.” As part of Thompson’s binding plea agreement, the court
was to suspend the entire fine. As such, the court was also required to suspend
the entire surcharge. See Iowa Code § 911.1(3). The court did both.
Similarly, Thompson maintains his counsel was ineffective for not
withdrawing the guilty plea when the court sentenced Thompson to something
other than the agreed-upon conditions—namely, imposing (and then suspending)
the mandatory surcharge, which was not contemplated by the written plea
agreement. Although Thompson’s characterization is technically accurate, in
reality, Thompson was ordered to perform only the obligations to which he
agreed. He did not agree to pay fines or surcharges, and he was ordered to pay
none. Moreover, the suspension of the fines and surcharges was not
conditioned on his probation, so they could not later be re-imposed. We cannot 5
find counsel was ineffective for not moving to withdraw Thompson’s plea in this
circumstance.
III. Illegal Sentence.
Thompson maintains the district court’s imposition of both probation and
220 days’ confinement is illegal. We review claims of illegal sentence for
correction of errors at law. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa
2001).1
Here, Thompson pled guilty to an aggravated misdemeanor, which carries
a maximum penalty of imprisonment of a term not to exceed two years. See
Iowa Code § 903.1(2) (“When a judgment of conviction of an aggravated
misdemeanor is entered against any person and the court imposes a sentence of
confinement for a period of more than one year the term shall be an
indeterminate term.”). The court could then exercise the option to suspend all
but two days of the sentence. See id. § 907.3(3)(a) (stating “the court may
suspend the sentence and place the defendant on probation upon such terms
and conditions as it may require . . . [but] [t]he court shall not suspend . . . the
following sentence[]: [t]he minimum term of two days imposed pursuant to
section 708.2A, subsection 7, paragraph ‘a’”); see also id. § 708.2A(7)(a) (stating
a person convicted of an aggravated misdemeanor of domestic abuse assault
“shall serve a minimum of two days of the sentence imposed by law”). The 1 The State asserts Thompson’s argument is moot because Thompson has already completed the part of the sentence that was not suspended—220 days’ incarceration. However, Thompson has since violated the terms of his probation and has been ordered to serve the original sentence. Nothing in the record before us establishes Thompson has discharged his original sentence, and his claim is therefore not moot. See Rarey v. State, 616 N.W.2d 531, 532 (Iowa 2000) (finding a motion to challenge an illegal sentence is moot only if the sentence has been discharged). 6
statute does not allow the court to suspend all but 220 days. See id. § 907.3
(allowing the court to exercise “any of the options contained in this section,”
including deferring judgment and placing the defendant on probation, deferring
the sentence and assigning the defendant to the judicial district department of
correctional services, or suspending the sentence and placing the defendant on
probation”). “Granting probation and imposing confinement constitute a
contradiction.” State v. Harris, 251 N.W.2d 483, 483 (Iowa 1977). Because the
sentence imposed by the district court is not provided for by statute, it is outside
the authority of the district court do so. See Tindell, 629 N.W.2d at 359 (stating
an illegal sentence is one not authorized by statute). We remand to the district
court for resentencing. See State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000)
(remanding for resentencing when “[t]he plea was valid; only the sentence was
illegal”).
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.