December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
TRACY ADAM THOMPSON, Defendant-Appellant.
from the Iowa District Court for Black Hawk County, Joel A.
a guilty plea, the defendant appeals from his conviction and
sentence for domestic abuse assault causing bodily injury.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.
C. Smith, State Appellate Defender, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Mullins, P.J., McDonald, J., and Blane, S.J.
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.
Background Facts and Proceedings.
2015, Thompson was charged by trial information with domestic
abuse assault causing bodily injury.
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.
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
minimum fine, $625, as well as the thirty-five percent
surcharge, $218.75, and suspended both.
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).
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 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.
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.
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 find counsel was ineffective for not moving to
withdraw Thompson's plea in this circumstance.
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
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 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").
AFFIRMED; SENTENCE VACATED AND REMANDED.
[*]Senior judge assigned by order
pursuant to Iowa Code section 602.9206 (2015).
 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