January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
DERRICK GLENN SMITH JR., Defendant-Appellant.
from the Iowa District Court for Polk County, Jeffrey D.
defendant challenges his convictions and sentences.
CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kevin Cmelik, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
State charged defendant Derrick Smith Jr. with two counts of
attempted murder, two counts of willful injury causing
serious injury, and two counts of intimidation with a
dangerous weapon. The charges arose out of a shooting on the
east side of Des Moines on the morning of June 8, 2015. Smith
was driving his girlfriend's sport utility vehicle. His
passenger and codefendant, Jamon Allen Jr. fired a handgun
from the passenger side of the vehicle at Michi Palmer and
Willie Taylor, striking and seriously injuring both of them.
One of the errant bullets struck the residence of Johnetta
Daye. Taylor and Palmer were visiting Daye. Danielle Looney,
who was sleeping at Daye's residence at the time of the
shooting, awoke to the gunfire. The matter came on for trial
in October 2015. On the third day of trial, Smith and Allen
pleaded guilty by way of Alford v. North Carolina,
400 U.S. 25, 37 (1970), to two counts of willful injury
causing serious bodily injury, in violation of Iowa Code
section 708.4(1) (2015), and intimidation with a dangerous
weapon, in violation of Iowa Code section 708.6. The State
agreed to dismiss the remaining counts. Smith now challenges
his convictions and his sentences.
asserts three claims of ineffective assistance of counsel
under the Sixth and Fourteenth Amendments to the United
States Constitution and article I, section 10 of the Iowa
Constitution. Smith makes a generic assertion Iowa courts
conduct a more stringent review of claims arising under the
Iowa Constitution, but Smith provides no substantive guidance
regarding the more stringent standard to be applied and no
citation to any legal authority providing any substantive
guidance regarding the more stringent standard to be applied.
In the absence of any substantive guidance or authority, we
decline to apply a different standard to Smith's Iowa
claims. See State v. Edouard, 854 N.W.2d 421, 452
(Iowa 2014) (Appel, J., concurring specially) ("Where a
party raises issues under the Iowa Constitution and the
Federal Constitution, but does not suggest a different
standard be applied under the Iowa Constitution, we generally
apply the federal standard."), overruled on other
grounds by Alcala v. Marriott Int'l, Inc., 880
N.W.2d 699, 708 (Iowa 2016); State v. Bohl, No.
15-1546, 2016 WL 4543957, at *2 (Iowa Ct. App. Aug. 31, 2016)
("The right question, is not whether a state's
guarantee is the same as or broader than its federal
counterpart as interpreted by the Supreme Court. The right
question is what the state's guarantee means and how it
applies to the case at hand.").
establish a claim of ineffective assistance of counsel, Smith
must demonstrate "(1) his trial counsel failed to
perform an essential duty, and (2) this failure resulted in
prejudice." State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). To establish counsel failed to perform an
essential duty, Smith must establish "the attorney
performed below the standard demanded of a reasonably
competent attorney." Ledezma v. State, 626
N.W.2d 134, 142 (Iowa 2001). The attorney's performance
is measured against "prevailing professional norms,
" and it is presumed the attorney performed competently.
Id. "A claim of ineffective assistance is more
likely to prevail when counsel lacked diligence as opposed to
the exercise of judgment." State v. Polly, 657
N.W.2d 462, 465 (Iowa 2003). To establish prejudice, the
defendant must show trial counsel's allegedly deficient
performance caused a complete "breakdown in the
adversary process" such that the defendant's
conviction is unreliable. Strickland v. Washington,
466 U.S. 668, 687 (1984). This requires a showing "there
is a 'reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'" Collins v. State,
588 N.W.2d 399, 402 (Iowa 1998) (citation omitted). In the
context of a guilty plea, "to satisfy the prejudice
requirement, the defendant must show that there is a
reasonable probability that, but for counsel's errors, he
or she would not have pleaded guilty and would have insisted
on going to trial." Straw, 709 N.W.2d at 138.
first claim is his guilty plea was not voluntarily and
intelligently made because the district court failed to
inform him of the nature of the charges to which he was
pleading guilty. Specifically, Smith claims the district
court failed to inform Smith of each and every element of the
charges and his counsel was deficient in allowing the plea to
go forward. As a general rule, a defendant's guilty plea
waives all defenses and objections to a criminal proceeding
except those intrinsic to the plea. See Wise v.
State, 708 N.W.2d 66, 70 (Iowa 2006). The
defendant's waiver includes claims of ineffective
assistance of counsel except those bearing on the knowing and
voluntary nature of the plea. See State v. LaRue,
619 N.W.2d 395, 398 (Iowa 2000). This is because
"[f]undamental due process requires a guilty plea be
voluntary and intelligent." State v. Speed, 573
N.W.2d 594, 597 (Iowa 1998) (citation omitted). Counsel thus
breaches an essential duty resulting in prejudice when a
defendant's guilty plea is not voluntarily and
intelligently made. See Meeker v. State, No.
12-2292, 2014 WL 955988, at *2 (Iowa Ct. App. Mar. 12, 2014).
ensure the defendant's guilty plea is voluntarily and
intelligently made, the district court must inform the
defendant of his constitutional rights, the nature of the
charges, and the penal consequences of the guilty plea.
See Iowa R. Crim. P. 2.8(2)(b). With respect to the
specific challenge here, the district court should explain
each of the elements of the offense or offenses to which the
defendant is pleading guilty. See Brainard v. State,
222 N.W.2d 711, 714 (Iowa 1974). Although strict compliance
is ideal, substantial compliance is acceptable. See State
v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). Substantial
compliance depends on the particular facts and circumstances
of the case. See State v. Victor, 310 N.W.2d 201,
204 (Iowa 1981). "Lack of explanation of the elements of
an offense is not reversible error if, under all the
circumstances, it is apparent the accused understood the
conclude the district court substantially complied with Rule
2.8 and the defendant understood the nature of the charges.
First, the names of the offenses themselves are sufficiently
self-explanatory to inform the defendant of the nature of the
charges. See id.; State v. Sanders, No.
03-1734, 2004 WL 2169748, at *3 (Iowa Ct. App. Sept. 29,
2004) (concluding the "name of the crime itself"
can satisfy the requirement the defendant understand the
nature of the charge). Second, prior to trial, the district
court held several pretrial conferences in the presence of
the defendant, including an extensive pretrial conference
regarding the plea offers made to the defendant. The nature
of the charges and the penal consequences for the same were
discussed extensively. Third, at the beginning of trial, in
the presence of the defendant, the prosecutor read the trial
information setting forth the elements of the offenses.
See State v. Cook, No. 00-1560, 2001 WL 804063, at
*2 (Iowa Ct. App. July 18, 2001) ("Where the trial
information charges the offense in language containing the
elements, no additional explanation may be required.").
Fourth, the defendant sat through three days of trial,
including the State's opening statement in which the
elements of the offenses and the relevant evidence were again
discussed. Fifth, the defendant's counsel stated he
explained to the defendant the nature of the charges and the
minutes of testimony. Sixth, the defendant admitted his
counsel explained to him the minutes of testimony. See
State v. Readus, No. 03-0642, 2004 WL 239928, at *1
(Iowa Ct. App. Feb. 11, 2004) (holding there was substantial
compliance where the defendant read the trial information and
minutes of testimony). The minutes "explicitly described
in simple and easy-to-understand terms how the crime was
committed." State v. Oberbreckling, 235 N.W.2d
121, 122 (Iowa 1975). Seventh, the defendant also agreed
there would be sufficient evidence for a jury to return a
guilty verdict. Under the circumstances, as in
Oberbreckling, "[i]t cannot be seriously
contended defendant did not understand the nature of the
crime." Id.; see State v. Catlett, No.
14-0500, 2015 WL 408071, at *3 (Iowa Ct. App. Jan. 28, 2015)
(holding defendant understand the nature of the charges where
the "names of the offenses alone are descriptive
enough" and the defendant agreed "the minutes of
evidence for each charge were accurate").
second and third claims are related. Smith contends his
guilty plea to intimidation with a deadly weapon was not
supported by a factual basis in the record. Specifically, he
challenges the factual basis for the element the defendant
placed "occupants or people" in reasonable
apprehension of serious injury. See Iowa Code §
708.6; State v. Ross, 845 N.W.2d 692, 699 (Iowa
2014). Smith also contends his plea was not voluntary and
intelligent because of the lack of a factual basis. The
supreme court has explained the distinction between the two
The first strand, rooted in the right to effective assistance
of counsel under the Sixth Amendment, requires competent
advice. It is a responsibility of defense counsel to ensure
that a client does not plead guilty to a charge for which
there is no objective factual basis. It follows that no
advice to plead guilty would be considered competent absent a
showing of a factual basis to support the crimes to which the
accused has elected to plead guilty. Where counsel falls
short, a Sixth Amendment violation is present. The
determination of whether there is a factual basis in the
record to support the charge to which the defendant seeks to
plead guilty is an objective inquiry that has nothing to do
with the state of mind of the accused, but everything to do
with the state of the record evidence.
The second strand, based on the Due Process Clauses of the
Fifth and Fourteenth Amendments, requires the trial court to
determine the defendant made a knowing and intelligent choice
to waive constitutional rights, including the right to a jury
trial, the right to protection against self-incrimination,
the right to confront witnesses, and the right to plead
guilty to the underlying crime. Even overwhelming objective
evidence of guilt that amply satisfies the factual-basis
requirement of Rule 11 will not save a conviction when the
subjective requirements of due process have not been met.
When a Fifth Amendment due process voluntariness claim based
on a lack of factual basis is asserted, federal courts look
on the record developed at the plea colloquy for evidence of
the subjective state of mind of the defendant. Reference to
the minutes of testimony is irrelevant for the purposes of
the voluntariness inquiry if the record does not show that
the minutes were reviewed and accepted as true on the record
by the defendant.
State v. Finney, 834 N.W.2d 46, 55 (Iowa 2013)
first address the objective inquiry. A court must ensure a
guilty plea is supported by a factual basis in the record.
See Iowa R. Crim. P. 2.8(2)(b). This is true for
Alford pleas as well. See State v.
Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Counsel
breaches an essential duty by allowing a defendant to plead
guilty where a factual basis does not exist, and prejudice is
inherent. See id.
record evidence shows there was a factual basis for
Smith's guilty plea to intimidation with a dangerous
weapon. The homeowner, Daye, testified she experienced the
shots as loud pops but she was not sufficiently startled to
undertake more than a cursory investigation before going back
to sleep. In contrast, her guest, Danielle Looney, testified
she "jumped up" in response to the gunfire. Smith
relies on State v. Rivas, No. 03-0511, 2004 WL
57660, at *4 (Iowa Ct. App. Jan. 14, 2004), but that case is
distinguishable. In that case, a witness, like Daye,
"had no idea a gun was being fired or that he was
potentially in danger." Rivas, 2004 WL 57660,
at *4. However, here, Looney was startled by the gunfire,
which she recognized as gunfire, and was concerned for her
safety. Looney's testimony was sufficient to support a
factual basis for this charge. Cf. id. at *3
(finding other witness's testimony he was awakened by a
noise he believed to be thunder, learned it was gunfire, and
was "scared" as a result sufficient to satisfy
address the subjective inquiry, and we conclude Smith's
claim his plea was not voluntary and intelligent also fails.
During the plea colloquy, Smith stated the minutes of
testimony were explained to him. Smith was present when Daye
and Looney testified regarding their reaction to the gunfire.
Smith also acknowledged to the district court his guilty plea
was voluntary and based on the evidence presented at trial
and the additional evidence that would have been presented
based on the minutes of testimony:
THE COURT: Based upon the advice you received from your
attorney, seeing all the information that the State has
presented so far at trial and will present at trial, is it
your own decision, your voluntary decision to plead guilty?
DEFENDANT SMITH: Yes, sir.
the circumstances, we cannot conclude the defendant is
entitled to relief on this claim or his other claims
challenging his convictions. See, e.g., State v.
Williamson, No. 15-0303, 2016 WL 4384484, at *2 (Iowa
Ct. App. Aug. 17, 2016) (holding facts in record and
admissions in guilty plea were sufficient to establish the
defendant had a subjective understanding of the charge);
Taylor v. Hill, No. 3:10-cv-00105-AC, 2012 WL
7070447, at *7 (D. Or. Nov. 28, 2012) (stating there was no
credible evidence "it would have been beneficial to
reject the mid-trial plea offer and proceed with a trial he
was clearly losing").
contends his sentence is illegal. An illegal sentence may be
corrected at any time and is not subject to normal rules of
error preservation. See State v. Bruegger, 773
N.W.2d 862, 872 (Iowa 2009). Challenges to the legality of a
sentence are reviewed for errors at law. See State v.
Sisk, 577 N.W.2d 414, 416 (Iowa 1998).
result of Smith's guilty plea, the State dismissed the
three remaining counts in the trial information. Smith was
ordered to "pay restitution if restitution is due on any
of the dismissed counts/cases" and "pay court costs
on any dismissed counts/cases." The general rule is
"that only such fees and costs attributable to the
charge on which a criminal defendant is convicted should be
recoverable under a restitution" unless the plea
agreement provides to the contrary. State v. Petrie,
478 N.W.2d 620, 622 (Iowa 1991) (holding "the provisions
of Iowa Code section 815.13 and section 910.2 clearly
require, where the plea agreement is silent regarding the
payment of fees and costs, that only such fees and costs
attributable to the charge on which a criminal defendant is
convicted should be recoverable under a restitution
plan"). Here, the plea agreement was not of record. The
assessment of costs for the dismissed charges was in
violation of Petrie. See id.; State v.
Black, No. 14-0886, 2016 WL 3010497, at *2 (Iowa Ct.
App. May 25, 2016).
the assessment of costs for dismissed charges violates
Petrie, it does not appear to violate the relevant
statute. The Petrie court relied on Iowa Code
sections 815.13 and 910.2. Iowa Code section 815.13 relates
to the allocation of costs for criminal cases arising under
county and municipal ordinances. See Iowa Code
§ 815.13 (providing "fees and costs"
recoverable from the defendant are "witness fees and
mileage in trials of criminal actions prosecuted by the
county or city under county or city ordinance"). Section
815.13 is inapplicable here. See State v. Klindt,
542 N.W.2d 553, 555 (Iowa 1996) (explaining statute was
enacted when the state assumed financial responsibility from
the counties for financing the court system); State v.
Foth, No. 14-1250, 2016 WL 719044, at *6 n.6 (Iowa Ct.
App. Feb. 24, 2016) (explaining section 815.3 applies only
"when the county or city prosecutes a case"). Iowa
Code section 910.2 provides: "In all criminal
cases in which there is a plea of guilty, verdict of
guilty, or special verdict upon which a judgment of
conviction is rendered, the sentencing court shall order that
restitution be made by each offender . . . to the clerk of
court for . . . court costs." (Emphasis added.) There is
nothing in the language of the controlling statute that
requires the allocation of court costs on a charge-specific
basis. To the contrary, the plain language of the statute
provides the "sentencing court shall order" costs
for "cases." The word "case" refers to a
criminal proceeding and not the individual counts within a
multicount trial information. See State v. Foy, No.
10-1549, 2011 WL 2695308, at *4 (Iowa Ct. App. July 13, 2011)
("The term 'case' is defined as 'all charges
or allegations arising from the same transaction or
occurrence or contained in the same trial information or
indictment in a criminal proceeding.'" (citing Iowa
Admin. Code r. 493-7.1)); State v. Muyingo, 200 P.3d
601, 605 (Or. Ct. App. 2009) ("A 'case' is a
legal proceeding that may have multiple components
(i.e., a criminal case may involve multiple charges,
a civil case may have both claims and counterclaims) but
those components are grouped together and proceed under the
same case number."). There is nothing in the statutes
that requires or even allows the district court to allocate
the costs as Petrie requires. To the contrary, the
district court can assess costs for the entire
"case" where there is a multicount trial
information so long as there was a "judgment of
conviction . . . rendered" on any count in the trial
information. Iowa Code § 910.2.
addition to being contrary to the text of the relevant
statutes, Petrie is internally inconsistent.
Sentencing is wholly a creature of statute. The district
court can only impose a sentence authorized by statute.
See State v. Manser, 626 N.W.2d 872, 875 (Iowa Ct.
App. 2001) (noting the court's power to punish a
defendant only extends as far as the Iowa Code authorizes).
The Petrie court held the relevant statute did not
allow the district court to assess against the defendant
costs associated with dismissed charges in a multicount trial
information. The Petrie court went on to hold,
however, the parties could agree to an assessment of costs
for dismissed charges in the plea agreement. See
Petrie, 478 N.W.2d at 622 ("We stress that nothing
in this opinion prevents the parties to a plea agreement from
making a provision covering the payment of costs and
fees."). It is well established the parties cannot agree
upon a statutorily unauthorized, or illegal, sentence.
See State v. Copenhaver, 844 N.W.2d 442, 447 (Iowa
2014) ("An illegal sentence is a sentence that is not
permitted by statute."); State v. Woody, 613
N.W.2d 215, 218 (Iowa 2000) ("Neither party may rely on
a plea agreement to uphold an illegal sentence."). It
cannot be true that the statute does not allow for the
assessment of costs related to dismissed charges but the
parties can agree to a sentence in which costs related to
dismissed charges are assessed. If the statute does not
authorize the assessment of costs for dismissed charges in a
multicount trial information, then the provision in the
sentencing order embodying the plea agreement is void.
See State v. Ohnmacht, 342 N.W.2d 838, 842 (Iowa
1983) (stating "[a] sentence not permitted by statute is
allowing for the assessment of costs for dismissed charges in
a multicount trial information would improve the
administration of justice without material detriment to the
criminal defendant. Petrie has proved to be an
administrative burden without material benefit. In many
cases, it is well-nigh impossible to determine which costs
are associated with any particular count. See, e.g.,
Commonwealth v. Soudani, 165 A.2d 709, 711 ("We
fail to perceive how the costs of prosecution in the instant
case may be divided or apportioned between the first and
second counts of the indictment."). In addition, in many
(perhaps most) cases, the costs are indivisible. As this
court explained in a recent case:
The fact that some counts were dismissed does not
automatically establish that a part of the assessed court
costs are attributable to the dismissed counts. Here, the
record shows just the opposite. The combined general docket
report prepared by the district clerk of court on December
10, 2015, two days after Johnson filed his notice of appeal,
shows a total of $210 in court costs accrued as of that date.
These costs would have been the same even had the State not
charged Johnson with the counts later dismissed. Moreover,
the record shows none of the assessed charges are clearly
attributable or discrete to the dismissed counts. We
therefore conclude the total court costs are clearly
attributable to the counts to which Johnson pled guilty and,
therefore, fully assessable to him.
State v. Johnson, No. 15-2101, 2016 WL 4802916, at
*2 (Iowa Ct. App. Sept. 14, 2016). Further, Petrie
provides no guidance on who is to determine the attribution
of costs and the method of allocation. It is an inefficient
use of judicial and administrative resources to vacate the
defendant's conviction and remand this matter only to
have the district court enter the same sentence because the
plea agreement is made of record, enter effectively the same
sentence because all of the costs are deemed relevant to all
of the counts and are indivisible, or enter an order based on
an arbitrary allocation of costs with little relationship to
the actual costs of securing a conviction.
this court is not at liberty to overrule supreme court
precedent. See State v. Beck, 854 N.W.2d 56, 64
(Iowa 2014). We thus must vacate the defendant's
foregoing reasons, we affirm the defendant's convictions.
We vacate the defendant's sentence and remand this matter
for the entry of a new sentencing order in accord with
AFFIRMED, SENTENCE VACATED, AND REMANDED.
 Here, the count to which Smith pled
guilty was charged under the "building . . . occupied by
another person" alternative. See Iowa Code