from the Iowa District Court for Polk County, Gregory D.
Brandt, District Associate Judge.
defendant challenges his guilty plea to harassment in the
A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des
Moines, for appellant.
J. Miller, Attorney General, and Kristin A. Guddall (until
withdrawal) and Kevin R. Cmelik, Assistant Attorneys General,
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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
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license was revoked.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. See Iowa Code § 903.1(1)(b).
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
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).
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").
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.
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
Fisher, our supreme court decided defendants
pleading guilty should be "informed of the mandatory
minimum and maximum possible fines, including
surcharges." 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 ...