from the Iowa District Court for Clinton County, Mark J.
Smith (plea) and Mark R. Lawson (sentencing), Judges.
defendant challenges his guilty pleas. AFFIRMED.
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
Draper Jr. pleaded guilty to second-degree burglary and
domestic abuse assault causing injury-second offense. On
appeal, he contends his counsel was ineffective in allowing
him to enter a guilty plea to the assault charge without a
factual basis in the record. Draper also claims counsel was
ineffective for not challenging the district court's
failure to accurately inform him of the maximum and minimum
fines and surcharges. Because the record contains a factual
basis, Draper suffered no prejudice from his counsel's
performance. Finding the record inadequate to resolve
Draper's second challenge in the specific circumstances
of this case, we affirm his convictions and preserve this
claim for possible postconviction proceedings.
Background Facts and Prior Proceedings
to the minutes of evidence, on the morning of September 23,
2015, thirty-three-year-old Draper broke into the apartment
where his girlfriend, Ashley, lived and threatened her while
holding a knife to her throat. Ashley demanded Draper leave, but
he refused. When Ashley screamed, Draper held his other hand
over her mouth to quiet her, and she bit his hand. Draper
responded by punching her in the head. When Draper moved to
shut an open window, Ashley fled. A witness told the police
Ashley ran screaming from her apartment at 7:40 that morning,
"saying her boyfriend was attempting to kill her."
Draper left in his car, and Ashley called 911. The minutes
contain photographs of Ashley's injuries and the
responding officer's statement: "I photographed a
contusion/hematoma to [Ashley's] forehead and red mark on
the right side of her neck, which she said were from Draper
State filed its trial information on October 15, 2015,
alleging three counts: (I) burglary in the first degree; (II)
domestic abuse assault causing injury, second
offense; and (III) domestic abuse assault while
displaying a weapon. As part of a plea bargain with the
State, Draper agreed to enter a plea to the lesser-included
offense of second-degree burglary, a class "C"
felony. See Iowa Code §§ 713.1, .5(1)(b)
(2015). He also agreed to plead guilty to the aggravated
misdemeanor assault as charged in count II. See id.
§§ 708.1, .2A(1), .2A(3)(b). Finally, Draper agreed
to pay restitution for all three counts. In return, the State
agreed to dismiss count III and to recommend a suspended
sentence on the burglary charge and concurrent sentences.
Under the agreement, the State was free to make any
sentencing recommendation on the assault offense.
December 18, 2015, Draper filed a written guilty plea to the
assault offense, stating, "in addition to the minutes of
testimony, my plea is supported by the following factual
basis"-"I did assault another with whom I have a
child. Said assault resulted in bodily injury." The
written plea form stated: "[T]he Court can sentence me
to prison not to exceed two years, and a fine between $625
and $6250.00, plus surcharge court costs."
same day, Draper and his counsel appeared before the court,
where a record was made of the plea agreement. The court
accepted Draper's written plea agreement. The court then
explained the maximum penalties for burglary: an
indeterminate prison term of ten years and a $10, 000 fine.
The court did not tell Draper the minimum penalty for
burglary or discuss surcharges on the fine, which included a
mandatory $125 law enforcement initiative (LEI) surcharge.
See id. §§ 911.1 (requiring 35%
surcharge), .3(1)(a) (requiring LEI surcharge). On the
assault charge, the court misinformed Draper at the hearing
that the maximum fine was $5000 when it actually was $6250.
The court likewise did not mention surcharges on the fine,
which included a mandatory $100 surcharge. See id.
§ 911.2(b) (stating the district court "shall
assess a domestic abuse assault" surcharge). Draper
pleaded guilty to both crimes, acknowledging he understood
the court's statement that it could "only sentence
you to the sentences I have gone over with you."
asked about a factual basis for the assault, Draper said he
and Ashley were arguing and he "grabbed her" and
"pushed her around" and "had no reason to put
[his] hands on her." Draper also told the court he
threatened Ashley with a knife. The court accepted his pleas,
ordered a presentence investigation (PSI) report, and set a
date for sentencing. After explaining the process for filing
a motion in arrest of judgment, the court concluded the
hearing. Draper did not file a motion in arrest of judgment.
The PSI report recommended incarceration "due to the
severity of the offense, including injuries to the
January 21, 2016 sentencing hearing, the court imposed an
indeterminate ten-year term on the burglary count, with
credit for time served, and a fine of $1000. The court
suspended the fine and the term of imprisonment and placed
Draper on probation for three years, unless he was released
sooner upon the probation officer's recommendation to ...