from the Iowa District Court for Linn County, Thomas L.
Koehler (plea) and Ian K. Thornhill (sentencing), Judges.
defendant challenges her guilty pleas and sentence, claiming
trial counsel rendered ineffective assistance.
D. Tindal of Keegan and Farnsworth, Iowa City, for appellant.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
Pozeck appeals after pleading guilty to second-degree
criminal mischief, a class "D" felony, and assault
on a peace officer, an aggravated misdemeanor. The record is
inadequate on direct appeal to resolve her claims that
counsel provided ineffective assistance; we affirm her
convictions and preserve her claims for possible
postconviction-relief (PCR) proceedings.
6, 2016, Pozeck used a rock and a golf club to damage a
neighbor's property-breaking all the ground-floor windows
of the house and all the windows of a minivan-for total
damages exceeding $1000. Police arrived and found Pozeck in
her own house. According to the minutes of evidence, Pozeck
was combative and resisted arrest, trying to kick and spit on
the officers. These actions prompted the State to file a
three-count trial information, charging Pozeck with felony
criminal mischief, assault on a peace officer, and
interference with official acts. She reached an agreement
with the State to enter pleas of guilty to counts one and two
in return for the State's dismissal of the interference
count. Now Pozeck appeals her guilty pleas, contending trial
counsel rendered ineffective assistance.
review her claims de novo. See State v. Rodriguez,
804 N.W.2d 844, 848 (Iowa 2011). We postpone the resolution
of such claims until they can be heard in PCR proceedings
unless the parties provide a satisfactory record on direct
appeal that allows us to draw a conclusion about the
constitutionality of counsel's performance. Id.
Pozeck must prove both (1) counsel's performance was
deficient and (2) prejudice resulted. See Strickland v.
Washington, 466 U.S. 668, 686 (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). Pozeck must show a reasonable probability
that, but for counsel's errors, she would not have pled
guilty and would have insisted on going to trial. See
State v. Straw, 709 N.W.2d 128, 135-36 (Iowa 2006).
first claims she entered her criminal-mischief plea
involuntarily because counsel "ineffectively advised her
of the sentencing options available to the court" before
she pled guilty. She grounds this claim in counsel's
misstatement of a sentencing option at the sentencing
hearing, contending "there is no reason to believe
[counsel] advised Pozeck differently at the time she
claim is not ready for resolution. The record does not reveal
what pre-plea sentencing advice was provided by her attorney
or how such advice influenced her decision to plead guilty.
We believe counsel should have the chance to explain whether
his misstatement at sentencing reflects his pre-plea advice.
See State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)
("[A] lawyer is entitled to his day in court, especially
when his professional reputation is impugned.").
Accordingly, we preserve this claim for possible PCR
proceedings. See Iowa Code § 814.7(3) (2016)
(stating where ineffective assistance is raised on direct
appeal, a court may preserve the claim).
Pozeck contends she "was never advised of the relevant
surcharges" before she entered her plea. See
generally Iowa Code § 911.1(1), (3). Because the
record lacks proof Pozeck was prejudiced by counsel's
failure to alert the plea court it had not advised Pozeck of
the applicable surcharges, we also preserve this challenge
for possible PCR proceedings. See id.; State v.
Delacy, No. 16-0827, 2017 WL 1735684, at *4 (Iowa Ct.
App. May 3, 2017) (admitting it is "tempting" to
find no reasonable probability defendant would have insisted
on going to trial, but concluding "circumstances
underlying the prosecution's motivation for the plea
offer and the defendant's willingness to go to trial are
facts that should be permitted to be more fully
developed"), further review application
pending; State v. Weitzel, No. 16-1112, 2017 WL
1735743, at *6 (Iowa Ct. App. May 3, 2017) (holding plea
court does not substantially comply with Iowa Rule
of Criminal Procedure 2.8(2(b)(2) when it has not informed
defendant of surcharges and assured defendant's
understanding), further review granted July 13,
2017; see also State v. Fischer, 877 N.W.2d
676, 686 n.6 (Iowa 2016) (leaving unresolved whether plea
court's failure to disclose and discuss applicable
surcharges, standing alone, would show court's failure to
substantially comply with rule 2.8(2)(b)(2)).