from the Iowa District Court for Black Hawk County, Kellyann
M. Lekar, Judge.
Gaston appeals his conviction following a guilty
M. McIntee, Waterloo, for appellant.
J. Miller, Attorney General, and Kelli A. Huser, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
to a plea agreement, Nicholas Gaston pled guilty to the
charges of trespass causing injury, fourth-degree criminal
mischief, and assault causing bodily injury, all serious
misdemeanors. Gaston appealed his convictions following
the imposition of sentence. He contends his guilty plea was
not voluntary and intelligent because (1) the district court
improperly influenced him into accepting the State's plea
offer and his trial counsel was ineffective in failing to
shield him from the court's influence and (2) the
district court failed to advise him at the plea proceeding of
the statutory surcharge contained in Iowa Code section 911.1
and his trial counsel was ineffective in allowing the error.
See Iowa R. Crim. P. 2.8(2)(b) (disallowing the
acceptance of guilty pleas unless they are "made
voluntarily and intelligently").
end of the guilty plea colloquy, the district court advised
Gaston of his right to file a motion in arrest of judgment if
he wanted to challenge the guilty plea for any reason. Gaston
told the court he understood that right and expressly waived
that right in order to proceed to immediate sentencing. By
failing to file a motion in arrest of judgment, Gaston did
not preserve error on either of his plea-related arguments.
See id. r. 2.24(3) ("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."); see also id. r. 2.8(2)(d) (requiring
courts to advise defendants of the
motion-in-arrest-of-judgment obligation); State v.
Meron, 675 N.W.2d 537, 540-41 (Iowa 2004). We next
consider both arguments under an
ineffective-assistance-of-counsel rubric, claims Gaston makes
which are not subject to our traditional error-preservation
rules. State v. Fountain, 786 N.W.2d 260, 262-63
(Iowa 2010); see State v. Brooks, 555 N.W.2d 446,
448 (Iowa 1996).
review claims of ineffective assistance of counsel de novo.
State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017).
Such claims require a showing, by a preponderance of the
evidence, both that counsel breached an essential duty and
prejudice resulted. Strickland v. Washington, 466
U.S. 668, 687 (1984). "'[T]he court may consider
either the prejudice prong or the breach of duty first, and
failure to find either one will preclude relief.'"
McNeal, 897 N.W.2d at 703 (alteration in original)
(quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa
2015)). If we find the record inadequate to decide the claims
on direct appeal, we will affirm the conviction but must
preserve the claims for possible postconviction-relief
proceedings. State v. Johnson, 784 N.W.2d 192, 198
(Iowa 2010); State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). "Only in rare cases will the trial record
alone be sufficient to resolve the claim on direct
appeal." Straw, 709 N.W.2d at 133.
was originally charged with first-degree burglary, a class
"B" felony, and fourth-degree criminal mischief, a
serious misdemeanor. See Iowa Code §§
713.1, .3(1)(c), 716.1, .6(1)(a)(1). Prior to the
commencement of trial, Gaston rejected the State's plea
offer, the acceptance of which would have reduced count one
to second-degree burglary. On the third day of trial, the
State made a new offer with two options, one of which
required Gaston to plead guilty to trespass causing injury,
fourth-degree criminal mischief, and assault causing bodily
injury. After Gaston rejected both options, the court made
multiple statements urging Gaston to strongly consider one of
the plea options. Gaston restated his desire to reject the
offer and continue with the trial, which the court accepted.
Following a brief recess, Gaston's attorney advised the
court Gaston had decided to accept the State's plea
offer. Gaston ultimately pled guilty to the amended charges
and requested immediate sentencing. During the plea
proceeding, Gaston was advised he "would be fined $315
for each offense, plus surcharges, " and he responded in
the affirmative when the court asked him if he understood he
would be responsible for "payment of any related
surcharges." He was not advised that one of the
surcharges would amount to thirty-five percent of the fines
on each count. See Iowa Code § 911.1(1)
(requiring the imposition of a thirty-five percent surcharge
in all matters in which a court imposes a fine for a
violation of state law); Iowa R. Crim. P. 2.8(2)(b)(2)
(requiring court to inform the defendant of the
"mandatory minimum punishment" and the
"maximum possible punishment" before accepting a
guilty plea); State v. Fisher, 877 N.W.2d 676, 686
(Iowa 2016) (concluding a defendant must be advised in a
guilty plea proceeding "of the mandatory minimum and
maximum possible fines, including surcharges").
appellate brief is replete with arguments concerning why his
counsel's alleged failures to correct the court's
supposed errors amounted to breaches of duty. He complains
his right to due process was violated and makes a claim he
did not make a voluntary, intelligent, and knowing plea. He
implies that but for counsel's failure to object to the
district court's improper influence and failure to advise
him of an applicable surcharge, he would not have entered a
guilty plea and would have instead proceeded to verdict.
See Straw, 709 N.W.2d at 138 ("[I]n order 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."). He
provides us with no specific reasoning as to why he would
have proceeded through trial had these alleged errors not
been allowed by his counsel. A conclusory claim that a
defendant would have proceeded with trial if an error had not
occurred "is not a sufficient assertion of
prejudice." State v. Myers, 653 N.W.2d 574, 579
event, we find the record inadequate to decide whether Gaston
was prejudiced in relation to either of his claims on direct
appeal. With regard to Gaston's claim counsel was
ineffective in failing to shield him from the court's
improper influence, there is nothing in the record to
indicate what discussions occurred between Gaston and his
counsel prior to his final decision to accept the State's
plea offer. "Such evidence could be a significant part
of our prejudice analysis." Straw, 709 N.W.2d
at 138. In relation to Gaston's claim counsel was
ineffective for not objecting to the court's failure to
advise him of the statutory surcharge contained in Iowa Code
section 911.1, the State insists there is no reasonable
probability Gaston would have insisted on proceeding with
trial had a specific advisement of the surcharge amounts been
made. We maintain a course we recently clarified, that the
"circumstances underlying . . . the defendant's
willingness to go to trial are facts that should be permitted
to be more fully developed." State v. Delacy,
No. 16-0827, 2017 WL 1735684, at *4 (Iowa Ct. App. May 3,
2017); see also State v. Iddings, No. 15-1597, 2017
WL 2464049, at *5 (Iowa Ct. App. June 7, 2017); State v.
Bascom, No. 15-2173, 2017 WL 1733115, at *1 (Iowa Ct.
App. May 3, 2017); State v. Taylor, No. 16-0762,
2017 WL 1735682, at *1-2 (Iowa Ct. App. May 3, 2017).
we find the record inadequate to address Gaston's claims
on direct appeal, we affirm his conviction and preserve his
ineffective-assistance claims ...