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State v. Mallory

Court of Appeals of Iowa

November 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
LEAH MORGAN MALLORY, Defendant-Appellant.

         Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.

         Leah Mallory appeals her conviction and sentence after pleading guilty to assault on persons engaged in certain occupations. AFFIRMED AND REMANDED.

          Jared R. Weber, Orange City, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE.

         Leah Mallory appeals her conviction and sentence after pleading guilty to assault on persons engaged in certain occupations, an aggravated misdemeanor, in violation of Iowa Code sections 708.1 and 708.3A(3) (2017). She challenges the voluntary, knowing, and intelligent nature of her plea and argues her trial counsel was ineffective in allowing her to plead guilty. She also challenges the sentence imposed.

         I. Background Facts and Proceedings.

         The State initially charged Mallory with three counts of assault on persons engaged in certain occupations-one count as an aggravated misdemeanor and two counts as serious misdemeanors. Mallory agreed to plead guilty to the aggravated-misdemeanor charge in exchange for the State dropping the serious-misdemeanor charges and agreeing to recommend a sentence of 365 days in jail with all but twenty-one days of the sentence suspended. Mallory waived her right to file a motion in arrest of judgment, her right to an in-court plea colloquy, and her right to make a statement in mitigation of punishment. The district court accepted the plea after finding it was entered voluntarily and intelligently and was supported by a factual basis. The court sentenced Mallory as recommended in the plea agreement.

         II. Ineffective Assistance of Counsel.

         Mallory appeals her conviction, arguing her plea was not voluntarily, knowingly, and intelligently entered. Mallory failed to challenge her plea by filing a motion in arrest of judgment. Therefore, she alleges her trial counsel was ineffective in allowing her to plead guilty. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (stating a defendant's failure to move in arrest of judgment bars direct appeal of a conviction but not a claim that the failure was a result of ineffective assistance of counsel).

         We review ineffective-assistance claims de novo. See id. In order to establish ineffective assistance of counsel, Mallory must show by a preponderance of the evidence that her counsel failed to perform an essential duty and that failure prejudiced her. See id. We may resolve the claim on direct appeal only if the record is adequate; if not, we preserve the claim to allow full development of the facts during postconviction proceedings. See id.

         Mallory argues she did not enter her plea voluntarily, knowingly, and intelligently because she was never informed of the minimum and maximum penalties for the charge. See State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005) ("If a plea is not intelligently and voluntarily made, the failure by counsel to file a motion in arrest of judgment to challenge the plea constitutes a breach of an essential duty."). Iowa Rule of Criminal Procedure 2.8(2)(b)(2) requires the court[1] to inform a defendant who pleads guilty of "[t]he mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered." We require "substantial compliance" with this rule. State v. Fischer, 877 N.W.2d 676, 682 (Iowa 2016).

         The written guilty plea sets forth the mandatory minimum and maximum prison sentence, fine, and costs associated with the charge. However, Mallory argues her plea was deficient because she was never informed the fine and surcharges could be suspended. Under Iowa Code section 901.5(3), the court has the power to suspend the execution of any part of a sentence, including a fine, unless specifically negated by statute. See State v. Klein, 574 N.W.2d 347, 348 (Iowa 1998). The decision to suspend a fine is discretionary. See id. at 348-49; State v. Gray, 514 N.W.2d 78, 79 (Iowa 1994). The court is only required to inform a defendant who pleads guilty of the mandatory minimum sentence for the offense. See Iowa R. Crim. P. 2.8(2)(b)(2). Nothing requires that a defendant be informed of the court's discretionary ability to suspend a fine. ...


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