from the Iowa District Court for Scott County, Mark J. Smith,
defendant appeals following his guilty pleas asserting
counsel was ineffective.
C. Smith, State Appellate Defender, and Brenda J. Gohr,
Assistant Appellate Defender, for appellant.
Christopher Myers, Clarinda, pro se.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Tabor and Bower, JJ.
Myers appeals following his guilty pleas to two counts of
second-degree sexual abuse, in violation of Iowa Code section
709.3 (2013). Myers asserts on appeal his trial counsel was
ineffective in failing to inform the trial court that the
plea colloquy was insufficient. Specifically, he claims the
court failed to advise him of the mandatory surcharge
applicable to the charges pursuant to Iowa Code chapter 911.
In a pro se brief, Myers also alleges there is not a factual
basis to support his guilty plea because the description of
the abuse by the child victims did not match his description
of the abuse during his guilty pleas. We preserve Myers's
ineffective-assistance claim regarding the failure of counsel
to advise him regarding the applicable surcharges for
postconviction relief as the record on appeal is not adequate
to address the claim. However, we reject Myers's
factual-basis claim as the record contains the necessary
support for Myers's guilty pleas. We therefore affirm
asserts this court should declare his guilty plea invalid
because counsel provided ineffective assistance by failing to
challenge the guilty plea colloquy that did not advise him of
the surcharge applicable to his convictions. See State v.
Fisher, 877 N.W.2d 676, 686 n.6 (Iowa 2016) (noting
"actual compliance with [Iowa Rule of Criminal
Procedure] 2.8(2)(b)(2) requires disclosure of all applicable
chapter 911 surcharges"). While Myers's counsel did
file a motion in arrest of judgment following his guilty
plea, the motion did not address the court's failure to
advise Myers of the surcharges. Thus, Myers raises this claim
through the rubric of ineffective assistance of counsel.
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)
(noting a challenge to a guilty plea is not barred "if
the failure to file a motion in arrest of judgment resulted
from ineffective assistance of counsel").
prove his ineffective-assistance claim, Myers must prove
counsel failed to perform an essential duty and the failure
resulted in prejudice. See id. The prejudice burden
requires proof "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." Id. When an ineffective-assistance claim is
made on direct appeal, we must first determine whether the
record is adequate to address the claim made. State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010). "[M]ost
claims of ineffective assistance of counsel in the context of
a guilty plea will require a record more substantial than the
one [available on direct appeal]." Straw, 709
N.W.2d at 138. While it is tempting to conclude there is no
reasonable probability Myers would have insisted on going to
trial had he been informed of the small applicable surcharge,
determine Myers should be given the opportunity to support
his ineffective-assistance claim. This claim is therefore
preserved for postconviction-relief proceedings.
we address Myers's pro se claim that his guilty plea is
not supported by a factual basis. "To preserve error for
appeal, generally, defendants challenging a guilty plea must
file a motion in arrest of judgment prior to
sentencing." Ortiz, 789 N.W.2d at 764. As noted
above, there was a motion in arrest of judgment filed in this
case, but it did not challenge the factual basis to support
the guilty plea. We therefore presume Myers is raising this
claim as an ineffective-assistance claim. Id.
(noting claims of ineffective assistance are the exception to
the general error preservation rule). "If trial counsel
permits a defendant to plead guilty . . . when there is no
factual basis to support the defendant's guilty plea,
trial counsel breaches an essential duty." Rhoades
v. State, 848 N.W.2d 22, 29 (Iowa 2014). "Prejudice
is presumed under these circumstances." Ortiz,
789 N.W.2d at 764-65.
determining if a guilty plea is supported by a factual basis,
we examine the entire record before the district court,
including the minutes of evidence, the prosecutor's
statement, the defendant's statement, and the presentence
investigation report, if it was available to the court at the
time of the plea. Rhoades, 848 N.W.2d at 29.
"[T]he record must disclose facts to satisfy all
elements of the offense." Id. "When
analyzing the record, we do not require the record 'to
show the totality of evidence necessary to support a guilty