from the Iowa District Court for Scott County, Tom Reidel,
Deneve appeals his guilty plea to possession of heroin with
intent to deliver as a habitual offender.
D. Hallstoos of Hallstoos Law Office, LLC, Dubuque, for
J. Miller, Attorney General, and Israel Kodiaga, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., and Mullins and Bower, JJ.
Deneve was charged by trial information with four criminal
counts. A plea agreement was ultimately reached under which
Deneve would plead guilty to the crimes of possession of
heroin with intent to deliver as a habitual offender and
possession of marijuana, third or subsequent offense, in
return for the State's dismissal of the remaining charges
and related simple misdemeanors.
advising Deneve of the potential penalties for the heroin
charge at the plea hearing, the court stated, "There is
no fine." As such, the court also did not advise Deneve
of the criminal penalty surcharge mandated by Iowa Code
section 911.1 (2017). Deneve ultimately tendered his pleas
and the court accepted them, after which the court
sufficiently advised Deneve of his obligation to file a
motion in arrest of judgment to challenge his pleas for any
reason. No motion in arrest of judgment was filed, and Deneve
appealed following the imposition of sentence.
appeal, Deneve only challenges his guilty plea to possession
of heroin with intent to deliver. He implies his plea was not
voluntarily and intelligently made because the district court
failed to advise him of the minimum and maximum fine and the
mandatory criminal penalty surcharge. Because Deneve was
sufficiently advised of his obligation to file a motion in
arrest of judgment to challenge his plea but did not do so,
he has failed to preserve error and may only challenge his
plea through a claim of ineffective assistance of counsel,
claims of which are immune from error-preservation defects.
See Iowa R. Crim. P. 2.24(3)(a); State v.
Weitzel, 905 N.W.2d 397, 401 (Iowa 2017). Here, Deneve
vaguely argues his counsel rendered ineffective assistance in
failing to ensure Deneve entered his plea voluntarily and
intelligently. The State requests that we deem Deneve's
argument waived for failure to cite authority or mount a
specific argument. See Iowa R. App. P.
6.903(2)(g)(3). We are not at liberty to do so. See State
v. Harris, 919 N.W.2d 753, 754 (Iowa 2018); State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010).
review ineffective-assistance-of-counsel claims de novo.
State v. Albright, __ N.W.2d__, __, 2019 WL 1302384,
at *4 (Iowa 2019). In order to prevail on his
ineffective-assistance-of-counsel claim, Deneve must show by
a preponderance of the evidence that (1) counsel failed to
perform an essential duty and (2) prejudice resulted. See
Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).
Failure to establish either element precludes relief.
State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017).
a criminal defendant waives all defenses and objections to
the criminal proceedings by pleading guilty, including claims
of ineffective assistance of counsel," but an exception
to this rule exists when there are pre-plea
"irregularities intrinsic to the plea-irregularities
that bear on the knowing and voluntary nature of the
plea." Castro v. State, 795 N.W.2d 789, 792
(Iowa 2011). Pursuant to Iowa Rule of Criminal Procedure
2.8(2)(b), the court may not accept a guilty plea unless it
is made voluntarily and intelligently. The rule additionally
Before accepting a plea of guilty, the court must address the
defendant personally in open court and inform the defendant
of, and determine that the defendant understands . . . [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.
Iowa R. Crim. P. 2.8(2)(b)(2).
agree the court's failure to advise Deneve of the fine
and surcharge rendered the plea involuntary and that counsel
had a duty to object. See Weitzel, 905 N.W.2d at 408
(noting "the maximum possible punishment includes the
surcharges" and the court must inform the defendant of
the surcharges and ensure the defendant understands them);
State v. Fisher, 877 N.W.2d 676, 685 (Iowa 2016)
(noting rule 2.8(2)(b)(2) requires the court do advise a
defendant of "direct consequences of the plea");
State v. Brady, 442 N.W.2d 57, 59 (Iowa 1989)
(stating a fine is a direct consequence of a guilty ...