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State v. Deneve

Court of Appeals of Iowa

May 1, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
CODY AARON DENEVE, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.

         Cody Deneve appeals his guilty plea to possession of heroin with intent to deliver as a habitual offender.

          Sharon D. Hallstoos of Hallstoos Law Office, LLC, Dubuque, for appellant.

          Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., and Mullins and Bower, JJ.

          MULLINS, JUDGE.

         Cody 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.

         In 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.

         On 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).

         We 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).

         "Generally, 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 provides:

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).

         We 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 ...


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