State of Iowa v. Tracy Adam Thompson ( 2016 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 15-1718
    Filed December 21, 2016
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    TRACY ADAM THOMPSON,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Black Hawk County, Joel A.
    Dalrymple, Judge.
    Following a guilty plea, the defendant appeals from his conviction and
    sentence for domestic abuse assault causing bodily injury.           CONVICTION
    AFFIRMED; SENTENCE VACATED AND REMANDED.
    Mark C. Smith, State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
    Attorney General, for appellee.
    Considered by Mullins, P.J., McDonald, J., and Blane, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
    2
    BLANE, Senior Judge.
    Tracy Thompson appeals from his conviction and sentence for domestic
    abuse assault causing bodily injury, an aggravated misdemeanor, in violation of
    Iowa Code section 708.2A(3)(b) (2015). Thompson pled guilty to the offense.
    On appeal, he maintains his trial counsel provided ineffective assistance by
    failing to advise him of the surcharge that would be added to any fine that was
    imposed and by failing to withdraw Thompson’s guilty plea after, he alleges, the
    court did not sentence him in accordance with the plea agreement. Thompson
    also challenges his sentence as illegal.
    I. Background Facts and Proceedings.
    In July 2015, Thompson was charged by trial information with domestic
    abuse assault causing bodily injury.
    On September 29, 2015 Thompson signed a written guilty plea. The plea
    included an agreement that Thompson would be sentenced to two years’
    incarceration, with all but 220 days suspended, and he would receive credit for
    time already served. Additionally, he would receive a suspended fine of $625
    and two years’ probation.      The agreement did not mention the mandatory
    surcharge that would be applied to the fine. As part of the agreement, if the plea
    and sentence were not accepted by the court, Thompson was free to withdraw
    the plea. Thompson waived his right to both an in-court colloquy and delayed
    sentencing.
    On the same date, the court accepted Thompson’s plea and sentenced
    him to two years’ imprisonment with all but 220 days suspended, with credit for
    time served, as well as probation. As part of the sentence, the court imposed the
    3
    minimum fine, $625, as well as the thirty-five percent surcharge, $218.75, and
    suspended both.
    Thompson appeals.
    II. Ineffective Assistance.
    To prevail on a claim of ineffective assistance of counsel, Thompson must
    prove by a preponderance of the evidence (1) his attorney failed to perform an
    essential duty and (2) prejudice resulted from the failure.         See State v.
    Rodriguez, 
    804 N.W.2d 844
    , 848 (Iowa 2011). We look to the cumulative effect
    of counsel’s alleged errors to determine whether Thompson satisfied his burden
    regarding the prejudice prong. State v. Clay, 
    824 N.W.2d 488
    , 501 (Iowa 2012).
    His claim fails if either element is lacking. See Everett v. State, 
    789 N.W.2d 151
    ,
    159 (Iowa 2010). Although we prefer to preserve ineffective-assistance claims
    for development of the record, see State v. Tate, 
    710 N.W.2d 237
    , 240 (Iowa
    2006), the record here is adequate for us to decide the claims on direct appeal.
    We review his claim de novo. State v. Straw, 
    709 N.W.2d 128
    , 133 (Iowa 2006).
    We first consider Thompson’s claim counsel failed to advise him of the
    surcharge associated with the charge to which he pled guilty. After the plea in
    this case, our supreme court decided State v. Fisher, 
    877 N.W.2d 676
    , 686 (Iowa
    2016). In Fisher, the court concluded the defendant “should have been informed
    of the mandatory minimum and maximum possible fines, including surcharges.”
    877 N.W.2d at. 686. However, the court left open the question “whether failure to
    disclose the surcharges alone would have meant the plea did not substantially
    comply with [Iowa Rule of Criminal Procedure] 2.8(2)(b)(2).” 
    Id.
     at 686 n.6; see
    also State v. Loye, 
    670 N.W.2d 141
    , 150 (Iowa 2003) (stating “we employ a
    4
    substantial compliance standard in determining whether a trial court has
    discharged its duty” under rule 2.8(2)). Here, even if we assume counsel’s failure
    to inform Thompson of the surcharge violated rule 2.8, Thompson cannot
    establish that he suffered prejudice, so his claim must fail.
    In order to prove he suffered prejudice, Thompson would have to establish
    there is a reasonable probability that, but for counsel’s error, he would not have
    pled guilty and instead would have insisted on going to trial. See Straw, 
    709 N.W.2d at 138
    . Thompson cannot establish that he would have gone to trial due
    to the existence of a surcharge he was never going to be required to pay.
    Pursuant to Iowa Code section 911.1(3), “When a fine or forfeiture is suspended
    in whole or in part, the court shall reduce the surcharge in proportion to the
    amount suspended.”      As part of Thompson’s binding plea agreement, the court
    was to suspend the entire fine. As such, the court was also required to suspend
    the entire surcharge. See 
    Iowa Code § 911.1
    (3). The court did both.
    Similarly, Thompson maintains his counsel was ineffective for not
    withdrawing the guilty plea when the court sentenced Thompson to something
    other than the agreed-upon conditions—namely, imposing (and then suspending)
    the mandatory surcharge, which was not contemplated by the written plea
    agreement.    Although Thompson’s characterization is technically accurate, in
    reality, Thompson was ordered to perform only the obligations to which he
    agreed. He did not agree to pay fines or surcharges, and he was ordered to pay
    none.     Moreover, the suspension of the fines and surcharges was not
    conditioned on his probation, so they could not later be re-imposed. We cannot
    5
    find counsel was ineffective for not moving to withdraw Thompson’s plea in this
    circumstance.
    III. Illegal Sentence.
    Thompson maintains the district court’s imposition of both probation and
    220 days’ confinement is illegal.       We review claims of illegal sentence for
    correction of errors at law. See Tindell v. State, 
    629 N.W.2d 357
    , 359 (Iowa
    2001).1
    Here, Thompson pled guilty to an aggravated misdemeanor, which carries
    a maximum penalty of imprisonment of a term not to exceed two years. See
    
    Iowa Code § 903.1
    (2) (“When a judgment of conviction of an aggravated
    misdemeanor is entered against any person and the court imposes a sentence of
    confinement for a period of more than one year the term shall be an
    indeterminate term.”). The court could then exercise the option to suspend all
    but two days of the sentence.       See 
    id.
     § 907.3(3)(a) (stating “the court may
    suspend the sentence and place the defendant on probation upon such terms
    and conditions as it may require . . . [but] [t]he court shall not suspend . . . the
    following sentence[]: [t]he minimum term of two days imposed pursuant to
    section 708.2A, subsection 7, paragraph ‘a’”); see also id. § 708.2A(7)(a) (stating
    a person convicted of an aggravated misdemeanor of domestic abuse assault
    “shall serve a minimum of two days of the sentence imposed by law”). The
    1
    The State asserts Thompson’s argument is moot because Thompson has already
    completed the part of the sentence that was not suspended—220 days’ incarceration.
    However, Thompson has since violated the terms of his probation and has been ordered
    to serve the original sentence. Nothing in the record before us establishes Thompson
    has discharged his original sentence, and his claim is therefore not moot. See Rarey v.
    State, 
    616 N.W.2d 531
    , 532 (Iowa 2000) (finding a motion to challenge an illegal
    sentence is moot only if the sentence has been discharged).
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    statute does not allow the court to suspend all but 220 days. See 
    id.
     § 907.3
    (allowing the court to exercise “any of the options contained in this section,”
    including deferring judgment and placing the defendant on probation, deferring
    the sentence and assigning the defendant to the judicial district department of
    correctional services, or suspending the sentence and placing the defendant on
    probation”).   “Granting probation and imposing confinement constitute a
    contradiction.” State v. Harris, 
    251 N.W.2d 483
    , 483 (Iowa 1977). Because the
    sentence imposed by the district court is not provided for by statute, it is outside
    the authority of the district court do so. See Tindell, 
    629 N.W.2d at 359
     (stating
    an illegal sentence is one not authorized by statute). We remand to the district
    court for resentencing. See State v. Woody, 
    613 N.W.2d 215
    , 218 (Iowa 2000)
    (remanding for resentencing when “[t]he plea was valid; only the sentence was
    illegal”).
    CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.
    

Document Info

Docket Number: 15-1718

Filed Date: 12/21/2016

Precedential Status: Precedential

Modified Date: 12/21/2016