STATE v. FLORES, 02-1750 (Iowa App. 9-10-2003)

MILLER, J.

Mingo Flores appeals from the sentence entered on his conviction for terrorism following his guilty plea. He alleges numerous grounds of ineffective assistance of counsel and contends the district court erred in imposing the Drug Abuse Resistance Education (DARE) surcharge. We vacate the DARE surcharge portion of the sentence and preserve the specified ineffective assistance of counsel claims for a possible postconviction relief proceeding.

On April 10, 2002 the State filed a trial information charging Flores with terrorism, a class C felony in violation of Iowa Code section 708.6 (2001). On September 24, 2002 Flores filed a written plea of guilty and on the same date appeared in court and pled guilty to the charge. At the plea hearing Flores admitted he approached Steve Huerta, who was fighting with Flores's sister, and shot at him. He also agreed he fired the shots with the intent to injure or provoke fear or anger. The district court entered written judgment and sentence on October 29, 2002 finding Flores guilty and sentencing him to a term of imprisonment not to exceed ten years. The court also imposed a fine of $1,000, plus the statutory surcharge of thirty percent and a $10 DARE surcharge. The court ordered the sentence to run consecutively to Flores's sentence on federal drug charges.

On appeal Flores raises several claims of ineffective assistance of counsel. All of those claims deal with counsel's performance at the plea and sentencing hearings. Specifically, he contends his counsel was ineffective for failing to (1) fully disclose the plea agreement on the record, (2) file a motion in arrest of judgment, (3) object when the prosecutor allegedly breached the plea agreement by not recommending that the minimum fine be imposed but suspended, and (4) argue that the five year mandatory sentence for the use of a firearm could be waived because it was a first conviction under section 902.7.

Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle,652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead,570 N.W.2d 97, 102 (Iowa 1997)). "Rather, we preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Id. Flores contends the record here is adequate to address his various claims of ineffective assistance. To the contrary the State argues it would be appropriate to preserve these claims for a possible postconviction relief action. However, the State asserts that if we address the merits of these claims Flores has failed to establish ineffective assistance of counsel.

Flores can only succeed on his ineffectiveness claim by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark v. State,602 N.W.2d 810, 814 (Iowa 1999); Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). No record has yet been made before the trial court on those issues. Trial counsel has not been given an opportunity to explain her actions and the trial court has not considered and ruled on the ineffectiveness claims. The record is less than clear as to what the parties understood the plea agreement to entail, and what recommendations the court actually considered in accepting the plea and imposing sentence. Under these circumstances, we pass these issues in this direct appeal and reserve the specified claims of ineffective assistance for a possible postconviction proceeding. State v. Bass,385 N.W.2d 243, 245 (Iowa 1986).

Flores also argues the district court's imposition, in its written judgment, of a $10 DARE surcharge was error because such a surcharge is not authorized for the crime of terrorism under section 708.6. He asks that this portion of the sentence be vacated. We agree that section 708.6 is not included in the crimes listed in section 911.2 as being subject to a DARE surcharge. Therefore, we conclude the court imposed a fine not provided for by law. The State agrees the fine was improper. The DARE surcharge portion of the sentence must be vacated.

We conclude the record before us is inadequate to address Flores's claims of ineffective assistance of counsel. We preserve the specified claims for a possible postconviction relief proceeding. We further conclude the court erred in imposing a DARE surcharge on Flores's conviction because terrorism is not one of the crimes subject to such a surcharge. Accordingly, we vacate the DARE surcharge portion of the sentence.