IN THE COURT OF APPEALS OF IOWA
No. 15-2157
Filed November 23, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PHILLIP EUGENE MARAS,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Carol S. Egly, District
Associate Judge.
Phillip Maras appeals his conviction for first-degree harassment.
AFFIRMED.
Joel E. Fenton of Law Offices of Joel E. Fenton, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.
Phillip Maras pled guilty to first-degree harassment. On appeal, he
contends (1) the plea lacked a factual basis; (2) his trial attorney was ineffective
in allowing him to plead guilty and in failing to pursue intoxication and diminished
responsibility defenses; and (3) the district court abused its discretion in
sentencing him.
I. Factual Basis for the Plea
The State charged Maras with first-degree harassment. See Iowa Code
§ 708.7(2)(a) (2015). “A person commits harassment in the first degree when the
person commits harassment involving a threat to commit a forcible felony . . . .”
Id. The State asserted the underlying forcible felony was a “threat to commit
second-degree sex abuse on a twelve-year-old child. See id. §§ 708.7(2)(a);
702.11 (“A ‘forcible felony’ is any felonious . . . sexual abuse.’”). In fact, sex
abuse against a twelve-year-old child is statutorily defined as third-degree rather
than second-degree sexual abuse. Compare id. § 709.3 (“A person commits
sexual abuse in the second degree when the person commits sexual abuse [and
t]he other person is under the age of twelve.” (emphasis added)), with id. § 709.4
(“A person commits sexual abuse in the third degree when the person performs a
sex act [and t]he other person is twelve or thirteen years of age.” (emphasis
added)). This mistake was not caught and Maras pled guilty as charged.
On appeal, Maras contends “the correct facts were present within the
record at all times, but misapplied by counsel, the State and the trial court.” He
requests a remand for a new factual basis determination. He acknowledges he
failed to raise this challenge in the district court by way of a motion in arrest of
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judgment and alternatively raises the issue under an ineffective-assistance-of-
counsel rubric. We find it unnecessary to address the claim under that rubric
because, as the State concedes, Mara received incomplete advice on the
implications of a failure to file a motion in arrest of judgment and his “claim is not
precluded by his failure to file” the motion. See State v. Loye, 670 N.W.2d 141,
149-150 (Iowa 2003) (noting failure to file a motion in arrest of judgment does not
prevent a challenge to a guilty plea on appeal where the defendant is not
“satisfactorily informed of the requirements of rule 2.24(3)(b)”). We turn to the
merits.
The State and defense essentially agree on the law and the mistake of
law. The State concedes a threat to commit a sex act on a twelve-year-old child
“does not meet the elements of sexual abuse in the second degree” and “instead
constitute[s] a threat to commit sexual abuse in the third degree.” But, in the
State’s view, this error “does not change the elements of harassment in the first
degree, which merely requires a threat to commit a forcible felony,” and “[b]oth
sexual abuse in the second degree and sexual abuse in the third degree are
forcible felonies.” Maras, in turn, acknowledges “[w]hether that sexual abuse
threat constitutes the elements meeting the definitions of the first, second, or
third degrees of that crime is immaterial for purposes of determining whether an
offense of harassment in the first degree has been committed. Any forcible
felony will do.” But, he argues “any error in the factual basis for a plea should be
corrected.”
The question before us, then, is whether the conceded error in charging
the underlying offense supporting the “forcible felony” element requires reversal.
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Our answer is no because the degree of sexual assault was not an element of
first-degree harassment and the facts supported a finding that a forcible felony
was committed. Cf. State v. Crane, No. 12-0497, 2003 WL 289497, at *1-2 (Iowa
Ct. App. Feb. 12, 2003) (noting the child was eleven rather than twelve or
thirteen as the statute required and “[t]he age of the child is an essential element
of [the] prosecution”). Specifically, Maras told the court he was pleading guilty to
“threatening to commit a sexual act upon [the child] at age twelve years old.”
The court asked Maras to confirm the age as being twelve. Maras responded,
“This is correct.” Maras also agreed to have the minutes of testimony
incorporated into the record. The minutes included a case investigation report
detailing Maras’ attempt “to persuade” the “12 year old” child through text
messages “to engage [in] sexual acts.” According to the report, the child told
Maras “numerous times to stop but he continued anyways.”
We conclude there was a factual basis for the plea to first-degree
harassment. Accordingly, we affirm the plea.
II. Ineffective Assistance of Counsel
Maras contends his plea attorney was ineffective in (A) allowing him to
plead guilty to a plea lacking a factual basis and (B) failing to pursue the
defenses of intoxication or diminished capacity. Having found a factual basis, we
need not address the first claim. We preserve the second claim for
postconviction relief proceedings to allow counsel an opportunity to weigh in.
See State v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006) (“We normally
preserve an ineffective-assistance-of-counsel claim for a postconviction relief
proceeding where preserving the claim allows the defendant to make a complete
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record of the claim, allows trial counsel an opportunity to explain his or her
actions, and allows the trial court to rule on the claim.”).
III. Sentencing Decision
Maras contends the district court abused its discretion in sentencing him
by (A) “relying on facts that were not in evidence or demonstrably erroneous
interpretations of facts from the minutes of testimony” and (B) “consider[ing]
improper sentencing factors in imposing a sentence of imprisonment.” Both
arguments are premised on the erroneous forcible felony charge. In Maras’ view,
“a judge viewing the threatened part of the act as a part of the entire offense may
indeed view the entirety of the offense differently depending on the degree of the
threatened offense.”
In sentencing Maras to a prison term not exceeding two years, the district
court stated:
The Court has considered the entire presentence
investigation report. The Court has considered the statements of
counsel, the statements of Mr. Maras, and, Mr. Maras, this Court is
going to note, as mentioned by the county attorney, the Court
independently came to this conclusion that you have apparently no
insight into what you did, or you’re simply electing to minimize it yet
today, but at least to the date of the presentence investigation
report.
You claim this—your action’s on alcohol, and yet this is
something that took place over the course of several days. I went
back and reviewed the Minutes of Testimony attached to the Trial
Information and I note that you sent text messages over a several-
day period, all of which dealt with—or many of which, I should say,
dealt with sexual contact with this 12-year-old victim. This is not—
and, remarkably, the text messages appeared to be in good form
and statements that—or matters that were spelled correctly, and
were, with the exception of one, clear statements about what you
wanted to do. This Court believes that you are either continuing to
minimize what you did or just won’t accept what you did, one of the
two.
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And also considering your past criminal history, again, much
of it involves alcohol. Your OWI one—1st, 2nd, 3rd. The Court
believes the following sentence should be entered.
First, the Court makes the finding beyond a reasonable
doubt that the defendant on or about June 15, 2015 committed the
crime of Harassment in the First Degree, by making threats to
commit Sexual Abuse in the Second Degree by specifically
threatening to put his hands in the 12-year-old victim’s pants;
sucking, kissing and, to quote your text message, licking your
luscious nips and sweet pussy—close the quote—upon the 12-
year-old girl.
There is no indication the court viewed the crime differently based on the degree
of the underlying forcible felony. Accordingly, we conclude the court did not
consider an impermissible factor or abuse its discretion in sentencing Maras. We
affirm Maras’ judgment and sentence for first-degree harassment.
AFFIRMED.