IN THE SUPREME COURT OF IOWA
No. 13–1238
Filed April 8, 2016
Amended June 24, 2016
STATE OF IOWA,
Appellee,
vs.
KEVIN DUANE FISHER II,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Johnson County, Stephen
Gerard II, Judge.
A defendant challenges his guilty plea for failure to inform him of
certain consequences of the plea. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AND SENTENCE VACATED
AND CASE REMANDED.
Philip B. Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers,
Assistant Attorney General, Janet Lyness, County Attorney, and
Elizabeth A. Beglin, Assistant County Attorney, for appellee.
2
MANSFIELD, Justice.
This case requires us to determine whether a defendant pleading
guilty to a controlled-substance offense has a right to be informed
beforehand that, as a result of the conviction, his driver’s license will be
revoked for 180 days. We conclude that because revocation is automatic,
immediate, punitive, and a part of the sentencing order, the defendant
has a right to be informed of this consequence. We further conclude that
the defendant has a right to be informed of fine surcharges. Accordingly,
we vacate the defendant’s conviction and remand for further proceedings
consistent herewith.
I. Background Facts and Prior Proceedings.
According to the minutes of testimony, on April 11, 2013, Eric
Seckel of the University of Iowa Police Department was performing a bar
check in Iowa City. As he walked toward the back of the bar, he could
smell the odor of marijuana. He made contact with Kevin Fisher and
could smell a strong odor of burnt marijuana on his breath. When
Fisher was asked if he had any marijuana on him, he handed Officer
Seckel a cigarette box that contained a partially used joint. The joint
contained marijuana.
On April 25, Fisher was charged with possession of a controlled
substance first offense, a serious misdemeanor, in violation of Iowa Code
sections 124.401(5) and 124.204(4)(m) (2013). Initially, Fisher pled not
guilty and demanded a speedy trial. However, on June 17, the scheduled
date of his pretrial conference, Fisher’s counsel submitted a written
guilty plea signed by Fisher. Among other things, the plea set forth the
maximum punishment—six months—and the basic range of fines—$315
to $1875—for the offense. Additionally, it disclosed the constitutional
rights that Fisher was waiving by pleading and not going to trial.
3
The actual plea agreement was handwritten into the signed form.
It consisted of two days in jail, a $315 fine, substance abuse evaluation
and treatment, and urinalysis within ten days.
In the plea form Fisher also acknowledged, in writing, as follows:
I have been advised of my right to challenge this plea
of guilty by filing a Motion in Arrest of Judgment at least five
(5) days prior to the date that the Court sets for sentencing
and within forty-five (45) days after the Court accepts my
plea.
Fisher’s counsel certified in the plea form that he had “carefully
explained to the defendant the procedural steps of filing a Motion in
Arrest of Judgment, the definition and grounds thereof and the time
within which such Motion should be filed.”
On that same day of June 17, the district court entered a written
order accepting the plea and entering judgment and sentence. The order
stated that the defendant was advised of his right to file a motion in
arrest of judgment pursuant to the provisions of Iowa Rule of Criminal
Procedure 2.24(3) and that “[t]he Defendant waives the right to have time
prior to sentencing, waives the right to be present for sentencing, and
requests the Court proceed to immediate entry of judgment and
sentencing.”
The ensuing judgment and sentence were consistent with the
terms of the plea agreement. However, they also provided for several
surcharges on top of the fine, including a thirty-five percent surcharge
and a $125 law enforcement surcharge. Furthermore, the judgment and
sentence stated that “[t]he Department of Transportation shall impose
any suspensions or revocations of Defendant’s driver’s license or motor
vehicle operating privilege as required by Iowa Code Chapter 321J, Iowa
Code Section 901.5(10), or other applicable statute or rule.”
4
On July 18, Fisher filed a notice of appeal. The district court
appointed appellate counsel on October 2. This counsel subsequently
filed a motion for leave to withdraw under Iowa Rule of Appellate
Procedure 6.1005 on November 15. 1 We denied the motion because it
failed to provide sufficient detail regarding the plea and sentencing
proceedings. See Iowa R. App. P. 6.1005(2)(a). 2 Appellate counsel filed
two more rule 6.1005 motions, both of which we denied for similar
reasons. In our September 3, 2014 order denying appellate counsel’s
third and final rule 6.1005 motion, we removed this counsel for his
repeated failure to comply with rule 6.1005. The counsel who is
handling the present appeal was appointed on October 3.
Following briefing, we transferred the case to the court of appeals.
On appeal, Fisher argued his written plea was defective because it failed
to disclose the statutory minimum sentence of two days in jail, the
mandatory six months’ revocation of his driver’s license, and the
surcharges that were later added to his fine. See Iowa Code
§ 124.401(5); id. § 901.5(10); id. §§ 911.1–.3. In addition, Fisher urged
the court to bypass any error preservation concerns despite his failure to
file a motion in arrest of judgment because the plea did not adequately
1Iowa Rule of Appellate Procedure 6.1005 sets forth the procedures that “apply
when court-appointed counsel moves to withdraw on the grounds that the appeal is
frivolous.” Iowa R. App. P. 6.1005(1).
2Iowa Rule of Appellate Procedure 6.1005(2)(a) provides in part,
If the appeal is from a guilty plea or sentence, the motion shall, at a
minimum, address whether a factual basis existed for each and every
element of the crime, whether the plea and sentencing proceedings
substantially complied with the rules of criminal procedure, and whether
the sentence was authorized by the Iowa Code, case law, or the rules of
criminal procedure. The brief shall also contain citations to the record
establishing each of the elements of the crime and establishing
compliance with the rules of criminal procedure and the Iowa Code.
5
inform him that a failure to file a motion in arrest of judgment would
foreclose his ability to challenge his guilty plea on direct appeal.
Alternatively, Fisher argued that his counsel rendered ineffective
assistance for failing to file a motion in arrest of judgment.
In a September 23, 2015 decision, the court of appeals concluded
“there was substantial compliance with the requirement Fisher be
informed of the necessity of filing a motion in arrest of judgment in order
to challenge his guilty plea,” thus barring Fisher’s direct appeal. The
court also determined that Fisher’s counsel was not ineffective for failing
to challenge the alleged defects in the written plea. According to the
court of appeals, Fisher “failed to show . . . he was unaware of the
mandatory minimum sentence of two days in jail”; the surcharge did not
“affect the range of Fisher’s punishment”; and, “[t]he suspension of
Fisher’s driver’s license was also a collateral consequence of his guilty
plea.” The court thus affirmed Fisher’s plea and sentence.
Fisher applied for further review. We granted his application.
II. Standard of Review.
We ordinarily review challenges to guilty pleas for correction of
errors at law. State v. Velez, 829 N.W.2d 572, 575 (Iowa 2013).
III. Analysis.
A. Error Preservation. We must first address whether Fisher can
appeal his guilty plea despite not having filed a timely motion in arrest of
judgment. Generally, “[a] defendant’s failure to challenge the adequacy
of a guilty plea proceeding by motion in arrest of judgment shall preclude
the defendant’s right to assert such challenge on appeal.” Iowa R. Crim.
P. 2.24(3)(a). However, this rule does not apply to defendants who were
not advised
6
during the plea proceedings, as required by rule 2.8(2)(d),
that challenges to the plea must be made in a motion in
arrest of judgment and that the failure to challenge the plea
by filing the motion within the time provided prior to
sentencing precludes a right to assert the challenge on appeal.
State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004) (emphasis added).
Iowa Rule of Criminal Procedure 2.8(2)(d) states,
The court shall inform the defendant that any challenges to
a plea of guilty based on alleged defects in the plea
proceedings must be raised in a motion in arrest of judgment
and that failure to so raise such challenges shall preclude
the right to assert them on appeal.
Substantial compliance with rule 2.8(2)(d) is mandatory and “[n]o
defendant . . . should suffer the sanction of rule [2.24(3)(a)] unless the
court has complied with rule [2.8(2)(d)] during the plea proceedings.”
State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980).
Fisher pled guilty to a serious misdemeanor, and in such
proceedings it is “unnecessary . . . for the trial court to actually engage in
an in-court colloquy with a defendant so as to personally inform the
defendant of the motion in arrest of judgment requirements.” Meron, 675
N.W.2d at 541. Instead, a written waiver filed by the defendant can be
sufficient. Id. A defendant’s written plea or waiver can foreclose an
appeal when it complies with rule 2.8(2)(d). See State v. Barnes, 652
N.W.2d 466, 468 (Iowa 2002) (per curiam) (concluding that defendant
failed to preserve error because he did not file a motion in arrest of
judgment when his written plea clearly stated that a failure to file such a
motion would bar any challenge to his plea on appeal). Yet regardless of
whether the information is imparted through a colloquy or a written plea,
the defendant must be made aware of the substance of rule 2.24(3)(a).
Fisher argues that the form he signed did not comply with this
requirement. It set forth the right to challenge the plea by filing a motion
7
in arrest of judgment and, on a separate page, provided that Fisher was
waiving this right, but it did not indicate that all avenues for challenging
the plea were being cut off or mention the word “appeal” at all. See State
v. Loye, 670 N.W.2d 141, 148 (Iowa 2003) (“The right to appeal is waived
only if such a waiver is an express element of the particular agreement
made by that defendant.”); State v. Hinners, 471 N.W.2d 841, 845 (Iowa
1991) (“[T]he waiver of the right to appeal should be voluntary, knowing,
and intelligent. This presupposes the defendant knows about the right of
appeal and intentionally relinquishes it.” (Citation omitted.)).
We have found sufficient compliance with the rule when the
defendant was told that, if he requested immediate sentencing, his right
to “question the legality of his plea of guilty” would be “gone.” State v.
Taylor, 301 N.W.2d 692, 692 (Iowa 1981). And in State v. Oldham, 515
N.W.2d 44, 46–47 (Iowa 1994), we found that a colloquy and a written
application to withdraw the not-guilty plea—when considered together—
sufficed “to notify Oldham of the consequences of his failure to file the
motion [in arrest of judgment].” There the colloquy advised the
defendant that he had the right to file a motion in arrest of judgment “if
[he] claim[ed] that these plea proceedings [were] illegal” but such a
motion had to be filed “at least five days before the time set for
sentencing.” Id. at 46. We viewed this advice alone as “equivocal with
respect to the consequences of the defendant’s failure to file a motion in
arrest of judgment.” Id. But the written application had added,
I understand that if I wish to attack the validity of the
procedures involved in the taking of my guilty plea, I must
do so by a motion in arrest of judgment filed with this court.
I understand that such motion must be filed at least five
days before sentencing and also within 45 days of the date
my plea of guilty is accepted by the court.
8
Id. Oldham had read and signed the application and we decided that
when the application and colloquy were “considered together,” he “was
adequately informed of the necessity of filing a motion in arrest of
judgment” and his failure to do so precluded his challenge to his plea on
appeal. Id. at 47.
“We employ a substantial compliance standard in determining
whether a trial court has discharged its duty under rule 2.8(2)(d).” State
v. Straw, 709 N.W.2d 128, 132 (Iowa 2006). In Straw we found
substantial compliance, noting,
The court’s statement plainly indicated that if Straw wanted
to appeal or challenge the guilty plea, he had to file a motion
in arrest of judgment. It also indicated this motion had to be
filed not less than five days before sentencing. In whole, it
conveyed the pertinent information and substantially
complied with the requirements of rule 2.8(2)(d).
Id.
This case falls short of Taylor and Oldham and well short of Straw.
Absent from Fisher’s form was any statement that by signing it or
proceeding to immediate sentencing, Fisher was giving up his ability to
contest the plea in the future, even if the conviction resulted in
consequences (as we discuss below) that Fisher may not have been told
about before pleading guilty. It is true that counsel for Fisher certified in
the plea form that he had explained the procedure for filing a motion in
arrest of judgment to the defendant. However, “[e]ven considering the
assurances that counsel for [the defendant] explained the right to file a
motion in arrest of judgment, this guarantee would be insufficient to
satisfy the second requirement of rule 2.8(2)(d).” Meron, 675 N.W.2d at
541.
On these facts, we cannot conclude that there was substantial
compliance with the court’s duty to inform Fisher that a failure to file a
9
timely motion in arrest of judgment would waive any challenge to his
guilty plea on appeal. Because Fisher’s written plea was deficient in this
respect, he is not precluded from challenging his guilty plea on direct
appeal. 3
B. Is the Loss of a Driver’s License a Direct Consequence of
Fisher’s Guilty Plea? Fisher argues his written guilty plea was invalid
because he was not informed of three consequences of that plea: (1) the
mandatory suspension of his driver’s license for six months, (2) the fine
surcharges, and (3) the mandatory minimum sentence of two days in jail.
Rule 2.8(2)(b)(2) requires the court to
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); see also id. r. 2.8(2)(b) (providing further
that the court may “with the approval of the defendant, waive the above
procedures in a plea of guilty to a serious or aggravated misdemeanor”).
As with rule 2.8(2)(d), we utilize a substantial compliance standard
to determine whether a plea crosses the rule 2.8(2)(b)(2) threshold. See
State v. White, 587 N.W.2d 240, 242 (Iowa 1998). Both parties agree for
purposes of this appeal that Fisher needed to be informed of all direct
consequences of the plea in the colloquy or in any written waiver thereof.
As we have said,
3Had the form substantially complied with rule 2.8(2)(d), Fisher would have to
challenge his guilty plea under the rubric of ineffective assistance of counsel, which
would require him, among other things, to demonstrate “a reasonable probability that,
but for counsel’s errors, he [or she] would not have pleaded guilty and would have
insisted on going to trial.” Straw, 709 N.W.2d at 138 (quoting Hill v. Lockhart, 474 U.S.
52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
10
To the extent defendant alleges the sentencing court failed to
inform him fully of the consequences of his plea, he
implicates the due process clause of the Fourteenth
Amendment to the United States Constitution. To adhere to
the requirements of the Fourteenth Amendment a sentencing
court must insure the defendant understands the direct
consequences of the plea including the possible maximum
sentence, as well as any mandatory minimum punishment.
However, the court is not required to inform the defendant of
all indirect and collateral consequences of a guilty plea.
State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998) (per curiam) (citations
omitted).
We begin with Fisher’s assertion that the failure to inform him of
the temporary revocation of his license rendered his plea defective. Iowa
Code section 901.5(10) requires the sentencing court to “order the
department of transportation to revoke the defendant’s driver’s license or
motor vehicle operating privilege for a period of one hundred eighty days”
when pronouncing a sentence for certain specified offenses, including
possession of a controlled substance under section 124.401. We must
determine whether this mandatory license suspension is a direct or a
collateral consequence of a guilty plea for possession of a controlled
substance.
In affirming Fisher’s conviction and sentence, the court of appeals
relied on our decision in Carney. There we determined that license
revocation was “not a direct consequence of a guilty plea” to operating
while intoxicated (OWI). Carney, 584 N.W.2d at 909. We distinguished
between direct and collateral consequences of a plea by approvingly
quoting the following language: “The distinction between ‘direct’ and
‘collateral’ consequences of a plea . . . turns on whether the result
represents a definite, immediate and largely automatic effect on the
range of defendant’s punishment.” Id. at 908 (quoting State v. Warner,
229 N.W.2d 776, 782 (Iowa 1975)). We reasoned that the purpose of
11
license revocation for those who had been convicted of OWI was “to
protect the public by providing that drivers who have demonstrated a
pattern of driving while intoxicated be removed from the highways.” Id.
at 909 (quoting State v. Moore, 569 N.W.2d 130, 132 (Iowa 1997)). In
addition, we had previously ruled that license revocation as a
consequence of an OWI conviction was “not punishment for purposes of
the double jeopardy clause.” Id.; see State v. Krebs, 562 N.W.2d 423,
424–25 (Iowa 1997) (per curiam). Accordingly, we concluded that
revoking the driver’s license of a person convicted of OWI was a collateral
consequence because it was not intended as punishment. Carney, 584
N.W.2d at 909.
However, unlike Carney, this case involves revocation of a driver’s
license as a mandatory consequence of a drug possession conviction—not
an OWI conviction. In this regard, we believe several pre-Carney
decisions are relevant. In Hills v. Iowa Department of Transportation, 534
N.W.2d 640, 640–41 (Iowa 1995), Hills was charged with possession of
marijuana under Iowa Code section 124.401(3), and she pled guilty three
months after her arrest. During the time between Hills’s arrest and her
plea, Iowa Code section 321.209(8)—the former version of Iowa Code
section 901.5(10)—went into effect. Id. at 641. 4 After the department of
4License revocation under the former Iowa Code section 321.209(8) was a
separate administrative proceeding that took place after sentencing:
The department shall upon twenty days’ notice and without
preliminary hearing revoke the license or operating privilege of an
operator upon receiving a record of the operator’s conviction for any of
the following offenses, when such conviction has become final:
....
8. A controlled substance offense under section 124.401 . . . .
Iowa Code § 321.209(8) (1995).
12
transportation revoked her license, Hills argued on judicial review that
the revocation of her license amounted to a violation of the ex post facto
clauses of the Federal and Iowa Constitutions. Id.
In that case, we concluded that license revocation was an ex post
facto violation because the sanction was punitive in nature. Id. at 642.
In reaching this conclusion, we examined the connection between the
crime of possession of a controlled substance and the revocation of the
offender’s drivers’ license—i.e., whether the license revocation amounted
to a civil penalty or criminal punishment. Id. We noted that, unlike in
the context of an OWI conviction, the aim of ensuring public safety on
the highways did not apply:
Persons who illegally possess drugs are of course subject to
appropriate criminal punishment. But many such persons
choose not to drive. When they do not, they do not affect
highway safety. Any connection between drugs, driving, and
public safety is at most indirect. The amended statute
authorizing this license revocation was aimed essentially at
enhancing punishment for controlled substance possession.
As such it was quasi-criminal and not civil in nature. Ex
post facto principles therefore prohibit application of the
amended statute.
Id.
After Hills, we decided Dressler v. Iowa Department of
Transportation, 542 N.W.2d 563 (Iowa 1996). In that case, Dressler had
pled guilty to possession of a controlled substance under Iowa Code
section 124.401(3). Id. at 564. Shortly after his plea, the department of
transportation commenced proceedings to revoke his driver’s license for
six months pursuant to former Iowa Code section 321.209(8). Id.
Challenging the latter action, Dressler argued that section 321.209(8)
_______________________
By contrast, Iowa Code section 901.5(10) (2013) provides that license revocation
will be ordered by the court at the time of sentencing.
13
was unconstitutional because it imposed a successive punishment for
the same conduct in violation of the Double Jeopardy Clause of the Fifth
Amendment. Id. at 565. We agreed with Dressler:
Our conclusion in Hills that section 321.209(8)
enhances punishment of a controlled substance possession
dispenses with the State’s assertion that this section is not a
penal statute. Because section 321.209(8) twice punishes
Dressler for the same offense—possession of a controlled
substance—in a separate proceeding, we conclude it
unconstitutionally contravenes Dressler’s double jeopardy
guarantees.
Id.
Following the Hills and Dressler decisions, the general assembly
amended the statute so it now provides that, as part of the criminal
sentencing process, “the court shall order the department of
transportation to revoke the defendant’s driver’s license or motor vehicle
operating privilege for a period of one hundred eighty days . . . .” 1996
Iowa Acts ch. 1218, § 68 (codified at Iowa Code § 901.5(10)(a)). This
takes care of the double jeopardy problem but does not alter our prior
view that revoking the driver’s license of a person convicted of a drug
possession offense is a punitive rather than a regulatory consequence.
As we previously said, “Any connection between drugs, driving, and
public safety is at most indirect.” Hills, 534 N.W.2d at 642.
Because revocation of the driver’s license of a person convicted of a
drug possession offense is mandatory, immediate, and part of the
punishment for that offense, the court must inform the defendant of this
consequence before accepting his or her plea. Here Fisher’s written plea
did not advise him that a guilty plea would result in the suspension of
his license. We therefore find that the plea was involuntary and Fisher’s
conviction and sentence must be set aside. See also Barkley v. State,
724 A.2d 558, 560–61 (Del. 1999) (holding that a revocation of driver’s
14
license based on a conviction for cocaine possession was “an immediate,
automatic and mandatory penalty” that must be disclosed to the
defendant before the defendant pleads guilty); but see Rowell v.
Commonwealth, 647 A.2d 696, 698 (Pa. Commw. Ct. 1994) (finding that
a license suspension based on a drug possession conviction was merely a
“civil consequence” as opposed to a “criminal punishment” and therefore
the trial judge did not have a duty to inform the defendant of this
consequence before accepting a guilty plea).
C. Are Fine Surcharges a Form of Punishment That Must Be
Disclosed During Plea Proceedings? We turn now to Fisher’s assertion
that the addition of surcharges to the fine for his conviction violated his
right to be informed of the consequences of his guilty plea. The plea
agreement stated that upon pleading guilty Fisher would be “fined at
least $315.00 and up to $1,875.00.” Fisher received the $315 minimum
fine, but several surcharges were tacked on:
1. A thirty-five percent criminal penalty surcharge,
2. A drug abuse resistance education surcharge of $10, and
3. A law enforcement initiative surcharge of $125.
See Iowa Code §§ 911.1–.3. With these surcharges, the fine actually
totaled $560.25.
As noted above, rule 2.8(2)(b)(2) requires the court to inform the
defendant of the “mandatory minimum punishment” and the “maximum
possible punishment” before accepting a guilty plea. These are
considered direct consequences of the plea. See Saadiq v. State, 387
N.W.2d 315, 324–25 (Iowa 1986). The State does not dispute that the
fine itself is a form of punishment which must be disclosed. See State v.
Brady, 442 N.W.2d 57, 59 (Iowa 1989) (distinguishing fines and
15
restitution). 5 However, it analogizes surcharges to court costs, which are
not considered a form of punishment and do not need to be disclosed in
advance of the plea. See id. (holding that a failure to disclose mandatory
payments that are compensatory rather than punitive did not vitiate a
guilty plea).
We disagree with the State. According to the plain language of the
statute, the surcharge of thirty-five percent is a mandatory “additional
penalty.” Iowa Code § 911.1(1). Thus, it is punitive on its face. The
DARE surcharge of ten dollars lacks the same label but is nonetheless
mandatory for controlled substance offenses. Id. § 911.2(1). The law
enforcement initiative surcharge of one hundred twenty-five dollars is
likewise mandatory for controlled substance offenses. Id. 911.3(1)(a).
All of these surcharges can be distinguished from other court-
ordered payments, such as restitution, court costs, and reimbursement
for the cost of court-appointed counsel, which we regard as nonpunitive.
See Brady, 442 N.W.2d at 59. The latter items are compensatory and
“do[] not fit the generally understood definition of punishment.” Id. By
contrast, the surcharges do not serve as compensation but are simply
what their title indicates—a “surcharge” on the fine. For rule 2.8
purposes, we see no meaningful difference between a fine and a built-in
5Federal Rule of Criminal Procedure 11 expressly requires disclosure of “any
maximum possible penalty, including . . . fine” as part of the guilty plea colloquy. See
Fed. R. Crim. P. 11(b)(1)(H). Other states also require fines to be disclosed. See, e.g.,
Carter v. State, 812 So. 2d 391, 394–95 (Ala. Crim. App. 2001) (reversing guilty plea
where the defendant was not advised of “all the mandatory fines that were due to be
imposed upon entry of his guilty plea”); Kaiser v. State, 641 N.W.2d 900, 904 (Minn.
2002) (“[D]irect consequences are those which flow definitely, immediately, and
automatically from the guilty plea—the maximum sentence and any fine to be imposed.”
(quoting Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998), abrogated in part on other
grounds by Padilla v. Kentucky, 559 U.S. 356, 365–66, 130 S. Ct. 1473, 1480–81, 176
L. Ed. 2d 284, 292–94 (2014))); People v. Harnett, 945 N.E.2d 439, 441–42 (N.Y. 2011)
(“The direct consequences of a plea—those whose omission from a plea colloquy makes
the plea per se invalid—are essentially the core components of a defendant’s sentence: a
term of probation or imprisonment, a term of post-release supervision, a fine.”).
16
surcharge on a fine. As the United States Court of Appeals for the
Seventh Circuit has put it, “Labels don’t control. A fine is a fine even if
called a fee . . . .” Mueller v. Raemisch, 740 F.3d 1128, 1133–34 (7th Cir.
2014) (upholding the annual registration fee for the sex offender
database because it was “intended to compensate the state for the
expense of maintaining the sex offender registry”).
The State insisted at oral argument that surcharges cannot be
characterized as punishment because the funds collected—or at least
some of them—are used for “remedial” purposes, such as crime and drug
abuse prevention. But the funds collected through regular fines
themselves are used for similarly beneficent purposes. They are
deposited into the general fund which supports various state priorities
including medical assistance and education. See Iowa Code § 602.1305;
id. § 602.8108. This does not make them any less punitive.
As Fisher’s counsel pointed out during oral argument, the
surcharges made it effectively impossible that Fisher could ever actually
be fined $315, the mandatory minimum listed on the plea form. In fact,
the actual dollar minimum was $560.25. We conclude that Fisher
should have been informed of the mandatory minimum and maximum
possible fines, including surcharges. 6
6Because we are vacating Fisher’s plea and sentence and remanding for further
proceedings anyway based on failure to disclose the mandatory license suspension, we
need not decide today whether failure to disclose the surcharges alone would have
meant the plea did not substantially comply with rule 2.8(2)(b)(2). Regardless, we hold
that actual compliance with rule 2.8(2)(b)(2) requires disclosure of all applicable chapter
911 surcharges.
Fisher also argues that his guilty plea was defective because he was not
informed of the mandatory minimum of two days in jail. We note, however, that in his
plea agreement, Fisher agreed to two days in jail.
17
IV. Conclusion.
For reasons stated above, we vacate the decision of the court of
appeals and the judgment and sentence imposed by the district court.
We remand for further proceedings consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AND SENTENCE VACATED AND CASE
REMANDED.