IN THE COURT OF APPEALS OF IOWA

No. 18-0502

Filed June 5, 2019

DONSHEY PURNELL REED,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joel A. 

Dalrymple, Judge.

Donshey Reed appeals the district court’s denial of his application for 

postconviction relief. PCR DECISION AFFIRMED; SENTENCES VACATED IN 

PART AND REMANDED FOR RESENTENCING. 

Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant 

Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., Potterfield, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Presiding Judge.

Donshey Reed pled guilty to possession of marijuana with intent to 

distribute (second or subsequent offense) (Count I), delivery of marijuana (second 

or subsequent offense) (Count II), drug-tax-stamp violation (Count III), possession 

of a firearm by a felon (Count IV), trafficking stolen weapons (Count V), and eluding 

(Count VI). The district court sentenced Reed to serve prison terms not exceeding 

fifteen years on Counts I and II, five years on Counts III, IV, and V, and one year 

on Count VI; with the sentences to run concurrently. The court fined Reed $750 

plus a 35% surcharge on Counts I through V and $315 plus a 35% surcharge on 

Count VI. The court also imposed a drug-abuse-resistance-education (DARE) 

surcharge on Counts I through IV and a law-enforcement-initiative (LEI) fee on 

Counts I through III and Count V. 

Reed filed a postconviction-relief (PCR) application challenging various 

aspects of the pretrial and guilty-plea proceedings.1 Following a hearing, the PCR 

court denied the application.

On appeal, Reed argues (1) his sentence should be modified to remove

illegally-imposed surcharges and (2) his PCR attorney was ineffective in “failing to 

present evidence or develop a record at the [PCR] proceeding.”

The State agrees the DARE surcharge should not have been imposed on 

Count III (drug-tax-stamp violation) and Count IV (possession of a firearm by a 

felon) because those crimes arose under statutes not enumerated in the DARE 

surcharge statute. See Iowa Code §§ 911.2(1) (2013) (authorizing imposition of 

 

1 Reed’s first PCR application was dismissed. 
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the DARE surcharge only for offenses “provided for in chapter 321J or chapter 

124”), 453B.12 (drug-tax-stamp violation), 724.26(1) (possession of a firearm as a 

felon). The State further agrees the LEI surcharge should not have been imposed 

on Count V (trafficking stolen weapons), which arises under a statute not 

enumerated in the LEI statute. See id. §§ 911.3(1), 724.16A (trafficking stolen 

weapons). The sentence should be corrected to remove the identified surcharges. 

See Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an illegal sentence at any 

time.”).

We turn to Reed’s contention that his PCR attorney “did not present any 

evidence or argument as to why trial counsel [did not] challenge[] the search 

warrants, [seek] to sever the charges, or [move to] suppress[] evidence obtained 

from an unlawful traffic stop as alleged in the Petition” and “did not sufficiently 

develop the record with respect to whether there was a factual basis for the felon 

in possession of a firearm conviction.” To prevail, Reed must show (1) counsel 

breached an essential duty and (2) prejudice resulted. Strickland v. Washington,

466 U.S. 668, 687 (1984). “[T]his showing often requires a more thorough record 

than the one provided on direct appeal.” State v. Petty, 925 N.W.2d 190, 196 (Iowa 

2019).

At the PCR hearing, the State offered several exhibits culled from trial court 

binders, including search warrants executed on two homes. The State also offered 

the transcript of a deposition of Reed’s plea attorney. These exhibits were

admitted without objection. 

The deposition transcript did not elucidate the issues. The plea attorney 

candidly stated he could not remember the facts underlying the charges. He 
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specifically could not speak to facts contained in the minutes of testimony that 

might have raised doubts about Reed’s actual or constructive possession of a gun 

and marijuana found in a room frequented by people other than Reed. When PCR 

counsel asked him about the search warrants and why he failed to file a 

suppression motion, he acknowledged having “many conversations[] [with Reed] 

about filing a motion to suppress” but said he was dissuaded by the prosecutor’s 

threats to seek “additional enhancements.” 

We conclude the record is inadequate to determine whether Reed’s plea 

attorney was ineffective in failing to file a motion to suppress evidence gained 

through execution of the search warrants. It follows that the record is inadequate 

to determine whether PCR counsel was ineffective in failing to present a more 

thorough record on this ineffective-assistance-of-plea-counsel claim. We preserve 

the claim for another possible postconviction-relief application. See Allison v. 

State, 914 N.W.2d 866, 819 (Iowa 2018) (“In order to avoid the difficult 

constitutional position that would result in denying a remedy where defense 

counsel allegedly provided ineffective assistance at trial and postconviction 

counsel is ineffective in raising that claim, we think the best approach is to hold 

that where a PCR petition alleging ineffective assistance of trial counsel has been 

timely filed per section 822.3 and there is a successive PCR petition alleging 

postconviction counsel was ineffective in presenting the ineffective-assistance-oftrial-counsel claim, the timing of the filing of the second PCR petition relates back 

to the timing of the filing of the original PCR petition for purposes of Iowa Code 

section 822.3 if the successive PCR petition is filed promptly after the conclusion 

of the first PCR action.”); see also Goode v. State, 920 N.W.2d 520, 526 (Iowa 
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2018) (“Based on Allison, the statutory-limitation period is not an impediment to 

pursuing a second PCR application relating to the claim in this case if promptly 

filed following the appeal.”).

The PCR record contains scant if any evidence on Reed’s claim that his trial 

attorney should have filed a motion to sever the charges. We preserve the claim 

for another possible postconviction-relief application. 

We are left with the contention that the record lacked a factual basis for the 

felon-in-possession-charge; Reed’s plea attorney was ineffective in failing to 

challenge the absence of a factual basis; and PCR counsel was ineffective in 

failing to develop the record on this claim. At a minimum, we need the plea 

transcript to address the issue. This was not one of the trial documents admitted 

into the PCR record. Accordingly, we preserve the issue for another possible 

postconviction-relief application.

We vacate Reed’s sentence and remand for removal of the DARE 

surcharge for Counts III and IV and removal of the LEI surcharge for Count V. We 

affirm the PCR court’s denial of Reed’s postconviction-relief application and 

preserve his claims that PCR counsel was ineffective for another possible 

postconviction-relief application.

PCR DECISION AFFIRMED; SENTENCES VACATED IN PART AND 

REMANDED FOR RESENTENCING.