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.

________________________________________________________________

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-ofcounsel 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 severalday 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.