IN THE COURT OF APPEALS OF IOWA

No. 18-1645

Filed March 18, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

PAUL A. GARRITY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart P. Werling, 

Judge.

A defendant appeals from a conviction and sentence entered following his 

plea of guilty. AFFIRMED.

Thomas M. McIntee, Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney 

General, for appellee.

Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
2

SCHUMACHER, Judge.

A defendant appeals from a sentencing order that adopted terms of a plea 

agreement. On appeal, he argues he received ineffective assistance of counsel 

and the court erred in accepting his plea of guilty and including a late-fee provision 

in the sentencing order. We preserve his ineffective-assistance-of-counsel claims

for postconviction proceedings with the exception of two of his arguments. We find 

no violation of defendant’s due process rights and reject his protest against the 

court’s imposition of a late-fee provision in the sentencing order. Accordingly, we 

affirm the conviction and sentence.

Facts and Procedural Background

On February 24, 2017, a deputy from the Scott County Sheriff’s Office 

responded to a report of a single vehicle accident. The driver was not initially 

located at the scene. While the deputy awaited a tow truck, Paul Garrity appeared, 

smelling of alcohol. Garrity claimed ownership of the vehicle and admitted driving.

Medics arrived and began treating Garrity for a back injury, subsequently 

transporting him to the hospital. At the hospital, the deputy issued Miranda

warnings, and Garrity again acknowledged driving the vehicle. The deputy 

requested Garrity consent to a preliminary breath test, and Garrity declined. The 

deputy invoked implied consent, and Garrity again refused to provide a sample.

The State filed a trial information in March 2017, charging Garrity with 

operating a motor vehicle while intoxicated, second offense. Garrity entered a 

written guilty plea on February 28, 2018, which contained waivers of Garrity’s rights 

to allocution and an in-court colloquy. The court found Garrity’s plea had a factual 

basis and was knowingly, voluntarily, and intelligently made. Acceptance of the 
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plea was conditioned on confirmation of the agreement at the time of sentencing. 

In the order setting sentencing the court included the following language:

Defendant has the right to contest the guilty plea. To contest the 

guilty plea, defendant must file a motion in arrest of judgment. This 

motion must be filed within 45 days after the guilty plea but no later 

than 5 days prior to sentencing (whichever occurs first). If defendant 

fails to timely file the motion in arrest of judgment, defendant forever 

waives the right to challenge the plea and attack the plea on direct 

appeal to the Iowa Supreme Court.

Garrity failed to appear at the April 11, 2018 sentencing hearing and a 

warrant was issued. Following service of the warrant, a sentencing hearing was 

scheduled for April 27, 2018. After a continuance at the request of Garrity to allow 

additional time to finish treatment, sentencing was reset for May 25, 2018. Garrity 

filed a motion in arrest of judgment on the day of his sentencing hearing. 

The court held a combined hearing on August 16, 2018, on the motion in 

arrest of judgment and sentencing. At the hearing, Garrity asserted that he had 

intended to plead guilty to only one of three matters he had pending on 

February 28, 2018. He testified that he understood two of the pending matters to 

be one and the same and claimed he did not sign a guilty plea on the charge for 

operating while intoxicated. He also claimed he was unaware of the time limits to 

file a motion in arrest of judgment. Garrity’s counsel related that she “went through” 

the plea with Garrity “slowly together” and that “[h]e appeared to understand it.”

The trial court denied the motion in arrest of judgment because it was not 

timely filed in accordance with Iowa Rule of Criminal Procedure 2.24 and because 

the court found the defendant “knowingly, voluntarily, and intelligently waived his 

rights and entered a valid guilty plea in this matter.” The trial court further found 

that the written guilty plea “was signed by [Garrity] on February 28, 2018.”
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The court then sentenced the defendant to a term of incarceration and 

imposed a fine of $1875 plus a thirty-five percent surcharge, along with costs and 

applicable surcharges. The court’s order contained the following statement, which 

was not present in the guilty plea: 

NOTICE: If Defendant fails to pay the total financial obligation the 

obligation will be transferred for collection and an additional fee up 

to 25% of the financial obligation owed may be assessed. The State 

of Iowa may withhold any State income tax refund, vehicle 

registration and/or driver’s license issuance for unpaid court ordered 

financial obligations. The State of Iowa may garnish Defendant’s 

wages or other assets possessed by Defendant.

Garrity appeals.

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Standard of Review

We review ineffective-assistance-of-counsel claims de novo. Rhoades v. 

State, 848 N.W.2d 22, 26 (Iowa 2014). We review a court’s actions under Iowa 

Rule of Criminal Procedure 2.8(2)(b)(2) for substantial compliance. State v. 

Weitzel, 905 N.W.2d 397, 411 (Iowa 2017). “Our review of a claim of error in a 

guilty plea proceeding is at law.” State v. Meron, 675 N.W.2d 537, 540 (Iowa 

2004).

 

1 Before July 1, 2019, criminal defendants could raise ineffective-assistance-ofcounsel claims on direct appeal if they had “reasonable grounds to believe that the 

record is adequate to address the claim on direct appeal.” Iowa Code § 814.7(2) 

(2018); State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Effective July 1, 2019, 

the legislature prohibited an appellate court from addressing an ineffectiveassistance-of-counsel claim on direct appeal. 2019 Iowa Acts ch. 140, § 31 

(codified at Iowa Code § 814.7 (2019)). The Iowa Supreme Court determined this 

statutory amendment applies prospectively only. See State v. Macke, 933 N.W.2d 

226, 235 (Iowa 2019) (“We conclude the absence of retroactivity language in 

sections 814.6 and 814.7 means those provisions apply only prospectively and do 

not apply to cases pending on July 1, 2019.”). For that reason, and because this 

appeal was pending on July 1, 2019, the statutory amendment does not affect this 

case. 
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Discussion

On appeal, defendant appears to make three arguments.2 First, for a variety 

of reasons, he asserts his trial counsel was ineffective. Second, he argues he was 

denied due process rights under the United States and Iowa Constitutions by the 

court “accepting a plea that was not made intelligently, knowingly, and voluntarily.”

His third argument highlights the trial court’s failure to inform him of late fees that 

could result if he became delinquent on payments for court-ordered fines, again 

alleging a violation of his due process rights under the United States and Iowa 

Constitutions and a violation of Iowa Rule of Criminal Procedure 2.8. 

I. Ineffective Assistance of Counsel

Defendant’s ineffective-assistance-of-counsel argument alleges at least five 

inadequacies: (1) failure to file a motion or motions to suppress evidence, (2) 

failure to preserve error, (3) failure to timely file a motion in arrest of judgment, (4) 

allowing the defendant to plead guilty without a colloquy establishing a factual 

basis, and (5) allowing the defendant to plead guilty without knowledge of the 

consequences of delinquent payments.

To establish a claim of ineffective assistance of counsel, a defendant must 

prove: (1) counsel failed to perform an essential duty and (2) prejudice resulted. 

Rhoades, 848 N.W.2d at 28. A defendant’s failure to prove either element by a 

preponderance of the evidence is fatal to a claim of ineffective assistance. See

State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

 

2 We discourage appellants from grouping distinct arguments under the same 

heading and raising arguments under more than one heading. These practices 

impede our efforts to generate opinions that not only resolve the parties’ dispute 

but, just as importantly, are readable by the layperson.
6

Claims of ineffective assistance of counsel are “ordinarily reserved for 

postconviction proceedings to allow full development of the facts surrounding 

counsel’s conduct.” State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, 

“[a] defendant may raise such a claim on direct appeal if they have ‘reasonable 

grounds to believe that the record is adequate to address the claim on direct 

appeal.’” State v. McNeal, 867 N.W.2d 91, 105 (Iowa 2015) (quoting Iowa Code 

§ 814.7(1)). “We prefer to reserve such questions for postconviction proceedings 

so the defendant’s trial counsel can defend against the charge.” State v. Tate, 710 

N.W.2d 237, 240 (Iowa 2006). “This is especially appropriate when the challenged

actions concern trial strategy or tactics counsel could explain if a record were fully 

developed to address those issues.” McNeal, 867 N.W.2d at 105–06. “It is a rare 

case in which the trial record alone is sufficient to resolve a claim on direct appeal.” 

Id. at 106.

Improvident trial strategy, miscalculated tactics, and mistakes in judgment 

do not necessarily amount to ineffective assistance of counsel. State v. 

McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Thus, “postconviction proceedings 

are often necessary to discern the difference between improvident trial strategy 

and ineffective assistance.” State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006);

see State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer is entitled to 

his [or her] day in court, especially when his [or her] professional reputation is 

impugned.”); see also State v. Smith, 573 N.W.2d 14, 22 (Iowa 1997).

On our de novo review, we find the record adequate to address two of

Garrity’s arguments concerning ineffective assistance of counsel. On this record,

we address whether Garrity received ineffective assistance of counsel when his 
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attorney allowed him to plead guilty without an in-court colloquy establishing a 

factual basis and whether Garrity received ineffective assistance when his attorney 

allowed him to plead guilty without knowledge of the consequences of delinquent 

payments.

With respect to the argument that Garrity received ineffective assistance of 

counsel due to the lack of an in-court colloquy concerning his plea of guilty, we 

look to Garrity’s written plea of guilty. The record contradicts Garrity’s argument. 

His plea of guilty expressly waived the right to be present and participate in an incourt plea colloquy. Having waived this right, he cannot now allege his counsel 

was ineffective due to the absence of an in-court colloquy. We find that Garrity did 

not receive ineffective assistance of counsel due to the absence of in an in-court 

colloquy on this misdemeanor offense. 

In framing his argument concerning the late-fee provision, Garrity does not 

posit that his attorney knew the late fee language would be added and neglected 

to inform him. Instead, he argues his trial counsel “failed to provide effective 

assistance of counsel by encouraging [Garrity] to enter a guilty plea and be 

sentenced without compliance by the Court with Rule 2.8(2)(b) and 2.10.” 

The late-fee provision was included in the sentencing order. Garrity’s 

counsel therefore had no chance to object prior to the issuance of the order. 

Because Garrity has not demonstrated his counsel failed to perform an essential 

duty, we deny his claim of ineffective assistance of counsel concerning the late fee 

provision.

We find the record inadequate to evaluate the remainder of defendant’s 

ineffective-assistance-of-counsel arguments. We preserve the defendant’s 
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remaining ineffective-assistance-of-counsel claims for a possible future

postconviction action.

II. Due Process and Abuse of Discretion 

Garrity’s due process argument encompasses the following allegations: (1) 

the trial court abused its discretion by denying his motion in arrest of judgment, 

and (2) Garrity’s due process rights were violated when the court accepted his 

guilty plea, as such plea was not intelligently, knowingly, and voluntarily made.

We begin by considering the trial court’s denial of Garrity’s motion in arrest 

of judgment. While a defendant must file a motion in arrest of judgment to 

challenge the adequacy of a guilty plea in order to assert such a challenge on 

appeal, the Iowa Rules of Criminal Procedure limit a defendant’s right to do so. 

Iowa R. Crim. P. 2.24(3)(a) (“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)(b) 

(“[Motions in arrest of judgment] must be made not later than 45 days after plea of 

guilty . . . upon which a judgment of conviction may be rendered, but in any case 

not later than five days before the date set for pronouncing judgment.”). 

The written plea contained language that Garrity’s plea was voluntarily and 

intelligently made. The trial court denied the motion in arrest of judgment because 

it was not timely filed and because the court found “that the defendant knowingly, 

voluntarily, and intelligently waived his rights and entered a valid guilty plea in this 

matter.” We agree with the trial court’s determination that Garrity’s motion was 

untimely. We find no abuse of discretion in the court’s denial of the motion in arrest 

of judgment.
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As to Garrity’s due process argument, the trial court found on February 28, 

2018—the date Garrity submitted his plea—that the plea was knowingly, 

intelligently, and voluntarily made. To challenge this determination, Garrity needed 

to comply with the forty-five-day limit set out in rule 2.24(3)(b). He failed to do so.

Garrity attacks both his plea and his sentence on due process grounds but fails to 

differentiate those arguments. Because he waived his right to an in-court colloquy 

at the time of his plea, his argument that he was denied due process because the 

trial court “did not engage in a colloquy with the defendant on the record” was 

waived. We find the dictates of due process were met. The trial court substantially

complied with rule 2.8(2)(b), which “codifies” the relevant due process mandate. 

State v. Loye, 670 N.W.2d 141, 151 (Iowa 2003). Given these circumstances, we 

find no due process violation.

III. Late-Fee Provision Contained in Sentencing Order

Garrity also attacks the court’s imposition of a twenty-five percent penalty 

to be imposed if Garrity is delinquent on payments of financial obligations

assessed at sentencing. Garrity attacks the addition of this late-fee provision as a 

violation of Iowa Rule of Criminal Procedure 2.8(2) and his due process rights.

We begin by considering whether error on this issue is preserved, an inquiry 

in which the parties disagree. The State asserts this argument has not been 

preserved as Garrity “never raised an argument that the district court failed to 

advise him of a 25% penalty should he be delinquent in paying his fines.” While 

this was not raised, the State’s argument obscures the fact that no party had record 

notice of late-fee penalties in Garrity’s case until the written sentencing order.

Accordingly, we find this issue to be preserved. This determination is supported 
10

by a line of cases in which Iowa courts have held error preserved out of fairness 

or because the defendant had no opportunity to preserve error. See State v. 

Wilson, 294 N.W.2d 824, 826 (Iowa 1980) (“In the case at hand, there is no 

procedure under our existing rules for a defendant to raise the issue at the trial 

court level. He may not be held to have waived his objection by failing to raise it 

at the sentencing because he had no way to know then that the judge would leave 

it out of the subsequent judgment.”); State v. Marti, 290 N.W.2d 570, 589 (Iowa 

1980) (noting that the defendant “had no way of knowing before the court entered 

the judgment” whether a flaw would exist in the judgment); see also State v. 

Worley, 297 N.W.2d 368, 370 (Iowa 1980) (explaining that a court’s failure to 

inform a defendant of procedural requirements will inoculate a defendant’s failure 

to conform with those requirements). 

We turn to the substantive issue of whether the late-fee provision contained

in the sentencing order violated either rule 2.8(2)(b)(2) or Garrity’s due process 

rights. We analogize defendant’s argument as a defect in sentencing procedure, 

and therefore we review for correction of errors at law. Meron, 675 N.W.2d at 540. 

Errors in sentencing “may be challenged on direct appeal even in the absence of 

an objection in the district court.” State v. Thacker, 862 N.W.2d 402, 405 (Iowa 

2015) (quoting State v. Lathrop, 781 N.W.2d 288, 292–93 (Iowa 2010)). 

Rule 2.8(2)(b)(2) requires courts to ensure prior to accepting a plea of guilty 

that defendants understand “[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.” Violations of rule 2.8(2)(b)(2) are evaluated under a 

“substantial compliance” standard. State v. Weitzel, 905 N.W.2d 397, 406 (Iowa 
11

2017). Iowa courts have said that courts must ensure the defendant understands 

the “direct consequences of the plea.” State v. Hallock, 765 N.W.2d 598, 604–05

(Iowa Ct. App. 2009) (quoting State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998)). 

“The court does not have a duty, however, to inform a defendant of all 

indirect and collateral consequences of a guilty plea.” Id. at 605. “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 the defendant’s punishment.” Saadiq v. State, 387 N.W.2d 315, 325 (Iowa 

1986) (quoting Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1365–66 (4th Cir. 

1973)). We consider whether the late-fee provision at issue “represents a definite, 

immediate and largely automatic effect on the range of the defendant’s 

punishment.” Saadiq, 387 N.W.2d at 325.

The Iowa Supreme Court held that a trial court failed to substantially comply 

with rule 2.8(2)(b)(2) when it failed to inform a defendant of mandatory thirty-five 

percent surcharges under Iowa Code section 911.1. Weitzel, 905 N.W.2d at 399. 

In Wietzel, the defendant was not informed of the surcharge mandated by section 

911.1, and the Iowa Supreme Court held that “the maximum possible punishment 

includes the surcharges.” Id. at 408. The Weitzel court emphasized that, “For rule 

2.8 purposes, we see no meaningful difference between a fine and a built-in 

surcharge on a fine.” Id. (quoting State v. Fisher, 877 N.W.2d 676, 686 (Iowa 

2016)). 

Weitzel, however, did not address whether late fees conditioned on a 

defendant’s delinquency are direct consequences of a sentence and therefore part 

of the defendant’s punishment. Iowa cases have held the omitted mention of 
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collateral consequences will not disturb an otherwise valid guilty plea. State v. 

Carney, 584 N.W.2d 907, 908 (Iowa 1998). 

The late fees included in the court’s sentencing order were contingent on 

Garrity’s failure to pay and thus were not mandatory. The fees were not immediate, 

as they would only accrue if Garrity failed to make future payments. Finally, given 

that the late fees are explicitly conditioned on a failure to keep current on a 

payment schedule, the fees are not properly considered punishment for the 

underlying offense. We determine the late-fee provision at issue here is a 

collateral consequence of Garrity’s plea. Because we determine that the 

prospective late fees mentioned in the court’s sentencing order were collateral 

consequences that do not implicate rule 2.8(2)(b)(2), we hold the trial court 

substantially complied with the rule. 

Conclusion

We find that Garrity did not receive ineffective assistance of counsel 

regarding the absence of an in-court colloquy and late-fee penalty. We preserve 

the remainder of Garrity’s ineffective-assistance-of-counsel claims for a possible 

future postconviction proceeding. We find no violation of Garrity’s due process 

rights in the court’s acceptance of the plea of guilty. Lastly, we hold that late-fee 

penalties on the financial obligations assessed at sentencing are collateral 

consequences of a sentence, and therefore the trial court did not violate rule 

2.8(2)(b)(2) or Garrity’s due process rights.

AFFIRMED.