Opinion
No. 2-951 / 01-1708
Filed January 29, 2003
Appeal from the Iowa District Court for Story County, David R. Danilson, Judge.
Kok-Chang Wong appeals his conviction, following his guilty plea, for burglary in the second degree. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, and Stephen Holmes, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Kok-Chang Wong appeals his conviction, following his guilty plea, for burglary in the second degree, in violation of Iowa Code section 713.5(2) (1997). He claims: (1) the district court abused its discretion in imposing a fine against him; and (2) he received ineffective assistance of counsel.
I. Background Facts Proceedings
In the early morning of August 12, 1998, Nyimeawia Ollar, a student at Iowa State University, noticed an intruder in her room. The intruder ran, and Ollar and a friend, Tunji Giwa, chased him. Giwa caught the intruder, Wong. When police officers arrived they searched Wong and found a pair of Ollar's underwear tucked into his clothes.
Wong was charged with second-degree burglary. He pled guilty to this charge in May 1999. Wong, who was also a student, was granted a deferred judgment and sentence and placed on probation for a period of four years.
In June 2001 the State filed an application to revoke Wong's probation based on information Wong had been charged with burglary in Texas. In Iowa Wong's probation was revoked, and he was sentenced to a term of imprisonment not to exceed ten years. The district court ordered Wong to pay a fine of $1000. The fine was suspended on the condition Wong otherwise comply with the sentencing order. Wong appealed.
II. Fine
During the sentencing hearing, the district court ordered Wong to pay a fine of $750, which was suspended. Wong's attorney stated, "Your Honor, I may be mistaken but I think the minimum fine may be a thousand dollars in this case because it's a Class C felony with a $300 surcharge." The prosecutor stated he thought this was the rule as well. The court then made the fine $1000, which was also suspended.
On appeal, Wong contends the district court did not properly exercise its discretion in imposing a fine against him. Under section 902.9(3) (1997), a fine could be imposed of at least $500, but not more than $10,000. This section was amended in 1999 to provide that a fine must be imposed of at least $1000, but not more than $10,000. Iowa Code § 902.9(4) (1999).
Generally, Wong would be sentenced under the 1997 Code, which was the law in effect at the time the crime was committed. See State v. Austin, 585 N.W.2d 241, 244 (Iowa 1998). If a penalty for an offense is reduced by the amendment of a statute, a defendant will receive the benefit of the new provision. State v. Chrisman, 514 N.W.2d 57, 61 (Iowa 1994). Here, however, the penalty was increased, not reduced, and we determine Wong should be sentenced under the 1997 code. As in State v. Ayers, 590 N.W.2d 25, 31 (Iowa 1999), the record shows the prosecutor, the defense counsel, and the court were unaware of the proper law to be applied. In these circumstances, we determine the assessment of a fine should be reversed and the case remanded on this issue only. See Ayers, 590 N.W.2d at 32.
III. Ineffective Assistance
Wong claims he received ineffective assistance because his trial counsel failed to inform him of his right to consular access under Article 36 of the Vienna Convention. Wong is a citizen of Malaysia.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial. State v. Moore, 638 N.W.2d 735, 739 (Iowa 2002) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985)).
Our supreme court has declined to say whether Article 36 of the Vienna Convention creates an individually enforceable right to consular notification. Ledezma v. State, 626 N.W.2d 134, 150 (Iowa 2001). Even if defense counsel did have a duty to inform Wong of his right to consular access, we determine Wong has failed to show prejudice. Wong does not allege that he would not have pleaded guilty and would have insisted on going to trial if he had known of his right to consular access. Wong's claims that he could have benefited from his consulate's services are similar to those raised in State v. Lopez, 633 N.W.2d 774, 784-85 (Iowa 2001), which were found insufficient to establish prejudice.
We affirm Wong's conviction. We reverse the imposition of the fine and remand for resenting on that issue alone.