IN THE COURT OF APPEALS OF IOWA
No. 18-0874
Filed May 15, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GREGORY RICHARD KUCHERA,
Defendant-Appellant.
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Appeal from the Iowa District Court for Pottawattamie County, Craig M.
Dreismeier, Judge.
A defendant challenges his conviction for carrying a concealed weapon.
AFFIRMED.
Drew H. Kouris, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
2
TABOR, Judge.
Gregory Kuchera appeals his conviction for carrying a concealed weapon
in violation of Iowa Code section 724.4(1) (2017). Kuchera alleges his legal
representation in the guilty-plea proceedings fell below constitutional norms.
Because the record is insufficient to decide Kuchera’s claims of ineffective
assistance of counsel, we preserve them for a possible postconviction-relief action.
The Pottawattamie County Attorney charged Kuchera with first-offense
operating while intoxicated (OWI) and two counts of carrying concealed weapons
after a June 2017 traffic stop in Carter Lake. The stopping officer removed a
loaded Beretta .22 caliber pistol from Kuchera’s pants pocket and found a nine-
millimeter Glock pistol in the trunk of Kuchera’s Volvo. In March 2018, Kuchera
signed a written guilty plea to the OWI offense and to one count of carrying a
concealed weapon for the Glock pistol. The State agreed to dismiss the second
weapons count. The district court accepted Kuchera’s guilty pleas after an on-the-
record colloquy. At sentencing, the court denied Kuchera’s request for a deferred
judgment on the concealed-weapons charge. Kuchera appeals only the weapons
conviction; he does not request review of his OWI offense.
On appeal, Kuchera complains his written plea was misleading in regard to
the minimum fine and the consequences of the firearm conviction. He also
contends he was confused during the plea colloquy by the district court’s reference
to a “sentencing trial” and by the court’s explanation of his right to file a motion in
arrest of judgment. He claims counsel should have sought to withdraw the guilty
plea. Finally, Kuchera argues his own statements at the sentencing hearing should
have prompted counsel to request a competency hearing.
3
“We review ineffective-assistance-of-counsel claims de novo.” State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006). To prove he received ineffective
assistance, Kuchera must show his attorney failed to perform an essential duty
and prejudice resulted. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).
Because alleges ineffective assistance in connection with his guilty plea, Kuchera
must show, but for counsel’s breach, there was a reasonable probability he would
have insisted on going to trial. See State v. Tate, 710 N.W.2d 237, 240 (Iowa
2006). It will be the rare case where a defendant can “muster enough evidence to
prove prejudice without a postconviction[-]relief hearing.” Straw, 709 N.W.2d at
138.
Because the record here is not developed enough to resolve Kuchera’s
claims concerning his confusion and competency to enter the guilty plea, we
preserve the matter for a potential postconviction-relief proceeding. See State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010); see also State v. Harris, 919 N.W.2d
753, 754 (Iowa 2018) (“If the development of the ineffective-assistance claim in the
appellate brief was insufficient to allow its consideration, the court of appeals
should not consider the claim, but it should not outright reject it.”).
AFFIRMED.