IN THE COURT OF APPEALS OF IOWA
No. 19-0774
Filed April 29, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KEITH IRVIN BREWINGTON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Van Buren County, Joel D. Yates
(guilty plea) and Shawn R. Showers (sentencing), Judges.
Keith Brewington appeals his conviction for possession of a controlled
substance, third or subsequent offense. AFFIRMED.
Jeffrey L. Powell of Powell & McCullough, PLC, Coralville, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
2
GREER, Judge.
In February 2019, Keith Brewington pled guilty to one count of possession
of a controlled substance (methamphetamine), third or subsequent offense, a class
“D” felony, in violation of Iowa Code section 124.401(5) (2019). The two prior
offenses elevating the charge to a class “D” felony were: (1) a 2005 conviction for
possession of a controlled substance in Wapello County and (2) a 2017 conviction
for possession of drug paraphernalia in Henry County. During the plea colloquy,
defense counsel asked Brewington about the Henry County conviction:
Q. Were [you] also convicted of possession of drug
paraphernalia in Henry County case number SMSM010606 in 2017?
A. Yes, I was, sir.
Q. Were you represented by counsel in that charge?
A. I don’t think I had an attorney. I just went to court and pled
guilty for that, sir.
The court later clarified:
Q. And I just want to make sure. You’re not disputing that
this is a third or subsequent offense; is that correct?
A. No. The only thing that I have to say on my behalf is that
two of them were a paraphernalia charge, and one of which was
dropped on—on a person that was with me that day, but, yes, I
agree, sir.
After that plea colloquy, the district court accepted his guilty plea.
Brewington did not file a motion in arrest of judgment, and the case went to
sentencing. The district court sentenced Brewington to a term of incarceration not
to exceed five years. The court suspended the sentence and placed him on
probation. Brewington appeals.1
1Amended Iowa Code section 814.6(1)(a)(3) (2019) would not provide Brewington
a right of appeal from his guilty plea. However this “provision[] appl[ies] only
prospectively and do[es] not apply to cases pending on July 1, 2019.” State v.
3
On appeal, Brewington argues the State cannot use the Henry County
conviction to enhance the charge to a felony because he did not have—nor did he
waive—the assistance of counsel.2 The Iowa Supreme Court has concluded “that
under the Iowa Constitution, a defendant facing the possibility of imprisonment in
a misdemeanor proceeding has a constitutional right to counsel,” and, for that
reason, a criminal defendant’s “uncounseled . . . misdemeanor conviction cannot
be used to enhance [the defendant’s later] crime.” See State v. Young, 863
N.W.2d 249, 252 (Iowa 2015). In the Henry County case, Brewington faced a
maximum sentence of “imprisonment not to exceed thirty days” on the drug
paraphernalia charge. See Iowa Code §§ 903.1 (maximum sentence for
misdemeanors), 124.414 (possession of drug paraphernalia).
But while Brewington frames his challenge as a motion to correct an illegal
sentence,3 he challenges his conviction. The purpose of a motion to correct an
illegal sentence is “not to re-examine errors occurring at the trial or other
proceedings prior to the imposition of the sentence.” State v. Bruegger, 773
N.W.2d 862, 871–72 (Iowa 2009) (quoting Hill v. United States, 368 U.S. 424, 430
(1962)). And Brewington did not raise this claim in a motion in arrest of judgment.
So he failed to preserve it for our review. See Iowa R. Crim. P. 2.24(3) (“A
defendant’s failure to challenge the adequacy of a guilty plea proceeding by motion
Macke, 933 N.W.2d 226, 235 (Iowa 2019). For that reason, the amendment does
not apply here to prevent Brewington’s direct appeal.
2 Brewington concedes he had counsel for the Wapello County case.
3 Iowa Rule of Criminal Procedure 2.24(5)(a) provides, “The court may correct an
illegal sentence at any time.” For that reason, “the ordinary rules of error
preservation do not apply.” Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010).
4
in arrest of judgment shall preclude the defendant’s right to assert such challenge
on appeal.”).
Because he failed to preserve error, Brewington also raises an ineffective-
assistance-of-counsel claim. The State concedes the record is inadequate to
resolve the ineffective-assistance-of-counsel issue. We review claims of
ineffective assistance de novo. State v. Thorndike, 860 N.W.2d 316, 319 (Iowa
2015).4
We agree with the State and find the record inadequate to address
Brewington’s claim on direct appeal. See id. (“[A] defendant may raise [an
ineffectiveness] claim on direct appeal if he or she has ‘reasonable grounds to
believe that the record is adequate to address the claim on direct appeal.’” (citation
omitted)). Brewington did not include any information from the Henry County case
in the appendix. The only evidence Brewington may not have had counsel during
that case was his statement: “I don’t think I had an attorney.” We preserve
Brewington’s claim for a possible postconviction-relief action.
AFFIRMED.
4 The amended Iowa Code section 814.7 (2019) prohibits a criminal defendant
from raising an ineffectiveness claim on direct appeal. That said, this prohibition
“do[es] not apply to a direct appeal from a judgment and sentence entered before
July 1, 2019.” Macke, 933 N.W.2d at 228.