IN THE COURT OF APPEALS OF IOWA
No. 16-0191
Filed August 17, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PRESTON ROBY,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, Nathan A.
Callahan, District Associate Judge.
A criminal defendant appeals his conviction following his guilty plea to
driving while barred. AFFIRMED.
Jeremy B. A. Feitelson of Feitelson Law, L.L.C., West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
2
POTTERFIELD, Presiding Judge.
Preston Roby appeals his conviction following his guilty plea to driving
while barred, arguing his counsel was ineffective. He argues his counsel was
ineffective for failing to file a motion in arrest of judgment to challenge the validity
of his guilty plea.
I. Background Facts and Proceedings
On December 17, 2014, Roby was charged by trial information with driving
while barred, an aggravated misdemeanor, in violation of Iowa Code section
321.561 (2013). The charge carried a maximum possible sentence of two years
in prison. Iowa Code § 903.1(2). On October 29, 2015, Roby submitted a written
guilty plea, admitting he had operated a motor vehicle on November 9, 2014,
while his license was barred. As a result of the guilty plea, the State
recommended, and the district court imposed, a sentence of twenty-one days in
jail, to be served concurrently with his sentence in another, separate criminal
case.1 There was no transcribed record made of a proceeding at which Roby
pled guilty. See Iowa R. Crim. P. 2.8(3) (“A verbatim record of the proceedings
at which the defendant enters a plea shall be made.”). Roby’s counsel did not
file a motion in arrest of judgment challenging the validity of the guilty plea.
Roby appeals.
1
On the same day he submitted his guilty plea in this case, Roby also submitted a
written guilty plea in a second case, where he was charged with operating while
intoxicated, second offense, and driving while barred. He appeals his convictions and
sentences in that case in a separate appeal, No. 16-0192.
3
II. Standard of Review
We may decide ineffective-assistance-of-counsel claims on direct appeal if
we determine that the record is adequate. State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). We review claims of ineffective assistance of counsel de novo. Id.
This is our standard because such claims have their basis in the Sixth
Amendment to the United States Constitution. State v. Clay, 824 N.W.2d 488,
494 (Iowa 2012).
III. Analysis
Roby argues his counsel was ineffective for having failed to file a motion in
arrest of judgment challenging the validity of his guilty plea because the district
court’s plea procedures violated Iowa Rules of Criminal Procedure 2.8 and 2.10.
More specifically, Roby argues the district court violated the mandate under rule
2.10(2) requiring that “[i]f a plea agreement has been reached by the parties the
court shall require the disclosure of the agreement in open court at the time the
plea is offered.”2 He also argues the district court violated rule 2.8(3), which
requires the court to make a verbatim record of the proceedings at which a guilty
plea is entered. Roby argues the district court’s ability to waive the procedures
set forth in rule 2.8 is explicitly limited to procedures set forth prior to subsection
2.8(2)(c).3 See Iowa R. Crim. P. 2.8(2)(b)(5) (“The court may, in its discretion
2
Roby’s written guilty plea includes the terms of the plea agreement. It was filed on
October 29, 2015.
3
Roby’s written guilty plea explicitly approves the district court’s waiver of the
procedures set out in rule 2.8. The written guilty plea also explicitly waives Roby’s “right
to be personally present in court for plea proceedings” and his “right to be present at
sentencing.”
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and with the approval of the defendant, waive the above procedures in a plea of
guilty to a serious or aggravated misdemeanor.” (emphasis added)).
In order to prevail on his claim of ineffective assistance of counsel, Roby
must establish both that “(1) his trial counsel failed to perform an essential duty,
and (2) this failure resulted in prejudice.” See Straw, 709 N.W.2d at 133 (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). Both elements must be
proved by a preponderance of the evidence. Id. In order to prove prejudice,
Roby “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
See Strickland, 466 U.S. at 694. In the context of this appeal, Roby “must show
that there is a reasonable probability, but for counsel’s errors, he . . . would not
have pleaded guilty and would have insisted on going to trial.” See Straw, 709
N.W.2d at 138. If we find that prejudice is lacking, we may decide his claim on
that ground alone without addressing his counsel’s performance. Ledezma v.
State, 626 N.W.2d 134, 142 (Iowa 2001).
Roby’s claim is based entirely on the procedure surrounding his guilty
plea. He makes no claim that he would have insisted on going to trial had he
known the court was going to waive certain procedures; nor does he explain how
counsel’s failure to file a motion in arrest of judgment prejudiced him. See State
v. Hallock, 765 N.W.2d 598, 606 (Iowa Ct. App. 2009) (“[The defendant] must
show a reasonable probability that, but for counsel’s error, he would not have
entered the plea and would have insisted on going to trial. [The defendant] failed
to prove, or to even assert, that there is a reasonable probability that, but for
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counsel’s error, he would not have entered [a guilty] plea and would have
insisted on going to trial.”).
However, such a claim must be preserved for postconviction relief
because the record is not adequate, and we may not rule on the merits of a claim
without an adequate record or penalize Roby for inadequate briefing of the claim
on direct appeal. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010)
(stating defendants, on direct appeal, “are not required to make any particular
record in order to preserve the claim for postconviction relief” and when the
record is inadequate to address the claim, “the court must preserve it for a
postconviction-relief proceeding, regardless of the court’s view of the potential
viability of the claim”). We affirm Roby’s conviction, and we preserve his
challenge to the guilty plea for postconviction-relief proceedings.
AFFIRMED.