IN THE COURT OF APPEALS OF IOWA
No. 16-1332
Filed May 3, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSEPH EDWARD BARNHART,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Odell G. McGhee II,
District Associate Judge.
The defendant appeals from his conviction and sentence following a guilty
plea. AFFIRMED.
Gerald B. Feuerhelm of Feuerhelm Law Office, P.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
POTTERFIELD, Presiding Judge.
Joseph Barnhart appeals from his conviction and sentence following his
guilty plea to operating while intoxicated (OWI).
Barnhart was arrested for the offense and charged by trial information in
June 2016. The State sent Barnhart a written plea offer, stating that if he pled
guilty, the State would recommend he received all of the following: 365 days in
jail, probation ($300 probation fee), fine of $1250, substance abuse evaluation
and treatment, OWI first offender program, and forty hours of community service.
According to Barhart’s trial counsel, he reviewed the offer and believed his client
was being offered a suspended sentence and probation; he then advised
Barnhart of the same. Barnhart agreed to enter a guilty plea.
On July 7, Barnhart and his attorney both signed a form “petition to plead
guilty to operating while intoxicated.” On the form, the box next to “First offense:
the maximum sentence for this charge is both incarceration for one year and a
fine of $1250.00. The minimum sentence for this charge is both a fine of $1250
and incarceration for 48 hours,” was checked. Additionally, someone had written
that the plea agreement provided “[p]arties to argue.”
The same day, the court accepted Barnhart’s guilty plea.1 Our record
contains no information about discussions between the court and counsel.
According to Barnhart’s counsel, it was not until Barnhart was being
sentenced on July 11 that Barnhart learned the State intended to recommend
Barnhart receive a sentence of 365 days’ incarceration. Presumably because of
the apparent confusion, sentencing did not take place on July 11.
1
The plea proceedings were unreported.
3
On July 12, Barnhart filed a motion in arrest of judgment and a motion to
withdraw his plea. At the hearing on the motions, Barnhart argued his guilty plea
was the result of misunderstanding the offer before him (due to his counsel’s
incorrect advice); he maintained the misunderstanding made his plea unknowing
and involuntary. The court denied Barnhart’s motions, noting the State’s non-
binding offer indicated it would recommend Barnhart receive, among other
things, 365 days, and the actual guilty plea stated, “The plea agreement is[:]
Parties to argue.” Additionally, even if counsel had believed he and the State
had reached an agreement, it was not binding on the sentencing court, which still
had the discretion to sentence Barnhart to a term of incarceration.
On appeal, Barnhart does not claim the district court abused its discretion
in denying his motion in arrest of judgment or motion to withdraw plea. Rather,
he claims trial counsel was ineffective for wrongly advising him regarding the
plea agreement he received from the State. Because Barnhart has chosen to
raise this issue under the ineffective-assistance framework, he has the burden to
establish “by a preponderance of the evidence: (1) trial counsel failed to perform
an essential duty, and (2) this failure resulted in prejudice.” State v. Williams,
695 N.W.2d 23, 29 (Iowa 2005). Here, counsel has admitted both in the written
motions and at the hearing on the motions that he incorrectly advised Barnhart
regarding the terms of the plea agreement. We believe such a failure constitutes
a breach of an essential duty. See Meier v. State, 337 N.W.2d 204, 206–07
(Iowa 1983) (noting it was not a question of tactics or strategies when trial
counsel gave the defendant erroneous advice involving a plea deal). The
question is whether Barnhart can establish he suffered prejudice as a result of
4
the breach. If the record is not adequate, the defendant may raise the claim in a
postconviction action.” (citation omitted)).
In this context, to establish he suffered prejudice, “the defendant must
show that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” State v.
Straw, 709 N.W.2d 128, 136 (Iowa 2006) (citing Hill v. Lockhart, 474 U.S. 52, 59
(1985)). The State maintains the record is not adequate to reach a decision on
the issue and the claim should be preserved for further development of the
record. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“If a claim of
ineffective assistance of counsel is raised on direct appeal from the criminal
proceedings, the court may address it if the record is adequate to decide the
claim.”) We agree; this record is one best made before the district court. We
preserve for future postconviction relief.
AFFIRMED.