Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, District Associate Judge.
The opinion of the court was delivered by: Bower, J.
David Jones appeals from his sentence following his guilty plea to fourth-degree theft. AFFIRMED.
Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.
David Jones appeals his sentence following a guilty plea to fourth-degree theft. He contends his trial counsel was ineffective in failing to request that the sentencing hearing be reported or that the reasons for the sentence be included in the order. Because Jones cannot affirmatively show he was prejudiced by any failure of counsel, we affirm.
I. Background Facts and Proceedings.
Jones was arrested after a Sears loss prevention employee observed him and Beverly Tarter concealing merchandise valued at $288.98 and attempting to leave the store without paying. On May 23, 2011, Jones was charged with fourth-degree theft and initially pleaded not guilty.
Jones entered a written guilty plea to fourth-degree theft on August 26, 2011. He waived reporting of the plea proceedings. Following a September 9, 2011 sentencing hearing, which was also unreported, Jones was sentenced to 180 days in jail. He appealed on September 12, 2011.
On January 30, 2012, our supreme court ordered Jones's appellate counsel to file a proof brief with the supreme court or a statement of evidence or proceedings with the district court pursuant to Iowa Rule of Appellate Procedure.
6.806.*fn1 Instead, Jones's appellate counsel filed a "Motion to Recreate the
Record of Sentencing" in the district court, asserting she was not part of the sentencing proceedings and asking the parties and the district court to prepare a statement or stipulation as to what occurred at the sentencing hearing. The district court responded by filing a statement with our supreme court, which indicated the judge had no "specific recollection" of the case, but set forth her general sentencing practices. Jones's trial counsel filed a statement in the district court as to his specific recollections of the sentencing hearing. While the statement purported to be a stipulated recollection of the parties, only Jones's trial counsel signed it.
On August 1, 2012, our supreme court entered an order finding Jones's appellate counsel's failed to comply with rule 6.806. Due to the noncompliance, the court held that the parties could not use the statements of the judge or trial counsel filed in February 2012. The court again ordered Jones's appellate counsel to file a proof brief or statement of evidence or proceedings within twenty-one days. On August 29, 2012, Jones's appellate counsel filed a statement of record at sentencing, setting out what trial counsel and Jones recalled from the sentencing hearing. The State filed its response on September 11, 2012, indicating the assistant county attorney had no independent recollection of the proceedings. The State did not object to Jones's statement. On September 13, 2012, the district court filed a settlement and approval order.
Jones raises one issue on appeal. He contends his trial counsel was ineffective in failing to request that the sentencing hearing be reported or that the reasons for the sentence be included in the order to facilitate appellate review.
II. Scope and Standard of Review.
We review ineffective-assistance-of-counsel claims de novo. State v. Tate, 710 N.W.2d 237, 239 (Iowa 2006). While such claims are typically preserved for post-conviction relief proceedings to allow trial counsel to defend against the charge, we depart from this preference in rare cases where ...