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State v. Brothern

Supreme Court of Iowa

June 7, 2013

STATE OF IOWA, Appellee,
v.
ANTHONY GEORGE BROTHERN, Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.

The defendant seeks further review of a court of appeals decision rejecting his claim of ineffective assistance relating to a habitual offender enhancement and affirming his conviction and sentence.

Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Michelle M. Wagner, Assistant County Attorney, for appellee.

MANSFIELD, Justice.

This case presents the question whether trial counsel's failure to object to an amendment of the trial information after the close of evidence to add a habitual offender enhancement constitutes ineffective assistance of counsel. We conclude there are circumstances when such an amendment should not be allowed at that stage of the proceedings. We also conclude the record before us is insufficient to resolve the defendant's ineffective-assistance claim. Accordingly, we affirm the defendant's conviction and sentence, but vacate the court of appeals decision that rejected his ineffective-assistance claim.

I. Facts and Procedural Background.

The record in this case indicates that Anthony Brothern beat his live-in girlfriend in the face while she was lying in bed on the night of June 21, 2009. According to the girlfriend, Brothern also held a knife to her chest and put her in fear for her life. The next day, the girlfriend reported the incident to Waterloo police. The injuries were photographed, and charges were filed against Brothern.

Count I of the original trial information charged Brothern with "ASSAULT DOMESTIC ABUSE CAUSING BODILY INJURY—ENHANCED, " in violation of Iowa Code section "708.2A(3)(b)—Class D Felony." It appears the State intended to prosecute Brothern for felony assault under the enhancement contained in section 708.2A(4), because the information referred to count I as a "Class D Felony, " used the term "ENHANCED, " and listed two prior assault domestic abuse convictions consistent with that provision. See Iowa Code § 708.2A(4) (2009) ("On a third or subsequent offense of domestic abuse assault, a person commits a class 'D' felony."). However, the information only cited section 708.2A(3)(b), the unenhanced aggravated misdemeanor provision.

In count II, the State charged Brothern with "ASSAULT DOMESTIC ABUSE BY USE OR DISPLAY OF A WEAPON, " in violation of section 708.2A(2)(c). That offense is an aggravated misdemeanor. Unlike count I, this count did not refer to prior convictions or a potential enhancement.

The case proceeded to trial. At the close of evidence, but prior to closing arguments, the State moved to amend the trial information. The amended information stated in both counts I and II that Brothern had violated section 708.2(A)(4), the enhanced class "D" felony provision, because of his prior domestic abuse assault convictions. In addition, the amended count I sought a habitual offender enhancement based on Brothern's prior felony convictions in 1998 and 1996, respectively, for extortion and prohibited acts. See Iowa Code § 902.8 (providing that a habitual offender includes anyone convicted of a class "D" felony who has been twice before convicted of a felony and that such persons shall not be eligible for parole until they have served a minimum of three years).

Brothern's trial counsel objected to the proposed amendment to count II on due process grounds, but did not object to the amendment to count I. The district court granted the State's motion to amend the trial information. Subsequently, the jury found Brothern guilty of the underlying charge in count I and acquitted him on count II.

The court scheduled a separate trial on the count I enhancements. Meanwhile, Brothern's attorney was allowed to withdraw, and a new attorney was appointed. On the day of the separate trial, Brothern decided to admit all four previous convictions and pled guilty to both the section 708.2A(4) and the section 902.8 enhancements.

Following his guilty plea to the enhancements, and before his sentencing hearing, Brothern filed a combined motion for a new trial and motion in arrest of judgment. In the combined motion, Brothern asserted the jury verdict was contrary to law, arguing:

It is improper to bootstrap the charge of habitual offender out of an enhancement on an underlying misdemeanor. It is improper to render another enhancement on the back of an enhancement.

He also asserted, generally, that his original trial counsel had been "ineffective."

At the hearing on his posttrial motions, Brothern's new attorney made the following argument regarding the habitual offender enhancement to count I that had not been objected to:

I believe that that violates [the] rule of criminal procedure . . . regarding amendments to trial information, and so we would ask that that count be stricken for that reason. And certainly goes to fundamental fairness on the part of a defendant. They may have proceeded differently with their trial had that been filed before trial, and so it certainly prejudices any defendant to allow a trial information to be amended once they have already started a trial.
So for that reason we think that the enhancement for the habitual should be dismissed, Your Honor.

Moments before, the prosecutor had said the following:

Looking at a little bit of the history through the plea agreements, Your Honor, I just have what I jotted down in my files. Looked like the state's recommendation before trial on this was for a five-year sentence, to run both counts I and II concurrent, and the state would not file an habitual. I believe that was turned down by Mr. Brothern. Your Honor, we met in chambers before this case began, and I guess I don't recall if this was on the record or if the court does recall it, as you were the trial judge, from my notes what I have is that before jury selection started we offered Mr. Brothern a 10-year sentence, to run counts I and II consecutive. That was refused and jury selection began.
I guess the odd thing, Your Honor, we did file the habitual. It was I believe during jury selection or during the trial because Mr. Brothern did or wanted his trial. I do not know of any discussions between himself and [his trial attorney], but that was part, if he ...

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