from the Iowa District Court for Polk County, Odell G. McGhee
II, District Associate Judge.
defendant appeals from his conviction and sentence following
a guilty plea.
B. Feuerhelm of Feuerhelm Law Office, P.C., Des Moines, for
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
Barnhart appeals from his conviction and sentence following
his guilty plea to operating while intoxicated (OWI).
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
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."
same day, the court accepted Barnhart's guilty
plea. Our record contains no information about
discussions between the court and counsel.
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.
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.
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 the breach. If the record is not adequate, the
defendant may raise the claim in a postconviction
action." (citation omitted)).
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 ...