from the Iowa District Court for Wapello County, Randy S.
defendant appeals his convictions and sentences for intent to
deliver a controlled substance (methamphetamine) and
possession of a controlled substance (hydromorphone).
R. De Vries of De Vries Law Office, P.L.C., Centerville, for
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
Tobeck was originally charged with seven crimes. He reached a
plea agreement with the State, whereby five of the charges
were dismissed and the State agreed not to pursue the
habitual-offender enhancement on the remaining two charges.
In exchange, Tobeck agreed to enter guilty pleas to the
remaining charges, possession with intent to deliver
(methamphetamine) and possession of a controlled substance
(hydromorphone), and serve consecutively a term of
incarceration not to exceed ten years on the first count and
a term of incarceration not to exceed five years on the
as we understand Tobeck's claim on appeal, Tobeck
maintains he received ineffective assistance from trial
counsel because counsel did not explain the difference
between the terms "consecutive" and
"concurrent." Tobeck does not take the logical next
step and argue his plea was involuntary because he did not
understand the terms of the plea agreement. Additionally,
Tobeck does not claim he would not have taken the plea
agreement and would have insisted on going to trial if he had
understood the difference between the terms. In such cases,
we typically preserve a defendant's claims for possible
postconviction-relief proceedings. See, e.g.,
State v. Roby, No. 16-0191, 2016 WL 4384979, at *2
(Iowa Ct. App. Aug. 17, 2016) ("[W]e may not rule on the
merits of a claim without an adequate record or penalize [the
defendant] for inadequate briefing of the claim on direct
appeal." (citing State v. Johnson, 784 N.W.2d
192, 198 (Iowa 2010))). But here, the record belies
Tobeck's claimed confusion.
guilty-plea hearing, trial counsel explained the plea
agreement to the court, stating:
Your Honor, my client comes before the Court to enter a plea
of guilty to Count I and Count II . . . without the habitual
offender enhancement pursuant to a plea agreement in which,
in return for these pleas, he agrees to serve a
consecutive-serve a sentence of imprisonment of ten years on
Count I and five years on Count II, run consecutively,
minimum fine on each.
before Tobeck entered his guilty pleas, the following
colloquy took place between Tobeck and the court:
COURT: If at any time you do not understand something I
talked about, just interrupt me and tell me to stop, and you
are free to talk with [defense counsel] about anything you
need to. Also, if at any time you decide you do not want to
continue with your plea, tell me to stop, and we'll stop.
Do you understand?
TOBECK: Yes, ...