from the Iowa District Court for Polk County, Cynthia M.
Moisan, District Associate Judge.
defendant appeals following his plea of guilty to driving
while barred as an habitual offender. AFFIRMED.
S. Fishman of Nelsen & Feitelson Law Group, P.L.C., West
Des Moines, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Pryor appeals the judgment and sentence imposed following his
guilty plea to driving while barred as an habitual offender.
Pryor argues his plea counsel was ineffective for failing to
file a motion in arrest of judgment after the district court
advised Pryor it would not follow the sentencing
recommendation from his plea bargain with the State but
allegedly did not afford Pryor the opportunity to withdraw
his guilty plea. Because Pryor's plea agreement was not
conditioned upon concurrence of the court, counsel had no
duty to file a motion in arrest of judgment. Accordingly, we
11, 2016, the State charged Pryor with driving while barred
as an habitual offender, an aggravated misdemeanor, in
violation of Iowa Code section 321.561 (2016). On October 12,
Pryor signed a petition to plead guilty to the offense,
indicating, "[t]he plea agreement is: $1000 fine"
and "[t]he Court is not bound by the plea agreement and
may impose the maximum sentence as allowed by law." The
district court accepted Pryor's guilty plea that same
day. The court's order notified Pryor of his right to
contest the plea by filing a motion in arrest of judgment and
then stated: "COURT HAS ADVISED THE DEF THE COURT WILL
NOT AGREE TO PLEA AGREEMENT."
appeared for sentencing on November 16, 2016. Following the
hearing, the court issued an order sentencing Pryor to a
suspended two-year term of incarceration. Later that day, the
court issued a nunc pro tunc order stating the suspension of
Pryor's sentence was in error and ordering his
incarceration for two years.
review ineffective-assistance-of-counsel claims de novo
because they are based in the Sixth Amendment. See State
v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). To succeed on
appeal, Pryor must demonstrate by a preponderance of the
evidence both: (1) his counsel breached an essential duty and
(2) the breach resulted in prejudice. See State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006). Generally, we
preserve ineffective-assistance claims for
postconviction-relief proceedings to allow counsel in the
underlying proceedings the opportunity to defend against the
accusation. State v. Thorndike, 860 N.W.2d 316, 319
(Iowa 2015). Only when the record is adequate will we resolve
the claims on direct appeal. See id. We find the
record is adequate here.
argues his plea counsel should have filed a motion in arrest
of judgment because Pryor "was not allowed to withdraw
his guilty plea after the Court indicated it would not follow
the plea agreement." In support of this claim, Pryor
relies on Iowa Rule of Criminal Procedure 2.10, which governs
plea bargaining. Rule 2.10(4) provides:
If, at the time the plea of guilty is tendered, the court
refuses to be bound by or rejects the plea agreement, the
court shall inform the parties of this fact, afford the
defendant the opportunity to then withdraw defendant's
plea, and advise the defendant that if persistence in a
guilty plea continues, the disposition of the case may be
less favorable to the defendant than that contemplated by the
plea agreement. If the defendant persists in the guilty plea
and it is accepted by the court, the defendant shall not have
a right subsequently to withdraw the plea except upon a
showing that withdrawal is necessary to correct a manifest
State contends this rule requires a district court to allow a
defendant to withdraw a guilty plea only if the plea
agreement is conditioned upon the concurrence of the district
court. We agree. While "[o]n its face, subsection (4)
appears to apply any time a court declines to follow a plea
agreement entered into by the defendant and the State . . .
subsection (4) cannot be viewed in isolation." State
v. Weaver, No. 05-0764, 2006 WL 3018498, at *3 (Iowa Ct.
App. Oct. 25, 2006). When the rule is read as a whole,
"it soon becomes clear that the requirements of
subsection (4) are meant to apply only when the plea
agreement has been conditioned on the court's concurrence
in the agreement between the parties."Id.;
see also State v. Wenzel, 306 N.W.2d 769, 771 (Iowa
1981) (noting ...