from the Iowa District Court for Wapello County, Shawn R.
defendant appeals his convictions and sentences for
kidnapping in the third degree, assault while participating
in a felony, and willful injury causing bodily injury.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kelli A. Huser, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
POTTERFIELD, Presiding Judge.
Herrarte Jr. was originally charged by trial information with
kidnapping in the second degree (count I), assault while
participating in a felony (count II), and willful injury
causing bodily injury (count III). After a trial to the
bench, the court found Herrarte guilty of counts II and III.
The court acquitted Herrarte of second-degree kidnapping but
found Herrarte guilty of the "lesser-included"
offense of third-degree kidnapping. Herrarte was sentenced to
a ten-year sentence for kidnapping in the third degree, a
five-year sentence for count II, and a five-year sentence for
count III. The court ordered Herrarte to serve the three
sentences consecutively. He appeals.
maintains the district court erred in its determination that
third-degree kidnapping is a lesser-included offense of
second-degree kidnapping. He asserts that we must vacate his
conviction for third-degree kidnapping because of the error.
did not preserve error on this issue. He did not object to
the court's reliance on kidnapping in the third degree as
a lesser-included offense. See State v. Taggart, 430
N.W.2d 423, 425 (Iowa 1988) ("Failure to timely object
to an instruction not only waives the right to assert error
on appeal, but also 'the instruction, right or wrong,
becomes the law of the case.'" (citation omitted)).
And in fact, he argued in his closing argument, "If the
arguments advanced by the State and the defendant both have
merit then clearly reasonable doubt does exist and the
defendant should only be found guilty of the lesser included
offense of kidnapping in the third degree." (altered for
readability). See State v. Sage, 162 N.W.2d 502, 504
(Iowa 1968) ("A party to a criminal proceeding cannot
assume inconsistent positions in the trial and appellate
courts and, as a general rule, will not be permitted to
allege an error in which he himself acquiesced, or which was
committed or invited by him." (citation omitted)).
Herrarte can and does raise the claim under the
ineffective-assistance-of-counsel framework, as such
"claims are not bound by traditional error-preservation
rules." See State v. Ondayog, 722 N.W.2d 778,
784 (Iowa 2006). Rather, they "are an exception to
normal error-preservation rules and the 'law of the
case' doctrine." Id.
succeed on a claim of ineffective assistance, Herrarte has
the burden to establish by a preponderance of the evidence
that (1) his trial counsel failed to perform an essential
duty and (2) prejudice resulted. Id. His claim fails
if he is unable to prove either element. Id.
State is adamant Herrarte's counsel made a strategic
decision to urge the court to that kidnapping in the third
degree (based on the intent to seriously injure the victim)
was a lesser-included crime of kidnapping in the second
degree (based on the intent to hold the victim for ransom).
Compare Iowa Code §§ 710.1(3), 710.4
(2016), with Iowa Code § 710.3(1). The State
asserts it was a reasonable tactical decision not to seek
outright acquittal on the kidnapping charge when the
kidnapping evidence was so strong. It is possible counsel
made a strategic choice to pursue an incorrect legal argument
regarding the lesser-included offense, but "we cannot
automatically assume every alleged misstep was a reasonable
strategy simply because some lawyer, somewhere, somehow,
under some circumstances at some time would have done such a
thing." Ondayog, 722 N.W.2d at 786. Based on
the record before us, we cannot ascertain what motivated
the record leaves a question as to whether an action-or
inaction- by counsel was a matter of strategy, we preserve
the claim for possible postconviction relief. See State
v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) ("We
prefer to reserve such questions for postconviction
proceedings so the defendant's trial counsel can defend
against the charge." (citation omitted)). Thus, we
preserve Herrarte's claim for possible
postconviction-relief proceedings. See State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010) ("If . . .
the court determines the claim cannot be addressed on appeal,