from the Iowa District Court for Woodbury County, Todd A.
Hensley, District Associate Judge.
Joe Ray Gomez appeals the judgment and sentence entered upon
his conviction of operating a motor vehicle while under the
influence, third offense, as an habitual offender.
Matthew R. Metzgar of Rhinehart Law, PC, Sioux City, for
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
P.J., McDonald, J., and Carr, S.J. [*]
Joe Ray Gomez appeals the judgment and sentence entered after
he entered an Alford plea to operating a motor vehicle
while under the influence (OWI), third offense, as an
habitual offender. See Iowa Code § 321J.2
(2016); see also id. §§ 902.8, 902.9(1)(c)
(providing minimum and maximum sentences for habitual
offenders). He contends his trial counsel was ineffective in
failing to file a motion in arrest of judgment challenging
the knowing and voluntary nature of his plea. He also
contends the court abused its discretion in sentencing him
according to the habitual-offender enhancement.
first challenges the knowing and voluntary nature of his
plea. Because he did not challenge his plea by motion in
arrest of judgment, he raises this claim as one of
ineffective assistance of counsel. See Iowa R. Crim.
P. 2.24(3)(b) (stating that a defendant's failure to
challenge the adequacy of a plea proceeding by motion in
arrest of judgment shall preclude the defendant's right
to assert such challenge on appeal); State v. Straw,
709 N.W.2d 128, 133 (Iowa 2006) (noting a defendant's
failure to file a motion in arrest of judgment does not bar a
challenge to a plea if the failure to file a motion in arrest
of judgment resulted from ineffective assistance of counsel).
We review this claim de novo. See Straw, 709 N.W.2d
order to establish a claim of ineffective assistance of
counsel, a defendant must show "(1) his trial counsel
failed to perform an essential duty, and (2) this failure
resulted in prejudice." Id. (citing
Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). Counsel breaches an essential duty by failing to
file a motion in arrest of judgment when a defendant's
plea was not knowing and voluntary. See id. at 134.
Prejudice is established if the record shows a reasonable
probability that the defendant would not have entered a plea
and would have insisted on going to trial if counsel had not
breached that duty. See id. at 138 (citing Hill
v. Lockhart, 474 U.S. 52, 59 (1985)). "Failure to
demonstrate either element is fatal to a claim of ineffective
assistance." State v. Polly, 657 N.W.2d 462,
465 (Iowa 2003).
Rule of Criminal Procedure 2.8(2)(b) states that before
accepting a plea, the court must inform the defendant of, and
ensure the defendant understands, the following to determine
the plea is made voluntarily and intelligently:
(1)The nature of the charge to which the plea is offered.
(2) The mandatory minimum punishment, if any, and the maximum
possible punishment provided by the statute defining the
offense to which the plea is offered.
(3)That a criminal conviction, deferred judgment, or deferred
sentence may affect a defendant's status under ...