from the Iowa District Court for Black Hawk County, Nathan A.
Callahan, District Associate Judge.
defendant appeals her conviction for voluntary absence from
De Vries of De Vries Law Office, PLC, Centerville, for
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
Leedom appeals following a conviction for voluntary absence
from custody, claiming her counsel was ineffective by failing
to request a presentence investigation report (PSI) be
completed before sentencing. We affirm her conviction but
conclude her claim of ineffective assistance should be
preserved for possible postconviction proceedings.
August 9, 2017, Leedom signed out from her community-based
correctional facility to go to work. Leedom called the
facility after she finished work that night to indicate she
would be late but was walking back to the facility. When
Leedom did not return by her extended check-in time, a
residential officer tried multiple times to call Leedom,
leaving voicemail messages. A check with local hospitals
revealed Leedom was not checked in at any of them, and when
Leedom was two hours overdue an officer began escape
procedures. Leedom did not return and was apprehended by
police on August 14. This was Leedom's fourth voluntary
absence while at the facility.
August 22, Leedom was charged by trial information with
voluntary absence from custody, a serious misdemeanor, in
violation of Iowa Code section 719.4(3) (2017). On October
30, Leedom filed a written guilty plea and waiver of rights.
On November 29, the court imposed a one-year jail sentence to
run consecutive to the sentences for her underlying
convictions. Leedom appeals, claiming her trial counsel
provided ineffective assistance by not requesting a
presentence investigation report (PSI).
they implicate constitutional rights, we review
ineffective-assistance-of-counsel claims de novo. State
v. Virgil, 895 N.W.2d 873, 879 (Iowa 2017). We presume
counsel has acted competently. State v. Hopkins, 860
N.W.2d 550, 554 (Iowa 2015). To establish a claim for
ineffective assistance of counsel, the defendant "must
prove both a failure of essential duty by her counsel and
resulting prejudice to her." Id. at 556.
offense here was a serious misdemeanor, therefore by statute
the court could only order a PSI "upon a finding of
exceptional circumstances warranting an investigation."
Iowa Code § 901.2(2)(d). A misdemeanant cannot demand a
PSI as a matter of right. State v. Robinson, 841
N.W.2d 615, 617 (Iowa Ct. App. 2013). While Leedom was in
jail for voluntary absence awaiting her plea and sentencing,
her child became ill and died. Leedom argues her child's
death should qualify as an "exceptional circumstance[ ]
warranting an investigation." See Iowa Code
§ 901.2(2)(d). She claims the brief personal and social
history included in a misdemeanor PSI would have provided
necessary information to the department of corrections for
her to obtain a mental-health assessment and treatment
resulting in a less-severe sentence.
not addressed whether failure to request a PSI breaches an
essential duty and have not found a statutory duty to request
one. See Robinson, 841 N.W.2d at 617. The record is
devoid of sufficient information regarding the potential
exceptional circumstances to allow us to evaluate what a
reasonably competent attorney would have done under the
circumstances. This record is not sufficient to determine if
Leedom's attorney failed to perform an essential duty.
prove prejudice, the defendant must show the outcome of the
proceeding would have been different. State v.
Fannon, 799 N.W.2d 515, 523 (Iowa 2011). Leedom's
argument focused on potential postconviction treatment the
court or department of corrections may have ordered due to
the PSI results but for counsel's alleged error. As with
the failure of an essential duty prong, the record is
insufficient to determine the potential prejudice. Because
the record is not sufficient to determine whether a failure
of duty occurred or whether Leedom was prejudiced by that
failure, we determine the issue should be preserved for
possible postconviction-relief proceedings. See State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010) ("If,
however, the court ...