from the Iowa District Court for Cerro Gordo County, Adam D.
Sauer, District Associate Judge.
Milbrath appeals her conviction and sentence for possession
of a controlled substance.
J. Booth of Booth Law Firm, Osceola, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
Kay Milbrath agreed to plead guilty to two counts of
possession of a controlled substance, third offense-one for
methamphetamine and one for marijuana. See Iowa Code
§ 124.401(5) (2017). Under the plea agreement as the
prosecutor articulated it at the plea proceeding,
State would recommend two indeterminate five-year prison
terms and a fine of $750 on each count, and Milbrath would be
free to "apply for drug court" following her guilty
plea. If the drug court accepted her, the State would
"agree, at time of sentencing, to recommend that the
five-year prison term for both Counts 1 and 2 be suspended[,
] that she be placed on probation for a period of five years
and, as a condition, that she complete the drug court
program." If the drug court did not accept Milbrath, the
prosecutor stated, "[W]e will make our first
recommendation of an indeterminate term not to exceed five
drug court did not accept Milbrath. The district court
sentenced her to prison terms not exceeding five years, to be
appeal, Milbrath contends her attorney was ineffective in
"fail[ing] to determine the reason for [her] rejection
by [the] drug court." In her view, "Although
acceptance by Drug Court was absolutely essential to
obtaining the State's recommendation for probation, the
record clearly shows that Trial Counsel failed to conduct a
reasonable investigation to determine precisely why [she] was
rejected." We conclude the record is inadequate to
address the issue. See State v. Clay, 824
N.W.2d 488, 494 (Iowa 2012). We affirm Milbrath's
judgment and sentence and preserve the ineffective-assistance
claim for postconviction relief "so an adequate record
of the claim can be developed and the attorney charged with
providing ineffective assistance may have an opportunity to
respond to defendant's claims." State v.
Harrison, 914 N.W.2d 178, 208 (Iowa 2018) (citation
McDonald, J., concurs.
Presiding Judge (concurring in part, dissenting in part).
concur in affirming the conviction, I respectfully dissent
with respect to preserving Milbrath's claim of
ineffective assistance of counsel. I do so because trial
counsel had no duty to inquire as to why Milbrath was not
accepted into the drug court program. During the plea
proceedings, the prosecutor made the following statement:
For each count the State is going to recommend an
indeterminate term not to exceed five years in prison,
five-as far as the fine is concerned, is that she is asking
that the fine of 750 be imposed on each count. In the
alternative, if-because the way the system works is they
plead guilty, then they have the ability, as a defendant, to
apply for drug court. And we're not preventing them from
doing that; but if drug court, then, accepts her as a
candidate, then we will agree, at time of sentencing, to
recommend that the five-year prison term for both Counts 1