from the Iowa District Court for Polk County, Cynthia M.
Moisan, District Associate Judge.
Donald Hilbert appeals his sentence after pleading guilty to
theft in the fourth degree.
Hobbs, West Des Moines, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., and Mullins and Bower, JJ.
April 2018, Jason Donald Hilbert was charged with
third-degree theft after taking approximately $600 from his
employer. He pled guilty to a lesser-included offense,
fourth-degree theft, and was sentenced to a one-year term of
incarceration, to run consecutively with his "parole
matter." On appeal, he raises two
first discusses potential due process issues involving his
guilty plea and sentencing. He admits he failed to file a
motion in arrest of judgment within the specified time period
and thus, may only challenge his guilty plea as an
ineffective-assistance claim. See Iowa R. Crim. P.
2.24(3)(a) ("A defendant's failure to challenge the
adequacy of a guilty plea proceeding by motion in arrest of
judgment shall preclude the defendant's right to assert
such challenge on appeal.").
we review challenges to guilty pleas for correction of errors
at law. State v. Fisher, 877 N.W.2d 676, 680 (Iowa
2016). However, when such challenge is raised as an
ineffective-assistance claim, our review is de novo.
State v. Delacy, 907 N.W.2d 154, 157 (Iowa Ct. App.
2017). To prevail on an ineffective-assistance claim, the
applicant must show counsel failed to perform an essential
duty and such failure resulted in prejudice. State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing
Strickland v. Washington, 466 U.S. 668, 687-88
In order to establish the first prong of an
ineffective-assistance claim, the defendant must show that
trial counsel's performance was outside the range of
normal competency. This task is not an easy one as
"there is a strong presumption trial counsel's
conduct fell within the wide range of reasonable professional
State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003)
(quoting DeVoss v. State, 648 N.W.2d 56, 64 (Iowa
2002)); see also State v. Oetken, 613 N.W.2d 679,
683 (Iowa 2000) ("To rebut this presumption defendant
must present an affirmative factual basis establishing
inadequate representation."). The defendant must also
establish he or she was prejudiced by counsel's
inadequate representation and demonstrate "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Ledezma v. State, 626 N.W.2d 134,
145 (Iowa 2001) (quoting Strickand, 466 U.S. at
694). While Hilbert discusses potential issues involving his
guilty plea and sentence, he fails to articulate how his
counsel's performance was inadequate and fails to
establish prejudice. Because no cognizable claim has been
raised, we find Hilbert has failed to prove any due process
violations that would support his first
Hilbert asserts counsel was ineffective by improperly
advising him that he could serve his sentence in prison
rather than county jail. "If an
ineffective-assistance-of-counsel claim is raised on direct
appeal from the criminal proceedings, we may decide the
record is adequate to decide the claim or may choose to
preserve the claim for postconviction proceedings."
Straw, 709 N.W.2d at 133 (citing Iowa Code §
814.7(3) (2005)). Hilbert concedes this claim should be
preserved because the record is not developed. The State
agrees. Therefore, we preserve this claim for possible
postconviction relief, "where a full evidentiary hearing
may be had and where counsel will have an opportunity to
respond to defendant's charges." State v.
Coil, 264 N.W.2d 293, 296 (Iowa 1978); see also
State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004)