from the Iowa District Court for Linn County, Ian K.
Thomas appeals his sentence for tax stamp violation.
C. Meyer, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Greer,
Thomas appeals his sentence imposed on his guilty plea to
failing to affix a drug tax stamp. See Iowa Code
§ 453B.12 (2018). Thomas argues the sentencing court
abused its discretion by improperly relying on a risk
assessment tool in considering the presentence investigation
report (PSI)'s recommended sentence, which included an
assessment of Thomas using the risk assessment tools. Thomas
further argues his trial counsel provided ineffective
assistance by not objecting to the sentencing court's
consideration of the recommended sentence.
review sentencing decisions for an abuse of discretion . . .
." State v. Guise, 921 N.W.2d 26, 30 (Iowa
2018). "We will find an abuse of discretion when
'the district court exercises its discretion on grounds
or for reasons that were clearly untenable or
unreasonable.'" Id. (citation omitted). We
review claims of ineffective assistance of counsel de novo.
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).
of an improper factor is an abuse of the sentencing
court's discretion. State v. Lovell, 857 N.W.2d
241, 242-43 (Iowa 2014). But the sentencing court "has a
right to rely on the information in the PSI when the
defendant fails to object to the information contained in the
PSI." State v. Gordon, 921 N.W.2d 19, 24 (Iowa
2018). Here, Thomas "failed to object to the risk
assessment tools in the PSI and their use at
sentencing." Id. Additionally, the Iowa Supreme
Court has determined risk assessment tools are, on their
face, a proper factor to consider. See State v.
Headley, 926 N.W.2d 545, 552 (Iowa 2019); see also
id. (noting "sentencing recommendations contained
in the PSI are not binding on the court" and the
sentencing court does not abuse its discretion by considering
them). The sentencing court did not abuse its discretion by
considering the recommendation.
Thomas argues trial counsel was ineffective for failing to
object to the district court's consideration of the
recommendation. "When counsel fails to preserve error at
trial, we can reach an ineffective-assistance-of-counsel
claim on a direct appeal if the record is sufficient to reach
it." Gordon, 921 N.W.2d at 24 (citing State
v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011)). "To
succeed on a claim of ineffective assistance of counsel, a
claimant must establish by a preponderance of the evidence:
'(1) his trial counsel failed to perform an essential
duty, and (2) this failure resulted in prejudice.'"
State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015)
(quoting State v. Adams, 810 N.W.2d 365, 372 (Iowa
2012)). To show prejudice, the claimant must show that,
"but for counsel's breach, there is a reasonable
probability he or she would have insisted on going to
trial." State v. Tate, 710 N.W.2d 237, 240
appeal, Thomas does not allege he would have insisted on
going to trial but for defense counsel's alleged
ineffective assistance. Furthermore, we note "[u]nder
the 'reasonable probability' standard, it is
abundantly clear that most claims of ineffective assistance
of counsel in the context of a guilty plea will require a
record more substantial than the one now before us."
State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). We
therefore preserve Thomas's ineffective-assistance claim
for postconviction-relief proceedings. See State v.
Harris, 919 N.W.2d 753, 754 (Iowa 2018) ("If the
development of the ineffective-assistance claim in the
appellate brief was insufficient to allow its consideration,
the court of appeals should not consider the claim, but it
should not outright reject it.").