                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-2004
                            Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARIA AMELIA LEEDOM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Nathan A.

Callahan, District Associate Judge.



      A defendant appeals her conviction for voluntary absence from custody.

AFFIRMED.




      Julie De Vries of De Vries Law Office, PLC, Centerville, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.




      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

          Maria 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.

          On 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.

          On 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).

          Because they implicate constitutional rights, we review ineffective-

assistance-of-counsel claims de novo. State v. Virgil, 895 N.W.2d 873, 879 (Iowa
                                          3

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.

       The 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.

       We have 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.

       To 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
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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 determines the claim cannot be addressed on

appeal, the court must preserve it for a postconviction-relief proceeding, regardless

of the court’s view of the potential viability of the claim.”).

       We affirm Leedom’s conviction for voluntary absence from custody.

       AFFIRMED.
