                IN THE SUPREME COURT OF IOWA
                              No. 08–1756

                          Filed October 1, 2010


STATE OF IOWA,

      Appellee,

vs.

TYLER RAY OBERHART,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Jasper County, Dale B.

Hagen, Judge.



      Defendant seeks further review of the court of appeals’ decision

affirming his first-degree murder conviction. DECISION OF COURT OF

APPEALS     VACATED      IN   PART;   DISTRICT     COURT     JUDGMENT

AFFIRMED.



      Richard E.H. Phelps II of Phelps Law Office, Mingo, for appellant.



      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant

Attorney General, and Michael K. Jacobsen, County Attorney, for

appellee.
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TERNUS, Chief Justice.

       This matter comes to us on further review of the court of appeals’

decision affirming the first-degree murder conviction of appellant,

Tyler Ray Oberhart.        We have taken the case on further review to

consider Oberhart’s argument that his trial counsel provided ineffective

assistance by failing to move to suppress incriminating statements

Oberhart made to law enforcement officers. 1 See State v. Doggett, 687

N.W.2d 97, 99 (Iowa 2004) (declining to exercise discretion on further

review to consider all issues raised on appeal, deciding instead to

consider only the ineffective-assistance-of-counsel claim). The court of

appeals concluded the record on this issue was sufficient to decide this

claim on direct appeal and then found the record established that trial

counsel had not been ineffective. We believe the court of appeals erred in

finding the record on direct appeal sufficient and, therefore, preserve for

postconviction review the issue of whether trial counsel was ineffective

for failing to move to suppress defendant’s video statement.

       On October 6, 2007, Oberhart stabbed Jerry Pittman II during an

attempt to scare Pittman into giving Oberhart and his friends drugs or

money.        Oberhart was charged with felony murder based on the
predicate felony of robbery. During the police investigation that ensued,

seventeen-year-old Oberhart was given juvenile Miranda warnings.                 He

waived his rights and gave a videotaped statement of his participation in

Pittman’s death.     He now asserts that trial counsel was ineffective for

failing to move to suppress this statement because the Miranda warnings

he was given implied a false promise of leniency, rendering his statement


       1The  court of appeals’ decision is final as to the other issues raised by the
defendant on appeal. See Everly v. Knoxville Cmty. Sch. Dist., 774 N.W.2d 488, 492
(Iowa 2009).
                                    3

involuntary.   See State v. McCoy, 692 N.W.2d 6, 28–29 (Iowa 2005)

(holding trial counsel breached an essential duty by failing to object to

admission of defendant’s statement on ground that it was induced by

promise of leniency rendering statement involuntary and inadmissible).

      The juvenile Miranda warnings given to Oberhart included the

following information: “Anything you say can be used against you in a

court of law. This includes the adult criminal court if the juvenile court

waives jurisdiction.   Do you understand that?”        Oberhart asserts this

warning implied the charges against him would be filed in juvenile court

and would be transferred to adult criminal court only if the juvenile court

waived jurisdiction. He argues this information was inaccurate as to him

because he was being investigated for a forcible felony. A forcible felony

is tried in adult court if the person charged is sixteen years or older,

unless the case is transferred back to juvenile court for good cause. See

Iowa Code § 232.8(1)(c) (2007).   Oberhart maintains that, because the

juvenile warnings implied a promise of leniency that did not exist in his

situation, any subsequent statement was not voluntarily given. Based

on this argument, Oberhart asserts that his trial counsel was ineffective

for failing to move to suppress his video statement.

      This court has held that, under Iowa Code section 814.7, a

defendant need not make a record on direct appeal to preserve an

ineffective-assistance-of-counsel claim for postconviction review. State v.

Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We stated in Johnson:

      Based on the provisions of section 814.7, we hold defendants
      are no longer required to raise ineffective-assistance claims
      on direct appeal, and when they choose to do so, they are
      not required to make any particular record in order to
      preserve the claim for postconviction relief.
            . . . If the defendant requests that the court decide the
      claim on direct appeal, it is for the court to determine
      whether the record is adequate, and if so, to resolve the
                                              4
       claim. 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.

Id.

       Applying these principles here, we note that the court of appeals

concluded the record was sufficient to decide this matter on direct

appeal.      Nonetheless, the reasons given by the court of appeals for

finding that Oberhart’s ineffective-assistance claim fails include:                     (1)

Oberhart did not claim he would not have waived his Miranda rights had

he been told that, if he were charged with a forcible felony, he would be

tried in adult court unless waived back to juvenile court; 2 (2) he

presented     no    evidence     that    he       lacked   sufficient    intelligence    to

understand his rights or the effect of the waiver; and (3) he made no

claim the circumstances surrounding the questioning caused duress.

These grounds rest on the absence of supporting evidence in the record,

and therefore, we disagree with the court of appeals’ assessment that the

record is adequate to decide Oberhart’s ineffective-assistance-of-counsel

claim with regard to suppression of his video statement.                       Accordingly,

without regard to the ultimate merit of such a claim and pursuant to our

obligation     under     section     814.7(3),      we     preserve     this    claim   for

postconviction review. We vacate the court of appeals’ contrary decision.

       DECISION OF COURT OF APPEALS VACATED IN PART;

DISTRICT COURT JUDGMENT AFFIRMED.



       2Our   reference to this ground of the court of appeals’ decision should not be
viewed as an indication that it states the correct test for prejudice under an ineffective-
assistance-of-counsel claim. See State v. Hrbek, 336 N.W.2d 431, 436 (Iowa 1983)
(finding ineffective assistance of counsel based on trial counsel’s failure to move to
suppress defendant’s involuntary statement with no requirement that defendant show
he would not have made statement had he not been given a promise of leniency); accord
McCoy, 692 N.W.2d at 26–27.
