
IN THE SUPREME COURT OF IOWA

                              No. 139 / 04-1690

                           Filed February 24, 2006

STATE OF IOWA,

      Appellee,

vs.

RANDOLPH LOUIS TATE,

      Appellant.

________________________________________________________________________
      On review from the Iowa Court of Appeals.

      Appeal from the Iowa  District  Court  for  Story  County,  Thomas  R.
Hronek, District Associate Judge.

      Defendant appeals from his conviction and sentence upon  his  plea  of
guilty to voluntary absence.  AFFIRMED.

      Linda Del Gallo, State Appellate  Defender,  and  Theresa  R.  Wilson,
Assistant State Appellate Defender, for appellant.

       Thomas  J.  Miller,  Attorney  General,  Sharon  K.  Hall,  Assistant
Attorney General, Stephen Holmes, County Attorney, and Timothy J. Meals  and
Shawn Smith, Assistant County Attorneys, for appellee.
STREIT, Justice.
       The  defendant,  Randolph  Tate,  appeals  from  his  conviction  and
sentence upon his  guilty  plea  to  voluntary  absence.   He  contends  his
counsel was ineffective in  permitting  him  to  enter  a  guilty  plea  and
failing to file a motion in arrest of judgment because  the  district  court
misinformed him of the maximum penalty for his crime.  Because  we  conclude
Tate has not established  his  ineffective-assistance-of-counsel  claim,  we
affirm the decision of the court of  appeals  and  preserve  the  issue  for
postconviction relief proceedings.
      I.  Facts and Prior Proceedings
      Randolph Tate walked out of the Curt Forbes  Residential  Facility  in
Ames and did not return.  Tate was serving a sentence  at  the  facility  as
part of a work  release  program.[1]   Tate  was  authorized  to  leave  the
facility on a food furlough, but  instead  of  returning  at  the  specified
time, he went to Fort Dodge to visit his terminally-ill girlfriend.  He  was
arrested later that week in Fort Dodge and charged  with  voluntary  absence
in violation of Iowa Code section 719.4(3) (2003).
      Tate entered into a plea agreement with the State  whereby  the  State
and the defendant recommended the court impose  a  sentence  of  credit  for
time served and a minimum fine.  The plea agreement was not  conditioned  on
the district court’s willingness to be bound by it.   Through  a  discussion
with Tate, the court established there was a factual basis for the plea  and
the plea was  both  informed  and  voluntary.   When  describing  the  penal
consequences to Tate’s guilty plea, the court did not inform Tate that  Iowa
Code section 901.8 mandated the sentence for  voluntary  absence  “begin  at
the expiration of any existing sentence.”  However, the court described  the
penalty to Tate in the following manner:



           THE COURT:  You  are  charged  on  the  trial  information  with
      voluntary absence.  This is, as I noted, a serious  misdemeanor.   It,
      therefore, carries with it a maximum penalty upon  conviction  of  one
      year imprisonment in the county jail and a fine of up to $1500.00.  Do
      you understand the maximum penalty?  A.  Yes, sir.


           THE COURT:  There is a  minimum  penalty  associated  with  this
      charge, if the Court does not suspend  or  defer  judgment,  and  that
      minimum penalty is a fine of $250.00.  Do  you  understand  that?   A.
      Yes, sir.

The court went on to inform Tate the sentencing judge would not be bound  by
the plea agreement and the sentencing judge could “conceivably”  impose  any
penalty up to the maximum period provided by law.
      On September 9, 2004, Tate was sentenced to  six  months  imprisonment
consecutive to  his  underlying  sentence  for  operating  a  motor  vehicle
without the owner’s consent.  The sentencing  judge  stated  the  “defendant
shall be given credit for time previously served as shown by the records  of
this county to the extent  that  credit  was  not  being  received  in  [the
underlying  operating  a  motor  vehicle   without   the   owner’s   consent
conviction].”  Tate immediately told the sentencing judge “I would  like  to
appeal it.  Yes.  I would like to retract [my guilty  plea].   This  is  not
what I was told was going to  happen.   I’m  sorry.”   The  court  responded
“[y]ou can discuss this with your  attorney.   Any  notice  of  appeal,  Mr.
Tate, must be filed in writing with the Clerk.”  To which Tate responded  “I
just wanted it to be part of the record.  I’ll file it then.”
      Tate did in fact appeal his conviction,  contending  his  counsel  was
ineffective for failing to file a motion in  arrest  of  judgment  prior  to
sentencing.  Specifically, Tate contends his  trial  counsel  erred  by  not
filing a motion in arrest of  judgment  when  the  district  court  did  not
inform him that the sentence for voluntary absence must  be  consecutive  to
the sentence for the underlying crime.  See Iowa Code § 901.8 (“If a  person
is sentenced for escape under section 719.4  .  .  .  the  sentencing  judge
shall order the  sentence  to  begin  at  the  expiration  of  any  existing
sentence.”).  Therefore, he claims, when his trial counsel did  not  file  a
motion in arrest of judgment  to  correct  this  alleged  error,  his  trial
counsel was ineffective.
      II.  Scope of Review
      Generally our review of a challenge to the entry of a guilty  plea  is
for correction of errors at law.  State v. Keene, 630 N.W.2d 579, 581  (Iowa
2001).  However, when the challenge arises in the context of an ineffective-
assistance claim, our standard of review is de novo.  State v.  Tejeda,  677
N.W.2d 744, 754 (Iowa 2004).
      An ineffective-assistance-of-counsel claim in a  criminal  case  “need
not be raised on direct appeal from the criminal  proceedings  in  order  to
preserve  the  claim  for  postconviction  relief  purposes.”    Iowa   Code
§ 814.7(1) (2005).  The  defendant  may  raise  the  ineffective  assistance
claim on direct appeal if he or she “has reasonable grounds to believe  that
the record is  adequate  to  address  the  claim  on  direct  appeal.”   Id.
§ 814.7(2).  Ordinarily, we do not decide  ineffective-assistance-of-counsel
claims on direct appeal.  See State v. Taylor, 310  N.W.2d  174,  179  (Iowa
1981).  We prefer to reserve such questions for  postconviction  proceedings
so the defendant’s  trial  counsel  can  defend  against  the  charge.   Id.
However, we depart from  this  preference  in  cases  where  the  record  is
adequate to evaluate the  appellant’s  claim.   State  v.  Schoelerman,  315
N.W.2d 67, 71 (Iowa 1982); State v.  Ogilvie,  310  N.W.2d  192,  197  (Iowa
1981); Iowa Code § 814.7(3) (“If an ineffective assistance of counsel  claim
is raised on direct appeal from the  criminal  proceedings,  the  court  may
decide the record is adequate to decide the claim or may choose to  preserve
the claim under chapter 822 [postconviction proceedings].”).  Only  in  rare
cases will the trial record alone be sufficient  to  resolve  the  claim  on
direct appeal.  State v. Straw, 709 N.W.2d 128,  133  (Iowa  2006)  (stating
claims of ineffective assistance of counsel  raised  on  direct  appeal  are
ordinarily  reserved  for   postconviction   proceedings   to   allow   full
development of the facts surrounding counsel’s conduct); State v. Coil,  264
N.W.2d 293, 296 (Iowa 1978).  For the  reasons  that  follow,  we  deem  the
record insufficient.
      III.  Merits
      For his ineffective-assistance-of-counsel claim to succeed, Tate “must
prove by a preponderance of the evidence that  (1)  his  counsel  failed  to
perform an essential duty, and (2) prejudice resulted.” Tejeda,  677  N.W.2d
at 754.
      In analyzing this claim, we  need  not  determine  whether  his  trial
counsel’s  performance  was  deficient  before   examining   the   prejudice
component of his ineffective-assistance claim.  Taylor v. State, 352  N.W.2d
683, 685 (Iowa 1984).  As stated by the United States Supreme Court,


           The object of an ineffectiveness claim is not to grade counsel’s
      performance.  If it is easier to dispose of an  ineffectiveness  claim
      on the ground of lack of sufficient prejudice, which  we  expect  will
      often be so, that course should be followed.  Courts should strive  to
      ensure that ineffectiveness claims not become so burdensome to defense
      counsel that the entire criminal justice system suffers as a result.

Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052,  2070,  80  L.
Ed. 2d 674, 699 (1984).  We therefore  focus  our  analysis  solely  on  the
prong  which  is  not  sufficiently  supported   by   the   record—resulting
prejudice.
      A.  Resulting Prejudice
      Because “ ‘[a]ttorney errors come in an infinite variety  and  are  as
likely to be utterly harmless in  a  particular  case  as  they  are  to  be
prejudicial,’ ” Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct.  366,  370,
88 L. Ed. 2d 203, 209 (1985)  (quoting  Strickland,  466  U.S  at  693,  104
S. Ct. at 2067, 80 L. Ed. 2d at 697),  the  defendant  claiming  ineffective
assistance of counsel with respect to a guilty plea  must  prove  that,  but
for counsel’s breach, there is a reasonable  probability  he  or  she  would
have insisted on going to trial.  Straw,  709  N.W.2d  at  133.   Therefore,
“ ‘[e]ven if a defendant  shows  that  particular  errors  of  counsel  were
unreasonable . . . the  defendant  must  show  that  they  actually  had  an
adverse impact on the defense.’ ”  Hill, 474 U.S. at 58, 106 S. Ct. at  370,
88 L. Ed. 2d at 209 (quoting Strickland, 466 U.S. at  693,  104  S.  Ct.  at
2067, 80 L. Ed. 2d at 697).
      Tate’s prejudice argument is limited because the record in  this  case
consists only of the transcript  of  the  guilty  plea  proceeding  and  the
transcript of the sentencing proceeding.  The thrust of Tate’s  argument  is
that he complained of prejudice immediately after the  court  announced  its
sentence when he said “I would like to appeal it.  Yes.   I  would  like  to
retract.  This is not what I was told was  going  to  happen.   I’m  sorry.”
This argument has some merit because there is a subtle difference between  a
defendant who first claims in his or her appellate brief or  post-conviction
application that he or she would have chosen a trial, and one like Tate  who
indicates a  desire  to  withdraw  his  plea  prior  to  the  close  of  the
sentencing proceeding.  In the  latter  instance,  the  defendant’s  actions
more likely indicate the  defendant’s  bona  fide  desire  to  choose  trial
because his counsel’s error was at the  forefront  of  his  mind.   However,
standing alone, this statement is barely more than  a  conclusory  claim  of
prejudice, and as we stated in State v. Myers, 653  N.W.2d  574,  579  (Iowa
2002), “conclusory claims of prejudice” are not sufficient  to  satisfy  the
prejudice element.
      The record  also  does  not  contain  other  items  important  to  our
analysis.  For example, the record does not indicate  whether  Tate’s  trial
counsel told him  about  the  possibility  of  consecutive  sentences.   See
Straw, 709 N.W.2d at 138.  The record also does not  indicate  there  was  a
specific  defense  or  trial  strategy  forgone  by  the  guilty  plea.   In
addition, the lone statement “this is not what  I  was  told  was  going  to
happen” is unclear itself.  The statement begs the question:  what was  Tate
told? Without knowing what Tate was told, we cannot determine  whether  Tate
was prejudiced.[2]
      When presented with this sole assertion of prejudice,  we  are  simply
unable to find Tate has proven, by a preponderance  of  the  evidence,  that
but for his trial counsel’s failure to file a motion in arrest  of  judgment
after the judge did not mention the consecutive sentence requirement,  there
is a reasonable probability he would have insisted on going to trial.   This
case exemplifies why, as noted above, an  ineffective-assistance-of  counsel
claim is normally best reserved for postconviction proceedings.  See  Straw,
709 N.W.2d at 138.  Because Tate is unable to prove the  prejudice  element,
his ineffective-assistance claim must fail.  However,  we  do  preserve  the
issue for postconviction proceedings so both  Tate  and  his  trial  counsel
will have the opportunity to establish a record.
      IV.  Conclusion
      Because we find Tate has not established  his  ineffective-assistance-
of-counsel claim regarding his guilty plea, we affirm Tate’s conviction  and
sentence and preserve this issue for postconviction proceedings.
      AFFIRMED.
      All justices concur  except  Lavorato,  C.J.,  and  Wiggins,  J.,  who
dissent separately.
                                     #139/04-1690, State v. Tate
LAVORATO, Chief Justice (dissenting).
      I join Justice Wiggins' dissent.  I would also  point  out  that  this
case underscores another reason, in addition to the reasons I stated  in  my
dissent in State v. Straw, 709 N.W.2d 128, 145 (Iowa 2006) (Lavorato,  C.J.,
dissenting), why  we  should  presume  prejudice,  vacate  the  judgment  of
sentence and conviction, and remand to allow the defendant  to  plead  anew.
Under the majority's approach, a postconviction relief proceeding  in  cases
like this one will now likely degenerate into a credibility contest  between
the lawyer and his or her former client, a contest the  former  client  will
in all likelihood lose.  We should not put lawyers and  defendants  in  this
unenviable position.  Such  unseemly  conflict  would  be  unnecessary,  and
district court performance would be improved, if  we  simply  enforced  Iowa
Rule of Criminal Procedure 2.8(2)(b)'s requirements.
      Wiggins, J., joins this dissent.
                                     #139/04-1690, State v. Tate
WIGGINS, Justice (dissenting).
      The record is unequivocal that at the time the district court accepted
the defendant's guilty plea, the court failed to advise the  defendant  that
the sentence for voluntary absence began "at the expiration of any  existing
sentence."  Iowa Code § 901.8 (2003).  I believe this failure  violated  our
rule requiring the  court  to  inform  the  defendant  of  "[t]he  mandatory
minimum punishment, if any, and the maximum possible punishment provided  by
the statute defining the offense to which the plea  is  offered."   Iowa  R.
Crim. P. 2.8(2)(b)(2).  For the reasons stated in the dissenting opinion  in
State  v.  Straw,  709  N.W.2d  128,  145  (Iowa  2006)   (Lavorato,   C.J.,
dissenting), I would presume prejudice, vacate the judgment of sentence  and
conviction, and remand the case to the district court.
      Lavorato, C.J., joins this dissent.
-----------------------
      [1]Tate was convicted in 2003 for operating a  motor  vehicle  without
the owner’s consent.  He was committed to the custody  of  the  Director  of
the Department of Corrections of the State of  Iowa  for  a  period  of  two
years for this crime.
      [2]It may  have  been  preferable  for  the  trial  judge,  under  the
circumstances, to respond to the defendant with a  question  of  “What  were
you told?”  However, in this setting, the court may have  concluded  such  a
question  could  violate  the  attorney-client  privilege.    This   concern
disappears during postconviction relief proceedings.

