                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1846
                              Filed May 17, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ADAM B. ARTERBURN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Cheryl Traum,

District Associate Judge.



      Adam Arterburn appeals following his plea of guilty to absence from a

place he was required to be.         CONVICTION AFFIRMED, SENTENCE

VACATED, AND REMANDED WITH INSTRUCTIONS.




      Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
                                         2


DANILSON, Chief Judge.

       Adam Arterburn appeals following judgment and sentence entered upon

his written plea of guilty to absence from custody, in violation of Iowa Code

section 719.4(3) (2016).

       “We ordinarily review challenges to guilty pleas for correction of errors at

law.” State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).

       On October 5, 2016, Arterburn entered a written guilty plea to one count of

absence from custody. The written guilty plea indicates, “A plea agreement in

my case exists as evidenced by a memorandum of plea agreement which I have

signed. I understand the plea agreement is not binding on the court.”

       The written guilty plea also contained a discussion of penalties:

       9. On a plea of guilty to:
              ....
       __√__ A serious misdemeanor, the Court can sentence me to jail
       for up to one year, and fine me between $315.00 and $1875.00,
       plus surcharge and court costs.

It also explained that to challenge the guilty plea a motion in arrest of judgment

must be filed and that failing to file a motion in arrest of judgment before

sentencing would “preclude [his] right to assert any defects in this plea in any

appeal.” He also signed an additional waiver stating: “I wish to be sentenced

today.”

       Defense counsel’s signature appears below the statement, “I have fully

advised my client of the consequences of this document. My client’s decision to

sign this document and waive the rights described above is knowing and

voluntary.”
                                        3


      That same date, October 5, 2016, the district court accepted Arterburn’s

written guilty plea, along with his written waiver of a reported plea hearing. The

sentencing order provides further:

      The court has reviewed the signed plea of guilty form and
      considered the statements of the defendant. The court finds that
      the defendant understands the charge, the penal consequences
      and the constitutional rights being waived.          Based on the
      statements of the defendant, statements of the prosecutor, and the
      minutes of testimony accepted as true by the defendant and
      considered by the court, the plea has a factual basis and is
      knowing, voluntary and intelligent.
             ....
             . . . The following sentence is based on all of the available
      sentencing considerations set out in Iowa Code section 907.5. The
      court finds the following factors the most significant to determine
      this particular sentence:
                   The plea agreement of the parties
                   The nature and circumstances of the crime
                   Maximum opportunity for rehabilitation and treatment in
             the community

The court sentenced Arterburn to 365 days in jail with all but 330 days

suspended, to run consecutive to the sentence Arterburn was already serving

when he committed this absence-from-custody offense.

      On appeal, Arterburn contends he was not adequately informed of the

mandatory penalties for the offense to which he pled, the failure to file the plea

memorandum negates any ability to find the plea was knowingly and voluntarily

entered, and the court failed to state adequate reasons for imposing consecutive

sentences.

      Arterburn concedes that his written plea of guilty establishes that he was

made aware of the time limit for filing a motion in arrest of judgment and did not

timely file a motion in arrest of judgment. He is thus precluded from challenging

the adequacy of the plea proceedings on direct appeal. See Iowa R. Crim. P.
                                        4


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.”); State v. Straw, 709 N.W.2d 128, 132 (Iowa

2006) (“Straw’s failure to move in arrest of judgment bars a direct appeal of his

conviction.”).

       However, Arterburn contends plea counsel was ineffective, which excepts

him from normal error-preservation rules. See Straw, 709 N.W.2d at 133. To

establish his claim of ineffective assistance of counsel, Arterburn must

demonstrate (1) his plea counsel failed to perform an essential duty, and (2) this

failure resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88

(1984). Only in “rare cases” will the record be adequate for the court to address

the ineffectiveness claim on direct appeal. Straw, 709 N.W.2d at 133.

       The record before us is not adequate to determine if Arterburn was

adequately informed of the actual terms contained in the plea memorandum

because the plea memorandum is not in this record.         Arterburn asserts that

because the plea memorandum is not available we cannot presume the district

court’s recitation of that the sentence was based—at least in part—upon the plea

agreement. The State argues the proper remedy is to remand.

       Because the plea memorandum is not in the record, we remand to the

district court for further proceedings consistent with State v. Thacker, 862 N.W.2d

402, 410-11 (Iowa 2015):

              On remand, if the district court determines it merely gave
       effect to the parties’ agreement and exercised no discretion in
       sentencing other than to accept the plea agreement as advanced
       by the parties, it should make the particulars of the plea agreement
       with respect to the sentence a part of the record. See [State v.
                                        5

      Matlock, 304 N.W.2d 226, 228 (Iowa 1981)] (“If the court has no
      discretion in sentencing, it should so state.”). If, on the other hand,
      the parties did not come to an agreement with respect to the
      particulars of the sentence or the district court departed from any
      agreement the parties may have had, then the district court
      exercised discretion and, as a result, must make a statement on the
      record as to why it exercised its discretion in the way it did. On
      remand, there is no requirement the district court arrive at a
      different sentence, but only that it satisfy the requirements of Iowa
      Rule of Criminal Procedure 2.23(3)(d).

We do not address any additional ineffectiveness claims here as they may be

raised in a postconviction-relief action. See Thacker, 862 N.W.2d at 411.

      CONVICTION       AFFIRMED,       SENTENCE       VACATED,       AND        CASE

REMANDED WITH INSTRUCTIONS.
