                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0358
                               Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRIAN THOMAS WOODS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Robert J.

Richter, District Associate Judge.



      A defendant appeals from his conviction and sentence for driving while his

license was revoked, carrying weapons, and operating while intoxicated.

AFFIRMED.




      Scott J. Nelson, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Mary A. Triick,

Assistant Attorneys General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

       Brian Woods appeals from his convictions and sentences for driving while

his license was revoked, carrying weapons, and operating while intoxicated. He

maintains he received ineffective assistance from trial counsel.1

I. Background Facts and Proceedings.

       At approximately 1 a.m. on July 11, 2014, Officer Walker was on routine

patrol in his squad car when he noticed a car parked at an ATM. The headlights

were not on, and the driver’s door was ajar. Walker was unable to see anyone in

the vehicle, so he circled around the block. As he neared the vehicle a second

time, he saw a person hunched in the driver’s seat.                   Walker checked the

registration of the vehicle and learned the owner of the vehicle had a revoked

license.2 Because the car was parked too near the ATM to access the driver’s

window, Walker approached the front passenger window. Woods told Walker he

was waiting for the driver to return to the car. Walker smelled an odor of alcohol

coming from the vehicle and asked Woods if he had been drinking. Woods

admitted having one beer the previous evening.                   After checking Woods’s

identification, Walker learned Woods’s license to operate a vehicle had been

revoked.

1
  Woods also argues the trial court erred in allowing the use of the shock belt without a
showing of necessity by the State. This issue was not raised in the trial court, and as
such, it is not preserved for our review. See State v. Pickett, 671 N.W.2d 866, 869 (Iowa
2003) (“It is fundamentally unfair to fault the trial court for failing to rule correctly on an
issue it was never give the opportunity to consider.”); see also State v. McCright, 569
N.W.2d 605, 605 (Iowa 1997) (emphasizing the importance of raising “objections at the
earliest possible time” in order to give the district court the opportunity to “take any
necessary corrective action at a time when correction is still possible”). We consider the
claim only through the lens of ineffective assistance of counsel. See State v. Ondayog,
722 N.W.2d 778, 784 (Iowa 2006) (stating claims of ineffective assistance are an
exception to normal error-preservation rules).
2
  Woods was not the owner of the vehicle.
                                          3


       Woods was ultimately charged with driving while his license was revoked,

carrying weapons, and operating while intoxicated. The matter proceeded to jury

trial on October 6–8, 2014.

       At the beginning of the trial, Woods indicated to the court that he wanted

to subpoena a witness Woods maintained was actually driving the car and his

trial counsel had not done so. A record of the issue was made, and the court

proceeded with other matters. The witness was not subpoenaed.

       Woods was ultimately found guilty of each of the three charges.

       With the assistance of new counsel, Woods filed a motion for new trial

asserting, among other things, that he had not received a fair trial because he

was forced to wear an electrical control device around his midsection. At the

hearing on the motion, Woods indicated the device was not visible to the jury,

and his trial attorney had not been aware he was wearing it until Woods

mentioned it at some point midtrial. Woods stated he was anxious while wearing

it for fear that it could either accidently go off or that the officer in the courtroom

would initiate it if he did anything other than sit quietly. Woods maintained the

shock belt had affected his ability to actively participate in his defense.

       The district court denied Woods’s motion for new trial and noted that “the

defendant did not raise an objection to the use of the belt. The court did not have

an opportunity to hear arguments prior to trial as to whether or not the use of the

belt in this case would have been appropriate.”

       Woods appeals.
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II. Standard of Review.

      A defendant may raise an ineffective-assistance claim on direct appeal if

he has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). If

we determine the record is adequate, we may decide the claim. Id. We review

claims for ineffective assistance of counsel de novo. Id. This is our standard

because such claims have their basis in the Sixth Amendment to the United

States Constitution. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

III. Discussion.

      Woods maintains trial counsel was ineffective for failing to subpoena a

witness and for failing to object to the placement of an electronic control device

around Woods’s waist throughout his trial.

      To prevail on a claim of ineffective assistance of counsel, Woods must

prove by a preponderance of the evidence (1) his attorney failed to perform an

essential duty and (2) prejudice resulted from the failure.        See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).             We measure counsel’s

performance against an objective standard of reasonableness under prevailing

professional norms. Clay, 824 N.W.2d at 495. There is a presumption counsel

performed his or her duties competently.       Id.   Prejudice exists where the

defendant proves by a reasonable probability that, but for counsel’s

unprofessional error, the result of the proceeding would have been different. Id.

at 496. Under Iowa law, we look to the cumulative effect of counsel’s errors

when determining whether the defendant satisfied the prejudice prong. Id. at

500. We prefer to preserve ineffective-assistance claims for development of the
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record and to allow trial counsel to defend against the charge. See State v. Tate,

710 N.W.2d 237, 240 (Iowa 2006).

       Here, as the State acknowledges, the record is inadequate to address

Woods’s claims. Although he maintains the witness he wanted to subpoena

would have exonerated him with her testimony, we have no record as to what the

witness’s testimony would have been. See Nichol v. State, 309 N.W.2d 468, 470

(Iowa 1981) (“Ordinarily complaints about failure to call witnesses should be

accompanied by a showing their testimony would have been beneficial.”). We

will not rely on Woods’s speculation. Additionally, from the record before us, it is

unclear when counsel learned about the use of the electronic control device and

whether counsel made a strategic decision not to object to the device, which was

not visible to the jurors. See Lamasters v. State, 821 N.W.2d 856, 866 (Iowa

2012) (“[I]neffective assistance is more likely to be established when the alleged

actions or inactions of counsel are attributed to a lack of diligence as opposed to

the exercise of judgment.” (alteration in original)). We preserve Woods’s claims

for possible postconviction-relief proceedings.       See State v. Johnson, 784

N.W.2d 192, 198 (Iowa 2010) (“If . . . 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.

       AFFIRMED.
