                   IN THE COURT OF APPEALS OF IOWA

                                     No. 15-2173
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THEODORE RAY BASCOM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Thomas L. Koehler,

Judge.



      Theodore Bascom appeals his conviction and sentence entered following

his guilty plea to operating a motor vehicle while intoxicated, third offense.

AFFIRMED.




      Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, Presiding Judge.

       Theodore Bascom was charged with operating a motor vehicle while

intoxicated (OWI), third offense, and as a habitual offender. Pursuant to a plea

agreement, he pled guilty to the third-offense OWI and the habitual offender

sentencing enhancement was dismissed. In addition to other ordered provisions,

the district court ordered Bascom to pay a fine of $3125, “plus the appropriate

surcharge.” Bascom appeals, arguing that at the time he pled guilty, he was not

informed of the applicable surcharges or that a conviction may affect his status

under federal immigration laws.

       Bascom admits that during his plea hearing he was adequately informed

of his right to file a motion in arrest of judgment. See Iowa R. Crim. P. 2.8(2)(d).

Bascom did not file a motion in arrest of judgment. Therefore, he has waived his

right to challenge the adequacy of the plea proceedings in this direct appeal.

See State v. Straw, 709 N.W.2d 128, 132 (Iowa 2006).

       Bascom alternatively argues his counsel was ineffective in failing to alert

the district court of the errors in the plea hearing and in failing to file a motion in

arrest of judgment to set aside the guilty plea based on the alleged errors. The

State argues Bascom failed to demonstrate in his brief he would not have pled

guilty had he been adequately informed and thus cannot satisfy the prejudice

prong of Strickland v. Washington, 466 U.S. 668, 687 (1984). See Straw, 709

N.W.2d at 138 (“[I]n order to satisfy the prejudice requirement, the defendant

must show that there is a reasonable probability that, but for counsel’s errors, he

or she would not have pleaded guilty and would have insisted on going to trial.”).

In his reply brief, Bascom asserts “[i]n this appeal he is restricted to the record
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made in the district court” and any claim of prejudice in an appeal brief “would be

dismissed by the State as a self-serving post hoc statement.”

       The State’s reliance on Straw is misplaced.1 Straw was not a case in

which the defendant had an opportunity to make a record concerning prejudice,

as might have been done if he had filed a motion in arrest of judgment or filed an

application for postconviction relief. Thus our supreme court concluded: “This

case exemplifies why claims of ineffective assistance of counsel should normally

be raised through an application for postconviction relief. In only rare cases will

the defendant be able to muster enough evidence to prove prejudice without a

postconviction relief hearing.” Straw, 709 N.W.2d at 138. We find the same

conclusion applies to Bascom’s claims.

       Accordingly, pursuant to Iowa Court Rule 21.26(1)(a), we affirm the

conviction and sentence of the district court and preserve for postconviction-relief

proceedings Bascom’s claims of ineffective assistance of counsel arising out of

the guilty plea proceedings. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa

2010); see also State v. Delacy, No. 16-0827, slip op. at 9 (Iowa Ct. App. May 3,

2017) (en banc) (“In cases such as this, where a defendant claims counsel was

ineffective in failing to ensure he was properly informed of the consequences of

his guilty plea, we determine a defendant should be given the opportunity to

develop a record in postconviction-relief proceedings to support his ineffective-

assistance claim.”).

       AFFIRMED.

1
 The State also relies on Hill v. Lockhart, 474 U.S. 52, 59 (1985). Hill is a habeas
corpus case in which the applicant commenced his action without alleging prejudice.
See id. at 60. In the present case, Bascom has not yet had an opportunity to either
allege or prove prejudice at the trial level in order to make a record for review by an
appellate court.
