              IN THE SUPREME COURT OF IOWA
                              No. 07–2043

                        Filed December 11, 2009


STATE OF IOWA,

      Appellee,

vs.

TERRY LELAND BERG, JR.,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



      Defendant appeals from his conviction and sentences for the

offenses of (1) possession of a precursor substance, (2) manufacturing a

controlled substance, and (3) conspiracy to manufacture a controlled

substance. DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J.

Japuntich, Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, Patrick Jennings, County Attorney, and James D.

Loomis, Assistant County Attorney, for appellee.
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PER CURIAM.

      Terry Berg, Jr. entered guilty pleas to the offenses of possession of

a precursor substance, manufacturing a controlled substance, and

conspiracy to manufacture a controlled substance in violation of Iowa

Code sections 124.401(1)(c)(6) and 124.401(4)(b) (2005).           Berg now

appeals,   claiming   his   counsel   rendered   ineffective   assistance   by

erroneously advising him the court had no discretion in imposing a one-

third mandatory minimum sentence and by failing to file a motion in

arrest of judgment. Berg contends that, had he been properly informed

of the court’s discretion, he would not have waived his trial rights and

pled guilty. The court of appeals rejected Berg’s claim, finding Berg failed

to prove the required prejudice. Upon our review, we vacate the decision

of the court of appeals and preserve Berg’s ineffective-assistance-of-

counsel claim for postconviction relief proceedings.

      I. Facts and Prior Proceedings.

      On April 18, 2007, the defendant was charged with five controlled

substance offenses.     On October 9, 2007, Berg entered into a plea

agreement with the State wherein he agreed to plead guilty to Count I,

possession of a precursor substance, a class “D” felony; Count II,

manufacturing a controlled substance, methamphetamine, a class “C”

felony; and Count IV, conspiracy to manufacture a controlled substance,

methamphetamine, a class “C” felony. Counts II and IV were violations

of Iowa Code section 124.401(1)(c)(6). Per the agreement, the defendant

would receive five years on Count I, ten years on Count II, and ten years

on Count IV, with all of the sentences to run concurrently and with the

imposition of a one-third mandatory minimum sentence with regard to

Counts II and IV, pursuant to Iowa Code section 124.413.
                                      3

      On November 1, 2007, Berg was sentenced in accordance with the

terms of the plea agreement, and the court dismissed the remaining

counts.   No motion in arrest of judgment was filed.      On November 9,

2007, the defendant filed a notice of appeal.

      Shortly thereafter, the district court began receiving written

correspondence from Berg and his family questioning the validity of the

defendant’s sentence and requesting reconsideration.       A hearing was

held on April 8, 2008. At the hearing, the defendant asserted his counsel

erroneously advised him regarding the district court’s ability to waive the

mandatory minimum requirement of Iowa Code section 124.413.            See

Iowa Code §§ 124.413 (requiring person sentenced under section

124.401(1)(c) to serve a minimum period of confinement of one-third of

the maximum indeterminate sentence prescribed by law); 901.10(1)

(providing for the court’s discretion in the imposition of a mandatory

minimum sentence for a person’s first conviction under section 124.413

if mitigating circumstances exist).       Counsel contended he mistakenly

advised Berg that Berg’s prior South Dakota conviction for possession of

anhydrous ammonia would preclude the court’s ability to waive the

mandatory minimum in whole or in part. Berg asserted he would not

have signed the plea agreement as written if he had known the court had

discretion to waive the mandatory minimum.

      The district court denied the defendant’s request to find the plea

was defective, concluding the time for filing a motion in arrest of

judgment had passed. This issue, the court held, must be resolved on

appeal or in a postconviction relief action.       However, under section

902.4, the court determined it had the authority to reconsider and

modify the defendant’s sentence. Nevertheless, the court concluded that

under the terms of the plea agreement it was not required to make any
                                     4

findings as to the existence of mitigating factors that would justify a

waiver of any portion of the defendant’s sentence.       Moreover, in the

absence of any proof of mitigating circumstances, the serious nature of

the charges, and the benefits the defendant received in the plea

agreement, the court found the sentence imposed to be appropriate.

Therefore, the court denied the defendant’s request for reconsideration.

      Berg’s appeal was transferred to the court of appeals where the

court rejected his claim of ineffective assistance of counsel, concluding

Berg failed to prove there was a reasonable probability that, but for

counsel’s error, he would not have pleaded guilty and would have

insisted on going to trial.    We now grant further review, vacate the

decision of the court of appeals, and preserve the defendant’s claim for

postconviction relief.

      II. Scope and Standards of Review.

      In order to challenge a plea of guilty, it is incumbent upon the

defendant to file a motion in arrest of judgment.        Iowa R. Crim. P.

2.24(3). “However, this failure does not bar a challenge to a guilty plea if

the failure to file a motion in arrest of judgment resulted from ineffective

assistance of counsel.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

Although ineffective-assistance-of-counsel claims are generally preserved

for postconviction relief actions, we will consider the claim on its merits

on direct appeal when an adequate record exists. State v. Bearse, 748

N.W.2d 211, 214 (Iowa 2008).

      To succeed on an ineffective-assistance-of-counsel claim, the

defendant must show (1) his counsel failed to perform an essential duty,

and (2) the defendant was prejudiced by counsel’s error.        Straw, 709

N.W.2d at 133. The first prong of the test requires counsel’s performance

to be measured “ ‘against the standard of a reasonably competent
                                     5

practitioner with the presumption that the attorney performed his duties

in a competent manner.’ ” State v. Dalton, 674 N.W.2d 111, 119 (Iowa

2004) (quoting State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003)). “[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

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

Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203,

210 (1985); accord Straw, 709 N.W.2d at 138.          When an ineffective-

assistance-of-counsel claim is raised on direct appeal, we must decide

whether either or both elements are established or negated as a matter of

law. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).

      III. Merits.

      Berg contends his guilty plea was not knowing and voluntary

because his attorney provided him with inaccurate advice. See Straw,

709 N.W.2d at 133 (noting due process requires a defendant’s guilty plea

be voluntarily and intelligently entered).       This court has previously

stated:

      “A guilty plea must represent the informed, self-determined
      choice of the defendant among practicable alternatives; a
      guilty plea cannot be a conscious, informed choice if the
      accused relies upon counsel who performs ineffectively in
      advising him regarding the consequences of entering a guilty
      plea and of the feasible options.”

Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983) (quoting Hawkman v.

Parratt, 661 F.2d 1161, 1170 (8th Cir. 1981)).

      Iowa Code section 124.413 provides in pertinent part:

            A person sentenced pursuant to section 124.401,
      subsection 1, paragraph . . . “c” . . . shall not be eligible for
      parole until the person has served a minimum period of
      confinement of one-third of the maximum indeterminate
      sentence prescribed by law.
                                     6

        In certain situations, however, this mandatory provision is subject

to tempering. In pertinent part, Iowa Code section 901.10 provides:

        A court sentencing a person for the person’s first conviction
        under section . . . 124.413 . . . may, at its discretion,
        sentence the person to a term less than provided by the
        statute if mitigating circumstances exist and those
        circumstances are stated specifically in the record.

        In this case, it is undisputed the defendant’s attorney advised

Berg, prior to his entering into a plea agreement, that his previous South

Dakota conviction precluded the district court from exercising its

discretion in determining whether to impose the mandatory one-third

minimum sentence on Berg’s section 124.401(1)(c) convictions.           This

advice was wrong. See State v. Neary, 470 N.W.2d 27, 29 (Iowa 1991)

(holding express terms of section 901.10 do not include prior out-of-state

convictions). Moreover, it evinces a breach of counsel’s duty to perform

competently as a matter of law.       See Meier, 337 N.W.2d at 206–07

(holding counsel’s legal bad advice regarding applicable mandatory

sentencing breached the range of normal competency); see also State v.

Kress, 636 N.W.2d 12, 22 (Iowa 2001) (holding defense counsel’s failure

to correct court’s misinformation concerning defendant’s potential

sentence exposure, or to file motion in arrest of judgment raising the

issue, placed counsel below range of normal competency).         Thus, the

defendant has met the first prong in establishing his counsel was

ineffective as a matter of law.

        Nevertheless, even though defense counsel failed to perform an

essential duty, on this record Berg has not established as a matter of law

that he was prejudiced by his counsel’s failure. As we have repeatedly

held,

        a defendant who relies on an ineffective-assistance-of-
        counsel claim to challenge the adequacy of a guilty plea has
                                      7
      the burden to prove “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.”

Bearse, 748 N.W.2d at 219 (quoting Straw, 709 N.W.2d at 138).

      Here, Berg did state at the reconsideration hearing that had he

been aware the one-third mandatory minimum could be waived he would

not have entered into the plea agreement. However, no further inquiry

was made regarding what evidence, if any, Berg had that would support

his claim that he would have refused the offered plea agreement and

insisted on going to trial.    We noted in Straw that “most claims of

ineffective assistance of counsel in the context of a guilty plea will require

a record more substantial” than the record available on direct appeal.

709 N.W.2d at 138. In the absence of an adequate record in that case,

we concluded the claim had to be preserved for postconviction relief

proceedings. Id. The same conclusion is warranted here. Because Berg

has raised no additional claims, we affirm the district court judgment

and    preserve    Berg’s   ineffective-assistance-of-counsel     claim    for

postconviction relief proceedings.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      This opinion shall not be published.
