                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1953
                              Filed June 29, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GREGORY C. CANADAY,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark R. Fowler,

District Associate Judge.



      Defendant appeals his conviction and sentence for public intoxication,

third or subsequent offense. AFFIRMED.




      Les M. Blair III of Blair & Fitzsimmons, P.C. Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Defendant Gregory Canaday appeals his conviction for public intoxication,

third or subsequent offense. We determine the district court did not abuse its

discretion in sentencing Canaday to 365 days in the county jail, with the condition

the sentence would be reconsidered upon completion of a jail-based substance

abuse treatment program.           We determine Canaday’s claims of ineffective

assistance     of   counsel     must   be   preserved   for   possible   postconviction

proceedings. We affirm Canaday’s conviction and sentence.

       I.      Background Facts & Proceedings

       On August 3, 2015, Canaday was charged with public intoxication, third or

subsequent offense, in violation of Iowa Code section 123.91(2) (2015), an

aggravated misdemeanor. He completed a residential treatment program after

he was charged.

       On November 13, 2015, Canaday signed a written plea of guilty to the

charge. He signed his initials next to the statement, “A plea agreement in my

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

signed.     I understand that any plea agreement is not binding on the Court.”

Canaday’s initials also appear next to the following handwritten statements on

the written guilty plea form:

       365 days jail all suspended
       $625.00 fine – suspended
       successful completion of Substance Abuse Evaluation and all
       recommended treatment a condition of probation
       enter [unknown] for all owed moneys
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The written guilty plea was also signed by Canaday’s defense attorney.        A

memorandum of plea agreement is not found in the record.

      During a hearing held on November 13, 2015, there was no mention of a

plea agreement. Canaday entered a guilty plea to public intoxication, third or

subsequent offense, and the court accepted his plea. Canaday asked to be

sentenced immediately. The State recommended 365 days in the county jail,

with the condition the sentence could be reconsidered if Canaday successfully

completed the jail-based substance abuse treatment program. Defense counsel

pointed out Canaday had just completed a residential treatment program and

asked for probation so Canaday could attend an extended outpatient program.

The court sentenced Canaday to 365 days in jail, with the condition the sentence

would be reconsidered when he completed the jail-based substance abuse

treatment program. Canaday appeals.

      II.    Sentencing

      Canaday claims the district court abused its discretion by sentencing him

to 365 days in the county jail instead of ordering a suspended sentence. He

states he had just completed a residential treatment program and needed to

participate in an extended outpatient program. He states the court was requiring

him to complete the program he had just completed, rather than permitting him to

progress in his treatment.

      On appeal, we review a defendant’s sentence for the correction of errors

at law. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). When a sentence is

within the statutory limits, we determine whether the court has abused its
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discretion. Id. “An abuse of discretion will only be found when a court acts on

grounds clearly untenable or to an extent clearly unreasonable.”         State v.

Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).

      The court sentenced Canaday to 365 days in the county jail, with the

condition the sentence would be reconsidered upon completion of the jail-based

substance abuse treatment program. The court noted Canaday could have been

sentenced to up to two years in prison but found the record showed Canaday

needed treatment. The court stated, “I know you engaged in treatment, but we

have to make sure you stay in treatment and not incur any further law violations.”

The court informed Canaday he would be released once he completed treatment.

We determine the district court did not abuse its discretion in sentencing

Canaday, who had several previous convictions for public intoxication.

      III.   Ineffective Assistance

      Canaday raises two alternative arguments in his claim of ineffective

assistance of counsel.    He claims either he received ineffective assistance

because defense counsel did not object to the State’s failure to abide by the

terms of the plea agreement regarding sentencing or he received ineffective

assistance because defense counsel misled him as to the terms of the plea

agreement. The State responds the record does not show there was a plea

agreement.

      We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform
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an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “We will address

on direct appeal claims of ineffective assistance of counsel only if we determine

the development of an additional factual record would not be helpful and these

elements can be decided as a matter of law.” Id.

      We cannot determine from the present record whether there was a plea

agreement, and if there was a plea agreement, whether the State breached the

agreement by failing to make a sentencing recommendation in accordance with

the agreement.    See State v. Bearse, 748 N.W.2d 211, 215-16 (Iowa 2008)

(noting a “fundamental component of plea bargaining is the prosecutor’s

obligation to comply with a promise to make a sentencing recommendation”).

Furthermore, the record is not adequate to determine whether Canaday was

misadvised by defense counsel prior to entering a guilty plea. We determine

Canaday’s claims of ineffective assistance of counsel must be preserved for

possible postconviction proceedings.

      We affirm Canaday’s conviction and sentence.

      AFFIRMED.
