                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0822
                               Filed July 22, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH EARL HUPP JR.,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Karen A. Romano

(guilty plea, motion to continue), Judge, and James D. Birkenholz (sentencing),

District Associate Judge.



      Defendant appeals his conviction, based upon his guilty plea, to domestic

abuse assault causing bodily injury. AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Bridget A.

Chambers, Assistant Attorneys General, John P. Sarcone, County Attorney, and

Shannon Archer, Assistant County Attorney, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SACKETT, S.J.

      Defendant Joseph Hupp appeals his conviction, based upon his guilty

plea, to domestic abuse assault causing bodily injury. Hupp claims he received

ineffective assistance because his defense counsel did not file a motion in arrest

of judgment.   We determine the present record is not adequate to address

Hupp’s claim of ineffective assistance and preserve the issue for possible

postconviction proceedings. We affirm Hupp’s conviction.

I.    Background Facts and Proceedings

      Hupp and his wife were separated, but still married to each other, when he

broke out the windows of her vehicle with a flashlight, causing her lacerations

from the broken glass. Hupp was charged with domestic abuse assault causing

bodily injury, in violation of Iowa Code section 708.2A(2)(b) (2013), a serious

misdemeanor. Hupp filed a written guilty plea on March 19, 2014.1 The district

court accepted the plea.

      At the time set for the sentencing hearing, defense counsel stated Hupp

wanted to withdraw his plea on the ground that it was not knowing and voluntary.

Defense counsel stated Hupp entered his guilty plea based on his understanding

that if the case proceeded to trial his wife would testify, but subsequent questions

arose as to whether the wife would have testified at trial.       He asked for a

continuance of the proceedings. The district court entered an order giving Hupp



1
    The parties entered into a plea agreement whereby Hupp would plead guilty to
domestic abuse assault causing bodily injury and be sentenced to one year of
incarceration, which would be served concurrently with his sentence for a different
offense. Another charge would be dismissed at sentencing as long as Hupp did not
violate a no-contact order and did not pick up any new criminal charges.
                                          3



until May 6, 2014, to file a motion in arrest of judgment and continuing the

sentencing hearing.

       Defense counsel did not file a motion in arrest of judgment. On May 14,

2014, Hupp was sentenced to incarceration for one year.            He now appeals,

claiming he received ineffective assistance of counsel.

II.    Standard of Review

       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

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).

III.   Merits

       Hupp claims he received ineffective assistance because defense counsel

did not file a motion in arrest of judgment, despite obtaining a continuance for the

purpose of filing such a motion.2 He contends his guilty plea was not voluntary

and intelligent because he was misled by the State about whether his wife was

prepared to testify if the case went to trial. He states there is a likelihood his wife

would have decided not to testify because she was operating a motor vehicle

while intoxicated at the time of the incident. He also states she engaged in

assaultive behavior toward him. He asserts that if the case went to trial and his

wife did not testify, he would not have been convicted. Hupp contends defense


2
  Hupp makes an argument that if a motion in arrest of judgment had been filed on April
29, 2014, it would not have been untimely under Iowa Rule of Criminal Procedure
2.24(3)(b). The issue is irrelevant, however, because the court granted Hupp until May
6, 2014, to file a motion in arrest of judgment. See Iowa R. Crim. P. 2.24(4)(a).
                                         4



counsel should have filed a motion in arrest of judgment so that he could

withdraw his guilty plea.

       A court may accept a guilty plea if it “is made voluntarily and intelligently

and has a factual basis.” Iowa R. Crim. P. 2.8(2)(b). In order for a guilty plea to

be valid under the Due Process Clause, the plea must be voluntary and

intelligent. State v. Speed, 573 N.W.2d 594, 597 (Iowa 1998). “If a plea is not

intelligently and voluntarily made, the failure by counsel to file a motion in arrest

of judgment to challenge the plea constitutes a breach of an essential duty.”

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

       There is not a sufficient record in the present case for us to address

Hupp’s claim of ineffective assistance of counsel. There is no information as to

why defense counsel did not file a motion in arrest of judgment after obtaining a

continuance for filing the motion. In addition, there is no evidence as to what

Hupp’s wife communicated to her attorney or the prosecutor about whether she

intended to testify, or what the prosecutor communicated to Hupp. Where we are

unable to address a claim of ineffective assistance of counsel based on the

existing record, we must preserve the issue for possible postconviction relief

proceedings. See State v. Vance, 790 N.W.2d 775, 790 (Iowa 2010). In its

appellate brief, the State argues this issue should be preserved.

       We affirm Hupp’s conviction for domestic abuse assault causing bodily

injury. We preserve his claim of ineffective assistance of counsel for a possible

postconviction relief proceeding.

       AFFIRMED.
