                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1909
                             Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DUSTIN LEVI VOS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Randy V. Hefner,

Judge.



      A defendant appeals challenging the knowing and voluntary nature of his

guilty plea. AFFIRMED.



      Patrick W. OʼBryan of O’Bryan Law Firm, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines and Kevin Cmelik,

Assistant Attorneys General, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
                                           2


VOGEL, Judge.

       Dustin Vos pled guilty to possession with the intent to deliver five grams or

less of methamphetamine, in violation of Iowa Code section 124.401(1)(c)(6)

(2015). As a result of his plea, his probation was revoked with respect to his

earlier conviction for assault causing injury and second-degree harassment. Vos

received a sentence of ten years in prison, with a one-third mandatory minimum,

to be served consecutively to the two-year sentence imposed on the earlier

conviction.

       He appeals, contending he received ineffective assistance of counsel

because counsel failed to challenge his guilty plea by a motion in arrest of

judgment alleging his plea was not knowingly and voluntarily entered.

Specifically, he claims counsel “did not adequately explain things to him prior to

the plea he entered,” and “there was no inquiry made during the plea proceeding

concerning whether or not the prescription medication [he] was taking impeded

his ability to fully understand the plea . . . and the rights he was giving up by

waiving the use of a presentence investigation.”1 He claims it was incumbent

upon the court to inquire whether the medications would impair his ability to

understand the proceeding.2



1
   We note the court did inquire as to the medication Vos was taking and the medical
conditions the medication was intended to address.
2
   Vos also claims that because his guilty plea to the possession charge was invalid, his
probation revocation is likewise invalid. The appeal from the probation revocation was
given a separate appellate docket number. That matter is not before this court because
it was dismissed by the supreme court due to a lack of subject matter jurisdiction. There
is no appeal as a matter of right from an order revoking probation; the revocation of the
probation can only be reviewed through a postconviction relief action. See State v.
Allen, 402 N.W.2d 438, 441 (Iowa 1987) (“We have stated that probation revocation can
be challenged only by application for postconviction relief and not by direct appeal.”).
                                         3


       The premised error is based solely on the court’s lack of inquiry—the lack

of a question from the court to Vos regarding whether the medication affected his

ability to comprehend. Absent from his brief is any claim that this medication can

affect his ability to understand or that he did not knowingly and voluntarily enter

the guilty plea because he did not understand some aspect of the guilty plea

proceeding.    See Castro v. State, 795 N.W.2d 789, 795–96 (Iowa 2011)

(providing a defendant needs an expert medical opinion to address the effect the

medication may have had on the voluntariness of the defendant’s guilty plea).

He further makes no claim that he would have insisted on going to trial had he

understood some previously unknown aspect of the guilty plea proceedings or an

unknown consequence of pleading guilty. See State v. Straw, 709 N.W.2d 128,

138 (Iowa 2006) (noting “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 order to establish prejudice for an

ineffective-assistance claim to challenge a guilty plea).

       However, such a claim must be preserved for postconviction relief

because the record is not adequate, and we may not rule on the merits of a claim

without an adequate record or penalize Vos for inadequate briefing of the claim

on direct appeal.    See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010)

(stating defendants, on direct appeal, “are not required to make any particular

record in order to preserve the claim for postconviction relief” and when the

record is inadequate to address the claim, “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 Vos’s conviction for possession with the intent
                                          4


to deliver five grams or less of methamphetamine, and we preserve his challenge

to the guilty plea for postconviction-relief proceedings.

       AFFIRMED.
