                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1851
                             Filed November 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALFRED JOE RAY GOMEZ,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley,

District Associate Judge.



       Alfred Joe Ray Gomez appeals the judgment and sentence entered upon

his conviction of operating a motor vehicle while under the influence, third offense,

as an habitual offender. CONVICTION AFFIRMED. SENTENCE VACATED.

CASE REMANDED FOR RESENTENCING.



       Matthew R. Metzgar of Rhinehart Law, PC, Sioux City, for appellant.

       Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



       Considered by Bower, P.J., McDonald, J., and Carr, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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CARR, Senior Judge.

       Alfred Joe Ray Gomez appeals the judgment and sentence entered after

he entered an Alford1 plea to operating a motor vehicle while under the influence

(OWI), third offense, as an habitual offender. See Iowa Code § 321J.2 (2016); see

also id. §§ 902.8, 902.9(1)(c) (providing minimum and maximum sentences for

habitual offenders). He contends his trial counsel was ineffective in failing to file a

motion in arrest of judgment challenging the knowing and voluntary nature of his

plea. He also contends the court abused its discretion in sentencing him according

to the habitual-offender enhancement.

       I. Plea Proceeding.

       Gomez first challenges the knowing and voluntary nature of his plea.

Because he did not challenge his plea by motion in arrest of judgment, he raises

this claim as one of ineffective assistance of counsel. See Iowa R. Crim. P.

2.24(3)(b) (stating that a defendant’s failure to challenge the adequacy of a plea

proceeding by motion in arrest of judgment shall preclude the defendant’s right to

assert such challenge on appeal); State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006) (noting a defendant’s failure to file a motion in arrest of judgment does not

bar a challenge to a plea if the failure to file a motion in arrest of judgment resulted

from ineffective assistance of counsel). We review this claim de novo. See Straw,

709 N.W.2d at 133.

       In order to establish a claim of ineffective assistance of counsel, a defendant

must show “(1) his trial counsel failed to perform an essential duty, and (2) this


1
  North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding “express admission of
guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty”).
                                             3

failure resulted in prejudice.” Id. (citing Strickland v. Washington, 466 U.S. 668,

687-88 (1984)). Counsel breaches an essential duty by failing to file a motion in

arrest of judgment when a defendant’s plea was not knowing and voluntary. See

id. at 134. Prejudice is established if the record shows a reasonable probability

that the defendant would not have entered a plea and would have insisted on going

to trial if counsel had not breached that duty. See id. at 138 (citing Hill v. Lockhart,

474 U.S. 52, 59 (1985)). “Failure to demonstrate either element is fatal to a claim

of ineffective assistance.” State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

        Iowa Rule of Criminal Procedure 2.8(2)(b) states that before accepting a

plea, the court must inform the defendant of, and ensure the defendant

understands, the following to determine the plea is made voluntarily and

intelligently:

                 (1) The nature of the charge to which the plea is offered.
                 (2) The mandatory minimum punishment, if any, and the
        maximum possible punishment provided by the statute defining the
        offense to which the plea is offered.
                 (3) That a criminal conviction, deferred judgment, or deferred
        sentence may affect a defendant’s status under federal immigration
        laws.
                 (4) That the defendant has the right to be tried by a jury, and
        at trial has the right to assistance of counsel, the right to confront and
        cross-examine witnesses against the defendant, the right not to be
        compelled to incriminate oneself, and the right to present witnesses
        in the defendant’s own behalf and to have compulsory process in
        securing their attendance.
                 (5) That if the defendant pleads guilty there will not be a further
        trial of any kind, so that by pleading guilty the defendant waives the
        right to a trial.

        The district court engaged Gomez in a plea colloquy for OWI, third offense,

with the habitual-offender enhancement. He claims the court failed to advise him

of (1) the elements the State was required to satisfy in order to prove the existence
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of prior convictions, (2) his trial rights with regard to proving the prior convictions,

and (3) his right to challenge a finding of prior convictions with a motion in arrest

of judgment. He presents his claims as a challenge to the habitual-offender

enhancement. As explained below, applying the habitual-offender enhancement

to a conviction for OWI, third offense is an illegal sentence.          Therefore, his

challenge to the plea colloquy as it relates to the habitual-offender enhancement

is moot. However, his challenge to proving the existence of prior convictions

survives for purposes of the OWI, third offense conviction.

       Even if we presume the colloquy was deficient for the OWI, third offense

conviction, the record is insufficient for us to conclude that, but for the deficiency,

Gomez would have insisted on trial rather than entering his plea. See Straw, 709

N.W.2d at 133; see also State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006) (“Only in

rare cases will the trial record alone be sufficient to resolve the [ineffective-

assistance] claim on direct appeal.”); Straw, 709 N.W.2d at 138 (“[M]ost claims of

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

more substantial than the one now before us.”). Therefore, we preserve his

ineffective-assistance claim for purposes of the OWI, third offense conviction for

potential postconviction proceedings.

       II. Sentencing.

       Gomez also challenges his sentence under the habitual-offender

enhancement.      He argues the court abused its discretion in sentencing him.

However, after the parties submitted briefing to us, our supreme court held “the

habitual offender provisions in sections 902.8 and 902.9 do not apply to OWI, third

and subsequent offenses.” Noll v. Iowa Dist. Court, ___ N.W.2d ___, ___, 2018
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WL 5090781, at *1 (Iowa 2018); see also id. at *4 (“This holding applies

retroactively to all persons sentenced under the amended statute.”). Our supreme

court has directed us to correct an illegal sentence when it comes to our attention.

See State v. Young, 292 N.W.2d 432, 435 (Iowa 1980); see also State v. Gordon,

732 N.W.2d 41, 43 (Iowa 2007) (“Because an illegal sentence is void, it can be

corrected at any time.”). Therefore, applying the habitual-offender enhancement

to Gomez’s conviction for OWI, third offense is an illegal sentence not authorized

by statute. We vacate his sentence and remand for resentencing.

      III. Conclusion.

      We preserve Gomez’s ineffective-assistance claim for purposes of the OWI,

third offense conviction for potential postconviction proceedings. His ineffective-

assistance claim for purposes of the habitual-offender enhancement is moot.

Applying the habitual-offender enhancement to his sentence for OWI, third offense

is not authorized by statute. Accordingly, we vacate his sentence and remand for

resentencing.

      CONVICTION AFFIRMED. SENTENCE VACATED. CASE REMANDED

FOR RESENTENCING.
